1 1 2 3 KERR COUNTY COMMISSIONERS' COURT 4 Special Session 5 Tuesday, February 20, 2024 6 10:30 a.m. 7 Commissioners' Courtroom 8 Kerr County Courthouse 9 Kerrville, Texas 78028 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PRESENT: ROB KELLY, Kerr County Judge RICH PACES, Commissioner Precinct 2 24 DON HARRIS, Commissioner Precinct 4 25 2 1 I-N-D-E-X 2 NO. PAGE 3 1.1 Consider, discuss and take appropriate 3 action on payment requests from D Guerra 4 Construction Company for the East Kerr County Wastewater Project Phases 2 and 3. 5 *** Adjournment. 10 6 *** Reporter's Certificate. 11 7 * * * * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 JUDGE KELLY: Court will come to order. It 2 is Tuesday, February the 20th, 2024. It's 10:30 in the 3 morning and the Kerr County Commissioners' Court is now 4 in session in a special meeting. And the one item on 5 the agenda today is to consider, discuss and take 6 appropriate action on payment requests from D Guerra 7 Construction Company for the East Kerr County Wastewater 8 Project Phases 2 and 3. Where do you want to start? 9 COMMISSIONER PACES: Well, you know, I think 10 Charlie and I have been working closely on this. And 11 although it's got his name on it, I think I was the one 12 who initiated or initially suggested we ought to have a 13 Commissioners' Court meeting to talk about it. 14 And the reason being that, you know, we have 15 liquidated damages that could be imposed on this 16 contractor between the two projects. You know, it's 17 over 1.5 million dollars. And I didn't want to get -- 18 I've got a bunch of payouts in my office that total a 19 little over 300 thousand, and I didn't want to get into 20 in circumstances where we had paid everything and then D 21 Guerra owes the County. I'd rather have it be the other 22 way around when we sit down to negotiate liquidated 23 damages in the end. 24 So I have sent out an e-mail, which I don't 25 think either of you have got it. Commissioner Letz was 4 1 on it, and I was informed that I should not share any of 2 that -- 3 COMMISSIONER HARRIS: Thank you. 4 COMMISSIONER PACES: -- because of the Open 5 Meetings Act. But anyway, thank you to our County 6 Attorney. Well I am told you could have a copy of it, a 7 hard copy. Is that still correct? 8 MRS. STEBBINS: Yes. 9 COMMISSIONER PACES: So this is some of the 10 earliest correspondence. I wouldn't waste too much time 11 going through this. It does talk a little bit about the 12 contract, and the positions that we could take. But I 13 think this is a more relevant document, because after I 14 sent that e-mail out, Charlie came up with this 15 other -- where's my version. Here it is. Okay. 16 Charlie came up with this little handout. It kind of 17 walks you through each of the two contracts for Phase 2 18 and for Phase 3. And then you -- and then everything in 19 blue is my scribbled notes, okay. 20 Are we going to go into executive session at 21 any stage, or -- I mean maybe we just -- 22 COMMISSIONER HARRIS: Do we need to? 23 COMMISSIONER PACES: I don't know. I don't 24 really think so, but it's up to the Court. 25 JUDGE KELLY: Well, if we're going to do 5 1 contract negotiations we have to go into executive 2 session. 3 MRS. STEBBINS: And you can go into 4 executive session for legal advice so we can talk about 5 the contract, and how those provisions apply. 6 COMMISSIONER PACES: We could just kinda 7 walk through the position, because I think that's 8 accurate, and would be public, but that's up to you. I 9 just wouldn't comment about the stuff that I've 10 scribbled here. 11 JUDGE KELLY: Well, I'm looking at the 12 County Attorney, executive session or not? 13 MRS. STEBBINS: I think executive session 14 would be good at this time. 15 JUDGE KELLY: Well, let's take a brief 16 recess and readjourn in executive session in just a 17 second. 18 (Executive Session.) 19 JUDGE KELLY: Okay. It is 11:14 and we've 20 come out of executive session. And the item on the 21 agenda is for any action as may be required on matters 22 discussed in Executive Session. 23 COMMISSIONER PACES: Okay. So I'm going to 24 make a motion that the Court authorize the payment of 25 $149,770.92 to D Guerra under the Phase 2 project for 6 1 the East Kerr County Wastewater Project. And that we go 2 ahead and make that payment. I'm going to stop and make 3 a separate motion with respect to Phase 3. 4 COMMISSIONER HARRIS: And I'll second that. 5 JUDGE KELLY: Got a motion and second. Any 6 discussion? Okay. Then those in favor say aye. 7 Opposed? Three zero. 8 COMMISSIONER PACES: Now, other action. I 9 will make a motion that the County not pay the current 10 pay-ups 24 through 27, which totals $175,595.90 against 11 the East Kerr Wastewater Project Phase 3 contract, and 12 that in lieu of making that payment we send a 13 contractual notice that this payment is being withheld 14 as a set off against liquidated damages. 15 COMMISSIONER HARRIS: Second. 