Travis County Commissioners Court
December 13, 2005
Item 27
27 is to consider and take appropriate action on quantum meruit claim from j. Plumbing for payment of utility relocation work related to the kennedy ridge drainage project. >> judge Biscoe, Commissioners, my name is frank holder. We have a contractor out in the kennedy ridge area doing roadwork, and in the process of doing that work, the contractor is running over some sewer lines, water water lines, also some water meters need to be relocated, fire plugs need to be relocated. But when the contractor is cutting into some of those water and sewer lines, work stops and we are trying to get a contractor out there on site and do immediate repairs so that the contractor can pass on. In trying to get a contractor in place, it surfaced on October the fourth that a contractor, a plumbing contractor was already out on site, had already done some work, and on the fourth of October, that contractor, who is seated here, mr. Estrada, was informed then to cease work until we get a contract in place. And up until October the fourth we were trying to get a contract with mr. Estrada. When it surfaced to me on October the fourth that he has already been doing some work, I told him that he should not be doing any further work. And since then a $14,238.35 claim has been submitted by mr. Estrada for work that allegedly took place before the fourth of October. And that claim has been presented by mr. Estrada. Purchasing is recommending that that whole claim not be paid. The reason for that is of the $14,238.35, $1,265.94 is material that was purchased on the fifth of October and the 6th of October. In other words, of course, the day after, two days after the cutoff. And I told mr. Estrada he should not be working out there. Another $200 is recommended to not be paid because of unsupported invoices for delivery of fill sand to the site. Mr. Estrada did bring in invoices this morning for the $200 and so I have no issue with that any longer. So that takes us to the quantum meruit claim less the material. We are recommending $12,972.41 be approved by the court.
>> you said $12,972.41. Does that include the invoices that he brought in this morning? In other words, the one that you just witnessed today?
>> everything that it said, Commissioner, in your agenda package, all the invoices are there for labor and for material. There are two invoices in there, one for about $800 and another one for about 460. It's those two invoices that occurred after the fourth of October.
>> all right, I壇 like to ask mr. Estrada, can you basically go over what you did? Can you also tell me how the material -- if they said cease work in October on 10-4-05 and you had material coming in and doing work on 10-5 and 6, was there a miscommunication or how did that happen? Can you explain that to me, sir?
>> I知 asking him.
>> my name is liz and I知 a friend of mr. Estrada and he asked me to come in today because he's a little bit confused the reason they're not paying him because he believes that he did all the work.
>> the question was the 5th and the 6th is the point of question that's being challenged here because basically that is after the October the fourth date of '05 that's coming into question. My question to mr. Estrada is how was he notified that work was to be ceased on 10-4, and if material was being ordered to take care of the project that he was in charge of doing and taking care of for the county, the fifth and the sixth day of that order coming in, was that also done before the cease date was asked by the county on 10-4? (interpreting in spanish. [speaking spanish]
>> okay. There's some type of pipe that was still -- there was a lot of sewage coming out, so he took it on himself to finish the job that he had started instead of going -- he said -- [speaking spanish]
>> he just wanted to finish the job. He wanted to complete the job.
>> I guess whatever he was doing, the pipe was leaking a lot of drainage, so he wanted to complete the job. [speaking spanish]
>> he said that it needed to be fixed. At that point he didn't worry so much about getting paid back what he had spent, but he knew that he had -- he wanted to finish the job and complete it.
>> now my question to staff is this. Did you notify mr. He is strod da that you wanted -- mr. Estrada that you wanted him to cease work on 10-4-05, my question to you is how was he notified?
>> verbally.
>> verbally. Did he understand.
>> he appeared to.
>> appeared meaning what?
>> he was in my office and we were face to face. He appeared to understand. As I recall, he acknowledged with an affirmative head motion to stop work.
>> so there was nothing in writing that was given to mr. Estrada to notify him that you wanted work to cease on 10-4.
>> that's correct.
>> okay. Now, here's my next question then. He has a translator to speak to us today. I have some concern about that, of your last statement about something in writing versus verbal. Number 2 is this: mr. Estrada -- number two is this: staff, were we aware of the condition of is the work that mr. Estrada was performing after he continued to do the work -- he had a lot of things and he wanted to complete the job because of leakage that he wanted to complete the job, were you aware of the condition and him stopping right there in his tracks and the work was not complete.
>> I appreciate your question on wondering how I know he understood. We had a number of conversations about a number of things in the contract that he was provided on the third of October to review. There were a number of terms and conditions in there that he had a question on, we talked about that, we even talked about the pay schedule in the contract and he -- he told me then that that was not the pay schedule that he sent in. I had every reason to believe at the time that we were effectively communicating. On your second question about was I made aware that there was work out there that was in dire need of completion? No.
>> and the fifth and sixth work is what's in question here today, the fifth and sixth of oblght. And if I -- of October. And if I heard from your earlier testimony from mr. Estrada, he basically was saying that there was a need to finish out the work. So I知 trying to adjust this thing, number one, nothing in writing. That kind of bothers me a little bit. Verbally we can say a lot of things, but for whatever reason it's not translated accordingly. And then to stop a project right at the -- according to what he's saying, work that needs to be continued to finish the job, let me ask you this question, staff. Who did you have in line to finish up day five and six of October?
>> we were in the process of getting a contractor out there to do all of that work. Whatever may happen from the fourth of October on, we were in the process of getting a contractor.
