The pier in Burlington’s downtown waterfront has been plagued by delays and cost overruns. The question everyone is asking: what’s going on? We’ve been led to believe the contractor, Harm Schilthuis, is to blame. This is a local company with 57 years in business, which has successfully completed many other projects in Burlington, including the Discovery Centre and Aldershot Arena. Why would they stop work on a job if they didn’t have a reason?
Over the past few weeks, I’ve used my journalism background to investigate. There’s more to this story than we’ve been told. Furthermore, there’s an option on the table from the contractor to finish the pier – as early as this fall if work begins immediately. We know the longer this project is delayed, the more it will cost, and we’ll spend money on litigation, not finishing the pier.
We need Burlington City Council to make a decision quickly – and tell taxpayers how much this is really going to cost. You can help by sending an email to mariannemeedward@bell.net to add your name to the list of residents asking for transparency on the options available to finish the pier, and the final price. You can also leave a comment at the very bottom of the article.
Read more to get the details of my investigation, including interviews, research of public documents and material obtained under Freedom of Information.
DESIGN QUESTIONS
We’ve been told for months that the main hold up to finish the pier is the crane accident which led to concerns about the steel supports. We’ve been led to believe the contractor is to blame – culminating in January with City Hall calling the contractor’s $3.5 million bond to finish the project. The contractor responded in February by placing a lien on the pier to protect their investment. This situation has now escalated toward litigation and we’re paying for legal advice instead of a pier.
The real problem with the pier may be its design.
CONCERNS DATE BACK 18 MONTHS
Questions about the design first arose more than 18 months ago during the initial concrete pour for the pier deck. The deck is made of steel and concrete which expand and contract at different rates, so engineers account for some “deflection” in the design. But after the pour, the deflection was 4 inches too low, and led to substantial twisting of the underlying steel. The contractor, Harm Schilthuis and Sons Limited, immediately raised concerns about the design. It was weeks after that the crane accident occurred, and arguments began over the structural steel supports, diverting public attention away from design questions.
DESIGN OR TECHNIQUES TO BLAME?
But no concrete has been poured since that first failure. Schilthuis maintains the design is flawed and won’t proceed until the design issues are sorted out. AECOM stands by its design, and argues (rather, AECOM’s lawyers argue) that the failure occurred because of faulty pouring techniques. Who’s right?
I called Scott Stewart, General Manager of Community Services at City Hall, to learn more. There’s no simple test to determine whether technique or design caused the failure, he told me, so a second pour was proposed with all parties standing by to ensure proper technique was followed. If that too failed, it would confirm design flaws.
“We can’t get there yet – that will be litigated whether we go to the second pour,” said Stewart. “Everybody wants to do the second pour, but everybody disagrees on how to do it.”
And while a second pour might provide some answers on the deflection problems, he added, there are other design concerns.
NOT TO CODE
After the concrete pour failure, Schilthuis sought clarification from the design engineer, AECOM, about what building code was being followed. In a press release, Schilthuis said they were told by AECOM that the pier design “was in compliance with the Canadian Highway Bridge Design Code.” Following the pour failure and crane accident, AECOM changed is position and said the bridge code “no longer applied.” AECOM did not respond to requests for comment.
CHANGE IN DESIGN
These and other concerns prompted the contractor to seek the advice of several independent engineers, who reviewed the scaled back design of the pier and found several areas of concern.
The first design of the pier, in 2005, was bid at between $16-22 million. City Hall didn’t want to spend that much, so they asked AECOM to redesign the pier to fit within a $7.1 million total project budget. As part of the redesign, the pier was shortened, and the support structures changed from a 5-web to a 3-web system.
This raises the question of whether the budget and specifications for the redesigned pier were ever realistic – and whether City Hall was penny-wise, but ultimately pound foolish.
The pier was slated for completion in 2008, but because of delays and legal disputes, the cost has risen to $9.4 million, we don’t know how much has been spent on litigation, and there’s no completion date in sight.
CITY CONSULTED INDEPENDENT ENGINEER
City Hall was itself sufficiently concerned about the design questions that it also consulted two independent engineers, including the respected engineering firm Morrison Hershfield. What did they find? City Hall won’t say, and rejected a Freedom of Information request to see that review, citing “solicitor-client privilege.”
