Oops! Construction Warranty on New $100 Million School Covers One Year, Not Two

Forced into a corner, Emeryville School Superintendent John Rubio reveals construction warranty ends in a 

matter of months.

By Lillian Schroth

Emeryville School Superintendent John Rubio notified the School Board and City Council Monday that the construction warranty on the city’s new $100 million school campus – plagued by ongoing construction problems since it opened last fall – expires in just a few short months.

This despite repeated public assurances from Rubio and the liaison for builder Turner Construction that any problems with the city-school project, known as the Emeryville Center of Community Life (ECCL), would be covered under warranty through 2018.

Superintendent John Rubio
Claims he "just found out."

Perhaps more surprising is Rubio’s failure to notify the School Board and City Council sooner. Despite the looming deadline, and a long list of needed repairs, Rubio sat on the information for weeks. In fact, he shared the news only after repeated questioning from this reporter, saying he "just found out."

Rubio disclosed the truth Monday night after a meeting of the Measure J Citizens Oversight Committee (COC), which is charged with monitoring school project expenditures. After the meeting, several COC members were questioned about significant, ongoing issues with the building. COC member Josh Simon, former Emeryville School Board President and director of a non-profit that builds affordable housing, said it was important that the district submit a “warranty list” within year one of the warranty to ensure repairs are made.

When asked when that first year of the two-year warranty was up, Rubio said he wasn't sure. When pressed, he said “I think” the entire warranty is actually only one year (not two) from the time construction was completed last fall. He also suggested that the warranty period might be different for different buildings. For example, the gym was the first building to be completed, he said, so the warranty for that would expire first.

When asked if he had told the School Board, he said “I think I told one or two members.”

Shortly after the Monday evening discussion, Rubio sent an email to the entire School Board and City Council notifying them of the update. He explained there had been a "miscommunication" around the length of the warranty.

“It’s Kind of a Big Mistake”

Rubio insisted that he had “just found out,” as did John Baker of Swinerton Construction, the high-priced middle man between the School District and Turner. Baker was tasked with monitoring, negotiating, and communicating construction details and costs. The School District recently closed out the Swinerton/Baker contract for more than $1 million.

“It’s kind of a big mistake,” Rubio said Monday of Baker’s failure to know and/or communicate the limited warranty period.

In a follow up email exchange today, Rubio explains:

I didn’t recall specifically how this came to light so I went back to search my email and discovered it was a conversation that you actually prompted in mid-May as an email question to John Baker.
This resulted in a conversation between him and Turner, where Turner told John Baker it was a 1 year warranty.
That later resulted in another response that Swinerton disagreed and had different documents that showed 2 years.
I asked an attorney who reviewed their email (and … was involved in the ECCL construction contract negotiations between the city, district and Turner in 2014), and he was able to identify and confirm that outside of items specifically calling for longer warranties (e.g. the roof), all other areas fall under a one year warranty. 

John Baker, the $1 Million Man
Despite his very expensive advice and
monitoring, the School District
suffered costly mistakes.
Perhaps he was one of them.

John Baker’s May 19th response to the email question cited by Rubio above: “The warranty started at Final Completion (12/5/16). The Lease-leaseback contract stipulates a 2-year warranty period.” He never followed up with the public, the School Board or the City Council, when he realized his mistake.

It is possible that Baker, and perhaps Rubio, knew much sooner. During a March 25 School Board meeting, Baker presented a slide that showed the warranty expiring at the end of this year. Rubio nor the School Board questioned it. When a local resident did, Baker said it was a “typo.”

In a series of progress reports to the Board prior to March, Baker said the project was covered under a two-year warranty.

In an email sent today, Rubio said “city staff and I have confirmed that the warranty period allows us to submit items up until 12/5/17.”

He added, “It’s my understanding that the standard for construction projects of this size only usually have a 1-year warranty.”

