2024A-05627-NPC-ROC Notice of Hearing & Packet MAILED 2024-05627.pdf

2024A-05627-NPC-ROC · Registrar of Contractors · 2024-09-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

A D H Concrete LLC, Case No. 2024-05627

COMPLAINANT, Docket No. 2024A-05627-NPC-ROC

v. NOTICE OF HEARING ON CONTESTED CASE Sweeter Excavating LLC License No. ROC 317685,

RESPONDENT.

This Notice of Hearing is issued under A.R.S. § 41-1092.05(D).

HEARING INFORMATION The hearing is set for:

October 17, 2024 10:30 AM Tammy Eigenheer Google Meet. A link will be provided directly from The Office of Administrative Hearings. Go to www.azoah.com to request to appear in-person.

If you have requested to appear in-person at the hearing, the hearing will be held at 1740 W Adams Street, Phoenix, AZ 85007.

You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be

prepared to present evidence, including witness testimony and documents, in support of your case.

STATEMENT OF LEGAL AUTHORITY AND JURISDICTION

The State of Arizona has determined that the licensing and regulation of construction contractors is a proper state function, and has vested authority in the Registrar of Contractors to administer Title 32, Chapter 10 of the Arizona Revised Statutes. A.R.S. §§ 32-1101 et seq. All hearings for alleged violations of Title 32, Chapter 10 are conducted under Title 41,

Chapter 6, Article 10. A.R.S. § 32-1156.

The statutes and rules governing the hearing can be found at: Arizona Revised

Statutes §§ 41-1092 to -1092.12, and Arizona Administrative Code R2-19-101 to -122.

PARTICULAR ARIZONA STATUTES AND RULES INVOLVED

The statutes and rules the Respondent is alleged to have violated are cited in the

complaint and citation, which were served on the Respondent on July 25, 2024. SHORT AND PLAIN STATEMENT OF THE MATTERS ASSERTED

The complaint and citation allege that the Respondent committed the following act(s): Charge: 1 A.R.S. § 32-1154 (A)(10)

THE PARTIES TO THE ADMINISTRATIVE HEARING Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will

be a party to the hearing.

Respondent and Complainant, as the parties to the hearing, will present evidence and

argument to the administrative law judge.

RIGHT TO BE REPRESENTED The parties to the administrative hearing may choose to be represented by an attorney. A.R.S. § 41-1092.07(B). If one of the parties is a company, the company may be represented

by an officer or employee if that person satisfies the conditions set forth in A.R.S. § 32-

1156(B).

CHANGE OF ADDRESS Each party must inform the Registrar and the Office of Administrative Hearings of any change of address within five (5) days of the change. A.R.S. § 41-1092.04.

HEARING PROCEDURES AND RULES

The administrative hearing will be conducted in accordance with A.R.S. §§ 41-1092 to -1092.12, and A.A.C. R2-19-101 to -122. The parties should review the statutes, rules, and

processes governing the administrative hearing. Copies of the statutes, rules, and articles regarding the administrative hearing process can be found at https://www.azoah.com/.

REGISTRAR’S APPEARANCE BY VIDEO CONFERENCE OR TELEPHONE

The Registrar’s investigators, employees, and attorneys will appear at the hearing via

video conference or telephone unless requested by a party to appear in-person. Requests for the Registrar’s investigators, employees, or attorneys to appear in-person must be filed with the Registrar and the Office of Administrative Hearings no later than seven (7) calendar days prior to the hearing date.

HEARING PACKET

In the interests of administrative efficiency, the Registrar compiles and discloses

certain documents to the parties and the Office of Administrative Hearings. These documents

are attached to this Notice of Hearing as the “Hearing Packet.” If any party wishes to submit additional evidence, they must do so during the hearing after completing a disclosure statement. See “Disclosure Statement” section below.

SUBPOENAS FOR TESTIMONY FROM A WITNESS OR DOCUMENTS

The parties to the hearing must be prepared to present evidence in support of their

case. If a party wants to obtain testimony from a witness or documents not in the party’s

possession, the party must prepare and file a written subpoena for the Administrative Law

Judge to review and sign, if approved. A.R.S. § 41-1092.07(C). Forms for requesting a subpoena can be found on the Office of Administrative Hearings’ website at www.azoah.com.

The party seeking a subpoena must serve notice on all the parties to the hearing, and on the Registrar. A.R.S. § 41-1092.04.

DISCLOSURE STATEMENT

At least seven calendar days before the hearing, each party must prepare and serve a

disclosure statement on all other parties, and file it with the Office of Administrative Hearings. A.A.C. R4-9-118; A.A.C. R2-19-108. The disclosure statement must include any exhibit the party will use at the hearing. A party’s failure to timely disclose any witness or exhibit, without good cause, may result in the administrative law judge excluding those witnesses or exhibits from being used at the hearing. A.A.C. R4-9-118(C). A sample disclosure form is available on the Registrar’s website at https://roc.az.gov/forms/RC-L-800A%20- %20Prehearing%20Disclosure%20Statement%2020191007v4.pdf

CHANGING THE HEARING DATE

The date of the hearing may only be advanced or delayed on the agreement of the

parties or on a showing of good cause. A.R.S. § 41-1092.05(C). The date of the hearing may

be changed by filing a written agreement of the parties to change the date of the hearing. The

written agreement must be filed with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmitted to the Registrar and all other parties. The assigned Administrative Law Judge may be found on the Office of Administrative Hearings’ web portal at www.azoah.com

If a party would like to move the date of the hearing without agreement of all parties, the party must file a written motion with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmit a copy to the Registrar and all other parties. The motion must state in detail good cause for why the date of the hearing should be advanced or delayed, and the position of all other parties regarding the advancement or delay. A party may also file a motion asserting a right to an expedited hearing upon a showing of

extraordinary circumstances or the possibility of irreparable harm. A.R.S. § 41-1092.05(E).

RESOLUTION SHORT OF ADJUDICATION In any case which is resolved or settled by the parties, or which is withdrawn by the Complainant without objection from Respondent after the Notice of Hearing is issued, the parties must notify the Office of Administrative Hearings of the resolution or settlement. Any such cases will be listed on the Registrar’s website and its records under the category: “Closed

Complaints – Resolved/Settled/Withdrawn.”

Dated September 10, 2024.

By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors

Copy mailed via USPS First Class mail September 10, 2024 to:

Respondent(s) Sweeter Excavating LLC 10880 Greenlee Rd Flagstaff, AZ 86004

Respondent's Attorney Jason J. Bliss, Esq. 123 N San Francisco St 3rd Fl. Flagstaff, AZ 86001 Complainant(s) A D H Concrete LLC 2909 N Patterson Blvd Flagstaff, AZ 86004 Complainant's Attorney Brian J. Pouderoyen, Esq. 6730 N Scottsdale Rd Ste. 101 Scottsdale, AZ 85253 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Case No. 2024-05627 /

Hearing Packet FAQ What is the The Hearing Packet is a packet of certain documents collected or Hearing Packet? issued by the Registrar over the course of its investigation. Who gets the The Hearing Packet is assembled and distributed to all parties and Hearing Packet? to the Office of Administrative Hearings (“OAH”) prior to an administrative hearing. What types of The Registrar prepares a Hearing Packet for Complainant-Handled cases does the Cases and No-Pay Cases. Note: If the Docket Number on the Registrar prepare a Notice of Hearing contains a “CHC” or “NPC”, your case is a Hearing Packet for? Complainant-Handled Case or a No-Pay Case. What is in the The Hearing Packet contains essential case-specific documents and Hearing Packet? at a minimum will include the following documents: ● Original complaint; ● Citation; and ● Answer. The Hearing Packet will also contain the following documents (if applicable): ● Jobsite inspection notices, notes, and photos; ● Written directives; and ● Compliance inspection notices, notes, and photos. What if there are If there is any evidence you submitted to the Registrar that are not documents missing included in the Hearing Packet it is your responsibility to introduce from the Hearing that evidence at the administrative hearing. Note: The Packet? administrative law judge assigned to your case does not have access to the entire Registrar record.

