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A Kern County Parks Department worker cuts down one of two heritage oaks—one 400-years-old, the second 300-years-old—that were killed on June 12, 2010. [Linda Robredo photo]
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Fences appear June 29, around oak trees in the staging area across the street from the library building site. The fencing is within 12 inches of the tree’s trunk. [The Mountain Enterprise photo]
Editorial by The Mountain Enterprise (followed by Memo from Kern County Construction Services, with an Analysis and OpEd by Max Williams, AIA)
The June 12 killings of two heritage oak trees at the Frazier Park Library construction site stunned the members of the Mountain Communities who were promised that the trees would be protected.
Some believed, after the public outcry, that the damage had been done and the job at hand was to make the best of a serious blunder. Others aren’t so sure it was a blunder at all, but rather a calculated removal—disguised as a mistake—of trees that were in the way of somebody’s idea of progress.
After hours of meetings with angry residents, promises to make things right, and allocation of county staff time to retrieve public records, the Kern County Board of Supervisors (BOS) voted on Tuesday, Aug. 24 to do what few if anyone thought would be possible: they awarded contractor Tilton Pacific over $60,000 above and beyond the contract amount, to protect the oak trees from construction damage, after the same contractor had been in breach of contract for over eight months for failing to protect the trees.
So, The Mountain Enterprise reported last week that the BOS paid the contractor twice for doing its job. We used the term “double-billing” in our story while questioning whether the contractor had inappropriately charged taxpayers for work it had agreed to do under its original contract.
Kern County Supervisor Ray Watson took exception to the “double-billing” statement and asked Construction Services Manager Mark Russell to write a summary explaining why the $60,000 was an appropriate payment for taxpayers to make.
We also reported that the BOS gave Tilton Pacific an additional amount of nearly $10,000 for removing the stumps of two heritage oak trees that county employees had to destroy after the contractor failed to protect the trees from construction damage, despite their contractual obligations to protect the trees before any construction even began.
Tilton Pacific did not perform these side jobs itself; they sub-contracted the work of erecting protective fences, bringing in mulch, and removing stumps to local company Ground Breakers. Tilton Pacific received 15 percent in profits on top of those invoice amounts.
It turns out that, according to county officials, the term “double-billing” may be incorrect because the county claims it had requested the “mulching” portion of the contractor’s work we had questioned.
We said in our story that the contractor had profited from the destruction of the oaks—that is a true statement.
We said there are flaws in contract oversight by the county—that is a true statement.
We said Tilton Pacific was being paid for work that they were obligated to perform under the terms of their contract— that is a true statement.
The Mountain Enterprise received a phone call from Supervisor Ray Watson on Monday, Aug. 30 regarding our story.
Watson was angry. He said, “You are picking and choosing facts that you want to use, to tell the story you want to tell, while you leave out other facts.”
He said we did not address in our story a clause in the architects’ “Tree Protection Notes” (LPD-1) plan, which says that the contractor is supposed to apply mulching around the trees only if protective fencing cannot be erected where needed. He said the contractor was not required to do both fencing and mulching, only one or the other.
What Watson was claiming with this revelation is that the contractor could not have double-billed for the work because, “The county requested that [Tilton Pacific] do the mulching. They did not choose to do it—we asked them to do it.”
Then Supervisor Watson took aim at the newspaper: “We have spent a lot of time having county employees go over this…I’ve got to tell you that I’ve worked with a lot of news media and I have never seen this kind of reporting… What are you trying to do? Are you trying to get us arrested? Is that what you’re trying to do?…The people up there need to understand that we are trying to get their library built.”
Watson said Construction Services Division Manager Mark Russell would be sending us a summary response to our story by the following day, including documents which show that there was no double-billing.
This, we thought, is going to be a zinger.
We were not disappointed.
Mr. Russell’s summary arrived the following morning [see below].
He argues that “the need to take down part of the temporary fencing has indeed occurred.” By this, he means that the trigger in the contract allowing the use of mulch has occurred because a portion of the protective fencing would have to be taken down to allow for the road department’s walkways to pass through.
Really? After eight months of allowing this contractor to neglect its obligation to taxpayers to protect the trees— negligence which caused the destruction of two of the people’s heritage oaks—suddenly the county has decided that the contractor should be rewarded with more money to (wait for it)… protect the oaks!
Mr. Russell would have taxpayers believe that the Tree Protection provisions of the contract documents had been followed. He would have you believe that the contractor had erected the fencing, as required, before any work had begun—which did not happen.