Two Year Warranty(?)
John Baker presentation slide to the School Board
August 24th, 2016

He said there are several items that have longer, manufacturer warranties including door hardware and “Package Terminal” air conditioners.

Two Year Warranty(?)
John Baker presentation slide to the School Board
January 25th, 2017

Following are Rubio’s email answers to questions about the warranty period, the warranty list, including rusting gates, and a possible audit of Measure J/ECCL funds. (The exchange has been edited down for readability.)

Q: When did you make the call on the metal to be used on the gates? … So, you got ungalvanized when it was supposed to be galvanized?

A: I am upset by this issue. The city and district had a long list of items we considered to save money. It was not, unfortunately, ever pointed out to me or the city staff that the original gates/gate design came back into the project (and I believe off of the budget savings list) in a different form that meant that they would not be galvanized – and more importantly, no one explained or communicated the implications or importance of this. In other words, I don’t believe I was ever specifically asked to make a decision about the gates as one particular item (i.e. they were part of a very long list of potential savings items), and certainly I wasn’t informed of the pro’s or con’s (or any information that I recall) regarding this. If you were told otherwise, I think that’s false. Turner is being responsive to this issue and they are returning in the next couple weeks to redo the gates.

Q. How much did we pay John Baker and what was his formal job title/role/responsibility?

A. I am not aware of his salary – or what other projects or jobs he managed besides ECCL during our project. The overall budget for everything going into this project seemed to me to be always set to be as low as possible to attempt to keep the project below a specific amount the council had in mind for several years – that seemed to be the mindset when I arrived - the problem (or reality) was that the economy and thus bay area construction costs were quickly going up when the project was finally approved in August of 2014 – so the amount paid to Swinerton, Turner, and all the subs I think created some limitations to the amount of time and staff (and design) of the project.

Q. One more thing - you said you were organizing some kind of meeting with all the people involved in the project - architects, turner, etc. What is the purpose and what school board meeting is it scheduled for? Are you thinking this is in place of an audit?

A. I haven’t made progress on this yet, but I was planning on having all of the entities present to the board and take questions so the board could determine if they believed an audit was needed. 

                                                                                                        

Lillian Schroth is a journalist, activist and founder/editor of The Secret News, a local blog (currently on hiatus).  She has lived in Emeryville for 14 years.

School Board Member Alleges Possible Malfeasance at ECCL

Donn Merriam Cries Foul on Turner Construction:  We Paid for EMT But 

We Got MC

Turner Construction, the firm contracted by the Emery Unified School District to build the Emeryville Center of 'Community' Life, might have bilked the taxpayers by cutting corners and not providing agreed upon electrical wiring according to School Board member Donn Meriam in a surprise statement he made to his colleagues and attendees at the regularly scheduled Wednesday night Board meeting.  Mr Merriam, an architect by trade, alerted his colleagues to a seemingly untoward situation at the construction site of of the schools/community center rebuild project on San Pablo Avenue noting sub par electrical wiring "on the entire campus" adding, "I can't understand how it got passed".  He said Turner Construction had not installed conduit for the wiring as the plans call for but instead they have installed 'MC cable', a much cheaper alternative.

School Board Member Donn Merriam
"I looked at the documents and
it says it should be installed conduit".

John Baker and his employer Swinerton Builders, Emery's representative paid as a go-between the District and Turner, told the Board the lower quality MC wiring installed at the site might have been as a result of a 'value engineering' attempt initiated by Emery to lower costs from an earlier date, a "decision made before Swinerton came to the project" he said.  It was not immediately clear if that is true and Schools Superintendent John Rubio told the Tattler he promises to look into the matter.

Mr Merriam, who ran for the School Board as an expert on such matters, told the Board he was concerned because MC cable is lower quality and "a lot easier to install" and would have saved Turner "hundreds of thousands of dollars in labor and materials".

John Baker of Swinerton Builders
Emery School District paid $1.3 million
for his construction expertise to serve
as an overseer to the General Contractor
Turner Construction's work at the ECCL.