If there is additional evidence you submitted to the Registrar during the investigation that you also want to introduce as evidence during your hearing, it is your responsibility to: ● Properly disclose that evidence to the other party; and ● Introduce the evidence during your hearing.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

How do I disclose You must properly disclose any and all documents and witnesses evidence I intend to you intend to use at your hearing according to the Registrar’s use at a Hearing? Prehearing Disclosure Rules. See Arizona Administrative Code Section R4-9-118. A sample prehearing disclosure form and instructions are provided to the parties by the Registrar. How do I obtain If you previously submitted documents to the Registrar and need a documents I copy of these documents, please contact the Registrar’s Legal previously submitted Department or submit a public records request at to the Registrar? https://roc.force.com/AZRoc/s/roc-public-request.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

May 22, 2024

Respondent Sweeter Excavating LLC 10880 Greenlee Rd Flagstaff, AZ 86004

Complainant A D H Concrete LLC 2909 N Patterson Blvd Flagstaff, AZ 86004

Brian Pouderoyen Esq 6730 N Scottsdale Rd Ste 101 Scottsdale, AZ 85253

Via U.S. Mail and Email

Re: Complaint No. 2024-05627

Dear Complainant and Respondent:

The Registrar received a complaint filed against Sweeter Excavating LLC for non- payment of materials or services rendered. This complaint is complete and will be substantively reviewed by the Registrar.

Respondent is free to raise any issue or affirmative defense to this complaint by filing a response with the Registrar by June 4, 2024. Please reference the complaint number listed above if you file a response. Respondent may file a response by:

Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Email: [email redacted]

The Registrar will not issue a citation before June 4, 2024, and will review Respondent’s response, if one is submitted.

Please be advised that a response to the complaint is not the same as a written answer. If the Registrar issues a citation Respondent must file a written answer to that citation in accordance with A.R.S. § 32-1155.

Sincerely,

/s/ Eric Ulinger Eric Ulinger Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007 602-771-6756 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Received by Investigations 05/15/2024 2024-05627

Non‐Payment Complaint Form Departmental Use Only Complaint Number: Mail to: Registrar of Contractors P.O. Box 18243 Phoenix, AZ 85005‐8243 Person Filing Complaint (Payee) Business Name Full Name (First Middle Last) ROC License Number(s) (if any) ADH Concrete LLC Adam Henderson 233295 Street Address City State Zip Code 2909 N. Patterson Flagstaff AZ 86004 Phone Number Email Address 928-699-4388 [email redacted] I consent to receive communications electronically in connection with this case. Yes ☐ No ☐

Name of Attorney (if any) Brian Pouderoyen Attorney’s Street Address City State Zip Code 6730 N. Scottsdale Rd. Ste 101 Scottsdale AZ 85253 Attorney’s Phone Number Attorney’s Email Address 480-534-4882 [email redacted] Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Sweeter Excavating LLC 317685 Street Address City State Zip Code 10880 GREENLEE RD Flagstaff AZ 86004 Phone Number Email Address (928) 699-5344 [email redacted] Name of Person(s) Representing License Michael Sweeter Jr. Complaint Information Principal Amount Due (excluding interest and fees) Contract Date (if applicable) $388,847.40 N/A Have you filed a civil complaint? Yes ☐ (If yes, provide a copy of the civil judgment) No ☐ No List all specific invoices which have not been paid. Attach additional pages if necessary. 1. Please see the attached Statement and Exhibits. Respondent has violated A.R.S. §§ 32-1154(A)(10) and 2. 32-1183(A). Complainant requests that the Registrar order payment of $388,847.40 in principal 3. damages plus interest of 18% per year beginning on March 25, 2024 until paid in full, in accordance 4. with A.R.S. § 32-1183(H). 5.

Certification I certify, upon information and belief, that the above‐named licensee has failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor. I further certify, upon information and belief, that the above‐named licensee has the capacity to pay, or has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. A.R.S. § 32‐1154(A)(10). Printed Name Signature Date Adam Henderson 05/13/2024 Declaration & Signature I am the Complainant in this Complaint Form or Complainant’s duly authorized representative. I declare under penalty of perjury that the information contained in this Form is true and correct to the best of my knowledge. I further certify that any documents submitted in support of this complaint are true and correct copies of the originals and are accurate to the best of my knowledge. I will assist in the investigation or in the prosecution of the contractor or other parties, and will, if necessary, attend hearings and testify to facts. Printed Name Signature Date Adam Henderson 05/13/2024 Received by Investigations 05/15/2024 2024-05627

Brian J. Pouderoyen (480) 534‐4882 [email redacted] May 14, 2024

STATEMENT IN SUPPORT OF ADH CONCRETE’S NON-PAYMENT COMPLAINT

To: Arizona Registrar of Contractors Re: ADH Concrete LLC v. Sweeter Excavating LLC

To whom it may concern:

ADH Concrete LLC provides the information below in support of its Non-Payment Complaint against Sweeter Excavating LLC.

ADH Concrete is owned and operated by Adam Henderson. Sweeter Excavating is owned and operated by Mike Sweeter. Henderson and Sweeter negotiated all of the agreements subject to this Non-Payment Complaint. Sweeter Excavating did not provide a written contract for any of the dozens of projects on which it hired ADH as a grading/paving subcontractor. Nevertheless, there was an enforceable agreement between the two.

Sweeter owes ADH money on four different construction projects. Sweeter has made partial payments on some projects, but still owes a substantial amount to ADH. To assist the Registrar with understanding what has been invoiced but not paid, ADH provides this table:

Project Invoice # Invoice Date Invoice Amount Remaining Due Exhibit # on Invoice 9566 Aldrich 337 9/26/2023 $5,280.00 $5,280.00 1 Total Remaining Due for Aldrich Project: $5,280.00

Gore - Parking lot wall 336 9/26/2023 $30,650.00 $12,694.00 2 Gore - Medical east 340 11/16/2023 $9,121.00 $5,543.40 3 Gore - Cinder Barn 341 11/16/2023 $10,029.25 $604.25 4 Gore - Kiltie Lane 344 2/14/2024 $3,800.00 $3,800.00 5 Total Remaining Due for Gore Project: $22,641.65

Belmont Fire Station 343 2/14/2024 $115,870.00 $44,208.00 6 Total Remaining Due for Belmont Project: $44,208.00

Maswick Lodge 342 2/14/2024 $285,646.50 $219,484.75 7 Maswick Lodge 346 3/20/2024 $117,643.00 $97,233.00 8 Total Remaining Due for Maswick Project: $316,717.75

Total Remaining Due for All Projects: $388,847.40

Lang Thal King & Hanson PC • 6730 N. Scottsdale Rd., Suite 101 • Scottsdale, Arizona 85253 • (480) 534‐4900 Received by Investigations 05/15/2024 2024-05627 Registrar of Contractors May 14, 2024 Page 2

The exhibits referenced in the table are attached to this Statement.

Additionally, ADH submits the billing statement it created in March 2024 which shows a rolling balance of invoices and payments on all projects between ADH and Sweeter Excavating in the past 3-4 years. See Exhibit 9.1 The billing statement includes several projects where Sweeter Excavating has paid in full. The billing statement may be helpful so that the Registrar can see Sweeter Excavation’s partial payments on the invoices noted in the table above.

