the first is whether terminating a contractor for a default is even available in a case like this where since the date that the public entity has declared that the terminations it has continuously used a work of improvement without making any repairs and it was up to a year almost a year at the time of the hearing the second issue i'd like to address is focusing on the just records written order of in november of zero four and demonstrate that it's is based on findings that are clearly erroneous looking at the first point all the cases agree that terminating a contractor for default is the most drastic remedy imposed only when there's a material breach that goes to the very essence of the contract that defeats the purpose of the contract it's just one of many remedies for a breach but the breach has to be drastic as mike trailer stated in his affidavit in this case short of an of the barman a terminations for default is the most negative piece of history it can be  be imposed on a contractor now in this case we know that the hearing was in june of zero three and the alleged terminations are the claim terminating was in july i mean i'm sorry june of zero four and the termination was in july of zero three almost a right yet the evidence in this case that there's two declarations one of my trailer and the other of george williams and the state that terminations is a self help remedy that the public entity engaged in was that the original the original contract said it doesn't matter if you put a big dip in the middle of our tunnel as long as you put in a pump that you think remedies the problem so a contract no the contract doesn't say th up right it had to have a special structure in which the water would pour in then rise up and then go off for the other part never mind that because i think maybe they agree we could live with that but what about call it that but suppose i i contract you have you build me a mansion you build me a chicken house and i say well i wanted a mansion i said i would pay ten million dollars for a mansion you put in a chicken house and you say hey no big you can put a bed and sleep in the chicken house it's just a breach of contract but i might say whoa wait a minute you violated your contract guy and i'm terminating  somebody build me a mansion as opposed to chicken house what about that the difference your honor is in this case all the evidence is the tunnel flows the quantity of water at the specified rate called for by the contract there is no impairment purpose of delivering water from point a to point b it wasn't for human habitation it didn't have to look pretty it simply had to function this was a design build contract trailer brothers the design requirements in this contract are very minimal it's basically moved a certain quantity of water over a certain distance over a certain period of time and the undisputed absence as it does tell us they had something that moved water from that let's say that's what you did and and the evidence is that every winter the thing will plug up and you say hey but wait a minute it moves if are made of it well first of all you know that the record that there is no evidence that a plus up every winter i'm trying to i'm trying to test the limits of your argument or or they say if we wanted to have made a big we don't want to have to go in there and clean out a zillion tons of silt every year to keep things flowing evidence in a breach of contract case and recover damages to fully compensate for that loss it's a garden variety breach of contract the remedy of terminations is a separate remedy that makes no sense when the distinction we're not we've never said that alvarado is not entitled to be compensated for any damages it can prove resulted from a breach of contract that's an entirely different issue the issue in this case and there's no evidence in this record and i'm not aware of any from their brief they don't say that there was ice this year the year that there was ice the evidence is was unusually cold and the most they were able to say in their brief and in the evidence  forth in the district court is there's a concern about what may happen in the future that's the extent of the evidence in this case is the damage and as i said i thought they said that if they hadn't just happened to do water it ice that's on page three on one of the excerpts right it's very sad that the blockage had gone so far already that it looked looked to me and he's not exactly nothing and looked and looked as if they were plugged up well there's also conflicting evidence from two other witnesses that it was a slurpee remember this that it would have the consistency of a slurpee that's martin mueller excerpts of the record page one eighty six so there's a conflict your honor and what the facts are remembering that miss proceeding on a motion for a preliminary injunction is not the time to determine if it was a blockage or a slurpee but simply whether trailer brothers has a fair chance of the stablished that it was not a blockage also when you say that mr robert rogers is no small you know has no small stature in this case while that's true he was also employed by the engineer in this case who to say the least has a certain  complete the program the terminations occurred on july sixteenth and the owner was i'm sorry what the owner get the contractor  irrigation the evidence is they performed no work on this tunnel other than punchless items that comes from roger's what they call punch lest a punch list are minor usually considered minor repairs in his declaration i'm sorry in his deposition rogers testified that since july of zero three when they declared his determination no work had been done on the tunnel other than these punchless items and yet they had continuously used it for its full purpose the substantial performance there cannot be terminations they're mutually exclusive remember that the whole purpose of the of terminating a contract is to secure a future performance if there's no future performance left to do th the only appropriate remedy is the ordinary remedy for breach of contract damages not terminations that's the point district court did not consider in its in its ruling the district court made a critical finding on page fourteen of its