Stewart also wouldn’t comment on the Morrison Hershfield study, but did say “if we had seen concerns we would have stopped there.”
WHO’S AT FAULT?
So who’s at fault? Contractors build to the specifications of engineers. If the contractor has followed the engineer’s design and the structure fails, ultimately the design is at fault, and the engineer is liable. Think of it this way: if someone designs a chair with three legs, a contractor builds it that way, and the chair falls over, most would agree the design – not the construction – is at fault.
If the contractor hasn’t followed the designs, the contractor is liable.
Who’s at fault is precisely what’s under dispute in this case.
CONFLICT OF INTEREST
Who arbitrates such disputes? On a project this size, a contract administrator oversees the entire project, including settling disputes between the engineer, who designed the project, the contractor, who builds the project, and the city, who commissioned the project.
Trouble is, in this case the contract administrator and the engineer are the same company – global engineering giant AECOM.
Current oversight prevents impartial design assessment
Having the same engineer for the design and build of a project isn’t uncommon, but increasingly the two roles are separated as a best practice for obvious reasons, and especially when disputes arise.
Stewart confirmed that for other city construction projects, including the Appleby Ice Centre and the Performing Arts Centre, the roles of design engineer and construction oversight are separated.
Best practice for project oversight
In this case, AECOM is in a clear conflict of interest – AECOM can hardly impartially settle disputes about its own design, particularly given the financial hit the company would take if the design is faulty.
FOLLOW THE MONEY
Under the contract between the city and AECOM, obtained under a Freedom of Information request, AECOM’s liability is $10 million – $5 million in general liability and $5 million in professional liability.
Stewart said that City Hall is prepared to seek compensation from AECOM’s insurance if the design is shown to be faulty. Conversely, if the contractor is at fault, their insurance would pay. “The taxpayers are not to blame,” he added. “We expect whomever is to blame to be part of fixing this.”
From what I’ve observed, the city seems to be siding with the engineering firm, content to let the two parties fight it out under the assumption that the city can’t lose: either the contractor’s insurance, or the engineer’s insurance will pay.
But neither the contractor’s bonding company, nor the engineer’s insurance, will release the funds until the design disputes are sorted out.Which brings us back to the beginning.
Meanwhile, the legal bills pile up, we’re heading toward litigation, project costs spiral upward, the pier doesn’t get built – and the taxpayers still lose.
WHERE ARE WE NOW?
When discussions on redesigning the pier went nowhere, the contractor advised the city in December they could no longer complete the job under the current designs for “safety reasons.” Liability for any accidents on the pier would transfer to Schilthuis if they had continued the project knowing the problems with the design, and without assurances as to which building code was being followed. So they stopped work.
In January, the city “called” the $3.5 million insurance bond of the contractor, which allows the city to hire someone else to finish the job.
The contractor responded by placing a lien on the property, meaning no one else can finish the job until the disputes are settled. It’s unlikely anyone else would take the job, anyway.There are only 3-4 companies in the GTA who do work of this sort, and they’ve all heard of the “troubles with the Burlington pier.” It’s unlikely, given the questions about the design, that any of them would take this job without resolution of the design questions that have been raised.
This series of events pushes us closer to expensive litigation, and still doesn’t get the pier built.
The contractor has publicly said they are willing to complete the project, and in fact has put an offer on the table to get the pier finished.
OFFER ON THE TABLE
Schilthuis assembled a “dream team” of experts in marine engineering, concrete and steel and given City Hall an offer to fix the design problems and finish the pier, by Spring of 2011 or even this fall, if work starts immediately.
Stewart confirmed an offer is on the table and discussions are underway. City councilors expect to be looking at it within a week.
“We’re trying to find a way to conclude this so everybody has got a win,” said Stewart. “We’re trying to look after taxpayer.”
What will it cost? That we don’t know. But we do know that the longer this project is delayed, the more it will cost, no matter who finishes it. We also know, the longer this dispute continues, the more taxpayer dollars are spent on litigation, instead of finishing the pier.
WHAT YOU CAN DO
You deserve some answers on what the options are to finish the pier, and what it will cost. There’s a great deal that can be said without violating solicit-client privilege or prejudicing the city. City Hall and our elected representatives need to be transparent and accountable to the residents.