He would have you believe that his department discovered over in the park that they would need to remove a portion of the fencing for the walkways, triggering the need for mulch to be spread. This is not what triggered the mulching.
What did happen is that eight months after the damage began, and well after the trees had been killed, angry community members showed up at a Municipal Advisory Council (MAC) meeting and lambasted their county managers for destroying their oak trees.
Within 14 days of that public embarrassment, fences appeared around the oaks in the library construction staging area at the park—24 inches around the tree trunks, and with materials still stacked far under the trees’ driplines, in violation of the construction contract. Four days later they moved the fencing where it belonged, outside the driplines. Four days later piles of mulch appeared within the fencing.
Now, a full two months after the mulch was applied, a strip of fencing along Park Drive has suddenly been removed, “triggering” the need for $60,000 worth of mulch?
Mr. Russell additionally seems to claim that contract section 01440, “Safety Procedures,” somehow absolves Tilton Pacific of responsibility for severing the oak tree roots because the roots were underground and not visible during “Tilton Pacific’s effort to reach the grades…specified on the contract documents.”
This is an attempt to confuse the facts. LPD-1 is absolutely clear. If Tilton Pacific had adhered to its contract, and if there had been adequate contract supervision from county personnel, there would have been protective tree fences in place in November 2009, before major construction began. If the contractor had been held to its contract, the tree fences would have been five feet outside of the trees’ driplines, keeping the major roots out of harm’s way.
But Russell chooses to ignore that fact. He pretends that the important missing step simply doesn’t exist… exactly the attitude that caused the trees to be killed in the first place.
Russell wrote in his August 30 memo to The Mountain Enterprise: “Once the roots were struck, the unforeseen condition was referred to the County and their arborist for direction.”
Once the roots were struck? Unforeseen condition?
The tree protection provisions in the contract documents do not say, after the contractor severs the tree roots he is to contact the county for direction.
When a grading plan is in conflict with a tree protection plan, the contractor is obligated to immediately stop all work in the area and refer the situation to the county. For the contractor himself to decide to proceed despite such a conflict is not proper procedure, as Mr. Russell seems to claim.
The contractor continually drove heavy equipment and stacked heavy materials over tree roots, in both the staging area at the park and in the library parking lot, after the contractor had failed to erect protective fencing as required— for more than eight months from the beginning of the project.
The Mountain Enterprise is rejecting the explanation given by Mr. Russell who says paying tens of thousands of dollars to reward a negligent contractor is justified because his department decided eight months too late to do the very thing that would have prevented the deaths of the oak trees from the beginning.
All oak trees, in all construction areas, including the staging areas in the park, should have been protected with proper fencing on the first day of work—not eight months later after two oaks were already dead and the public was calling for managers’ heads.
Tilton Pacific was in breach of contract on its first day of construction at the library site. After eight months of constant and lethal damage to the oak trees, the county suddenly did what the community demanded they do during a heated public meeting. That is what triggered the mulch to be brought in along with the fencing.
The Mountain Enterprise rejects Mr. Russell’s claim that the sudden appearance of what he claims is $60,000 worth of mulch to immediately appease an angry public, had anything to do with a park path project until two months later when such a claim could provide cover from an embarrassing news story.
Normal procedure for a change order, according to architect Max Williams, is—if the county chose to spend $70,000 beyond a contract amount—to issue a written directive to Tilton Pacific for a change before knowing what the cost would be, and before a change order is issued. That written directive never materialized, according to Nanette True of the Construction Services Department.
What Russell and Watson are telling you, the taxpayer, really is, Hey, the county mismanaged this project and failed to act when our contractor ignored its obligation to protect these oak trees from the first day of work.
They are also telling you, We, on your behalf, decided to take the blame, thereby allowing us to give your money as a reward to the contractor for killing your heritage oak trees. Please don’t pay any attention to the fact that the mulching we suddenly felt was so important, was non-existent for eight months, allowing damage to be suffered by the oak trees still standing.
They are concluding by telling you, In summary, we don’t see that anyone did anything wrong—but we’ve arranged for you to pay for it—by saying we were the ones who told the contractor to do what he was supposed to do eight months earlier with no direction from us whatsoever. And, by the way, we won’t ask the contractor to pay us back for the work they failed to do and the additional expense that has occurred as a consequence.
So, your newspaper published a story questioning whether double-billing had taken place, and strongly stating that the extra bills should not have been paid.
