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Thursday, July 27, 2017

Oops! Construction Warranty on New $100 Million School Covers One Year, Not Two

Forced into a corner, Emeryville School Superintendent John Rubio reveals construction warranty ends in a 
matter of months.

By Lillian Schroth

Emeryville School Superintendent John Rubio notified the School Board and City Council Monday that the construction warranty on the city’s new $100 million school campus – plagued by ongoing construction problems since it opened last fall – expires in just a few short months.

This despite repeated public assurances from Rubio and the liaison for builder Turner Construction that any problems with the city-school project, known as the Emeryville Center of Community Life (ECCL), would be covered under warranty through 2018.
Superintendent John Rubio
Claims he "just found out."

Perhaps more surprising is Rubio’s failure to notify the School Board and City Council sooner. Despite the looming deadline, and a long list of needed repairs, Rubio sat on the information for weeks. In fact, he shared the news only after repeated questioning from this reporter, saying he "just found out."

Rubio disclosed the truth Monday night after a meeting of the Measure J Citizens Oversight Committee (COC), which is charged with monitoring school project expenditures. After the meeting, several COC members were questioned about significant, ongoing issues with the building. COC member Josh Simon, former Emeryville School Board President and director of a non-profit that builds affordable housing, said it was important that the district submit a “warranty list” within year one of the warranty to ensure repairs are made.

When asked when that first year of the two-year warranty was up, Rubio said he wasn't sure. When pressed, he said “I think” the entire warranty is actually only one year (not two) from the time construction was completed last fall. He also suggested that the warranty period might be different for different buildings. For example, the gym was the first building to be completed, he said, so the warranty for that would expire first.

When asked if he had told the School Board, he said “I think I told one or two members.”

Shortly after the Monday evening discussion, Rubio sent an email to the entire School Board and City Council notifying them of the update. He explained there had been a "miscommunication" around the length of the warranty.

“It’s Kind of a Big Mistake”

Rubio insisted that he had “just found out,” as did John Baker of Swinerton Construction, the high-priced middle man between the School District and Turner. Baker was tasked with monitoring, negotiating, and communicating construction details and costs. The School District recently closed out the Swinerton/Baker contract for more than $1 million.

“It’s kind of a big mistake,” Rubio said Monday of Baker’s failure to know and/or communicate the limited warranty period.

In a follow up email exchange today, Rubio explains:

I didn’t recall specifically how this came to light so I went back to search my email and discovered it was a conversation that you actually prompted in mid-May as an email question to John Baker.
This resulted in a conversation between him and Turner, where Turner told John Baker it was a 1 year warranty.
That later resulted in another response that Swinerton disagreed and had different documents that showed 2 years.
I asked an attorney who reviewed their email (and … was involved in the ECCL construction contract negotiations between the city, district and Turner in 2014), and he was able to identify and confirm that outside of items specifically calling for longer warranties (e.g. the roof), all other areas fall under a one year warranty. 

John Baker, the $1 Million Man
Despite his very expensive advice and
monitoring, the School District
suffered costly mistakes.
Perhaps he was one of them.
John Baker’s May 19th response to the email question cited by Rubio above: “The warranty started at Final Completion (12/5/16). The Lease-leaseback contract stipulates a 2-year warranty period.” He never followed up with the public, the School Board or the City Council, when he realized his mistake.

It is possible that Baker, and perhaps Rubio, knew much sooner. During a March 25 School Board meeting, Baker presented a slide that showed the warranty expiring at the end of this year. Rubio nor the School Board questioned it. When a local resident did, Baker said it was a “typo.”

In a series of progress reports to the Board prior to March, Baker said the project was covered under a two-year warranty.

In an email sent today, Rubio said “city staff and I have confirmed that the warranty period allows us to submit items up until 12/5/17.”

He added, “It’s my understanding that the standard for construction projects of this size only usually have a 1-year warranty.”

Two Year Warranty(?)
John Baker presentation slide to the School Board
August 24th, 2016
He said there are several items that have longer, manufacturer warranties including door hardware and “Package Terminal” air conditioners.

Two Year Warranty(?)
John Baker presentation slide to the School Board
January 25th, 2017
Following are Rubio’s email answers to questions about the warranty period, the warranty list, including rusting gates, and a possible audit of Measure J/ECCL funds. (The exchange has been edited down for readability.)