That’s where you come in. Email me at mariannemeedward@bell.net to add your name to the list of residents asking for transparency on:
- the options available to finish the pier.
- the estimated costs.
- the date this issue will come to a vote. The final decision will be made not by city staff, but by elected representatives. Before the final decision is made, residents have a right to know what’s on the table and to have their say.
Forward this email to your friends, and ask them to get involved. It will take all of us working together to get answers.
You can also leave a comment at the bottom of this page. I’ll bring all the feedback I get to City Hall at the next appropriate opportunity. (Your contact information will be kept confidential).
(Evaluate the city’s information on the pier based on the above findings by clicking here).
Marianne Meed Ward is creator/host of A Better Burlington, a online forum to discuss issues in our community and sponsor of the Save Our Waterfront campaign. She is running for Ward 2 city council in the Oct. 25 municipal election.
24 Comments
I agree with you. While there are standing procedures in law to settle disputes like this they all cost money. Sometimes in life all parties in situations like this have to give a little ground to the other party. Let’s suggest that a group of eminent and well respected engineers (who are not involved with this contract and have no ties to the parties involved) be selected and they will “judge” under he rules of arbitration. It will be cheaper for all parties concerned. It may cost the city a bit more money but it’s otherwise going to create a lengthier debate, Court costs, etc. AND, an election is in the offing.
Personally, I would prefer to see the whole damn thing covered in armour stone which would match up with what is already on the shoreline.
Michael Cox
This project has been in jeopardy ever since it started. With an advanced design that was possibly not suited to our lakeshore (the S-shape), requiring precise and advanced steel structural and concrete work, the project needed better oversight from the beginning. Now we find that the oversight is provided by the designer, clearly a conflict of interest once any problem arises. And multiple problems have arisen.
We now have identifiable concrete and steel problems and no one is taking any responsibility nor is any work getting done to fix the design or finish the pier. I still look forward to seeing it completed, but not with a long, drawn-out process.
I want the city to release every piece of information they have on this project – issues, studies, money spent, offers on the table. I also want an explanation why best practices have not been followed, with a separate designer and overseer. In other words, complete transparency by the city to its citizens. Anything less is an insult to the taxpayer.
Gary Scobie
Once again the city and companies are just playing with taxpayer dollars as though real people with limited funds were not paying the bill. We have other worthy projects that also need attending to. The people in charge at City Hall should take the lead and the companies should take the high road and stop using lawyers to settle the dispute. Do the right thing – let the facts be known and find a compromise to finish the pier asap. Laurel Grace
This whole thing is foolish. The city is desperate to cover it’s tracks, and if this goes to the courts, it will be years before anything would get done.
It’s an embarrassment to all concerned. I wrote to the Hamilton Spectator some time ago and voiced my opinion that the council seemed to be lacking the kind of leadership required to resolve this dispute and I stand by my views.
I have no problem with the concept of the pier in fact when finished I think it will greatly enhance the waterfront but one almost has to be apologetic when showing visitors around.
I find it all very tragic. When and if the pier is finally finished, I hope and pray that there are lockable gates at the shore end to prevent people from going on the pier during and East blow. This end of Lake Ontario can be deadly.
Great research Marianne!
I support your request for more citizen engagement in this mess. We deserve as much information as possible without jeopardizing legal complications.
Your suggested solutions have merit and deserve a response from council/staff.
Kurt Koster
I have written to the Post on this topic because I am embarassed by the whole pier situation.
I think the design was too complicated and that one general contractor should have been given a design/build contract.
I am concerned about the legal costs that we as taxpayers are facing.
At this point I think we should consider demolishing it.
It is an embarrassment. Burlington is such a beautiful city. When I moved here a little over a year ago I was very impressed with everything going on here. I was not aware of the situation with the pier at the time. Since then I have heard bits and pieces regarding getting the project finished. I would honestly appreciate knowing the whole situation with everything being up front.
Let’s get this issue resolved now. We need some real decision makers to take action!
Clearly AECOM is responsible: either for a faulty design; or, in light of the atypical and novel design, for the lack of oversight and control at each construction stage to ensure and prove the design as construction proceeded. The first falls to the designer; the second to the Contract Administrator; both roles being assumed by AECOM they cannot escape the liability. Why they would put themselves in such a position, especially in an unusual novel project, I cannot understand.