Conduit, also called EMT, is advantageous because among other things, it enables future electricians to pull more wires through the pipe for an upgrade or remodel, something likely to be needed over the 50 year expected life span of the ECCL buildings.  With MC cable, any such upgrade will require walls to be torn into, a much more expensive undertaking.

If it is revealed that Turner did fail to provide the proper electrical wiring for the Center of 'Community' Life as Mr Merriam alleges, it is not clear what options Emery would have since the District signed a lease lease-back agreement with Turner.   This arcane construction legal agreement while having some advantage for both sides, is restrictive as far as any recourse the District might have owning to the fact that such an agreement gives Turner (temporary) ownership of the project.

The Tattler will follow and report this potentially explosive story as it develops.

MC Electrical Cable
AKA Metal Clad
A cheaper alternative.

EMT Electrical Conduit
AKA Electrical Metal Tubing
More expensive and better.

People of Emeryville Pay Swinerton $1.2 million For What?

Swindled By Swinerton

Shame on Swinerton?  Sure But Even More, Shame on the City Council (& School District)

News Analysis/Opinion
$1.2 million.  That's quite a bit of money for a town the size of Emeryville.
It's how much the people of Emeryville are paying to make sure the builder of the Center of 'Community' Life, Turner Construction, doesn't rip us off.  That's a lot of money but for a $100 million+ project, it seems like a prudent and reasonable expenditure.  After all, if our interests aren't assiduously looked out after, Turner Construction, ever mindful of its bottom line and its shareholder's demands for maximum returns on their investment, could cut corners and we'd be on the loosing side.
So the School District has hired another construction firm, Swinerton Builders, to oversee Turner and represent our interests.  Swinerton is supposed to report back to the City Council and the School Board and provide helpful information.  But if Swinerton isn't on the up and up, we will have wasted $1.2 million of taxpayer money.

And that's exactly what has happened.

Swinerton has taken our money and they've been representing not our interests, rather, they've been representing Turner's interests.   That's quite a charge...but that's exactly and demonstrably what they've been doing.  Swinerton works for Turner and Turner works for their shareholders...and us?  Who works for us?  We're the deep pockets, we pay the bills.

Two recent issues highlight the breakdown here; the issue of the community pool and the issue of a recent Turner request for a noise waiver, relief from the constraints of our Noise Ordinance.

They're Not Working For Us
The community pool fiasco has been previously reported on by the Tattler, but for sake of illustrating how Swinerton is not working for us, the salient point is that Swinerton used the issue to make excuses for Turner for the 200% cost overrun there.  What we didn't hear from Swinerton is how we (the City of Emeryville and the School District, the owners of the community pool) could use what contractual leverage we have to effect a better outcome for us.  Instead, Swinerton simply reported the problem, stated Turner's reasons for why we need to pay more than twice what they originally said we would need to pay, and then Swinerton recommended we pay the higher amount.  Swinerton's loyalty, shamelessly fell on the side of Turner, a fellow builder.  

Again, They're Not Working For Us
And then there's last Tuesday's performance by Swinerton.
Turner is under contractual obligation to finish the Center of 'Community' Life on time.  If they fail to meet the deadline, there will be financial penalties.  It's standard contractual stuff.  So Turner has an interest in making sure they finish on time.  They came before the City Council on Tuesday requesting permission to work starting now, on Saturdays.  But the contract doesn't provide for that and Emeryville's Noise Ordinance forbids it specifically.
And so Turner is seeking some padding in their schedule to make sure they'll finish on time, hence their request for a waiver from the Noise Ordinance.  Actually, Turner didn't even ask themselves, rather they sent their colleagues at Swinerton to ask for them.  The City Council granted a waiver but the point here is not whether the people of Emeryville have interest in giving Turner more time to assure the project will finish on schedule, the issue is that Swinerton didn't inform the Council where their (the Council's) leverage lies.