ADH also submits an email chain between Adam Henderson and Mike Sweeter regarding the past due invoices. See Exhibit 10. In that email, Mr. Sweeter admits that some of the payments are due, and raises unserious challenges to the dates that the invoices were sent. As Mr. Henderson states in his March 26, 2024 email, “the date on the invoices is the date they were originally sent.” Even if the invoices were sent months after completion, there is no plausible argument that ADH thereby waived its right to payment for work completed.

The email chain also shows that Mr. Sweeter misrepresented ADH’s quoted price for paving work on the Maswick Lodge/Grand Canyon project. Mr. Henderson had quoted Sweeter Excavating $20 per square foot to complete the work, yet Sweeter Excavating quoted the general contractor $11.50 per square foot, knowing that was significantly less than what ADH had quoted. Sweeter Excavating’s failure to provide an accurate quote to the upstream general contractor is no excuse for Sweeter Excavating’s failure to pay ADH.

The parties did not have an expressly agreed-upon payment schedule. ADH typically invoiced Sweeter Excavating monthly, or if the project would only last one month or less, ADH would invoice after completion. Payment is always expected promptly, but not more than 30 days after the invoice. Because of ADH and Sweeter Excavating’s history, and because of Mr. Sweeter’s regular excuses to delay payment, ADH continued to negotiate and be patient with Sweeter Excavating.

ADH has established the elements of A.R.S. § 32-1154(A)(10), and is prepared to provide such evidence at a hearing if required. Sweeter Excavating is able to pay all amounts due, but simply does not pay. Sweeter Excavating has a business practice of forcing its subcontractors to fight for payment in hopes of receiving a nuisance discount. Regardless, ADH has reason to believe that Sweeter has been paid by upstream contractors/owners for the work covered in ADH’s invoices. There has been no issue with ADH’s workmanship; any attempt to raise such an issue in response to this Complaint would not only be un-credible, it would be untimely and barred under the Prompt Pay statutes.

For the foregoing reasons, ADH Concrete is due $388,847.40 from Sweeter Excavating. ADH is also due interest at 18% per year under A.R.S. § 32-1183(H).

Please note that the total remaining due in the billing statement differs from the total in the table above by $2,500. After creating the billing statement, ADH has decided not to seek the $2,500.00 remaining due on an invoice from 2021, due to the time that has passed. ADH does not waive its right to seek payment on that amount in a different venue. Received by Investigations 05/15/2024 2024-05627 Registrar of Contractors May 14, 2024 Page 3

If you have any questions or concerns regarding this matter do not hesitate to contact me.

Sincerely,

LANG THAL KING & HANSON PC

Brian J. Pouderoyen

BJP/jrf Enclosures LTKH File No: 4583-001: 1869518 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 1 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 9/26/2023 337 License # ROC 233295

Bill To

P.O. No. Terms Project

9566 N. Aldrich Rd

Quantity Description Rate Amount

Dig footings, set up pour and finish 480 sq.ft. of new 4' concrete per plan. concrete was 5,280.00 5,280.00 purchased by other.

Total $5,280.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 2 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 9/26/2023 336 License # ROC 233295

Bill To

P.O. No. Terms Project

Gore- parking lot wall

Quantity Description Rate Amount

set up pour and finiah 70' of 4' tall wall 8" thick with #4 verts 4' on center with 2' wide 29,750.00 29,750.00 12' thick footing with 2 #4 horizontally

(2) pump charges 900.00 900.00

Total $30,650.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 3 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 11/16/2023 340 License # ROC 233295

Bill To

P.O. No. Terms Project

Medical east sidewalk and c...

Quantity Description Rate Amount

set up pour and finish 329 sq.ft of new4" concrete sidewalk 7,567.00 7,567.00

set up pour and finish 37lf of new 6" curb 1,554.00 1,554.00

Total $9,121.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 4 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 11/16/2023 341 License # ROC 233295

Bill To

P.O. No. Terms Project

cinder barn-Gore

Quantity Description Rate Amount

Set up pour and finish 591 sq.ft. of new 6" concrete with #4 rebar 3' on center over 8,274.00 8,274.00 compacted material excavate, set up pour and finish 48 sq.ft of new 6" concrete spillway 1,755.25 1,755.25

Total $10,029.25 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 5 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 2/14/2024 344 License # ROC 233295

Bill To

P.O. No. Terms Project

Gore-Kilte lane

Quantity Description Rate Amount

Set up pour and finish 100sq.ft of new 6' concrete with 40lf of 30" footings per plan 3,800.00 3,800.00

Total $3,800.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 6 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 2/14/2024 343 License # ROC 233295

Bill To

P.O. No. Terms Project

Belmont Fire Station- Interi...

Quantity Description Rate Amount

sluury, footings, interior footings and slab on new building per plans 110,000.00 110,000.00 interior footings on existing building per plans 5,870.00 5,870.00

Total $115,870.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 7 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 2/14/2024 342 License # ROC 233295

Bill To

P.O. No. Terms Project

grand canyon

Quantity Description Rate Amount

12 concrete deliverys for sidewalks and curb and gutter installation this consist of all 20,872.00 250,464.00 material and labor and does not include any change orders already completed 11 yards concrete 3yrds for replcement of curb and gutter per engineers mistake 5,692.50 5,692.50 Concrete 4yrds for bollards for sweeter excavation 1,976.00 1,976.00 Concrete 6.5 yrds 12,334.00 12,334.00 Concrete 8 yrds 15,180.00 15,180.00

Total $285,646.50 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 8 Received by Investigations 05/15/2024

Invoice 2024-05627 ADH CONCRETE 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 3/20/2024 346 License # ROC 233295

Bill To

P.O. No. Terms Project

grand canyon

Quantity Description Rate Amount

4 concrete deliverys for sidewalks and Curb and Gutter installation, this consists of all 20,872.00 83,488.00 materials and labor. Does not include any change orders already completed. 11yrds Concrete 10 yrds 18,975.00 18,975.00 Concrete 8 yrds 15,180.00 15,180.00

Total $117,643.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 9 Received by Investigations 05/15/2024

Statement 2024-05627

ADH CONCRETE 2909 N. Patterson Date Flagstaff, AZ 86004 928-699-4388 3/25/2024

License # ROC 233295

To:

Amount Due Amount Enc. $391,347.40

Date Transaction Amount Balance

04/29/2021 Balance forward 0.00

9566 N. Aldrich Rd- 09/26/2023 INV #337. Due 09/26/2023. 5,280.00 5,280.00

Belmont Fire Station- Interior concrete- 09/21/2021 INV #301. Due 09/21/2021. 36,000.00 41,280.00 09/23/2021 PMT #1547. -36,000.00 5,280.00 11/03/2023 PMT #2098. -20,280.00 -15,000.00 01/05/2024 PMT #2179. -3,600.00 -18,600.00 02/01/2024 PMT #2224. -47,782.00 -66,382.00 02/14/2024 INV #343. Due 02/14/2024. 115,870.00 49,488.00

Belmont Fre Station- Exterior Concrete- 12/05/2021 INV #304. Due 12/05/2021. 69,520.00 119,008.00 12/21/2021 PMT #1612. -69,520.00 49,488.00

Caliente- NAU- 06/30/2021 INV #295. Due 06/30/2021. 6,290.00 55,778.00 06/30/2021 PMT #1462. -6,290.00 49,488.00

Caliente- NAU:Caliente- Belmont FireStation- 06/30/2021 INV #296. Due 06/30/2021. 12,000.00 61,488.00 06/30/2021 PMT #1462. -9,500.00 51,988.00

cinder barn-Gore- 11/16/2023 INV #341. Due 11/16/2023. 10,029.25 62,017.25 01/23/2024 PMT #2208. -9,425.00 52,592.25

