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Gaia Building Leaks, Mold Prompt Massive Lawsuit

Tuesday July 20, 2004

Water leaks and subsequent mold contamination have cost the owners of Berkeley’s controversial Gaia building more than $10 million to repair, according to lawsuits filed in Alameda County Superior Court. 

Those diaphanous black shrouds periodically veiling parts of Berkeley’s Gaia Building have offered mute testimony to a welter of lawsuits surrounding the building, which is owned by Gaia Building LLC, a corporate entity managed by developer Patrick Kennedy. 

The owners contend that Berkeley construction firm “Kimes Morris negligently constructed the Gaia Building and negligently supplied material,” rendering the building “susceptible to water penetration” resulting in “damages due to the intrusion of water.”  

According to filings in Alameda County Superior Court, construction flaws have allowed water to leak into the walls, resulting in mold contamination that has required extensive interior and exterior repairs. 

The original March, 2003, suit attached no dollar amounts to the repairs. However, along with lost rents and finance charges on money borrowed to bankroll the repairs, a filing lodged with the court a year later placed the costs at $10,079,000. 

Kennedy’s firm hired Kimes Morris to build the 2116 Allston Way structure on Sept. 6, 1999, agreeing to pay $12,217,141 for the seven-story residential and retail complex. 

According to the complaint filed by Emeryville attorney Robert R. Riggs, although Kimes Morris was notified of the water damage in December, 2002, the firm failed to accept responsibility or “correct its nonconforming work.” 

Kimes Morris, headquartered next door to the Gaia Building at 2134 Allston Way, responded to the suit by denying responsibility for the claims and by filing a cross-complaint against the building’s architect and the subcontractors Kimes Morris hired to build the structure. 

Berkeley City Councilmember Dona Spring, whose district includes the Gaia Building, said she’s had “numerous complaints” from frustrated Gaia renters complaining of leaks and other problem. 

“Tenants said their rugs were being pulled up and then re-laid after absorbent baby diapers were placed underneath, and that their drywall was being replaced,” Spring said. “The worst problems were on the building’s southern side, which is the direction our rains come from.” 

Spring said tenants were afraid to try to break their leases because renters are forced to sign one-year leases which give building management the right to withdraw rent money directly from their bank accounts—blocking any possibility of a rent strike. 

The councilmember said she had asked city Housing Director Steven Barton to inspect all the building’s Section 8 subsidized apartments last spring, “but Kennedy was able to hold him off until summer, after the rainy season had ended.” 

One of those sued by Kimes Morris was Cres DP, Inc., the San Leandro subcontractor which installed both the interior drywall and the exterior stucco—a move that provoked yet another lawsuit. 

That suit by Clarendon National Insurance Company, which carried a $2 million February, 2001, warranty and negligence insurance policy on Cres, asks the court to absolve it from any obligations to either the Gaia Building or Cres because—among other things—Clarendon claims the terms of the policy excluded both stucco work and responsibility for any apartment project of more than 15 units. 

Defective stucco construction has become perhaps the biggest growth sector in construction lawsuits, called by some “the new asbestos”—referring to the multibillion-dollar damage settlements resulting from the frequently fatal health problems resulting from exposure to the once commonly used inside and home siding material. 

Mold problems date back to biblical times, with the Book of Leviticus spelling out remedial procedures for what was then termed “leprosy of the house.” 

The remediation procedures spelled out in Leviticus are much the same as those employed today, calling for removal of the affected building material, its disposal in “some unclean place” outside the city, and installation of new wall materials and coverings. 

For several months last summer and fall, a pile of wood chips next to the Gaia Building contained a warning, advising passersby that the material “may contain mold.” 

Various portions of the building’s stucco and wood backing have been stripped and replaced, in some places up to three times. 

The original complaint, filed in March, 2003, lists seven named and 100 yet to be named Does as defendants. Subsequent countersuits named the insurer and various unnamed Roes and Moes. 

Several defendants have been released, including the roofing and painting subcontractors and a consulting engineering firm, but the principal parties remain. 

Patrick Kennedy had not returned calls to the Daily Planet about the suit by press time.ª