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Letters to the Editor

Accusations against contractor cause trouble

Councilman Barchfeld is quoted in last weeks VIEW as believing the WWTP plant contractor has “Front loaded” the job and subsequent billing. This is embarrassing for the City for these loose, reckless unwarranted accusations to be put forth by anyone, much less a supposed responsible elected official. Further it makes the city liable for legal action, but above all it cast distrust and a clear lack of support and/ or understanding of the professional construction contract process, and in this instance toward such a ‘valued’ contractor as Black Castle has proven to be.

It’s worth remembering through the whole contracting exercise since submitting his bid April 2017, the Black Castle contractor is the ONE contractor who has stood steadfastly by the city, when his bid had first lapsed and was not then accepted, later a second and finally after extending his bid 180 days, 90 days past his requirement of his ‘Bid Bond’ he expressed ‘sure’ he would still honor the original bid amount but not formally keep his bid bond in place. Through this entire process Black Castle did not raise their bid by a single dollar or ask for any special considerations at all. In contrast the collection system contractors raised their respective bids by $450,000 plus dollar amounts and asked for additional considerations, in response to increased material and labor related cost and offered proof of these increases, all reasonable, logical and allowable.

It should be noted since both contractors were issued NTP, [notice to proceed] contrary to what Mayor Jaggers espouses, neither contractor has brought forth any request for pricing or change order increases in contract amounts, the mayor has developed a bad habit of using this fear mongering as a technique to trick us into using Aqua Texas as the treatment provider.

Now comes the City and their most simply not paying the open invoices as submitted by Black Castle, after the first progress payment was submitted till payment date, the city took 54 days to make payment, excuse after excuse was proffered by the city before finally making the payment, but always followed with the promise this wont happen again! We have it all set up and your in the system. Now the contractor has 2 open invoices totaling $440,000, the oldest of these in now 60 days old

Please remember these are professional contractors, who had posted bid bonds and now performance bonds, they have agreed to complete the specified work within a fix number of days, for each day if they should not finish on time will be assessed a penalty of $3,000 for each calendar day until they are complete with the specified work. They have submitted previous completed like projects and efforts that the city did review and ask questions about the core competencies and work history of these like jobs that would be awarded on behalf of the City’s sewer project and we found only well pleased and satisfied customers, questions were asked about billing practices and none felt any abuse had taken place with either contractor.

On a job of this scope and magnitude the contractor does not simply crank out a payment request and submit it for payment as casually ‘front loading’ as has been suggested by the city, no, first this payment request is reviewed for accuracy by the independent, city hired project inspector working as the exclusive agent for and on behalf of the city exclusively. He reviews the factual progress as logged and written down every day, he reviews actual materials used, labor expended, equipment and physical efforts, when and only when he has approved this payment, it is then submitted to the project engineer of record for a complete review and balance against the entire scope and effort of the contract of expectations, as well an on site inspection and cross checking of what the project inspector has just approved within this same payment request. These are registered professional corporations and individuals, to accuse or assert ‘front loading’ is making each one be complicit in fraud, theft by conversion, lying on sworn statements, it would be a significant felony each one would be charged with, IF IT WERE TRUE, but it’s not and the city well knows this is not true.

Now, by the Mayor and Administrator not paying these invoices timely, and stalling the payment for or until they simply feel like it, all the while claiming one excuse after another that this and that is not acceptable or set up, we are forcing the contractor to now file a ‘Mechanics Lien’ against the city for non payment, that is one repercussion for the city’s total lack of respect toward this contractor, but equally if not more damaging is that by this plotted delay to most simply suit the city and its ultimate goal of forcing the contractor to give up or stop, making it easier to divert or move this aspect of the sewer to the Mayor and Councils real choice of using Aqua Texas as the provider, we are making the contractor show this project on his monthly financial report that he is bound to submit to his banking relationship, to his insurance/ bonding company as now being seriously “past due” . When this happens multiple actions come rapidly into play, banks will begin to view this unpaid collectable receivable in diminished value, typically after this debt reaches the 90 day mark banks and bonding will view it as noncollectable and the contractor will be forced to write it off against his earning power and borrowing ability, thereby in this instance limiting the contractors bonding and borrowing ability by $440,000 at least as of this date.

The city previously asked the contractor to stop working on the project for 30 days and is now set to ask for another 30 days all the while playing with trying to make some sort of deal in time, money and effort to collude with Aqua Texas to replace building the WWTP facility. This mayor and council think, if they can jack the contractor around long enough, he will weaken and hopefully accept the already approved and verified amounts as previously submitted and ideally walk away from the project and be glad to get away from the city of Wimberley and its craziness contracting experience.

That is the very last thing this contractor will or should do, this contractor is on very firm legal standing, there exist precedent after legal precedent where, when a “Stop Work Order” is issued for the convenience of the city, the contractors legal right to recover expenses is far reaching into his entire operations and planning and prosecution of the original contract and its entire scope of work as intended within the written and drawn plans and specifications he is following. If this contractor has done his planning and organizing to perform this work within the allotted 260 days as stated in the contract, he will easily have an additional $700,000 -1Million dollars in legitimate expenses to Stop Working on this project that he will claim and while it might be argued or negotiated between legal teams, he won’t have to settle for less if at all. The background for this is already established, the outrageous unsupported boasting “Front Loading” claim. The way our city has already treated this contractor, it’s lazy, care less approach toward getting him paid timely, all the while playing “lets make a deal” with Aqua Texas at this contractors expense. Really?

And lets not forget the legal team cost of wrangling that will be incurred, likely another $100,000 dollars between the two parties, who pays that money? The city is going to lose this slight of hand trick. Its already done the harm and is racing to do more to harm to its self with comments made and cast into the public, its lack of payment, coupled with just plain lazy attitude. I just wonder if the administrator was not getting paid or experiencing the prolonged delay or same run around in getting his check, how long would he stay around, just for the experience of it all, helping the Mayor/Council to help make a deal with Aqua Texas.

Mac McCullough

Wimberley View

P.O. Box 49
Wimberley, TX 78676
Phone: 512-847-2202
Fax: 512-847-9054