>> but he did the work through day five and six. And my point is -- the point is it was in need of the work and because the earlier contractor, we got stuff going on there, they came and messed up things a little bit and we had to have someone to do the work. And in my opinion, and I知 going to make a motion here, that we go ahead and pay mr. Estrada the amount of $14,238.35 that's originally proposed because of the fact that he did the work. The argument is not that you told him to stop the work, the argument is that there was additional work that he had done and I think he need to be paid for it. And I think language may have been -- may be a barrier here to some degree. And I feel that if we're going to ask anybody to stop work or cease operation on any project, regardless of who that person is, I think it ought to be done in writing. So based on those things that are here as far as the quantity item meruit case is concerned, I move that mr. Estrada be paid the full amount that's been suggested here in this particular recommendation as far as in my opinion $14,238.35. That's my motion.
>> and that too is based on the recommendation from tnr as to the drainage project that was being conducted out there.
>> was that in joe's December first memo?
>> yes.
>> whatever the standards for the quantum meruit determination?
>> the county has to have received work and there has to be value received and it has to be -- the county has to make a determination that that value is the value that you desire to pay.
>> well, frank, your position really is that purchasing basically ordered work to cease, and mr. Estrada kept working.
>> kept working.
>> he had his reasons for doing that. But in terms of the work received, there's no question that we received work.
>> that's correct.
>> any question about the value of that work being what mr. Estrada has invoiced us?
>> no.
>> what's the third one?
>> there actually is an additional one that I didn't probably make clearly. On the value that the is received, there has to be a demand for payment.
>> there is that.
>> there is no question that the value the county received was immediate repair of the lines in question and the immediate remedying of the problem, which was lines basically in disrepair and drainage I guess flowing in some area. It's the process that bothers purchasing more than anything else, lack of a contractor in place. Do we know about how long it would have taken us to get a formal written contract in place?
>> well, we're about to come to the court within the next voting session or two with a contract award. And let me explain a little bit why that is. We don't know where these lines are. There's no accurate assessment. Mr. Estrada, because he helped put them in under the previous grant, he has knowledge that was valuable to tnr because quite frankly, he helped organize the workforce and put in those lines. But at the same time we have a very formal purchasing process, and it's a little complicated to get through that process, so I can understand the point we're a and quite frankly, we still have yet to find -- to hammer out a contract where we've done everything correctly according to the purchasing procedures, but we're process.
>> is there any more discussion on the motion?
>> yes.
>> go ahead, Commissioner Daugherty?
>> I yield to you: the right thing is to pay the man for the work. There's no question about that. I don't think that you have to put something in writing when you tell somebody not to do something. If I tell you not to do something, if Commissioner Davis tells you not to do something, a lot of times I tell you not to do something and I don't put it in writing. I do think since we have him here, I壇 like for somebody to ask him because obviously there is a language challenge here, and I壇 just like to know did you and I have the understanding on, before the fifth and the sixth that you weren't supposed to do anything? I realize I don't think while that conversation was going on that something was spewing out on the ridge. I think what happened was is going apparently back out there, maybe something happened or something was -- maybe somebody else caused something, but I do want because I知 sympathetic with purchasing here, where I get put in a spot where you didn't do something. I think that you did, you said don't do this any more because we procedurally have to do these things and take them to the court. And I think that's what we're here for. So can we ask mr. Estrada, did he understand that he wasn't -- I壇 like to see what his response is. Because frank you said that he did understand. Did he understand that?
>> did he understand you wanted him to stop the job? (interpreting in spanish).
>> when they talked to each other, he understood that -- he told them to stop the job, but he was already in the middle of finishing up the drainage -- the pipeline, whatever he was doing, so he had to finish that.
>> that's what's kind of mitigating here. Yeah, he could stop and what does he do? [overlapping speakers]
>> I知 not asking that. I知 just asking -- I知 just asking did he understand -- I understand that going out there he may have felt compelled to, like all of us would, I need to do what I need to do. And I respect that. But I just didn't want it to go unsaid that no, we had a client in here and he did understand. And frank, I guess whatever -- whenever the office thinks that there is a language barrier here, there are people in sft that speak spanish and you would say let's make sure because I know I have a justice in here and I want to make sure. Does that happen with y'all styles, frank?
>> occasionally. And if the conditions at that time had warranted me calling in somebody, I would have, but in my opinion there was communication going on.
>>
>> [one moment, please, for change in captioners]
>>
>> ...tell him thank you very much for what he's done. Even my staff, ms. Brooks is the go between as far as when people call the office, ms. Burleson handles it because she does speak spanish. So she has to interpret to for me in a lot of the things we're doing in that subdivision to make it whole. I made a motion on that, so I知 ready to vote.
>> did you hear from the auditor that no funding source has been identified.
>> it's out of our cip project for the drainage projects that we're paying for. I think that has been resolved with the auditor's office. The requisition will be put in once the court approves the payment.
>> all in favor of the motion?
>> judge, you asked if there are people to discuss and I致e been trying to get recognized.
>> now is your chance.
>> thank you, sir. There are many things about this that bug me, but I think mr. Estrada absolutely has proven his claim. And what really bugs me is that this man clearly had unique knowledge of the situation out this and we should have done everything we could to legally make this stuff happen. I知 also bugged by the fact that mr. Estrada butt putt in a claim November 17th and it has taken us yet another month of a man who has clearly done the work for this to get to bubble up to the Commissioners court for us to bless this mess. I seldom vote for quown item meruit claims because it's my way of sending back a love note to the departments that we have policies and procedures and we're supposed to get this stuff done properly. But in this instance I am going to vote for this one because I think mr. Estrada has been harmed and we should have gotten this thing resolved two months ago. And I apologize it's taken two months to do so, but you're getting it out of me to get this claim approved.
>> tell mr. Estrada he has made a new friend today. [ laughter ] all in favor of the motion? That passes by unanimous vote. Thank you very much. Good luck to you.
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Last Modified:
Tuesday, December 13, 2005 3:38 PM