It’s now a waiting game. The city engineers shuffle paper and contractors sharpen their pencils.

By Pepper Parr

BURLINGTON, ON July 5, 2011 – Marketers and advertisers “position” their products; they decide who they want to sell their soap or toothpaste to and then advertise and market the product to reach the market they have identified. Dove soap is marketed to one audience while Irish Spring is marketed to another.

Politicians do much the same thing, except that they are marketing themselves. Usually a politician will market themselves to as many people as they can in their ward. But if you’re a politician with a net that you want to cast a little wider – then you market yourself to a large audience. You do the same thing with your career. The difference between you and the politician is that the decisions they make are decisions you pay for.

Ward 2 councillor Marianne Meed Ward, who has never wavered from wanting to be Mayor of Burlington, takes positions on issues and asks for recorded votes that position her as a ward politician who is speaking for all the people of Burlington. Another step in the process of positioning herself as a possible mayoralty candidate in 2014 was her request for a recorded vote on the Committee report that came to Council for approval of the plan to spend an additional $5,798,000 to proceed with the completion of the Pier at the foot of Brant Street..

Meed Ward was the only member of Council to vote against the recommendation to approve an increase to $15.7 million to build the Pier from the original $9.6 million in the original approval. This despite being the person who moved adoption of the report at the Committee level, a move that surprised Ward 3 Councillor John Taylor.

Council meetings, as opposed to committee meetings, are pretty short events. Council is there to decide yea or nay on recommendations made at the committee level. Meed Ward moved that the report on the new cost of the Pier be adopted at the Committee level and one would assume that she would support a report she moved when it got to Council.

With Meed Ward saying she would not be supporting the recommendation every Council member weighed in on the issue. Councillor Sharman was blunt and direct when he said: “Fact, the city is not at fault here” and he went on to add: “Fact, we have known there would be increased costs and delays getting this Pier built since December of 2010. Fact, no proposals have come forward other than the proposal from the original contractors insurance company and that proposal was not acceptable. Sharman added that believed the city was doing what it had to do. Councillor Craven said he “was angry with the situation the city was in” and went on to say: “I think I know who is to blame … but we have to be very careful about what we say. Some day however, I will say it. For now modesty is the best approach.”

Craven added that Council meetings are public and the people we are suing watch the cable cast and read the media. “We need to be careful what we say.” Craven is obviously listening to the city’s lawyers.

Earlier in the meeting Councillor Jack Dennison pointed out that the city did nothing wrong. The contractor was on the site building a pier that the city had contracted to have done. The crane toppled”, explained Dennison, then there was a concrete pour that didn’t hold and then we learned that the steel used was under spec and that there were welds that did not meet specifications.

The contractor walked off the job when the city refused to increase the amount they had agreed to pay for the building of the pier. The dispute became a bit of an election issue but the public didn’t really have enough information at the time to decide how they really felt – but they thumped Mayor Jackson nevertheless and the city had a significantly different Council.

The city now had a royal mess on their hands. There was a partially constructed pier and a contractor who walked off the job. What was the city supposed to do? They had a real problem and the only resolution was to sue the contractor and the firm that designed the pier. The city also had to get the construction back in their hands. The contractor walks off the site but that doesn’t mean the city can just walk in and take over. The lawyers spell out the steps that have to be taken. They have to decide who exactly to sue. That got a little complicated because the firm that did the design work had been merged with a much larger firm. Then they have to figure out how much they are suing for and then engage legal counsel to handle the cases for them That took time and it has been expensive.

How expensive ? We don’t know that yet but there will be a loud “ouch” when that figure gets released. Meed Ward believes there is an argument for releasing the legals costs now based on a court case heard recently in Kitchener. Interestingly Meed Ward didn’t issue a staff direction to look into what could be done to get those numbers. Maybe at another meting.

Since then, the city has realized that the dispute resolution process in the contract with the original contractor was not strong enough to allow the city to work out the problems without going to court. For that the city has to be faulted but it is certainly no reason to say the city should not proceed.

Mayor Goldring told Council that a citizen had suggested to him that the city not give the funds given to them by the federal government and the provincial government as well as the Region. THAT is not going to happen on this Mayor’s watch. “we have a moral obligation to return the funds and I don’t want to be part of a Council that plays funny games.”

