Vacate: Settlement Recommendation

04F-P0242-ROC · Registrar of Contractors · 2005-03-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2004, with Further Hearing sessions held on October 4, 2005, October 5, 2004, December 13, 2004, and Consolidated Hearing and Further Hearing sessions held on March 7, 2005 and March 8, 2005.

APPEARANCES: >The Complainants were represented at the first four hearing sessions by their attorney, Stephen C. Bergsten, Esq., and they appeared in their own behalf at the last two Consolidated Hearing sessions. >The Respondent was represented at all hearing sessions by its attorney, Edward Amack, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I Worth

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Immediately following prolonged discussions at a recess taken during the presentation of evidence at the sixth and final hearing session, with the

Administrative Law Judge remaining present, the parties confirmed that they had concluded a settlement agreement, the essential terms of which were read onto the record.

2. The parties’ concluded settlement agreement was intended to be and was a “global” settlement of all past, pending and potential future claims and/or counterclaims or offsets between the parties.

3. Pursuant to the provisions of such global settlement, Complainants agreed to waive and release Respondent from any and all claims presently either known or unknown, arising under the original contractual agreement, as subsequently modified, to include all construction and monetary related aspects of their filed complaints that had been consolidated for the purposes of hearing. Complainants further agreed to withdraw both identified complaints, as set forth in the issued Citation and in the above case caption, also consenting to the entry of an Order by the Registrar of Contractors closing both Citations. Additionally, Complainants agreed to withdraw another recently filed and pending complaint under Case Number P05-0162, to formally withdraw their claims against Respondent’s license bonds, and to cause the dismissal of a pending civil lawsuit filed in the local Justice Court and removed to the Superior Court. Lastly, Complainants agreed to furnish certain described construction equipment to Respondent for its use during a stated overall time period for a specified total number of business days and hours, as well as to provide Respondent with a certain quantity of a specified product.

4. Pursuant to the provisions of the aforesaid global settlement, Respondent agreed to waive and release Complainants from any and all claims presently either known or unknown, arising under the original contractual

agreement, as subsequently modified, to include all construction and monetary related aspects. Respondent further agreed to cause the dismissal of its pending counterclaim filed in the above-described civil lawsuit filed in the local Justice Court and removed to the Superior Court. Additionally, Respondent agreed to insure the equipment provided by Complainants under the settlement’s terms and to exercise due care in its use of such equipment. Lastly, Respondent agreed not to allow its corporate entity to initiate any action during the 60-day period following the hearing date that would impact adversely upon the mutually intended implementation of any of the terms of the parties’ settlement concluded hereunder.

5. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any timely petition for rehearing of this matter is to be filed and granted, or if any new complaint is filed in the future, the sole issue for determination shall be whether the named parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

6. It was mutually understood that the entry by the respective parties into the settlement agreement was without any admission of fault, liability or obligation on the part of Respondent, and correspondingly without any admission by Complainants that they were not entitled to greater benefits.

7. The terms of the foregoing settlement agreement appeared to be fair and reasonable under all the circumstances, and the agreement was determined to be the product of knowing and voluntary action on the part of each party. ……. …….

CONCLUSIONS OF LAW

1. The policy of the law 0favors settlements of disputes, and adverse parties should be free to adjust their differences by entry into agreements or stipulations which should be recognized and given effect by all tribunals.

2. The settlement reached and submitted during the hearing of this matter, having been found to be reasonable and voluntarily made, warrants the termination of the instant consolidated administrative hearing and the closing of the charges contained in the consolidated Citations and Complaints.

ORDER AND RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED that the balance of the administrative hearing in these consolidated cases be VACATED, and it is recommended to the Registrar of Contractors that entire Citations and Complaints in Cases Numbered P04-0139 and P04-0242 be Closed as Resolved, Settled or Withdrawn.

Dated: March 15, 2005. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Israel G. Torres, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

ATTN: Jennifer Brown -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826