16 JUDGE KELLY: Got a motion and a second. 17 Any discussion? 18 COMMISSIONER PACES: Again, we need to sit 19 down with D Guerra and have a discussion about 20 liquidated damages, so this is not the final end of the 21 discussion. 22 COMMISSIONER HARRIS: Sure. 23 COMMISSIONER PACES: But I want to protect 24 the County's interest and minimize how much money D 25 Guerra may have to actually pay us when it's all said 7 1 and done. That's my motion. 2 JUDGE KELLY: Okay. And my comment is I 3 think it is time -- I think we're -- our deadline is 4 what, 26th? 5 MR. HASTINGS: Yes, Sir. 6 JUDGE KELLY: So we're at the end. And the 7 last couple years, the last two or three years have been 8 very tumultuous to say the least. But we have had a 9 good working relationship with D Guerra through a number 10 of different superintendents on the project to get it 11 completed. And as painful as it was, and I know you 12 took a lot of complaints, Commissioner Paces. As 13 painful as it's been, I will say that they have extended 14 themselves and been cooperative and collaborative with 15 us. 16 And my position is that I would like us to 17 have a one-time sit down global Resolution, and not do 18 it in piecemeal like this. But I understand the factors 19 involved. And I want D Guerra to understand that, and 20 I'm going to abstain on the motion. Not because we 21 don't have late damages to justify it, because we 22 certainly do, but I'm -- I'm looking at my County 23 Attorney. 24 MRS. STEBBINS: If you abstain, then we 25 don't have three voting members. 8 1 COMMISSIONER PACES: So you can vote against 2 it then. 3 MRS. STEBBINS: I think that because there's 4 only three of you, that might be problematic. 5 JUDGE KELLY: Well -- 6 COMMISSIONER HARRIS: I think your 7 statements speaks for itself. 8 JUDGE KELLY: I think it does, too. We're 9 going to -- Danny and I need to sit down -- and just to 10 share with the public that when this whole thing came up 11 it was over a termination that D Guerra sent us for a 12 late payment that we were guilty of. And we had -- I 13 called a meeting and we sat down, and there was a room 14 full of us, I don't know what, 8 or 9, Charlie? 15 MR. HASTINGS: Yes. 16 JUDGE KELLY: Something like that. And I 17 told Danny, that there would be no adverse action taken 18 against each other without talking to each other first. 19 And I consider this to be adverse action, but under the 20 circumstances, I understand I have to vote. But I'm not 21 disagreeing with my fellow commissioners. I'm going to 22 vote against it just so that we can get it done. But I 23 would abstain because that would allow me to have the 24 opportunity to visit with Danny like I promised him. So 25 that's really all I have to say. 9 1 Anything else? Any other discussion? 2 COMMISSIONER PACES: I'll just say that D 3 Guerra in the last couple months kind of put it in high 4 gear to get this thing done, so I'm happy about that. I 5 can't tell everyone including the public how happy I am 6 that this project is done. Effectively. There might be 7 one or two small punch list items, but for all practical 8 purposes Phase 2 and Phase 3 are complete, and it is now 9 time to sit down with the contractor and have that 10 discussion about liquidated damages, because there is no 11 doubt they've run up a bunch of them. 12 JUDGE KELLY: There is no doubt about it. 13 And when we looked at this project three years ago and 14 we had a come to Jesus with D Guerra, the project was 15 upside down. And he stuck with us to get the thing 16 completed. And I'll tell you that in the business 17 world, most contractors would have walked this thing at 18 least two or three years ago and left the dust to figure 19 out how to make it up. Or be a big litigation, big 20 lawsuit. But I am appreciative of their cooperation. 21 COMMISSIONER HARRIS: And I think we need -- 22 it comes out with a feather and cap for working with 23 County in the future. 24 JUDGE KELLY: So with that, we'll call for a 25 vote. Those in favor say aye. And opposed? Aye. So 10 1 it passes two one. And the only reason I didn't abstain 2 is because we had to have the votes in order to move on. 3 And I'm not trying to stop you. 4 COMMISSIONER PACES: That's okay. I lose 5 them, too sometimes. 6 JUDGE KELLY: So that's all the business 7 before the Court today, we are adjourned. 8 * * * * * * 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 1 STATE OF TEXAS * 2 COUNTY OF KERR * 3 I, DEBRA ELLEN GIFFORD, Certified Shorthand 4 Reporter in and for the State of Texas, and Official 5 Court Reporter in and for Kerr County, do hereby certify 6 that the above and foregoing pages contain and comprise 7 a true and correct transcription of the proceedings had 8 in the above-entitled Special Commissioners' Court. 9 Dated this the 20th day of February, A.D. 10 2024. 11 12 /s/DEBRA ELLEN GIFFORD Certified Shorthand Reporter 13 No. 953 Expiration Date 04/30/2025 14 * * * * * * 15 16 17 18 19 20 21 22 23 24 25