Good work, Marianne.
The contractor’s offer to complete the project with a redesign by engineers in which he has confidence sounds like the right course of action. Get it done, and let the courts, if necessary, decide who pays.
After reading this, I have enormous respect for Harm Schilthuis. I feel despair for City Hall and the way it has played this, and anger at the way the issues have been portrayed to let the blame fall on the contractor. As for AECOM, I suspect they’ll hang firm in the hope others will find it politically expedient to fix the mess without testing the issue in court. But back to the first point – it appears that only Harm Schilthuis is trying to do the right thing.
thanks Marrianne for the update. My exasperation in the process is not just in the completion, but the lack of leadership from the Mayor’s office to communicate on a regular basis the truth about the project. In my opinion, the only option is to finish the pier. There is no doubt it will add a most valuable and unique dimension to our waterfront. If what you say is correct, the contractor appears to be demonstrating the most integrity in this whole process. It is imperative that the city get this thing done asap, and leave the politics of the moment behind and demonstrate some integrity themselves. The one caution I would be concerned about, is the fact when one asks for more transparency, dialogue, public discussion and input the bureaucracy takes over and the whole process lingers on and on. Again, in my opinion this is the weakness of our Mayor. He is noted for his technique of more dialogue at the expense of getting anything meaningful done in a reasonable amount of time.
Disclosure of all public information should be presented. The bias from the City in terms of their chosen disclosure of information is misleading to the public and skews the conclusions of blame.
The lowest net cost option should be executed, which in this case would not be through litigation.
If there are design and installation procedure issues, that lies with the Engineer responsible for the design, unless it can be shown the Contractor failed to execute to the provisions of the plans/specifications.
It is unfortunate this will be going to the courts, as when the facts of the case come out, it will be apparent how design issues are the ‘key’ point. And none of this litigation will solve the design issues.
Find out what is wrong (design), issue change orders based upon the revisions, and execute the remaining works. This is the lowest cost and most timely option.
Cost responsibility can be sorted out in the courts afterwords if needed, but then at least all parties have taken opportunities to mitigate their losses.
The action the City is taking is doing the exact opposite.
Thanks, Marianne.
The entire waterfront situation reflects council’s inability to control or monitor major construction elements of any contract.
See the mayor’s ‘claim’ he had sound legal advice, later denied by the person claimed to have given the advice, for reopening of tenders for the supply of brick for the Performing Arts Centre.
Citizens are being ‘played’ by council in the hope we will accept their concealment of project details, with the further hope they can ride the blind-side through and past the October 26 municipal election date.
At this point it seems advisable to accept Harm Schilthuis’ offer and press for resolution. I ‘smell’ something here which goes far beyond the mayor’s accreditation of one year as a political science undergraduate.
Hopefully the city and its council are for once listening to its taxpayers , and do for once the right thing, listen to Harm Schilthuis , and let them complete the pier . There is no way the city will come away smiling on this one, the sad part is they are still trying. October the 26th is not that far away. If they don’t show some leadership now, when will they. Thanks Marianne. Keep it up.
Your most recent regarding the mayor’s latest shenanigans takes us to the point where our discontent is now OVER THE TOP.
Council member’s comments are illustrative of the chaos being generated by the mayor’s chair.
“Councillor Carol D’Amelio and others on council were clearly blindsided by the mayor’s change of vote; she could barely contain her disgust over this going back to staff. Councillor John Taylor complained that in some cases he’s gotten 24-48 hours notice of an amendment. Councillor Rick Craven summed up with “I am embarrassed to be a member of this council.”
Are we to assume Thoem, Goldring and Dennison are ‘stupified’ by this turn of events … Or, alternatively, do we assume the mayor has their support in this chaos?
Marianne Meed Ward has shown me there are people in this City who can make a difference. Give her our full support on Election Day so we can get back to the business of running the City instead of Bankrupting it. There are many who have gone before who understand things don’t happen overnight. Let’s get back to the basics and make Burlington what it was and not the mistake it will be if left as is. Rome wasn’t built in a day. We hire people to run the City and vote individuals in to oversee it. It’s time to understand and do it the way it was meant to be done.
