Contractor threatens to sue Belen Schools


Belen Consolidated Schools is moving forward on their own with addressing ongoing problems with the transportation department's bus wash bay, which the district claims was not completed up to par.

Superintendent Ron Marquez said the decision is based upon advice from the school district's attorney in an effort to mediate the legal situation between the district and the project's general contractor, who sent a tort claims notice to the district.

The dispute between the district and Southwest CM, LLC, revolves around the district's claim that the bus wash was not fully completed by the scheduled completion date, and grounds to refuse final payment for the project. Attorneys for the district advised school officials to complete the project, turn over costs for doing so to Southwest CM and mediate a final payment.

The bus wash, located about six feet west of the transportation building, is in operation, but has areas that aren't complete, Marquez said.

"We're not only mediating, but trying to finish the project," Marquez said.

Problems found with the more than $375,000 bus wash bay, include a gas heater that doesn't work, a garage door that was sticking, a crack between the old and new asphalt, the formation of a sink hole around the man hole used to work underneath the building and an exterior conduit needing to be secured by brackets that fell off, said Eloy Mendoza, the district's facilities project specialist.

"The number one thing that's not working is the heater," Marquez said. "The heater that they installed has never worked and it's had problems all along."

The district is seeking contractors to look into either repairing or replacing the heater, Mendoza said.

"Based upon what our attorney suggested, we will complete the facility and turn over any costs to Mr. Valdez, and based upon that we will mediate whatever we may owe him," Marquez said.

The construction of the building, on the west side of the transportation building, was also completed late, and that's the reason why the district has withheld its final payment of $21,500 to Anthony Valdez, the owner of Southwest CM, Marquez said.

Construction of the bus wash began in August 2011 with a scheduled completion date of Jan. 27, but Mendoza said substantial completion wasn't achieved until a month and a half later on March 9.

A liquidated damages subset outlined in the contract between the two parties stated that for every day the project is late, a $500 fine will be applied to Southwest CM.

"We felt that based on the number of days that the project was completed (late), we were liquidating those damages," Marquez said.

Payment to contractors can be monthly, quarterly or as the project is completed, Marquez said.

"Obviously, the project is still not complete, so we would owe him nothing, in my opinion," he said.

Valdez said the project was delayed by 45 days, since he had to purchase and replace more than $20,000 worth of tools, equipment and materials for the project. These items were stored in a trailer parked within the transportation department's compound during construction when they were stolen.

Valdez was storing these items inside of the transportation department until he was informed he could no longer do so and moved the items into the trailer.

But Marquez said this theft wasn't "to the point where, in my opinion, it should have impacted construction that much."

When Valdez attempted to inform the Board of Education of the reason for the project's delay, he was denied the opportunity by Board President Sam Chavez at a May 18 meeting, Valdez said.

"I told him that I knew I wasn't on the agenda, but I wanted the opportunity to speak to the board, and he said I didn't need to talk to them and that I was a shoddy contractor who did shoddy work," Valdez said. "He was talking to me with a raised voice in front of the superintendent and the board."

Shortly after, Valdez decided to file a tort claim.

The tort claim notice, mailed to the district June 27 from Valdez's attorney, Wayne E. Bingham of Bingham, Hurst & Apodaca, P.C., describes how at the May 18 Board of Education meeting Chavez spoke in a "loud voice, with intent to be overheard by third persons, and overheard by third persons" accusing Valdez of doing "shoddy work" in reference to the bus wash project.

"Mr. Chavez made this statement known by him to be false, to third person with intent to harm Mr. Valdez and Southwest CM, LLC, and Mr. Valdez and Southwest CM, LLC were harmed," the noticed stated.

Chavez said he told Valdez the district wasn't "going to spend money for work that has not been properly completed."

As board president, Chavez said he is responsible to Belen voters to be "conscientious" of the way the school district spends taxpayer dollars.

"I can not support paying for work that has not been completed and work that has not been completed satisfactorily and has not passed any inspections," Chavez said.

"The taxpayers expect us to be responsible with their money and (the project's completion) would not fall in that category of being responsible with taxpayer dollars."

Valdez said he and his staff addressed all of the issues the district has approached them with involving the bus wash, including fixing the heater and correcting the pavement, and should be paid for their work.

"This has harmed my business, because that's money that is owed to us," he said.

The district's actions to withhold his final payment is an abuse of power, says Valdez, but doesn't surprise him, claiming he knows of another company the district has done this to.

"It's important that other businesses know how the school is treating its contractors," Valdez said.

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