Squeeze Play

A major contractor for Bank One Ballpark has gone to court to obtain construction records for the $360 million stadium.

Perini/McCarthy contends that the Maricopa County Stadium District is refusing to release monthly construction reports prepared by the ballpark's construction manager, Huber, Hunt & Nichols Inc. Perini filed suit against the county last week under the Arizona Public Records Law.

Perini/McCarthy wants the records in conjunction with a $3 million claim it's filed against the stadium district. The claim is related to the construction of the four main towers that support the retractable roof and two 500-foot-long steel trusses.

The company has been seeking the HH&N construction records for the publicly owned stadium since November. The stadium district--which owns the ballpark and leases it to the Arizona Diamondbacks and other users--refused repeated requests to produce the monthly construction reports.

Taxpayers contributed approximately $243 million to the construction of the stadium through a quarter-cent sales tax that expired in December 1997. The Arizona Diamondbacks are responsible for all additional costs. The cost of the stadium has soared above the $280 million estimated when construction began to more than $360 million.

And that price tag could go much higher, leaving the Diamondbacks exposed to another significant outlay.

Last November, another prime contractor, the joint venture of Perini/Tutor Saliba, filed a $34 million lawsuit against the stadium district and the Diamondbacks to recover cost overruns allegedly related to design mistakes and a multitude of change orders. The suit is pending in Maricopa County Superior Court.

Stadium district officials have repeatedly said the district is not responsible for any additional outlays stemming from the contractor claims and lawsuits. Any construction-related settlements, county attorney Paul Golab says, would be paid for by the Diamondbacks.

Nevertheless, some contractors are privately raising concerns that the Diamondbacks may refuse to pay additional claims and may attempt to shift any blame for change orders and design problems to the district.

According to the contract between the stadium district and the Diamondbacks to build the ballpark, the stadium district (which is financed by taxpayers) could be required to pay additional money toward construction only if it can be proved the district interfered with the construction of the project. While such an outcome appears unlikely, the stadium district board remains silent on the lawsuits.

The Maricopa County Stadium District is composed of the five members of the Maricopa County Board of Supervisors--Fulton Brock, Don Stapely, Andrew Kunasek, Janice Brewer and Mary Rose Wilcox. None of the supervisors returned repeated calls seeking comment on the lawsuits.

The Diamondbacks have indicated they intend to pay all legitimate costs associated with construction of the ballpark. The team can tap several financial sources.

The Diamondbacks and the district have a $5 million insurance policy that may provide reimbursement for alleged mistakes that may lead to settlements with contractors.

The team also said last summer that it intends to pay any contractor settlements by either borrowing additional funds or tapping other sources available to the Diamondbacks' ownership consortium that includes about a dozen major corporations.

Stadium district attorney Tom Irvine says the HH&N monthly construction reports provide the district with HH&N's expert assessment of the validity of claims submitted by contractors like Perini/McCarthy, as well as how much the claims may be worth. Until those claims are settled, Irvine says, the HH&N records are confidential.

"The construction manager [HH&N] was the owner's [stadium district] agent. Part of their responsibility was to work with the owner to figure out what's a valid claim, what's an invalid claim," Irvine says. "That type of work is not a public record until the claim is resolved."

Perini/McCarthy argues in its lawsuit that HH&N reports are public because they are directly related to the expenditure of public funds.

"The public has an immense interest in records related to the expenditure of these funds," Perini/McCarthy attorney Michael Holden states in the lawsuit. Holden declined to comment on the suit.

Perini/McCarthy first sought the records on November 2 when its project manager, Ken Schacherbauer, visited district offices inside Bank One Ballpark. According to Schacherbauer's affidavit filed with the lawsuit, stadium district employee Renee Scott at first told Schacherbauer that the records could not be found.

Later, Scott said the records had been located but were considered to be confidential and that Schacherbauer would need to file a public records request, he says in his affidavit.

A hearing in the Perini/McCarthy case is set for 10 a.m. April 9 before Maricopa County Superior Court Judge John Foreman.

Contact John Dougherty at his online address: [email protected]