Oops!  They misspelled their 
own name in their logo: 
Make that 'Swindleton' Builders

If Swinerton were working for us, they would have explained how the City Council could use their leverage over Turner to extract concessions in trade for the noise waiver.  But Swinerton isn't working for the people of Emeryville, they're working for Turner Construction (and collecting our $1.2 million for their efforts).

Turner Construction is a publicly traded corporation.  They're in the business of looking out after their shareholder's interests.  That's how it's supposed to be.  But conversely, our City Council and our School Board is supposed to be looking out after OUR interests.  That's how it's supposed to work.  Turner would never give anything to us for free.  We wouldn't expect that and their shareholders would be understandably up in arms.  But neither should we expect our representatives to give Turner anything away free.  We have something the profit seeking corporation wants: the ability to disrupt our peaceful Saturdays.  We should negotiate with the corporation.  Give away our peaceful Saturdays, fine.  But get something in our interest in return.  We don't send representatives to City Council or the School Board to give away our stuff for free.  We expect them to work for us just like we expect Swinerton to work for us.  Both Swinerton and the City Council is being paid by us after all.  What happened to 'fee for services rendered'?

Where Does the Allegiance Naturally Fall?
Swinerton has allegiance in this equation, to Turner.  That's not surprising.  These contractor builder developer corporations look out for each other.  In San Fransisco right now Turner Construction is being paid to be the overseer to Webcor Builders for the massive Transbay Terminal project. And Webcor is likely overseeing a different contractor elsewhere.
Here, the City/Schools in Emeryville has a 'one off' relationship with Swinerton.  But Turner and Swinerton have an ongoing business relationship.    In Emeryville Swinerton is overseeing Turner now.  But next year perhaps it'll be Turner overseeing Swinerton in a different project in a different town.  That what these guys do. They trade places with each other as paid consultant overseers.  It's a very cozy business relationship and in Emeryville it's costing us $1.2 million.
It's cozy and it's also highly lucrative.  Swinerton is paying one person to be the liaison between Turner and the City/Schools.  Probably paying him $100,000 or so.  The rest of the $1.1 million is pure profit for Swinerton.  It's a nice gig if you can swing it.  And Swinerton (this time) can swing it.  Maybe next time it'll be Turner on the receiving end of the rotating door.

We don't expect Council members Nora Davis or Ruth Atkin to demand the people's interests be looked out for.  That wouldn't be in their character.  They've always sided with the developers over the residents in our town.  But the new progressive Council majority?*  This is unexpected.  Come on guys.  This isn't why we elected you.  Do your job.  We want our interests represented at City Hall.

* Councilwoman Jac Asher was absent Tuesday 

Breaking News: New Delay at Center of 'Community' Life (Again)

High School Won't Be Ready 

City/Schools Committee Learns (for Third Time)

Unknown Where Students Will Be 

Come Spring 

Tonight a representative of Swinerton Builders, the paid liaison between the City of Emeryville and Emery School District and Turner Construction, the builder of the Center of 'Community' Life (ECCL) told the City/Schools Committee the high school under construction at the San Pablo Avenue site will now not likely be ready until fall 2016, the third announced delay for the school in recent months.  This most recent delay, coming a mere three weeks after the last announced delay, puts the high school part of the ECCL a year behind schedule.

Using cagey and indirect speech, John Baker, Swinerton's intermediary, said the school building would be "substantially" finished by March, a reversal from early October when he announced the only thing not completed at the high school by Turner would be the elevator but that would be ready by March.  Oakland Unified School District indicated at that time Emery Unified would not be permitted to rent Santa Fe after March since they plan a remodel of their school to ready it for their own students next fall.  As of now, it is unknown where Emery High School students will be going to school next spring but Superintendent Rubio told the City/Schools Committee tonight he was busy trying to convince Oakland to let Emery continue renting until the end of the school year early next summer.

