Tisbury ponders solutions for ESF construction delays and costs
Tisbury's new emergency services facility (ESF) will take longer to build and cost more, according to discussion between the Tisbury selectmen and the building committee at a meeting Tuesday night.
Tisbury and Seaver Construction, the general contractor for the project, are in the process of hashing out issues raised in a draft building envelope report last week and setting a new construction schedule.
The Tisbury selectmen reconvened their May 31 meeting to discuss the report from Building Enclosure Associates (BEA), an independent consulting firm in Cambridge with the ESF building committee.
The report's findings prompted project manager Michael Lawrence of HKT Architects to order Seaver Construction stop work on several elements of the ESF building envelope on May 20.
Seaver Construction received a $5.52 million construction contract to build Tisbury's approximately 18,500-square-foot ESF on West Spring Street. Now, with the 13-month project more than a year under construction, the selectmen hired BEA to evaluate significant water leaks and associated issues, and to make recommendations for remedial and weatherproofing work. The draft BEA report includes a list of items and recommended fixes.
ESF building committee chairman Joe Tierney told the selectmen that HKT Architects already reviewed the draft report to confirm its findings and corrected a few inaccuracies. Mr. Tierney said the report is currently under review by Seaver Construction, which will also provide a response.
Once the building committee receives HKT's and Seaver's recommendations, Mr. Tierney said he would come back to the selectmen for a decision on what the town should do.
In the interim, selectman Jeff Kristal said the town should extend contracts for HKT Architects and owner's project manager David Lager until October or November.
"We're not going to be done by the end of the summer; we're probably looking at later in the fall," he said.
Seaver Construction president Scott Seaver hired a consultant to visit the ESF site and review the BEA report. The consultant plans to issue a preliminary report this week, according to Tisbury Fire Chief and building committee member John Schilling.
"When Seaver comes back with their response to the building envelope consultant's report we know they're going to acknowledge some of it and reject some of it, and we need to decide where we stand on some of those issues and how we move forward," Mr. Schilling told the selectmen. "And frankly, the committee feels a little uncertain as to what role we take as far as accepting and rejecting and the negotiations that are going to be involved in moving forward."
He said the committee wants the selectmen to be aware "that this is a new ballgame from here on in."
"It's a new ballgame, but I'm sure the situation is not a unique situation," selectman Tristan Israel responded.
"Actually it is," Mr. Schilling countered. "According to all of our experts who have been working with us, none of the people involved with any of these firms have ever been in a situation like we're in right now."
Mr. Tierney said the building committee would have a better sense of a revised construction completion date in two to three weeks, once the extent of the work recommended in the BEA report is known.
"We were supposed to be in the building two days ago," Mr. Schilling reminded everyone. At the time of the ESF groundbreaking, in April 2010, the contract completion date for the project was June 4, 2011.
New challenges, more costs
Chief Schilling said one of the current challenges is that the town and Seaver Construction are heading into an entirely new area of the project. Previously, two massive volumes of contract documents instructed the contractor on every step of the construction process. Now, as he pointed out, "Nothing in there deals with taking the building apart and putting it back together again.
"There is no process or procedure to approve materials or repairs of materials that have been left exposed to the elements or beyond the manufacturer's recommendations, and these are the elements we're headed into," Chief Schilling said. "So we're essentially going to be developing processes in somewhat of an adversarial relationship with the contractor in trying to move this forward, all with the specter of liquidated damages hanging over the contractor's head."
In addition to administrative issues, there are also time and cost considerations. In addition to expenses for contract extensions for HKT Architects and Mr. Lager, legal expenses are already adding up, and there will be more, Mr. Schilling said. And all of those costs need to be negotiated between Tisbury and Seaver.
Another worrisome issue is who will pay for the cost of additional construction administration services, Mr. Schilling said. A portion of those should be billed back to Seaver Construction, which would involve separating the costs out from the baseline contract and tracking them.
"The reality of all that is that we are rapidly running out of control of money, enough to back-bill them," Chief Schilling said." We're hitting that tipping point in this project, where between liquidated damages and these expenses we're incurring that we are going to back-bill them for are not going to equal what they're owed for general conditions, profit, and overhead."
Mr. Tierney said the building committee is working closely with town counsel David Doneski to determine the town's options.
"I understand we're taking it step by step, but at a certain time we've got to fish or cut bait, or go to plan B, because it seems to me this is not the town's fault; this is not the committee's fault; we've been on top of everything," Mr. Israel said. "At a certain point we've got to play hardball or move on, and look at the dollars we have and what are our options."
"Tristan, the committee had a long discussion about that issue," town administrator John Bugbee said. "And what it really comes down to is as much as it is an issue of fish or cut bait, it's also a legal issue and about not ending up in a worse situation than we are."
Delays frustrate abutters
The project's delay has also caused problems for abutters, as Leah Tofte-Dorr reminded the selectmen. She and her husband Clifford Dorr and their three sons, who live adjacent to the ESF property, all attended Tuesday's meeting.
"We were told at this point that the whole project would be done by now, that we would have plantings and fences and it would be back to normal, and we'd have some kind of buffer from the project," Ms. Tofte-Dorr said.
"It's our concern that we don't even have a date now," she added. "We're worried money will disappear and we'll end up with nothing between us and this huge project and wall."
Mr. Coogan asked Mr. Schilling if some kind of landscape mitigation could be done now, instead of at the end of the project.
Mr. Schilling said the building committee requested that Seaver move forward with landscaping when the stop-work order on the exterior of the building went into effect.
"We can't demand, we can't instruct them as to what they have to do; we can only approve work that they propose to do and we requested, but we've had no response to that request to date," Mr. Schilling said.
Mr. Lager said "means and methods" in the construction contract are directly under the contractor's control. If the town directs Seaver Construction to do partial landscaping, or any kind of partial work, the contactor could regard it as a change in the contract and charge more.
Mr. Israel suggested that the building committee ask Seaver personnel to provide some landscaping to the Dorrs as a courtesy.
"At this point in time, I would say we're close to an adversarial relationship that exists in our weekly meetings and things are only going to get more difficult moving forward, not easier," Mr. Schilling said. "And so from our standpoint, to be requesting favors at this point, we're not in a position as a committee to be getting anything from Seaver, unfortunately."
Mr. Bugbee, on the other hand, said he gets along fine with Mr. Seaver and had an "open and honest conversation" with him on Tuesday.
"I understand where they're coming from, and they understand where we're coming from," Mr. Bugbee said. "They're probably going to come to the board and ask for some relief on the timeline, and maybe that is an opportunity to discuss some of these issues."
Seaver's contract includes a $1,000 a day penalty for non-completion by the expiration date, which goes into effect at the end of this month under the current terms, Mr. Tierney said. That money usually covers extending contracts for the architect and OPM, as well as other expenses associated with a project's delayed completion.