Cornville- 06/23/2023 INV #330. Due 06/23/2023. 4,800.00 57,392.25 06/23/2023 PMT #1946. -4,800.00 52,592.25

DeMiguel Elementry School- 1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS CURRENT Amount Due DUE DUE DUE PAST DUE

0.00 117,643.00 273,704.40 0.00 0.00 $391,347.40

Page 1 Received by Investigations 05/15/2024

Statement 2024-05627

ADH CONCRETE 2909 N. Patterson Date Flagstaff, AZ 86004 928-699-4388 3/25/2024

License # ROC 233295

To:

Amount Due Amount Enc. $391,347.40

Date Transaction Amount Balance

10/11/2021 INV #302. Due 10/11/2021. 4,500.00 57,092.25 10/11/2021 PMT #1566. -3,400.00 53,692.25 11/04/2021 PMT -1,100.00 52,592.25

Gore- Kiltie ln.- 01/03/2023 INV #324. Due 01/03/2023. 4,500.00 57,092.25 01/10/2023 PMT #1835. -4,500.00 52,592.25

Gore- parking lot wall- 09/26/2023 INV #336. Due 09/26/2023. 30,650.00 83,242.25 12/11/2023 PMT #2143. -17,956.00 65,286.25

Gore- small wall and flat work- 09/26/2023 INV #332. Due 09/26/2023. 19,237.50 84,523.75 09/26/2023 PMT #2066. -19,237.50 65,286.25

Gore-Kilte lane- 02/14/2024 INV #344. Due 02/14/2024. 3,800.00 69,086.25

gore 4th st north- 02/28/2023 INV #325. Due 02/28/2023. 17,970.00 87,056.25 02/28/2023 PMT #1853. -17,970.00 69,086.25

Gore Medical West- 10/19/2022 INV #318. Due 10/19/2022. 41,925.98 111,012.23 01/10/2023 PMT #1835. -41,925.98 69,086.25

grand canyon- 01/05/2024 PMT -20,418.75 48,667.50 01/23/2024 PMT #2209. -20,872.00 27,795.50 02/14/2024 INV #342. Due 02/14/2024. 285,646.50 313,442.00 03/07/2024 PMT #2254. -24,871.00 288,571.00 03/20/2024 INV #346. Due 03/21/2024. 117,643.00 406,214.00 03/22/2024 PMT #2276. -20,410.00 385,804.00 1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS CURRENT Amount Due DUE DUE DUE PAST DUE

0.00 117,643.00 273,704.40 0.00 0.00 $391,347.40

Page 2 Received by Investigations 05/15/2024

Statement 2024-05627

ADH CONCRETE 2909 N. Patterson Date Flagstaff, AZ 86004 928-699-4388 3/25/2024

License # ROC 233295

To:

Amount Due Amount Enc. $391,347.40

Date Transaction Amount Balance

Harvest bellemont- footings& flatwork- 01/19/2022 INV #306. Due 01/19/2022. 10,000.00 395,804.00 01/19/2022 PMT #1624. -10,000.00 385,804.00

Medical east sidewalk and curb- 11/16/2023 INV #340. Due 11/16/2023. 9,121.00 394,925.00 12/11/2023 PMT #2150. -3,577.60 391,347.40

MEMS Improvements:Court yard - MEMS- 05/04/2021 INV #293. Due 05/04/2021. 20,647.50 411,994.90 05/04/2021 PMT #1438. -20,647.50 391,347.40

NAU-Cival repairs- 09/26/2023 INV #333. Due 09/26/2023. 11,972.00 403,319.40 09/26/2023 PMT #2060. -11,972.00 391,347.40

Sechrist Elementry School- 04/11/2022 INV #310. Due 04/11/2022. 4,511.00 395,858.40 05/24/2022 PMT #1690. -4,511.00 391,347.40

West Flag Jr. High- 09/09/2021 INV #300. Due 09/09/2021. 5,724.00 397,071.40 12/21/2021 PMT #1612. -5,724.00 391,347.40

1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS CURRENT Amount Due DUE DUE DUE PAST DUE

0.00 117,643.00 273,704.40 0.00 0.00 $391,347.40

Page 3 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 10 Received by Investigations 05/15/2024 2024-05627

On Fri, 29 Mar, 2024 at 11:36 AM, Sweeter Excavating <[email redacted]> wrote:

To: daniel t henderson owner; adam henderson

Adam,

I am also very disappointed that this is the point we are at.

I did read all your responses in the last email. I haven't seen any of the invoices in question that we have been talking about in these emails. Can you at least forward over the February invoices that show on the revised statement? We did not receive those either. I want the original email that you sent them.

Thank you, Mike

On Thu, Mar 28, 2024 at 8:50 AM DANIEL T HENDERSON Owner <[email redacted]> wrote:

Mike- I am disappointed that this is where we are at. We have done work with each other for 6+ years. All I am seeking is the money I am owed- nothing more. I do not wish to turn this all further over to Tevis but seems like we are headed that way. It seems that you either did not see the explanation's in ( ) or ignored them, so I am restating them. Also you stated that pricing was discussed on our job walk of Gore. The job Received by Investigations 05/15/2024 2024-05627

walk consisted of myself, you and Jason Coons ( project manager Gore). Pricing was not discussed. The purpose of the walk was to get a grasp on the scope of work only. Jason Coons has verified that no pricing was ever discussed and that all jobs listed were completed by ADH Concrete.

First, you mention you never received invoices, yet I received partial payment for all but two of them. No one in their right mind sends payment for something if they have not received some sort of statement/invoice for. Further, you said some of these balances owed is the first time you have heard of anything such. You and I both know that is a crock. This is not your first-time hearing or knowing of what is past due. We have had multiple conversations about these—especially your brother in laws where you continually played the card “I have already paid that, let me check”. I also have a better understanding of your character when I sold you binoculars and you shorted me $300. I confronted you of this, you acknowledged it, and still never paid the remaining $300.

My dad sent the emails the day the invoices are generated so I am going to recap what I am seeking from you in terms of payment for all jobs minus the Grand Canyon which is addressed further in this email. If we don’t have an agreed amount by Monday end of day on April 1, Tevis who already knows of these issues, will be in contact with you. . 1. Gore medical east sidewalk and curb: a. Invoice #340 sent 11/16/23 for $9,121.00

i. payment received 12/11/23 of $3,577.60 ADH Concrete owed: $5,543.40 2. Gore parking lot wall: a. Invoice #336 sent 9/26/23 for $30,650

i. payment received 12/11/23 of $17,956.00 ADH Concrete owed: $12,694.00 3. Gore Kilte Lane: a. Invoice #344 sent 2/14/24 for $3,800.00

i. payment received $0 ADH Concrete owed: $3,800.00 4. Residence on Aldrich a. Invoice #337 sent 9/26/23 for $5,280.00

i. $0 received ADH Concrete owed: $5,280.00 5. Gore cinder barn a. Invoice #341 sent 11/16/23 $10,029.25

i. Payment received 1/23/24 received $9,425 ADH Concrete owed: $604.25 6. Fire station Bellmont: Received by Investigations 05/15/2024 2024-05627

a. Invoice: #343 sent $115,870.00 payment received: 11/3/23 - $20,280.00 1/5/24 - $3,600.00 2/1/24- $47,782

i. $71,662.00 ADH Concrete owed:$44,208.00

7. fire station depot:

a. invoice #296 for balance due of $2500.00 because of age of this I will waive this.

