Why We Still Have Porta-Potties in the Park

The new windsurfer restroom on the south side of the Marina. Construction finished in June but the unit is still not in service as of Oct. 15.

Why do we still have porta-potties in the park after more than 25 years?

We still have porta-potties in the park because Scott Ferris, the Parks Department boss, doesn’t give a damn for Cesar Chavez Park visitors.  So what if it’s the largest park in the Berkeley system.  So what if it logs more visitors annually than any other park.  We park visitors don’t own boats, not even windsurfer rigs, so we just don’t count.

Now, over on the south side of the Marina, where the windsurfers meet, there’s a brand new permanent restroom that went up in June of this year.  It’s already pricier per square foot than prime Pacific Heights real estate, but it’s still not in service.  It seems the contractor who built it overlooked some things and needs more money.  OK, that can happen.  But this is the fourth time the contractor has asked for more money.  Lots more.

It’s a game some contractors play.  Here’s how it works.

Suppose a contractor is the low bidder on a project, but the client rejects the bid because it’s too high, over budget.  What to do?  Simple.  The contractor submits a lower bid that’s in the budget, gets the contract, starts work, and then puts in for amendments that raise the cost, item by item, until the price is higher than the original rejected bid.  It’s easy, if the client plays the game.

There’s one client that always does: the City of Berkeley’s Parks Department.

Let’s look at the scorecard.

In November 2016, the City put the South Cove Parking Lot and Restroom Project out for bids. A month later, two bids had come in. Team Ghilotti Inc. had the lower one, at $1,818,000. The higher one was $1,881,000 by Interstate Grading.  On January 24 2017, the City Manager requested, and City Council approved, rejection of both bids as too high. The City’s engineer had estimated that the project should cost no more than $1,430,000, plus administrative overhead, and the available grant funding ceiling was $1,600,000. Of that, $600,000 was for the restroom.  Source. The City directed its staff to “re-scope the project” and put it out for new bids.  Source.  

The City then hired TranSystems Inc., another contractor, to review and revise the plans. TranSystems also played the game. TranSystems had drawn up the original plans in 2012 for an initial fee of $139,625.   Source.  It came back in 2013 for an additional $43,260 for design upgrades.   Source.   In 2015 it asked for and got $75,955 more.   Source.  On May 31 2016, it demanded and got an additional $29,016.  Source.  Then came the re-scoping work after the City Manager’s rejection. On March 14 2017, TranSystems billed the City for $63,000.  Source.  On May 16 2017, it asked for and got an additional $25,300.  Source.  This made a total of $88,300 for work done during the re-scoping period.  Altogether, the City paid TranSystems Inc. a total of $350,596,  all for design and design changes of a parking lot and restroom, not for actual construction.  Source.

You would think that TranSystems would have prepared a memo showing the difference between the old plan and the new re-scoped plan, to justify that $88k invoice, but when I put in a Public Records Request for documents showing the difference, I got the reply that no such documents existed.

The City then re-advertised the allegedly re-scoped project for bids, and Team Ghilotti came in with a low bid at $1,604,955.55.   This was $213,044.45 less than its earlier bid. On October 24 2017, the City executed Contract No. 10754 with Team Ghilotti Inc. in that amount for the south Marina parking lot and restroom project.  Source.

The contract says that the contractor “has examined thoroughly” all aspects of the site above and below ground, knows all code requirements, and pledges that no additional work will be required to finish the project. 

Despite this pledge, on April 3 2018, six months in, the contractor went back to the City asking for an additional $130,000, claiming it was needed due to “unforeseen conditions” requiring an electrical upgrade and landscaping.  Scott Ferris supported it, and the City paid it.  Source.  The savings from the original bid was now reduced from $213,044.45 to $83,044.45.  

On April 23, 2018, the City agreed to up the contract amount by another $8,272.69. The contractor had found unforeseen objects and unsuspected mud while excavating the restroom sewer trench. Scott Ferris told the City, pay it.  Source.  The savings was now down to  $74,771.76.  

Only two days later, on April 25, Scott Ferris recommended and the City agreed to pay the contractor an additional  $167,497.50. This was for an allegedly new electrical design and for unforeseen soil conditions when landscaping.  Source.  At this point, the new contract for the re-scoped project became $92,725.74 more expensive than the original rejected bid.  

Now on October 16 2018, Ghilotti is asking for, and Scott Ferris is recommending, an additional $25,116. It’s Item 11 on the Consent Calendar.  Details  in the Oct. 16 Agenda Packet at p. 561.   If approved, as doubtless it will be, Ghilotti will have taken the City for $117,841.74 more than the original bid that the City Manager in January 2017 rejected as unreasonable and excessive.  In fact, it brings the contract cost to $54,841.74 higher than the rejected high bid of January 2017 by competitor Interstate Grading. 

Is the game over now? Not likely.  The prefab restroom building went up in June 2018, but you can’t use it. Parks has kept it locked and posted a notice on the door (see photo) saying that “Restroom Utilities are currently under construction.  Anticipated completion date: July 30, 2018.”  The facility has remained closed and that same notice remained up as of today, October 15 2018, 75 days after the posted “anticipated completion date.”

Sign posted on the windsurfer restroom. Note that an established permanent restroom (at the K-dock) is just a minute’s walk away.

A Parks source explained to me recently that the utilities still under construction are electrical, and that PG&E was withholding approval. The $25,116 that Ghilotti is asking Council for on Oct. 16 is only for landscaping, not for electrical. Very probably, another round of increases is coming for the electrical work. That will bring the cost overrun for this re-scoped project even higher above the ceiling that the City Manager set in 2017.  

Nobody has asked why the contractor hadn’t foreseen this totally foreseeable landscaping and electrical work and built it into the bid to begin with. Or why Parks and its engineers hadn’t looked at the contractor’s bid hard enough and seen that it was just the opening move.  Or why they hadn’t put the restroom project out for separate bids, when much more economical options are on the market.  In the game of Parks contracts, opening bids are a joke, contractors’ guarantees are empty verbiage.  The City Manager’s extraordinary finding that the 2017 bids were unreasonably high was just a paper barricade that Parks easily defeated. There’s not one word of protest in the Parks documents against Ghilotti’s repeated claims for extra payments. Parks and the contractors dance together in a warm embrace. Meanwhile, the infamous windsurfer restroom — the most expensive structure per square foot ever built in Berkeley — remains closed to the public.

The City initially defended the extravagant cost of the windsurfer restroom (source) on the ground that it wasn’t City money. It was Cosco Busan and related grant money. True enough, for the project as originally scoped. But the cost overruns are coming out of the Marina budget, which is City money. It was interesting to hear Scott Ferris shrug that off. Oh yes, the Marina budget can kick in $130,000 without impacting any other project.  Another $8,272.69?  Go for it!  Add $167,497.50?  Sure, why not.  Another $25,116, no problem. This, from a department that chronically complains it can’t find money to put permanent restrooms in Cesar Chavez Park, even though $130,000 alone would buy two permanent restrooms with money left over. Like Parks contracts, the Marina budget is fluid and relativistic. For park visitors, there’s no money. For windsurfers, Marina money flows like water.

— Martin Nicolaus

Another version of this article was published in Berkeleyside on October 16 2018.  


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