Mr. Watson called to blame us for the troubles because we’re being negative.
A Positive Proposal
So, okay, here’s a proposal:
The Kern County Board of Supervisors should rescind its August 24 vote on Change Order 4 and direct Construction Services to see that all costs related to the damage, destruction, removal and replacement of the two heritage oaks; plus all costs related to all protective measures that were neglected for eight months, are to be charged back to the contractor. This should include every penny spent to mitigate the results of the contractor’s breach of contract.
In answer to Supervisor Watson’s question: “Are you trying to get us arrested?”
No, Supervisor Watson, we are trying to see that negligent county managers do their jobs by getting a negligent contractor to pay for its errors.
At this moment, all taxpayers of Kern County are bearing the burden of this poor oversight.
Ultimately, if the underlying truth is that the two heritage oaks were removed by county workers because they were in the path of some other structure (like a civil engineer’s drainage ditch), or became a problem for achieving some other goal (like the type of grading desired in the parking area), maybe it would be best for the county to tell the truth about that now, rather than later.
Memo from Kern County Construction Services
This is from Mark Russell, AIA, Construction Services Division Manager. It is followed by an analysis by Architect Max Williams, a resident of Frazier Park
Response to The Mountain Enterprise Article Dated August 27, 2010
Memo Date: August 30, 2010
On August 24, 2010 the Board of Supervisors approved Change Order #4 on the Frazier Park Library project in the amount of $103,142.00.
At issue is the Item Number 1 for stump removal labor and material in the amount of $9,968, and Item Number 7 for added fencing and mulch under existing oak trees in the park across from the library site.
It should be clarified that the number of trees where temporary barriers and mulch were added was actually 8 instead of 2 as indicated in the Change Order.
The temporary mulch requirements of the Landscape Sheet LPD-1, directs the addition of mulch “only where fencing cannot be set five feet outside of the drip line.” This requirement for all trees in the park could, of course, be met since no new construction or impediments to installing temporary fencing existed.
The landscape contract documents go on further to say “the fencing should remain around each tree to be saved until the completion of construction operations.” The county was aware of the community’s concern regarding existing oak trees in the park and directed Tilton Pacific to provide both temporary fencing and mulch around all eight trees in the park area near our construction activities.
The county made the decision to be more aggressive in our protection efforts in the park for two reasons.
First, to allay fears that staging materials for the library had compacted soil under the oak trees and second, the county was aware that the Roads Department may require taking down our temporary fencing to lay out walkways or gain construction access around the 8 trees impacted by the library construction. This would be contrary to the library landscape requirement as outlined on contract document sheet LDP-1, which stipulated that installed temporary fencing should remain in place until the end of the project.
The need to take down part of the temporary fencing has indeed occurred and the 12 inches of mulch that was installed has provided the temporary protection against compaction as intended.
In either case, the general contractor was directed by the county to exceed the requirements for protection of the 8 trees in the park and this is not an example of “double billing” for work in the General Contractor’s scope. The General Contractor provided 14 pages of labor and material breakdowns for the county to review. Nearly 80 percent of the Change Order Number 4 mulching labor and material was for extra work in the park. Recent inquiries regarding this Change Order Number 4 has led the county to double check the General Contractor’s breakdown and this effort has led to identifying approximately $500 of on-site temporary fencing protection which was inadvertently added to the extra work required. This amount will be credited on the county’s next Change Order.
Finally, the county has taken the time to discuss the site safety procedure specifications with the Design Architect to understand his intent for protecting workers and property at the site. Tilton Pacific’s effort to reach the grades for the parking area as specified on the contract documents led to oak tree roots being severed or damaged. The roots were not at the surface and do not meet the intent of the Architects Specifications section 01440.
Once the roots were struck, the unforeseen condition was referred to the county and their arborist for direction.
This redefined the scope of work as bid by Tilton Pacific. Whether best practices were developed to protect the exposed roots, or the parking lot grades were redefined, the General Contractor took new direction from the county that would lead to additional expenses for the changes in the scope of work.
It is the county’s opinion, after consulting with the Library Architect, that the Safety Section 01440 is being misapplied for work that was never in Tilton Pacific’s scope.
The contractor’s bid was based on the two oak trees remaining. If, after encountering roots during the grading operations, they were directed to remove the trees by the county and their arborist, the stump removal is not a case of the county being billed for contract work but the removal constitutes additional work.