In total owed : $72,129.65

Grand Canyon Job We have always have done a plug and play. I told you at least $20 per square foot to seal the deal and you purposely deceived me in thinking it was $23 per square foot. It was deceitful after the first draw, when I hadn’t even sent you an invoice, you said “I would have to check if it was $22 or $23 per square feet”. You never circled back with me on this. Fast forward to a few weeks ago, I asked why I haven’t been paid up to what I had already poured. You scrambled like you have in the past and said “ I will have to check”. On March 6th after I followed up again, you told me you bid the job for $11.50 a square foot. Mike, I charge $11.50 in town, no one in their right mind would agree to that and you know that.

Balance due on this per invoice #342 and invoice #346 Is $316,717.75.

Because of your deceitfulness on this I do not believe you are being honest on what you have been billing Woodruff Construction. If you will furnish to me all total draws to you from Woodruff I am willing to discuss my pricing to resolve his issue.

On Tue, 26 Mar, 2024 at 7:40 PM, Sweeter Excavating <[email redacted]> wrote:

To: daniel t henderson owner Cc: [email redacted]

Adam,

Your accounting documentation is all over the place. Each statement is different, and the numbers you are providing between statements are completely different. You're adjusting some of the invoices that you provided through these emails either for more money or less money., and so much more. You also cannot provide me the original emailed invoices that I do not have that you said you sent. (they are not in my email)

You are showing that I owe money from 2021 and so on, never have you sent me anything or Received by Investigations 05/15/2024 2024-05627

called me to let me know there were any kind discrepancies throughout the years until now.

There is no way I would agree to pay over $20,000.00 per cement truck load on any job, let alone the Grand Canyon Job., that is excessive and outrageous. You have been paid in full for all work that was completed on all jobs from inception to current.

Woodruff Construction has informed me that ADH Concrete is no longer allowed on any of their jobs now or in the future. Their email is attached.

I will offer this, upon written agreement, dated with signatures.

*I will pay you on invoice#337-9566 Aldrich Rd. for $5,280.00- this will be mailed immediately. *I will pay you on draw#5 (Grand Canyon) Billed 2/25/2024. $48,642.50, not yet received but I will mail this payment as soon as I receive it.

Thank you, Mike Sweeter

On Tue, Mar 26, 2024 at 9:00 AM DANIEL T HENDERSON Owner <[email redacted]> wrote:

I do not have them. I empty my mail boxes of all old messages for storage concerns. The date on the invoices is the date they were originally sent.

On Mon, 25 Mar, 2024 at 6:34 PM, Sweeter Excavating <[email redacted]> wrote:

To: daniel t henderson owner Cc: [email redacted]

Adam,

Can you please forward me the original emails of the invoices that I do not have that you said you sent. From the original date you sent them. What I am saying is, I did not have the invoices in my email. I could not find them by invoice number or by either of your email addresses in my email. So I am asking for the original email date (date stamped from your email). Not regenerated.

Thank you, Mike Sweeter

On Mon, Mar 25, 2024 at 11:07 AM DANIEL T HENDERSON Owner <[email redacted]> wrote: Received by Investigations 05/15/2024 2024-05627

I am resending all invoices that you say you do not have and updating statement to reflect all changes made. Grand Canyon project was verbally agreed to be $20,872.00 per pour (full load 11yards of concrete) this price reflects for curb, gutter and sidewalk inclusive There were several loads that were not full load and I have adjusted cost to reflect that on updated invoices 342 and 346. Per your statement I agreed to $11.50 sgft, and $32.00 lineal foot i did not agree. I have requested multiple time for the amount of your draws from Woodruff. If you will provide that information then maybe we can discuss adjusting my price.

On Fri, 22 Mar, 2024 at 2:04 PM, Sweeter Excavating <[email redacted]> wrote:

To: daniel t henderson owner Cc: [email redacted]

Hello Adam,

Per our phone conversation today 3/22/2024 you stated that you agree with the $11.50 a SQFT. for flat work and $32.00 a LINEAL FT. for Curb and Gutter, for Maswik Lodge (Grand Canyon job)

I am replying to this email that shows $106089.40 is for other jobs that are way past due $301370.50 is for the grand canyon project that you sent 3/21/2024. I have also attached the statement that you sent me yesterday 3/21/2024 so we can have it all in one email. Those figures do not match up for either this email or the statement (statement date 9/1/23) with the agreement of the unit costs of $11.50 a SQFT. for flat work and $32.00 a LINEAL FT. for Curb and Gutter for Maswik Lodge (Grand Canyon job)

Starting with the first date on your statement: I will address the invoices.

7/31/2023- Balance forward $2,500.00, no description what would this be for? (invoice 296 $12000.00 received $9500.00 on 6/30/21)

9/26/2023- 9566 Aldrich Rd. Invoice#337 $5,280.00, I do have this invoice.

2/14/2024- Belmont Fire Station. Invoice#343 dated 2/14/24, no invoice on record until we received the statement in this email. (invoice 343 for $115870.00 was not generated until final pour Total of 3 payments on this job were made prior to any invoice number being created. Payment #2098 $20,800 11/3/2023 #2179 $3,600.00 1/5/2024 Received by Investigations 05/15/2024 2024-05627

#2224 $47,782.00 2/1/2024 Total=$71,662.00

11/16/2023-Gore Cinder Barn Invoice#341, no invoice on record until we received the statement in this email. Payment #2208 $9,425.00 1/23/2024 (resent invoice $10,029.25 balance due 604.25 without invoice how did you come up with $9425.00 amount)

11/3/2023-Fire Station Footings Invoice#338 11/3/2023-no invoice on record until we received the statement in this email. This invoice is $20,280.00 IT IS THE EXACT SAME AMOUNT AS YOUR ENTRY FOR PAYMENT ON 11/3/23 FOR $20,280.00 PAYMENT#2098 ABOVE. (this is a duplicate my mistake it is delete)

9/26/2023-Gore parking lot wall. Invoice#336, We do have this invoice. You billed for 78 foot of wall @ $425.00 a lineal foot. There is only 65 foot and you walked this job with me and it was bid at $276.25 a lineal foot. Payment matches the 65 foot @ $276.25 a lineal foot. Payment# 2143 $17,956.00 12/11/2023 (should have been 70 foot typo error on my end have changed invoice to reflect this and resubmitting. when we walked the project to see full scope of work no lineal foot price or square foot price was discussed)

9/26/2023-Gore small wall and flat work. Invoice#332 $19,237.50 -no invoice on record until we received the statement in this email. Payment#2066 $19,237.50 9/26/2023-This invoice is dated the same of payment received.

2/14/2024-Gore on Kiltie Lane. Invoice#344-no invoice on record until we received the statement in this email. (resent invoice)

2/14/2024-Grand Canyon Invoice#342-no invoice on record until we received the statement in this email. payments made prior to the invoice date of 2/14/2024. Payment#2179 $20,418.75 and Payment#2209 $20,872.00 payment made after invoice entry date. Payment#2254 $24,871.00

3/20/2024-Grand Canyon. Invoice#346 was sent to my email 3/20/2024 $104,360. (I do not agree on this invoice)

11/16/2023-Medical east sidewalk and curb-Invoice#340-no invoice on record until we received the statement in this email. ADH did not perform any work at Gore for Sidewalk or Curb. This job was at Gore, but it was a small utility patch. Payment made 12/11/2023 of $3577.60 Payment#2150 (resent invoice 340 for $9121.00 balance due $5543.00. Hoe did you come up with #3577.60 without an invoice.) Received by Investigations 05/15/2024 2024-05627

9/26/2023-NAU Civil Repairs. Invoice#333-no invoice on record until we received the statement in this email. Invoice created same date as payment on statement. Payment#2060 $11,972.00 9/26/2024 (resent invoice)

This is what I have (Sweeter Excavating) for all my records for the Grand Canyon (Maswick Lodge) Payments received by ADH and payments coming to ADH.