Thank you Marianne. Finally a comprehensive analysis of the the problem. City Hall’s rejection of a Freedom of Information request regarding the review creates the appearance that they are hiding something and covering their butts.I also agree with those who have stated that Harm Schulthuis appears to be taking the high road on this. This whole situation is just one more example of council’s complete disdain for the people who elected them. Hopefully at some point council will wake up and respond to “pier pressure”.
Regards,
Ian Coney
Despite the declared good intentions of Shape Burlington, they are not ready to permit criticism or full disclosure yet.
When I attempted to disclose and criticise past activities today, I received the following message.
Subject: Re: [Contact Shape] Purpose and Transparency at SHAPE BURLINGTON
Hi Carl
We’ve received your messages, and anything that is on topic will be published. But as you ramp up the hyperbole and attack quality of your comments, they will not appear. **This is an administrative call;** feel free to reframe your remarks, or redress this decision. Shape Burlington is a forum for citizens of Burlington, **not a bully pulpit** for anyone.
Thanks.
Posted April 21, 2010 at 10:48 am
Thank you Marianne. Finally a comprehensive analysis of the the problem. **City Hall’s rejection of a Freedom of Information request regarding the review creates the appearance that they are hiding something and covering their butts.**
My exchange with Shape Burlington confirms my suspicion that Council will give assent, proclaim, or abide by Shape Burlington’s **professed** intent, thus continuing in their wide latitude for closing the door to disclosure.
So, in the near term, I expect to see more meetings **in the mold of past public meetings on key issues.**
PUBLIC MEETING—ECONOMIC ACTION PLAN
http://media.thestar.topscms.com/images/bc/6d/51493b9b437eb0b9ec21fdc570ae.jpeg
Do you see any crowd control people there?
I will pursue resolution of the issue.
I would love to see Carl Stafford’s comments. If his e-mail was returned to him for a re-write, then are we all going to be marked on our comments like kindergarten students? On or off the mark makes no difference. Freedom of speech used to be fundamental right in this country, whether or not one agrees with the writer.
I feel the same way about freedom of speech, Ian. There are a lot of unhappy campers in Burlington. When you make reference to some of them, in polite discourse, you are told your opinion comes from the ‘bully pulpit.’ Two anonymous posters at Shape support the noble exclusion of anything I offer … for different reasons. One takes the view exclusion is noble (without a reason) and the other celebrates the exclusion indicating it lends to ideal mushroom growing conditions. I take the second to mean a dark, warm, moist, less complex, devoid of specifics contribution, without press references, requiring abundant use of the appropriate fertilizers.
What follows are two of the unhappy campers, plus a reference to a new press technological miracle, which I’ll describe as the vanishing opinion piece.
“Time to clean up at city hall
What in the world is happening to the great city of Burlington?”
http://www.insidehalton.com/opinion/letters/article/806609–time-to-clean-up-at-city-hall
“Don’t expect Post to print letter
As a concerned resident and taxpayer of Burlington I, too, wonder why Cam Jackson spends so much time posing for very lame photos in the Post.”
http://www.insidehalton.com/opinion/letters/article/439335–don-t-expect-post-to-print-letter
Vanishing opinion piece, Joan Little, “Burlington council Shapes into gong show”
Page A-11 April 27—Excerpts follow;
“Shape members answered questions, but as one attendee noted, Jackson invited media to ask questions, but citizen observers were left out.
Jackson, asked whether he would recommend the conclusions from his committee’s report to council, fuzzified—he will consult staff, hold public workshops, etc. (That’s what Shape did in developing the report.)
Hamilton council was the butt of jokes for years. Move over Hamilton, Burlington has its own gong show, proving the need for leadership, a larger council, and a change of some members.”
I sent a communication to an editor at The Spectator, asking why the article was not placed in the archives, but I have yet to receive a reply. … Miracle or Mackerel?
Because I am not a malleable bit of clay and don’t have a compulsive tendency toward the ideal mushroom growing environment, I don’t expect Shape to accept any more of my contributions. (Not that I would ever again make the effort.)
Fanz Kafka will be happy his sense of the political / administrative world has been confirmed.