written order where it says the trailer brothers does not dispute that it refused to perform any testing of the tunnel that's in the supplemental excerpts and it's the district court's november order that's a key finding because from that the just record concludes that the terminations is appropriate that finding is clearly erroneous because it ignores the two declarations of mr cantaloupes see one it occurs in the excerpts around page one seventy two and then in the reply papers an additional affidavit was submitted at page three eleven it goes through in some detail exactly what that july testing consisted of and it consisted of first removing water from the diversion structure that's important because if there's water in the diversion structure that means there's water in the complete tunnel and that the water was removed over the course of the day at the rate of a thousand gallons a minute that's quite a substantial amount of water and then beginning on july eleventh mr cantaloupes he explains in his order in when you're looking at the district courts statement of the facts of this case and especially the chronology that appears on page six of the district court's order the district court goes from july second and then jumps to july third and then to july fifteenth completely omitting the july seventh eighth eleventh and thirteenth test the trailer brothers ran on this panel that the watered it and it's from that finding then the court says it's order that a substantial amount of sediment accumulated in the pit and yet in his depth deposition rodgers admitted he had no engineering evidence that sediment would reduce the flow and if there was no evidence that sediment buildup is likely to cause a blockage that's a page three or five of the x or questions in it's probably irrelevant to this case but it's just something one wonders if the situation is so desperate when terminations threaten or actually done what precisely was it that besides we don't got to do it contract but actually it was under six o two and thirteen zero three b the trailer brothers paid for the first test we're not saying they don't have to pay for a task trailer crothers position as we did if equal then of the full water task and we paid for the first one and it showed it worked well perform any other test you want if you pay for it eldorado and eldorado says no we're not going to pay for it because the contract says you have to pay so there's a dispute record i don't i mean the reality is the way this job had gone trail of others had already built the tunnel they've already proved it worked its water from point a to b and  it just would have been something else if after this test was done it would have been something else that they had to go ahead with your money they had that money that they claim they don't have to pay you know it oh they've held the money at the time they held it for ten months and i believe their claim is they don't have to pay it at all but i don't know it's not in the record but what is in the record is at the time they terminated trailer brothers they hadn't paid trailer brothers for ten months and they had they were withholding three and a half millions of earn the cost of doing remedial work from what they know that's one of the remedies they have under the contract other than the test one other thing that they said you had to do before diversion structure was gone and the and the testing was done as described by mr cancel o c on the cut the project was done and the crew really is in the putting isn't it if they've been running water through it for now two years and the most they can claim is something bad might happen in the future and how can it be sad that when trailer brothers left in july of zero three it wasn't done they've done no remedial work and they've been using it what if trailers brothers  the things done it's been running for two years how could it not be complete you've got a road from a to b and there's cars driving on it every day now if the road is a little out of if you want to sa three minutes for a bottle yeah district in light of the argument that i've heard thus far i think that my comments are going to be briefer than i had originally planned but let me make a couple of points first of all this is a case about contractual interpretation when we talk about what is a valid germination of the contract you don't really start at the starting point is not that you look at case law the starting point is that you look at that contract and so that's that's where i would start with this analysis labor to the project or quote violates in any substantial way any provisions of the contract documents close quote i don't see how there can be any doubt at all i don't see how there can be any possibility  once the contract performance is entirely over that is correct although i would also argue that that's not the situation we have here ok now w lot of uncertainty that we were facing about whether the tunnel in general was going to work under all conditions that the tunnels exposed reminded of completed the work and it might not have work in which case we would have had a breach very well we analyze the issue somewhat differently we have under the contract the right to accept their tactic with mormons or to require them to fix that and we had elected to require them to fix it and so what trailer brothers was doing for the last six months they were on the job was attempting to fix that at their own risk and we say attempted to fix that there were a number of things that were done at the lower end of the tunnel this diversion structure was this diversion structure was constructed the pump was installed in the middle of the tunnel five thousand feet of a pipeline was installed to take the water from the bottom of the dip out to the end of the tunnel so they did some work to attempt to fix the problem caused by the dip in the tunnel you know if we said they weren't done the breach is this thing they gave us that isn't the tunnel we wanted and now the question is have they fixed it and they say we thinks that and you're saying prove it well and if they can't prove it will and if they can't prove expect group well that's that's a good point because the contract deals with how we're going to define