Breakdown of payments for Grand Canyon Maswick lodge

DRAW 1: Received payment from Woodruff 12/11/2023 Sweeter Excavating mailed check# 2179 to ADH Concrete 12/13/2023 ADH cashed check#2179 1/8/2024 (Attached) $20,418.75

DRAW 2: Received payment from Woodruff 1/8/2024 Sweeter Excavating mailed check# 2209 to ADH Concrete 1/10/2024 ADH cashed check#2179 1/24/2024 (Attached) $20,872.00

DRAW 3: Received payment from Woodruff 2/19/2024 Sweeter Excavating mailed check# 2254 to ADH Concrete 2/20/2024 ADH cashed check#2254 3/8/2024. $24,871.00

DRAW 4: Received payment from Woodruff 3/19/2024 Sweeter Excavating mailed check# 2276 $20,410.00 to ADH Concrete 3/19/2024 Check not cashed yet.

DRAW 5: Just billed 2/25/2024 -Awaiting payment from Woodruff. ADH Concrete will receive $48,642.50 out of this draw.

WE HAVE BILLED GENERAL CONTRACTOR: 426 Lineal ft. of curb and gutter (426x$32.00=$13,632.00) AND 10,565 SQFT. of flat work (10,565x$11.50=121,497.50) these grand total $135,129.50

Draws 1-5 above total $135,214.25. No other draws have been billed yet.

Thank you, Mike Received by Investigations 05/15/2024 2024-05627

On Thu, Mar 21, 2024 at 5:02 PM DANIEL T HENDERSON Owner <[email redacted]> wrote:

Mike $106089.40 is for other jobs that are way past due $301370.50 is for the grand canyon project

Mike Sweeter 928-699-5344

-- Received by Investigations 05/15/2024 2024-05627

Mike Sweeter 928-699-5344 Eric Ulinger <[email redacted]>

RE: Case 2024-05627 message

Brian Pouderoyen <[email redacted]> Fri, May 17, 2024 at 2:37 PM To: Eric Ulinger <[email redacted]> Cc: James Hanson <[email redacted]>, Jennifer Fortner <[email redacted]>

Hi Eric,

Thanks again for reaching out. We have decided not to pursue the claim under ARS 32-1183. We will continue to pursue the claim under ARS 32-1154(A)(10). Please let me know if there is anything more we need to do.

Thanks and have a good weekend.

-Brian

Brian Pouderoyen Attorney Direct: 480-534-4882 (voice/text) | Website | vCard Lang Thal King & Hanson 6730 N. Scottsdale Rd., Suite 101 | Scottsdale, AZ 85253 480-534-4900 NOTICE: This message and its atachments are conﬁdental and may be atorney-client privileged. They are protected by law. If you are not the intended recipient, please destroy the message in both electronic and paper form and notfy Lang Thal King & Hanson at 480-534-4900 or by email to the sender. Thank you.

From: Eric Ulinger <[email redacted]> Sent: Thursday, May 16, 2024 12:20 PM To: Brian Pouderoyen <[email redacted]> Subject: Case 2024-05627

Warning! This e-mail originated outside LTKH. Don't open attachments or click links unless you know the sender and know the content is safe.

As we discussed, unlike ARS 32-1154(A)(10), a $500.00 bond is required to proceed with complaints alleging ARS 32-1183. Please let me know how you wish to proceed.

Eric Ulinger

Registrar of Contractors

Legal Department

602-771-6756

[email redacted]

The ROC is now on social media! Make sure to follow us on: Fill out AZ ROC's survey to let us know how we're doing and how we can better serve you! Eric Ulinger <[email redacted]>

Re: Notice of Complaint - 2024-05627 message

Eric Ulinger <[email redacted]> Thu, May 30, 2024 at 10:40 AM To: Mike Sweeter <[email redacted]> Cc: [email redacted], [email redacted]

The Register agrees to extend the due date to June 25, 2024.

On Wed, May 29, 2024 at 11:00 AM Mike Sweeter <[email redacted]> wrote: Good morning Eric,

Sweeter Excavating would respectfully ask the registrar for a 30 day extension. We are in the process of speaking with our attorney.

Respectfully,

Mike Sweeter

On Wed, May 22, 2024 at 10:09 AM Eric Ulinger <[email redacted]> wrote: Attached is a copy of complaint 2024-05627. Please feel free to contact me with any questions or updates.

-- Eric Ulinger Registrar of Contractors Legal Department 602-771-6756 [email redacted]

The ROC is now on social media! Make sure to follow us on: Facebook Twitter Fill out AZ ROC's survey to let us know how we're doing and how we can better serve you! Facebook

Mike Sweeter 928-699-5344

-- Eric Ulinger Registrar of Contractors Legal Department 602-771-6756 [email redacted]

The ROC is now on social media! Make sure to follow us on: Facebook Twitter Fill out AZ ROC's survey to let us know how we're doing and how we can better serve you! Facebook Eric Ulinger <[email redacted]>

RE: Notice of Complaint - 2024-05627 message

Brian Pouderoyen <[email redacted]> Thu, May 30, 2024 at 9:09 AM To: Eric Ulinger <[email redacted]> Cc: "[email redacted]" <[email redacted]>, Mike Sweeter <[email redacted]>

Eric,

ADH Concrete is not opposed to a reasonable extension, but it asks that the ROC grant a maximum extension of 21 days from June 4th.

Thank you,

Brian

Brian Pouderoyen Attorney Direct: 480-534-4882 (voice/text) | Website | vCard Lang Thal King & Hanson 6730 N. Scottsdale Rd., Suite 101 | Scottsdale, AZ 85253 480-534-4900 NOTICE: This message and its attachments are confidential and may be attorney-client privileged. They are protected by law. If you are not the intended recipient, please destroy the message in both electronic and paper form and notify Lang Thal King & Hanson at 480-534-4900 or by email to the sender. Thank you.

From: Mike Sweeter <[email redacted]> Sent: Wednesday, May 29, 2024 11:00 AM To: Eric Ulinger <[email redacted]> Cc: [email redacted]; Brian Pouderoyen <[email redacted]> Subject: Re: Notice of Complaint - 2024-05627

Warning! This e-mail originated outside LTKH. Don't open attachments or click links unless you know the sender and know the content is safe.

Good morning Eric,

Sweeter Excavating would respectfully ask the registrar for a 30 day extension. We are in the process of speaking with our attorney.

Respectfully,

Mike Sweeter

On Wed, May 22, 2024 at 10:09 AM Eric Ulinger <[email redacted]> wrote:

Attached is a copy of complaint 2024-05627. Please feel free to contact me with any questions or updates.

Eric Ulinger

Registrar of Contractors Legal Department

602-771-6756

[email redacted]

The ROC is now on social media! Make sure to follow us on:

Fill out AZ ROC's survey to let us know how we're doing and how we can better serve you!

Mike Sweeter

928-699-5344 Eric Ulinger <[email redacted]>

Re: Notice of Complaint - 2024-05627 message

Mike Sweeter <[email redacted]> Wed, May 29, 2024 at 11:00 AM To: Eric Ulinger <[email redacted]> Cc: [email redacted], [email redacted]

Good morning Eric,

Sweeter Excavating would respectfully ask the registrar for a 30 day extension. We are in the process of speaking with our attorney.

Respectfully,

Mike Sweeter

On Wed, May 22, 2024 at 10:09 AM Eric Ulinger <[email redacted]> wrote: Attached is a copy of complaint 2024-05627. Please feel free to contact me with any questions or updates.

