Vacate: Settlement Recommendation

09F-2663-ROC · Registrar of Contractors · 2009-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The consolidated hearing of these matters convened on November 9, 2009. George Ferrin, Esq. represented Complainant North Central Animal Hospital, P.C. (“NCAH”). Al Kalek appeared on behalf of Respondent Architectural Flooring of Arizona, Inc. (“Architectural”). John Gilbert, Esq. represented Respondent Executive Flooring Systems, Inc. (“Executive”). Based upon the entire record in these matters, the following Findings of Fact, Conclusions of Law, and Order are submitted to the Director of the Arizona Registrar of Contractors: FINDINGS OF FACT 1. Prior to the commencement of the hearing, outside the presence of the Administrative Law Judge, the parties concluded a settlement agreement, the terms of which were memorialized in writing, signed by the parties, and read upon the record. 2. The terms of the aforementioned settlement agreement are as follows: a. NCAH hired Executive to remove and replace the flooring; b. Executive hired Architectural to perform the demolition and installation of the flooring; c. The parties disagree on the quality of workmanship and the suitability of the product installed; d. Without admitting liability, the parties agree as follows: i. Executive waives all monetary claims for payment for the flooring contract work; ii. Executive will provide a licensed demolition crew to “demo” the existing floor throughout the NCAH clinic; iii. NCAH will provide seven (7) days notice of the day of demolition, and demolition will not take longer than one (1) full work day; extraordinary circumstances are excepted; iv. The demolition work will be coordinated with the installers of the new flooring material in order to minimize the number of days and total time for the demolition and new installation; v. The demolition process shall, as necessary, include clean up, adequate tools, and workmen; vi. Failure to coordinate to achieve substantial completion of the demolition during or before the second 3-day period is a default by which NCAH may contract with others to complete the work; vii. The costs and expenses for the demolition work will be paid by Executive; viii. Executive will pay NCAH its actual cost to prepare the bare concrete (or other substrate) to accept new sheet vinyl. Such preparation shall include the removal of high spots and filling of “divots”, low spots, etc. as required. Such cost shall be reimbursed by Executive within fourteen (14) days of receiving notice of the amount. Executive’s obligation to reimburse NCAH is limited to $800.00 unless the “demo” work results in additional preparation (i.e. that which exceeds Executive’s estimate that preparation should not exceed $800.00). In that case, Executive shall pay such additional costs of preparation up to a total of $1,200.00; ix. Executive shall provide the necessary materials; x. NCAH shall dismiss the Registrar of Contractors complaints after Executive completes its obligations under this agreement; xi. NCAH waives further claims against Executive and Architectural; xii. Executive is not required to move furniture for the “demo” or “prep”; xiii. Executive may use excess capacity in NCAH’s dumpster existing as of Tuesday, but may not use capacity existing after collection on Friday a.m.; xiv. The issue of quantity (i.e. whether Executive ordered more material than necessary for the job) is reserved for further claim in a court of competent jurisdiction; xv. NCAH will have the premises ready for demolition so that demolition can commence first thing on the day of demolition; xvi. Executive shall reimburse NCAH for the floor prep boxes or the number of floor patch bags actually used in the prep ($60.00 per bag) (not to exceed $1,200.00); xvii. NCAH shall choose a Johnsonite flooring material that does not exceed the cost of the original safe and sheet material and Executive shall provide up to but not to exceed 373 square yards of selected material. NCAH shall select flooring directly with a Johnsonite representative. Executive shall not be responsible for NCAH’s flooring selection or its suitability for NCAH’s use. If NCAH selects a Johnsonite material which exceeds said cost, NCAH shall be responsible for any additional costs; xviii. Executive shall arrange for a meeting between Diane Drake, the Johnsonite representative, and NCAH within three (3) workdays from the hearing date, and the meeting shall take place within two (2) weeks for NCAH to make its selection; xix. Executive shall place the order with Johnsonite within three (3) days of NCAH selecting replacement material; xx. Demolition and preparation shall begin within five (5) working days of the arrival of the material and notice is given; and xxi. NCAH shall pay all costs associated with installation of the flooring material, and Executive bears no responsibility or liability with respect to the installation. 3. The Administrative Law Judge finds the terms of the foregoing settlement to be the product of knowing and voluntary action on the part of each party. 4. Based on the settlement agreement between the parties, 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 these matters, having been found to be voluntarily made, warrants the termination of the instant hearing. ORDER In view of the foregoing, the consolidated hearing in these matters is vacated and the matters are hereby remanded to the Registrar of Contractors for appropriate disposition.

Done this day, November 16, 2009.

_________________________________ Sondra J. Vanella Administrative Law Judge

Copy transmitted by mail this _____ day of November, 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By _______________________________

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