what substantial completion is that language appears that's fourteen zero six of the contract and that as  point the contractor remaining obligation is as as mr fyshe was saying earlier to complete punch list items are not done with the work but they're far enough along with the work that the owner can use that can use the project and so we think that the entire work includes something more than just moving water from point a to point b includes the ability to be able to use the tunnel in difficult winter conditions without worrying about an ice blockage it includes being able to use the tunnel to act and in circumstances where we have to stop the flow of the water through the tunnel for some reasons to be to be confident that we can get water out of the middle of it in a reasonable time so we don't think there was never substantial completion and under the terms of the contract and that's really what we need to look at not so much the cases that they cite from that talk about contracts at that time i couldn't answer the question as to what the district plans were to remediate the problems with this novel because they had to develop those plans yet it is just i would have to go outside the record and tell you subsequent developments to be able to answer that question  remedy for plainly it's going to cost money to fix the tunnel and plainly it's not just clearly doesn't have some kind of exclusive expertise that only it can fix the tunnel so the answer to the question is is the ability to collect damages relevant to the issue of defining substantial completion and under the definition in the contract i don't think it is because it talks about  substantially complete i assumed it would only be money it would take to fix the dry and that's the damage question right now we're talking i mean i'm just trying to you're trying to tell us the difference but it looks to me like whether you call it terminations or brain which everything most things in the physical world are curable with money so it's always a damage question and the end of the  well and the reason for that is that the terminations what we have is from from august of zero three to january of zero four i don't think we have anything in the record that shows why there wasn't a board meeting after that there was a i don't believe there's anything in the record that describes what happened and i was not personally involved in that so i can't even sell you off the record in between though weren't there a lot of notices and letters going out saying we're going to terminate you know one step the terminations date from day   so i don't have an explanation to give you performed which was to allow the water to be cut off at the top of the tunnel and flow out through the tunnel within a few hours we never got to a place where the watering system could duplicate the intended performance of the tunnel as designed so the question for the for the district was going to be you just accept this or not but without knowing how long how long it's going to take for the for the test  i start over without knowing how long the test is going to show it's going to take to the wire to be pumped out you lack the information you know what to do another point that i was intending to discuss with you is the issue of what i think i was trailers third line of defense here which is that if even if the terminations clause it's found to be potentially enforceable because does does it take two to raise a serious question as to whether trailer has an opportunity to prevail on this issue of trial the trial court was very clear on that they did not believe that he did not believe that there was a serious it is not and the reason why it isn't is because frankly we've been waiting for this hearing to occur the idea was that if there is a reversal here i suppose that you would have the new york hearings and and the d r v hearings are intended to confuse these reports that would then be introduced and i mean it's a trial so you don't know how to shape the trial until you know how the appeals coming nonetheless we are going to be having a case management conference pretty district judge recognized that because of the terrible effect this has on trailer brothers ability to do business in the future with this looming over their head it's a squashes him and puts them in a terrible bind with regard to this litigation in terms of quote fixing that tunnel if it needs to be fixed ordinary breach of contract remedies good elderado everything it needs with regard to the d r v they agreed to begin rb the d r b is a wonderful thing we put in our brief a citation to dispute meeting has actually opened that issue wasn't argu what we do have to worry about though is the undisputed evidence for mr cantor alosi that the test was performed in july that it was adequate that there engineer agreed it was adequate and and that which is probably the most important fact in this case is curiously missing from the district court's order and that's where the district court makes the u turn in goes the wrong way and that's why the court's order is it's flawed because if the court here's what happened it's a pretty interesting if you go through and track the district court's order it statement of facts and put right next to it mr rogers declaration his first one with the t r o it tracks almost verbatim what happened was that just recording the five months between the hearing and its written order apparently overlooked mr rogers deposition testimony was totally undercut what's in that declaration and also the conflicting evidence the trailer brothers put on and let's remember the context of this proceeding this is not a trial this is a motion for  we don't have to prove our case we just have to prove there's a fair chance we could prove our case given mr cantaloupes his declaration and the serious impeachment the mr rogers underwent this deposition evidence that's completely ignored by the just recording this order the district court's order is an abuse of discretion and ignored most of the evidence in the case to reach an incorrect result the contract remedy is totally adequate to compensate them there's no reason to punish trailer brothers with a termination on a contract that's done and that they've been using