A Distinct Advantage to having Joan Little’s teachings..
Fileref: Joan Little Municipal Lessons Teacher
“City councillor shouldn’t be job for life”
Joan Little the Hamilton Spectator April 07, 2009
http://www.thespec.com/article/544379
Keywords: “The Spectator reported that the last municipal election returned 73 of 75 incumbents in the biggest cities. It’s becoming a job and nice paycheque for life. Burlington combined city and regional salary tops $96,000 for councillors and $162,000 for the mayor) plus perks, including travel (often international). A wannabe councillor almost has to wait for a retirement to have a chance of winning.
A major factor is city websites, which offer councillors constant publicity. Burlington’s tabloid, City Talk, is delivered to all households three times a year, adding more free publicity. (Years ago, communications were paid for by individual councillors).
It’s a high-paying job today, complete with assistants, and advertising budgets.
Burlington’s albatross is its small council size—seven—in which a majority of four can decide the city’s future. The names become household words. (Hamilton council has 15 members).
The 2006 election generated three new faces because of vacancies. Mayor Rob MacIsaac and councillor Bob Wood retired, and Joan Lougheed left her ward to run for mayor. Three of the other four councillors have already served over 15 years (one over 20).”
Upon reviewing Joan Little’s lesson for us today, I conclude, without bias of course, at least four (4) members of current council don’t meet the test of ‘value-for-money.’
October 25 would be an excellent time to exercise the recommended term limits. If you want change, you MUST VOTE!
NB—this opinion would not qualify for the ‘Shape Shifter’ forum homepage, without an extensive re-write and ‘framing’ in order to remove it from the ‘bully pulpit’ category.
Burlington commissions Shape report … Evades Conclusions
Shape report irks Burlington councillors
KEN PETERS—HAMILTON SPECTATOR—MAY 4, 2010
http://www.thespec.com/article/762519
Keywords: “Councillor Rick Craven stopped just short of asking for committee co-chairperson John Boich to apologize for earlier suggesting in an interview with The Spectator that citizen mistrust of city hall was a “toxicity” that must be addressed.
Boich, who spoke about the report with Co-chairperson Walter Mulkewich yesterday, said both Mayor Cam Jackson and Mulkewich suggested he apologize for the comment.”
Opinion: I am certain John Boich has either spoken to, or been contacted by a multitude of residents who have expressed their dissatisfaction with current council. I personally see NO REASON for Mr. Boich to retract, modify, or apologize for his choice of words.
If he came to this neighbourhood in Ward 4, I could take him to any number of households which share his opinion of ‘toxicity.’ Councillor Dennison thought it was ‘funny’ when we flushed the toilet only to have the toilet contents ‘magically’ reappear in our kitchen sink. We finally had to issue an ultimatum to City and Region with the threat of a lawsuit before action was taken by Regional DPW. Our particular problem continued on a timeline from July 18 2007 until it was finally resolved April 29th. of this year. The threat of a lawsuit was contained in our communication to the mayor, chair at region and all members of council dated April 21.
Dennison made NO ATTEMPT to intervene on our behalf.
The problem was resolved strictly through our own efforts and willingness TO NOT LET THE ARBITRARY TREATMENT WE RECEIVED FROM REGION DPW STAND.
If The Spectator and The Post were willing to print ALL the letters relating to citizen complaints, this Council would have a very real sense of the level of citizen distrust.
The Post has leaned in the direction of effusive and highly graphic presentations such as the Mayor’s Gala. I don’t know ‘who paid’ for the presentation, but I do know it was a wasteful exercise dedicated to the what might be considered to be the élite ‘inner circle’ of Burlington. If we discover the presentation was paid for through city coffers, current council had better be prepared for a very rough ride.
I can find absolutely no fault with the following statement which calls for improvement.
SOURCE: ‘SHAPE BURLINGTON REPORT’
Service quality and process
“Many citizens thought that the quality of service, response time and staff attitude has declined. Interestingly, several members of Council agreed. Citizens’ experience with City Hall is a major determinant in creating trust in municipal government and the democratic process. Citizens have a right to be well treated, as customers and as citizens. The City does not appear to have a clear quality service policy, although one is in early stages of development.”
In the meantime, I will continue working against re-election of certain council members.