Vacate: Settlement Recommendation

07F-A0247-ROC · Registrar of Contractors · 2007-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2007 APPEARANCES: Complainant was represented by its attorney, Scott Miskiel and Respondent appeared through its general manager, Mike Ellis. ADMINISTRATIVE LAW JUDGE: Mark A. Silver ________________________________________________________________ Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Following a prolonged discussion between the parties, prior to commencement of the instant hearing, the parties concluded a settlement agreement, the essential terms of which were read upon the record.

2. Pursuant to the terms of the aforementioned settlement agreement, the parties agreed as follows:

a. They will turn their money dispute over to an accountant to determine what if any money remains due and owing by Respondent to Complainant on the Coyote Crest project. In this regard they agreed to hire accountant, John Mahon (“Mahon”) or accountant, Henry Vincent, if Mahon is not available. The parties agreed to turn over all of their documentation, supporting their respective positions on the money payment issue, to the accountant on or before August 25, 2007. b. After the accountant examines the documentation and completes his audit of same, he will issue his findings on the money issue. The parties agree to be bound by whatever determination the accountant makes. If the accountant finds that Respondent still owes Complainant additional sums of money, Respondent shall pay that amount of money to Complainant within two (2) weeks of receiving the accountant’s determination. In the event that the accountant should determine that Respondent does not owe Complainant any additional sums of money, Complainant will accept said determination and Respondent will be under no further obligation to make any additional payments to Complainant. c. The parties will evenly share in the cost of the accountant’s fee for this service. d. Complainant agreed to withdraw the filed complaint.

3. The parties agreed that all rights and defenses were to be merged into the settlement agreement and if any petition for rehearing of this matter was to be filed and granted, or if any new complaint was filed, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

4. The terms of the forgoing settlement were determined to be the product of knowing and voluntary action on the part of each party.

5. Based on the settlement agreement, the hearing was vacated. CONCLUSIONS OF LAW

1. The policy of the law favors settlements of disputes and adverse parties should be free to adjust their differences by entry into agreements or stipulations of settlement 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 voluntarily made, warrants the termination of the instant hearing.

ORDER

In view of the foregoing, it is recommended that this matter be vacated from the calendar of the Office of Administrative Hearings and remanded to the referring Agency for appropriate disposition.

Done this day, July 25, 2007.

_________________________________ Mark A. Silver Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 2007 to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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