-- Eric Ulinger Registrar of Contractors Legal Department 602-771-6756 [email redacted]

The ROC is now on social media! Make sure to follow us on: Facebook Twitter Fill out AZ ROC's survey to let us know how we're doing and how we can better serve you! Facebook

Mike Sweeter 928-699-5344 6/27/24, 2:27 PM State of Arizona Mail - (Sweeter Excavating, LLC) Complaint LEGALNo. 2024-05627 RECEIVED 06/25/2024

Legal New Mail - AZROC <[email redacted]>

(Sweeter Excavating, LLC) Complaint No. 2024-05627 messages

Myra Henry <[email redacted]> Tue, Jun 25, 2024 at 4:11 PM To: "[email redacted]" <[email redacted]>, "[email redacted]" <[email redacted]> Cc: Trevor Kortsen <[email redacted]>, Jason Bliss <[email redacted]>, Simon Trebon <[email redacted]>

Good afternoon,

Kindly find the attached Response to ROC Complaint No. 2024-05627 along with exhibits A-O. Could you please confirm receipt?

Thank you very much,

2024.06.25 Sweeter - ROC response FINAL with Exhibits A-O.pdf 14230K

Myra Henry <[email redacted]> Tue, Jun 25, 2024 at 5:21 PM To: "[email redacted]" <[email redacted]>, "[email redacted]" <[email redacted]> Cc: Trevor Kortsen <[email redacted]>, Jason Bliss <[email redacted]>, Simon Trebon <[email redacted]>

My apologies,

we noticed there was a typo in the Check amount within the response. Attached is the revised Response with the correct check amount ($53,922.50)

Thank you,

https://mail.google.com/mail/b/AEoRXRQLhvWJn8ymAAFPSpF4zL-Xaf7pFY9lqA0dWP9Bx5Ubd60O/u/0/?ik=d3afebeda9&view=pt&search=all&permt… 1/2 6/27/24, 2:27 PM State of Arizona Mail - (Sweeter Excavating, LLC) Complaint LEGALNo. 2024-05627 RECEIVED 06/25/2024

[Quoted text hidden]

2024.06.25 Sweeter - ROC response FINAL w Ex A-B.pdf 14214K

Legal New Mail - AZROC <[email redacted]> Thu, Jun 27, 2024 at 2:23 PM To: Myra Henry <[email redacted]> Cc: "[email redacted]" <[email redacted]>, Trevor Kortsen <[email redacted]>, Jason Bliss <[email redacted]>, Simon Trebon <[email redacted]>

Received,

Thank you,

Arizona Registrar of Contractors Legal Department

Fill out AZ ROC’s survey to let us know how we’re doing and how we can better serve you!

[Quoted text hidden]

https://mail.google.com/mail/b/AEoRXRQLhvWJn8ymAAFPSpF4zL-Xaf7pFY9lqA0dWP9Bx5Ubd60O/u/0/?ik=d3afebeda9&view=pt&search=all&permt… 2/2 LEGAL RECEIVED 06/25/2024

JASON BLISS [email redacted]

June 25, 2024

Via Email ([email redacted]; [email redacted])

Eric Ulinger Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007 602-771-6756

RE: Complaint No. 2024-05627

Dear Mr. Ulinger:

This office represents Sweeter Excavating LLC (“Sweeter”) regarding the above-referenced Registrar Complaint No. 2024-05627 (the “Complaint”) filed May 15, 2024 by ADH Concrete LLC (“ADH”). Please include my office on all future communications and filings in this matter. In its Complaint, ADH includes several allegations against Sweeter regarding nonpayment for work ADH performed or has alleged it performed. The Complaint is unsupported by the facts and should be dismissed in its entirety.

ADH identifies four (4) projects for which it alleges Sweeter has an outstanding balance. The allegation of nonpayment for each of these projects is addressed below:

1. Project #1: Aldrich Project (Invoice #337)

ADH Complaint: ADH alleges an outstanding balance of $5,280.

Sweeter response: Sweeter acknowledges that ADH performed the work and that ADH provided an invoice for the work performed. Sweeter remitted payment in the amount of $53,922.50 on June 25, 2024, $5,280 of which is for final payment on the Aldrich Project. Accordingly, there is no outstanding balance on the Aldrich Project.

2. Project # 2: Gore Project (Invoices #336, #340, #341, and #344)

ADH Complaint: ADH alleges a total outstanding balance of $22,641.65 from four (4) invoices for work performed for W.L Gore: (i) Gore Parking Lot-Invoice #336, alleged outstanding balance of $12,694, (ii) Gore Medical East- Invoice #340, alleged outstanding balance of $5,543.40, (iii) Gore Cinder Barn- Invoice #341, alleged outstanding balance of $604.25, and (iv) Gore Kiltie Lane- Invoice #344, alleged outstanding balance of $3,800.

Sweeter response: Sweeter has satisfied its payment obligations to ADH for all Gore Projects in full. LEGAL RECEIVED 06/25/2024

Sweeter Excavating June 25, 2024 Page 2

A. Gore Parking Lot, identified as ADH invoice #366 dated September 26, 2023:

ADH has inflated both the amount of work done and the cost per linear foot for which Sweeter promised to pay ADH for the work performed. While walking the project site prior to beginning work, Sweeter and ADH agreed that Sweeter would pay ADH $276.25 per linear foot of 4’ tall retaining walls. The agreed upon price per linear foot included all costs associated with the project, including pump fees, which ADH attempts to pass along to Sweeter. Sweeter’s agreement with ADH did not include any agreement to pay additional costs such as pump fees.

Rather than bill at the agreed upon price per linear foot, ADH instead provided an invoice for $425/linear foot, a 54% increase of the agreed upon price. Further, while ADH actually poured 65 linear feet of retaining wall, it initially invoiced Sweeter for 78 linear feet of retaining wall. After Sweeter identified that ADH attempted to overbill the amount of work performed, ADH then adjusted the invoice to bill for 70 linear feet of retaining wall, which again is inflated from the actual work performed. In short, ADH’s invoice is supported by neither the agreed upon price terms nor the actual work performed by ADH. Both of ADH’s invoices for this project are attached hereto as Exhibit A.

On December 11, 2023, Sweeter remitted check payment #2143 in the amount of $17,956.00 for the work performed on invoice #366. The amount that Sweeter remitted is supported by the agreed upon price of $276.25/linear foot for 65’ of wall. ADH has acknowledged receipt of this payment. Sweeter’s payment is further supported by Sweeter’s June 6, 2023 estimate to Gore for the retaining wall, which was prepared after walking the site with ADH and after receiving ADH’s quoted price per linear foot. In its estimate, Sweeter quotes 65 linear feet of retaining wall at $325/linear foot. Obviously, Sweeter would not agree to pay ADH $425/linear foot when it quoted $325/linear foot for such work to the customer. Sweeter has subcontracted concrete work to ADH on multiple prior projects and the agreed-upon subcontractor price for this concrete work is always less than Sweeter’s quote to the customer. Sweeter’s estimate to Gore for the subject parking lot retaining wall is attached hereto as Exhibit B.