Q: When did you make the call on the metal to be used on the gates? … So, you got ungalvanized when it was supposed to be galvanized?

A: I am upset by this issue. The city and district had a long list of items we considered to save money. It was not, unfortunately, ever pointed out to me or the city staff that the original gates/gate design came back into the project (and I believe off of the budget savings list) in a different form that meant that they would not be galvanized – and more importantly, no one explained or communicated the implications or importance of this. In other words, I don’t believe I was ever specifically asked to make a decision about the gates as one particular item (i.e. they were part of a very long list of potential savings items), and certainly I wasn’t informed of the pro’s or con’s (or any information that I recall) regarding this. If you were told otherwise, I think that’s false. Turner is being responsive to this issue and they are returning in the next couple weeks to redo the gates.

Q. How much did we pay John Baker and what was his formal job title/role/responsibility?

A. I am not aware of his salary – or what other projects or jobs he managed besides ECCL during our project. The overall budget for everything going into this project seemed to me to be always set to be as low as possible to attempt to keep the project below a specific amount the council had in mind for several years – that seemed to be the mindset when I arrived - the problem (or reality) was that the economy and thus bay area construction costs were quickly going up when the project was finally approved in August of 2014 – so the amount paid to Swinerton, Turner, and all the subs I think created some limitations to the amount of time and staff (and design) of the project.

Q. One more thing - you said you were organizing some kind of meeting with all the people involved in the project - architects, turner, etc. What is the purpose and what school board meeting is it scheduled for? Are you thinking this is in place of an audit?

A. I haven’t made progress on this yet, but I was planning on having all of the entities present to the board and take questions so the board could determine if they believed an audit was needed. 


Lillian Schroth is a journalist, activist and founder/editor of The Secret News, a local blog (currently on hiatus).  She has lived in Emeryville for 14 years.


  1. all you have to do to see what swinerton was paid per month is look at the monthly expenses paid by measure J.
    swinerton checks varied from $45,000 to $82,950 per month. some months were combined.
    interim project manager david gallagher was paid between $21,000 and $27,000 per month.
    the first project manager, roy miller, who later quit, was paid $27,000 per month. you could have obtained this information from any currect coc member or mr. rubio himself since he attended all the coc meetings.

    now that this information is available online (which it wasn't the first three years,) anyone interested can look it up.

    if anyone cares to see what records I have, please contact me. I have paid invoices only through december, 2015 in my accounting system. I can bring it up to date now that the paid invoices are available online.

  2. "Oops" isn't the word. I can think of a few more choice words than that. What is the problem with this school district and why can't the board get its act together? Rubio should have been fired long ago and this board instead renewed his contract. Now we're stuck with him. How about Baker? Can we get our money back?

  3. it is laughable to read that neither rubio nor john baker was aware the warranty period was for one year. this is basic construction knowledge and is what baker is paid to know. when you figure baker/swinerton is paid almost double what was paid to roy miller, it becomes more of an issue of fraud and misrepresentation

  4. To Anonymous July 27th

    The outgoing board chair John Affeldt, and the present board chair Donn Merriam were responsible for the contract renewal. This renewed contract was sign, sealed and delivered prior to the elected board starting--Barbara Inch and Cruz Vargas. Two other members were appointed to replace members Affeldt and Christian Patz. Patz is now a city council member. It looks as though both of the appointments were selected for their support of the superintendent.
    Thanks for the reporting Lillian. We need more investigative, professional journalism. Our schools should be excellent. The residents of Emeryville need to pay more attention to what is happening to our schools, teachers and families. We need a strong, competent superintendent for our district.

  5. Oh my, just when you think nothing else can go wrong with this project, it strikes again, even after it's finished. Emeryville is going to be punished for this fiasco for fifty years: by having to live with it. Nothing requires us to keep Rubio around, however. This Board needs to take charge and find new leadership for this District.

    1. That's the problem: the board isn't willing to get rid of Rubio. In fact all but one love him. To get rid of Rubio we first have to get rid of the board. It's a huge amount of work but if we care about the schools, it's work that must be done.

  6. I don't have faith in Emeryville anymore to produce a competent board that also understands the students it serves. I think the district should be dissolved. It's a disservice to students that they need to suffer while Emeryville gets it together...again.