The City and the School District have a $1.2 million contract with Swinerton Builders to represent the people's interest and to oversee Turner Construction.

The whole ECCL, high school, elementary school, pool and community center originally was supposed to be completed in 2015.

Community Swimming Pool 2x Over Budget, Behind Schedule

School District Bungles Emeryville's Community Pool

Four Months Late

$700,000 Initial Price Balloons to Almost $2 Million

Emeryville's community swimming pool, a joint use facility located at the Center of 'Community' Life (ECCL) construction site and used by the Emery School District and the entire Emeryville community, is now projected to cost more than double original claims and will be finished well past its original time line schedule according to a representative for the City and School District.  John Baker of Swinerton Construction, the District's and the City's  paid representative overseer of Turner Construction, the ECCL general contractor, told Emeryville's elected officials at a City/Schools joint meeting Thursday night the pool will likely cost nearly $2 million, some $1.3 million more than budgeted, and will not be completed until November, more than four months late.

Mr Baker said the cost overruns can be attributed to Turner Construction not anticipating the need for a more 'robust' filtration system and other obsolete equipment in the existing pool mechanical room.

Remodeling and upgrading the community pool has been part of the ECCL construction project since its inception several years ago, but a shocked City Council and School Board learned Thursday this critical part of the project is not in the construction bid and was instead simply given a cost estimate and folded into the budget.  The ECCL construction bid is subject to hard fast numbers called a Guaranteed Maximum Price (GMP) but the community pool was not included in that metric Mr Baker said.
The project has a set aside contingency fund to handle cost overruns and change orders but the overage at the community pool will virtually wipe out the fund, it was announced.  Presumably, further cost overruns will be covered by the taxpayers as extra costs for the project.

Upon hearing the part of the Center of 'Community' Life that's not protected by a bid guarantee will be more than double what was advertised, several elected officials at the meeting expressed dismay and incredulity, "how convenient" Councilwoman Jac Asher said.   School Board member Christian Patz vowed to get money back, regardless of the bad news, "I Googled 'olympic sized pool cost' and found it should cost around a million dollars, for a new pool" he told the Swinerton representative.

No Community in a Community Pool?
Perhaps the most shocking revelation of the evening was the explanation offered as to why the cost has more than doubled for the pool; Turner Construction, the general contractor and builder of the ECCL from the beginning, did not anticipate the community would use the community pool at the Center of Community Life.  Mr Baker indicated Turner thought the pool was for the School District's exclusive use, not the community's and that's the reason for a much more robust filtration system than had been planned when the costs were first calculated.
Further, apparently nobody at Turner ever bothered to check the existing pool room to confirm the state of the equipment there before the pool cost estimate was prepared.  That outmoded equipment will have to be upgraded for the hard use of a community pool Mr Baker said.  These two reasons were offered to the City Council and School Board as the primary reasons for the more than 100% cost overrun for the pool remodel, double the cost of a new similarly sized pool if Board member Patz is correct.

Emery School District Pays $1.1 Million Dollars for $481,000 of Services

Strange Math at Emery Unified 
School District:

1,100,000 Equals 481,000

Opinion
Look out taxpayers.  The Emery Unified School District is not past being sneaky as they play fast and loose with the purse strings in their quest to service consultants and other vendors associated with the Center of 'Community' Life.
What else could you call it when they elect to task an outside contractor with completing a job, at more than twice the price that would have been paid to two former employees that by all rights should be doing the work?   One thing you could call it is a boon.  A boon to the contractor Swinerton Builders, selected by the School Board, who's going to get $1.1 million for a $481,000 job.