We now know that Meed Ward doesn’t support the Council’s decision. What isn’t clear is what Meed Ward would do? She offered no course of action other than saying she couldn’t support the spending of more money – even though she had no problem with that decision at the committee level. Looks like a piece of political posturing to me

Meed Ward set out her position on her Facebook page when she said: “Council approves increased budget for pier 6-1. I did not support the re-tendering process because of the enhanced budget and timelines required, so did not vote in favour of the new budget. That said, now that we are on this path, my commitment is to do everything I can to ensure we stick to the new budget and timeline, and continue to release information to the public, including legal fees and staff time.”

Meed Ward dug out the numbers on staff time spent on the project but not charged back to the project. According to her information a total of 1249 hours – for a total of 31 weeks has been spent on this project by senior engineering staff. She now wants to know what the legal bill has come to as well.

Councillor Craven took issue with the stance Meed Ward had taken – claiming she supported the pier, but not the budget. “That’s a cop-out,” he said. “We’re all in this together.”

After council, in a comment to a reporter, Meed Ward said she was just being consistent in her position. “I did not support the re-tendering when it first came to a vote so I cannot now support the enhanced budget for re-tendering,” she said. “That is simply being consistent. He labels that a cop-out. I disagree.”

“We could” said Councillor Sharman, “be nice and take no action and allow the parties who are at fault walk away without being held accountable. The taxpayers would be left paying all the bills.”

The decision to proceed is now official and the completion of tender package preparations goes full tilt. Here is the timeline the city is working to:

• We now have a list of contractors.
• They will each be given the tender package.
• They will take that away and do all their number crunching and come back with their best number.
• The city will open the tenders and the lowest number gets the deal.

 

The city now has a couple of dicey weeks ahead of them. The engineering department, along with the consultants they have hired, pre-qualified 11 contractors who can submit bids to complete the construction of the pier. The city expects that the list will get winnowed down to eight contractors who will be given a tender package. The tender package has all the documents, plans, detailed specifications and anything else a contractor needs to know to be able to submit a bid – saying I will complete the construction of the Pier for xx dollars.

The contractors already know how much the city is prepared to spend – that’s now public information. Each contractor has to look at their costs and submit their best number to the city. The city is obliged to go with the lowest price – that’s what a tendering process is all about.

It was that tendering process that got us into the mess we are in now and many wonder why we are doing the same thing all over again. What’s different this time ? Before getting into the “this time” let me share with you some facts pulled together by my colleague Joan Little of the Spectator who wrote:

In August, 2005 (two councils ago), five bids were received, from $12.5 to $17.7 million; so back to the drawing board. The pier was downsized (again) to 180 metres, then 150, then 112 metres long and 7.5 metres wide, with a $6.2 million budget. The deck, previously steel-framed, was changed to pre-cast concrete.

Three bids, received from pre-qualified contractors in July, 2006, ranged up to $8.4 million. The lowest was from Harm Schilthuis of Ancaster, for $6,782,557.34, including GST, ($6,043,639 without, because municipalities get the GST rebated). So the 2006-2010 council approved about $450,000 extra to extend the length from 112 metres to 132.

The design incorporated 14 caissons, 1.4 metres in diameter, supporting a platform about 5 metres above the water, with a safety handrail, and a lighted beacon 80 metres from shore powered by a wind turbine that would also power the pier’s lights.

It had a floating dock at the end, with a capacity for docking commercial craft such as tour boats, and 22 fair-weather boat slips for day use. It was to open May, 2008, and we read regularly about a $500-per-day late penalty if the contract was not completed on time.

That was before all the problems and lawsuits.

Total financing — including design, engineering and construction — was $8,124,833. The Canada Ontario Infrastructure Program’s share was $4,356,230, Halton region’s $2,500,000, and Burlington Hydro’s $100,000, toward the wind turbine and power system, for a total $4,706,230 in grants from outside sources.

In August, 2008, during the first concrete pour, one of the main steel beams supporting the deck twisted. Two weeks later, a crane capsized onto the pier.

This was followed by blame games: The design was faulty; the contractor was at fault; the subcontractor was at fault.

The only ones who got rich since then were lawyers, as everyone sued everyone else. Zurich, the bonding company, would not pay, but this April made a proposal of some kind that council rejected. An update was provided at the last community services committee, but there has been so much “in camera” on this project that it’s hard to piece together the whole story, and the numbers.

