The renovated Downtown Berkeley BART Plaza opened in October – more than a year late – and now transit agency officials want the contractor to pay $2.4 million in damages for the delay.
BART has informed USS Cal Builders, the contractor for the $13 million renovation, that it was 455 days late in completing the project and that it has to pay a $3,545 fine for each day of delay, according to documents BART released after Berkeleyside filed a public records request. The company also missed some milestones for which it must pay additional damages, bringing the total amount of liquidated damages to $2,443,161, according to the documents.
But USS Cal Builders is disputing BART’s contention that it caused the delay. The Stanton-based company said the transit agency’s own change orders are a major reason the plaza renovation was so late, according to letters exchanged between the two groups. In addition, USS Cal Builders says BART still owes it money.
“We find this letter nothing but a smokescreen that BART is using to avoid taking responsibility for delaying the project through its direct actions,” the contractor wrote to BART in December 2017 in response to a communication that detailed some of the delays. “USS Cal Builders reserves its full rights to be compensated for its extended overhead, financial damages, penalties and all associated costs.”
No funds have been exchanged yet between the two parties. USS Cal Builders set aside money in a retention fund before the project started for this kind of circumstance. The company also took out a performance surety bond with Arch Insurance Group.
While the plaza has been open to the public for many months and work on renovating the ancillary entrances on Shattuck Avenue was finished in May, BART has not yet declared it complete, according to Patricia Williams, the BART district secretary.
“Although the project completed construction in May 2019, there are still minor punch list, administrative and close-out items underway; therefore the project is not yet complete,” Williams told Berkeleyside in an email. “There has not been a Notice of Completion and Acceptance issued to the contractor and filed with the County.”
Work on transforming the downtown Berkeley BART Plaza began in the fall of 2016 and was originally supposed to be completed about a year later. The winter of 2016-2017 was extremely rainy and work was often delayed. BART allotted an extra 58 days for the construction because of the weather, according to documents.
But other factors also contributed to the slowness of the work. At times, BART expressed concern that USS Cal Builders did not have enough people working on the site.
“Based on the Bay Area Rapid Transit’s observations of work performed on site … it has become apparent USS Cal Builders is not prosecuting the Work with such diligence as will ensure completion of the project within the time specified,” James Reid, BART’s resident engineer wrote to the construction company on Sept. 21, 2017. “One aspect of this lack of diligence is a failure to provide a representative of the Contractor who ‘is present at the Jobsite at all times while the Work is actually in progress on the Contract.”
James Allison, a BART spokesman, told Berkeleyside in August 2018 that the delay in completion was due to “personnel churn,” he said. Disputes between USS Cal Builders and its subcontractors had led to delays. The “leadership [on the project] has been in flux,” he said.
USS Cal Builders had disputed that characterization in May 2018 when a construction supervisor told Berkeleyside that as many as 25 men were working at a time.
USS Cal Builders has told BART about a few instances in which the whims of the agency, as well as those of the city of Berkeley, caused unforeseen delays.
For example, the contractor had scheduled Maxim Crane Works to demolish and remove part of the Rotunda on Oct. 13, 2107, according to a letter sent to BART. But the contractor was told to change the date as UC Berkeley was scheduled to play the University of Washington in a football game that day. BART then asked that the crane come on Oct. 16, but Maxim Crane could not reschedule, according to USS Cal Builders. “Additional [sic] the City of Berkeley wanted a minimum of 1-week notice prior to performing the crane work,” according to the letter. So USS Cal Builders had to find a new crane company to do the work — at an additional expense.
BART also declined to grant USS Cal Builders some rain delays because it only rained for a few hours on specific days. But the contractor contended that was a mistake.
“There were numerous rain days that USS Cal Builders requested on the day of the rain event that were denied by BART because the rain only occurred for a few hours during the day,” USS Cal Builders wrote in a letter. “The delay from the rain extends past the actual rain event, there is a day of preparation needed the day prior to the rain event to setup the cover and there is another day after the rain event to disassemble the rain cover. Even on days that it did not rain, if the weather forecast showed a chance of rain USS Cal Builders still had to setup and disassemble the protective rain cover which delayed the demolition of Entrance 3.”
In addition, BART issued 2,677 RFIs (requests for information), and 55 change orders, for the project, according to the contractor. BART went through to execute 31 of those change orders.
“BART seems to be ignoring the fact that USS Cal Builders proceeded on most of the change orders under protest due to the time impact that was unknown at the time, the company wrote on Dec. 18, 2017. “Please note that the responsible party for the cost of expediting the schedule will be determined based on a fair assessment of the TIAs, not by automatically blaming the general contractor as your CM has been exercising aggressively since the start of this project. Specially when every single payment on this project has been more than 90 days late, processing the performed change orders has been a very lengthy process that includes a very aggressive negotiation (averaging 6 months per change order), all third parties’ coordination and missing design information were left for USS Cal Builders to figure out.”
The contract BART and USS Cal Builders signed requires the parties to work with a mediator to resolve any disputes. If either party is not satisfied, it can ask for judicial arbitration. If a party is not happy with that result, it can go to court but must pay the other party’s legal fees, according to the contract.
USS Cal Builders has not hesitated to go to court to try and get money it thinks it is owed. The contractor filed a $25 million lawsuit against the South San Francisco Unified School District, contending the district owed it for work done on 16 schools. The dispute is now in mediation, according to the Mercury News.