The story surfaced last week when the School District asked the City Council to sign on with them,  the hiring of Swinerton Builders to oversee the work of Turner Construction, the builders of the Emeryville Center of 'Community' Life (ECCL) on San Pablo Avenue.  After the District last January lost its architect and ECCL Project Manager, Roy Miller, the School Board realized they needed to hire someone with construction knowledge to watch Turner Construction to represent the public's interests.  That someone turned out to be Swinerton Builders, a San Francisco based construction firm.  The problem is Swinerton is going to be paid $1.1 million for a two year contract and Roy Miller, combined with his assistant would have cost the School District $481,652 to do the very same work.  Suddenly, the District is paying an extra $618,348 that's gone unexplained.

We were perplexed last fall when the District told everyone the sudden "retiring" of Roy Miller was not going to be a problem.  How could the District justify the loss of the main guy paid to shepherd the ECCL and look out after the public's interests, just as the construction of the thing was ready to begin we wondered.  School Board member John Affeldt went one further, calling the time of Mr Miller's leaving "opportune", raising the absurd notion that the best time for a project manager to quit is just as the project gets started.
Nevertheless, the School District told us a replacement would be hired, someone to oversee the construction.  They just failed to mention it would cost us more than twice the price.

To those wondering whether Swinerton perhaps will do a more complete job overseeing Turner than Mr Miller would have done and the extra costs are therefore justified, City Manager Sabrina Landreth made the District's position clear that for proper oversight, they only require the effort as would be performed by Roy Miller and the former ECCL Project Assistant Wendy Chew.  Ms Landreth put any such notions to rest, "The contract is $1.1 million and is funded from a combination of salary savings from both the District architect and the project assistant that was already budgeted in the project budget" she told the City Council, speaking on behalf of the District.

Here's the breakdown:
Roy Miller salary: $137,000
Total cost to District: $185,266

Wendy Chew salary: $37,000
Total cost to District: $55,560

Roy total cost x two years = $370,532
Wendy total cost x two years = $111,120
Together = $481,652  vs $1,100,000 Swinerton contract
Difference = $618,348

Clearly, there IS a problem when the Project Manager leaves his post just as the project is ready to get started.  And now we know how much of a problem it is: $618, 348 (and counting).

Council Raises Red Flags: Unexpected $1.1 Million Contract for Center of 'Community' Life

Center of 'Community' Life Project Oversight Contract "Awful Expensive" 

Doubts Raised About Whole Project

The Emeryville City Council balked at a recent request for recommending the Emery School District sign a two year contract with a building firm for $1.1 million to oversee the Center of 'Community' Life (ECCL) construction project, a request that drew the ire of the Council members in general and venom from Councilman Kurt Brinkman.  The School District is partnering with the City on the controversial San Pablo Avenue school/community center project and the request at the April 22nd meeting was meant to provide backing for the selection of San Francisco based Swinerton Builders to serve as "owner's representative" for two years overseeing the work performed by chief ECCL builder Turner Construction.  With the January resignation of former District architect and ECCL project director Roy Miller, there is no one left to manage the multi million dollar project, necessitating the hiring of a construction oversight firm to represent the public's interests according to the School District.

The School District request seemed to confuse the Council at first, "We have not received enough information" Nora Davis said upon hearing the request as presented by City Manager Sabrina Landreth but after the $1.1 million price tag was revealed Councilman Brinkman was angered.  He noted he is in the construction trade in his personal life and the request was tantamount to "buying the accessories of a car without knowing what the car is going to cost".  Mr Brinkman was incredulous, "I thought Turner was going to carry the costs of oversight of this [ECCL] project" and "there's not enough teeth to make sure the taxpayers get what they want out of this project".  He added, "At a million dollars, [the Swinerton contract] seems awful expensive to me."

In May, the City of Emeryville is poised to throw in $21 million for its share of the ECCL project, but the $1.1 million Swinerton contract caused the formally supportive Councilman Brinkman to express doubts about the entire ECCL project, "I'm concerned and I don't fully understand what we're getting for our $21 million" he said.

The Council ultimately refused to resolve recommending the Swinerton contract.

Video courtesy of the Emeryville Property Owners Association