This is contrary to the assertion being made in a recent newspaper article that Tilton Pacific was requesting payment for “something Tilton Pacific has already agreed to do under their original contract by removing trees that they had destroyed by failing to deliver as agreed in their contract.”
OpEd and Analysis of County’s Memo
By Max Williams, AIA
The approved construction documents for the Frazier Park library clearly specify necessary and appropriate measures to protect all existing oak trees identified as to remain, including protection fencing, mulch where needed, and prohibitions on trenching and excavation within the tree driplines.
This was a contractual requirement in place from the commencement of construction, and we did not find any documentation that removed this requirement from the contractor’s scope of work.
Tilton Pacific’s bid and contract amount included these protections, and they should have been installed for the existing oak trees that were in and adjacent to the new parking lot before any grading work began. We found no change order documentation providing a deduction from Tilton Pacific’s base contract amount for not providing this work.
The construction documents contain a major design discrepancy between the architecture and landscape drawings, which clearly require protection of the oak trees, and the civil engineering and grading drawings, which indicate major items of excavation and construction within the protection areas specified for the existing trees.
This discrepancy in the construction documents is the direct cause of the destruction of our oak trees.
Mr. Russell is attempting to use this discrepancy to defend Tilton Pacific. Tilton Pacific had no authority to unilaterally decide which requirement to follow and they are wholly responsible for proceeding with the grading while knowing full well that the trees were to remain and be protected.
Low Bid Contracting
Precise adherence to the contract documents is the foundation of low-bid contracting, and by submitting their bid, Tilton Pacific certified that all work shown in the contract documents was included in their price.
The contractors whose bids were higher may have been penalized because they included cost to protect the trees in their price, and Tilton Pacific has financially gained through not constructing items of work that were clearly specified.
For Kern County to claim that Tilton Pacific is justified in charging taxpayers an additional $60,000 for tree protections, simply because Mr. Russell decided they should receive this money and not be charged for their failures which resulted in the destruction of the oak trees, is outrageous.
The discrepancy in the construction documents is the direct cause of the destruction of our oak trees, and it leads to one or more of the following conclusions:
- The construction documents were never properly coordinated as required by language that is most certainly contained in the professional services agreements, in which case the design team is at fault and responsible for the destruction of the trees and added costs to mitigate the damage.
- The contractor failed to identify the discrepancy during bidding and construction and subsequently notify the architect, engineer and/or county for suitable direction, in which case the contractor is also at fault and responsible for the destruction of the trees and added costs to mitigate the damage.
- The contractor identified the discrepancy and chose to ignore the requirements to preserve and protect the existing trees and proceed with the grading without notifying the architect and county, in which case the contractor is at fault.
- The contractor notified the appropriate parties of the discrepancy before commencement of the grading operations, and was directed by the county and/ or design team to ignore the requirements to preserve and protect the existing trees, in which case the county and/or design team is at fault.
This is “Contracting 101” and the arguments Mr. Russell is making are absurd and show a complete lack of accountability for his failure to properly oversee our project.
His primary responsibility is not to ensure that Tilton Pacific is compensated. His primary responsibility is to ensure that the public dollars are being properly spent and that the requirements of the contract documents and the commitments to the public are unfailingly and uncompromisingly met. His actions and the actions of Tilton Pacific have resulted in a significant and unnecessary waste of valuable tax dollars.
Sequence of Events
Also of interest is the sequence of events. The landscape architect notified Mark Russell and the contractor via email in April that the roots of the oaks had been damaged. Only after this notification did Mr. Russell hire an arborist and geologist (spending additional tax dollars) to determine the safety of the existing trees and attempt to build a case that the trees were hazardous, located in an unsafe fault zone, and maintain a potential intent to have them removed.
With the years he spent on this project and the knowledge he had regarding the importance of the oaks to our community, this is an unconscionable act and I feel violates the professional ethics of the architectural industry.
The Frazier Mountain community’s uncompromising requirement to preserve the oak trees on this site was made abundantly clear during all phases of the design of the library project, and was steadfastly reiterated once the construction operations began last fall.
The county promised that these trees would not be harmed. Through a total lack of professional conduct and oversight, the project team failed to honor their promise to the Frazier Park community. As a licensed professional who deals with these matters on a daily basis, I find the lack of respect afforded our community from the construction team of a public project, in an area adjacent to a national forest, where protection of our limited natural resources is of primary concern, appalling.
Williams reviewed the construction documents with The Mountain Enterprise at county offices.
This is part of the September 10, 2010 online edition of The Mountain Enterprise.
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