The project is now different (smaller), more costly, and has four new consultants. New drawings are nearly complete for a revised pier, with a tender call scheduled for mid-July, closing mid-August, with the contract award late September. Completion would be the end of 2013.

Gone is the floating dock with the day slips. The report proposes ordering 12 new pier lights, because only nine of the original 12 had been received, (and may have been lost) and that design is no longer available, so can’t be matched. This raised the ire of Councillor Jack Dennison. Surely, he said, three new ones could be custom-made more cheaply than buying 12 new. Also unresolved is the design of 1.4-metre-high safety railings on the pier.

A short promenade extension (inadvertently omitted from the original contract) is included. Several extras will be quoted separately and, budget permitting, may be added. These include a promenade extension, a mini-ramp to the beach, and a small floating dock. Updated permits are required from Conservation Halton, Transport Canada, Ontario Ministry of Natural Resources, and federal department of fisheries and oceans. And now there’s talk of buying a water lot.

The additional funding of $5,798,000 needed brings the overall pier budget to $15,070,000. The report speaks of possible recoveries from the performance bond and other litigation. (In my lifetime?) Interestingly, unlike for other projects, staff time is not included, nor are legal costs. (Councillor Marianne Meed Ward will be asking for legal costs to be released publicly, following a recently released three-judge court decision ordering Waterloo to do so). Thank you for that Joan. Joan Little is a former Burlington alderman and Halton councillor.

Councillors are rightly concerned about the prequalification of contractors. This was done last time, and what, they asked, have you done since that will ensure better results? The reply was that prequalification had been “rather cursory” last time, and this time up to eight contractors would be rigorously checked.

Well, there are a number of things that are very different. This time the city got the technical help it needed to specify details and they now have a dispute resolution procedure that is sound and they pre-qualified each of the contractors and now know that whoever comes in with the best price is well qualified to do the job. So – things are different this time around.

But here is where the rubber begins to hit the road. What does the city do if the best price is higher than the amount the city has budgeted and higher than the cost of giving back the money we were given and demolishing the pier as it now stands ?

Possible, but the contractors can read without moving their lips and they know what the city is up against. We can expect that several of the contractors will come in under the budgeted number – and remember, if there are two bids that are just ten cents apart – the lower price gets the job. That’s what a tender is.

The city must accept the lowest bid. That is when the city Council and its administration will breath a very deep sigh of relief and begin listening to the sound of jack hammers coming from the sorry site that has plagued this city through tree administrations.

Council is doing the right thing. Councillor Dennison pointed out that if the city is to have any hope of recovering any of their costs related to the two lawsuits now before the Courts it has to complete the construction of the pier.

Dennison also pointed out that the city is not likely to recover all their losses but one can expect that at some point the lawyers on each side of this dispute will have looked at all the facts and realized that there is no benefit to anyone to take this case to a full trial and there will be a settlement.

Councillor Dennison correctly points out that any settlement is going to be for cents on the dollar – he suggested something between 20 cents and 75 cents – only time will reveal what that amount is. But unless there is a serious flaw in the city’s case – and that we don’t know because we have no idea what the lawyers are up to.

Councillor Lancaster said as much when she commented at Council that the “taxpayers don’t know half the story”. Her approach to municipal politics is that Council is there to make decisions based on the information they have and Lancaster doesn’t feel much of that information has to be shared with the public.

The lawyers for the design firm and the contractor the city is suing aren’t going to do anything to move the case along until the pier is under construction and they may choose to finagle and delay until the pier is actually built – but at some point the city will recover at least some of the money. We just have to be patient and stay the course. The city motto has it right when it says: “Stand By”

That doesn’t mean everyone isn’t going to sweat it a bit – but we have a Mayor with that sense of certitude that will carry the day and one cannot help but notice that, except for Meed Ward, who after all wants his job, the rest of the Council members are with the Mayor on this one. Councillor Craven said, and this is unusual for him: “I will continue to support the Mayor’s leadership”

We will know where we are by the end of August. And then we can relax and let the construction begin. Between now and then – everyone is holding their breath.

The Mayor, perhaps being more hopeful and in wishing mode, said we “have one more Sound of Music and one more Canada Day ahead of us and then we will have our Pier and be proud of what we have done.” And he might have added – you can then reelect me to a second term of office and, if that Pier does open in the summer of 2013, this Mayor and every Council member is a shoo in for re-election. But in the world of politics a week is a year and one never knows what will happen.

 

 

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