In a March 22, 2024 email chain between ADH and Sweeter, ADH asserts that there was no agreement on pricing reached between the parties while walking the project site. This email chain is attached as Exhibit C. While Sweeter disputes this allegation, assuming for the sake of argument that ADH is correct that no agreement on price was reached, then ADH’s failure to provide a quote prior to completing the work precludes it from receiving $425/linear foot. First, without an agreement on price, it is arguable whether an enforceable contract even exists between the parties because a “sufficient mutual understanding as to all the terms of the contract did not exist.” Savoca Masonry Co. v. Homes & Son Const. Co., 112 Ariz. 392, 395, (1975). Further, even if there is an enforceable contract, “[w]here a contract price is left to future agreement by the parties and they fail to agree, the price is a reasonable one” at “the time for doing the work.” Triangle Const., a Div. of Bentley-Dille Gradall Rentals, Inc. v. City of Phoenix, 149 Ariz. 486, 491 (Ariz. Ct. App. 1985); Restatement (Second) of Contracts § 33 (1981). It is unreasonable for ADH to collect thousands of dollars more from Sweeter than Sweeter sought from the owner Gore for completion of ADH’s work. Sweeter’s estimate of $325/linear foot for 65 linear feet of work provides sufficient evidence that ADH’s invoices substantially overstate both the agreed upon rate as well as overstates the LEGAL RECEIVED 06/25/2024

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“reasonable” price for the work performed. Sweeter’s invoice also demonstrates that ADH overstates the amount of work actually it performed. Simply put, ADH has been paid in full for the work completed, at the rate agreed upon by the parties.

B. Gore Medical East, identified as ADH invoice #340 dated November 16, 2023.

ADH’s Exhibit 9 attached to its Complaint indicates ADH is seeking a balance of $5,543.40 for Invoice # 340, purportedly dated 11/16/23, for work described as “Medical east sidewalk and curb.” For multiple reasons, ADH’s request is unintelligible. First, in the same portion of Exhibit 9 to the Complaint describing an alleged outstanding balance for Invoice # 340, “Medical east sidewalk and curb,” ADH acknowledges receipt of “PMT # 2150” for “$3,577.60.” Sweeter remitted this “PMT # 2150” for “$3,577.60” to ADH for completion of a utility patch at Gore, towards invoice #360, not #340. ADH further did not perform any “sidewalk or curb” work at the Gore Medical East facility.

In addition, contrary to ADH’s claim that all invoices in this matter were sent on the same day that they are dated, Sweeter did not receive this alleged invoice until March 21, 2024, four months after it is dated. ADH is unable to produce any record that the invoice was sent earlier and cannot provide any detail regarding the alleged sidewalk or curb work to which this outstanding balance could relate. Instead, as shown by ADH’s application of Sweeter’s $3,577.60 payment towards this invoice on its Billing Statement, it appears this invoice should be for a utility patch which Sweeter hired ADH to pour. For this utility patch, Sweeter charged Gore $4,472 and paid $3,577.60 of that payment to ADH in full satisfaction of its payment obligations. See Exhibit D for invoice #340, Sweeter’s invoice to Gore for the utility patch, and Sweeter’s check to ADH for completion of the utility patch.

C. Gore Cinder Barn, identified as ADH invoice #341 dated November 16, 2023.

Again, ADH’s invoice incorrectly states the work performed and the agreed upon cost for such work. ADH has failed to provide any documentation supporting the alleged work performed. On the Gore Cinder Barn project, Sweeter and ADH agreed that ADH would prep, pour, and finish 754 square feet of concrete at $12.50 per square foot. This agreement required Sweeter to remit payment to ADH in the amount of $9,425.00, and such payment has been made and acknowledged by ADH in its Billing Statement, attached as Exhibit 9 to the Complaint. ADH’s invoice #341 understates the square footage poured in the cinder barn (identifying 591 square feet of concrete rather the 754 actually poured) but includes a charge for spillway work that it never performed. Invoice #341 is attached hereto as Exhibit E.

Sweeter’s estimate and invoice to Gore for the Cinder Barn, along with Gore’s payment receipt, contain no mention of a spillway and confirms the above-stated agreement between the parties – 754 square feet of concrete at $12.50 per square foot. Sweeter’s estimate, Sweeter’s invoice, and Gore’s payment receipt are attached hereto as Exhibit F. Pursuant to Gore policy, it does not permit any construction work to commence without an estimate and purchase order reflecting the proposed scope of work and pricing. Accordingly, ADH has not provided any support for its allegation that Sweeter has an outstanding balance for a spillway or that Sweeter agreed to pay more than $12.50/square foot for the work actually performed. Once again, and contrary to ADH’s LEGAL RECEIVED 06/25/2024

Sweeter Excavating June 25, 2024 Page 4

claim that all invoices in this matter were sent on the same day they are dated, Sweeter did not receive this invoice until March 21, 2024. ADH is unable to produce any record that the invoice was sent earlier.

D. Gore Kiltie Lane, identified as ADH invoice #344, dated February 14, 2024.

ADH has failed to provide any evidence that the work it alleges to have performed at Kiltie Lane was ever performed. Sweeter did not hire ADH to provide any of the services identified in ADH invoice #344. Sweeter possesses no estimate, purchase order, or invoice to Gore evidencing that this work was completed. Again, Gore does not permit any work to commence without an estimate and purchase order reflecting the scope of work and pricing. Finally, and once again contrary to ADH’s claim that all invoices in this matter were sent on the same day that they are dated, Sweeter did not receive this invoice until March 21, 2024. ADH is unable to produce any record that the invoice was sent earlier. ADH’s invoice #344 is attached hereto as Exhibit G. Because the work was never performed or approved by Gore, Sweeter is unable to locate any documentation between it and Gore. Sweeter cannot owe $3,800 for work that was never performed or authorized to be performed.

3. Project # 3: Belmont Fire Station Project (Invoice #343)

ADH Complaint: ADH alleges an outstanding balance due and owing from Sweeter in the amount of $44,208.00.

Sweeter response: Sweeter has paid ADH in full for the work ADH performed on this project. Prior to Sweeter providing Loven Contracting, the project’s general contractor, a quote for the concrete work, Sweeter and ADH held a job walk, reviewed plans for this project, and discussed quantities and pricing for ADH’s scope of work. At that time, ADH and Sweeter agreed that ADH would be paid $11.50 per square foot for 3,500 square feet of flat work (totaling $40,250 for flat work) and $150.00 per linear foot of footings for 209 linear feet ($31,350 for footings, totaling $71,600.00 for the entire project). In its Billing Statement, attached as Exhibit 9 to the Complaint, ADH acknowledged it has received payment on this project in the amount of $71,662, which represents Sweeter’s full payment obligations for the prices and quantities agreed upon by the parties.

In its invoice, ADH alleges it is owed a total of $115,870 for the project, of which $44,208 is alleged to be due and owing. ADH’s invoice is attached hereto as Exhibit H. ADH’s invoice contains no reference to the amount of work actually performed or the rates at which such work was performed. The lack of detail in on the invoice prevents Sweeter from identifying what work ADH is alleging it performed but has not yet been paid. Regardless, ADH’s invoice is $17,000 more than Sweeter’s estimate to Loven Contracting. Again, Sweeter would not agree to pay ADH more than it agreed to be paid from the general contractor for such work. Sweeter’s estimate to Loven Contracting is attached hereto as Exhibit I.

Further, Sweeter provided all rebar, vapor barrier, ABC material, and trucking for the project. ADH’s invoice is unsupported by the facts and unsupported by the agreement Sweeter made with Loven Contracting after ADH provided its verbal estimates to Sweeter. While no detail is given on LEGAL RECEIVED 06/25/2024

Sweeter Excavating June 25, 2024 Page 5

the invoice, it again appears that ADH has attempted to inflate both the amount of work performed and the agreed upon rates. Sweeter’s response on the amount of work performed is supported by the plans, attached hereto as Exhibit J.

4. Project # 4: Maswick Lodge (Grand Canyon) Project (ADH Invoices #342 and #346)

ADH Complaint: ADH alleges that Sweeter owes ADH a total balance of $316,717.75.

Sweeter response: Sweeter remitted payment in the amount of $53,922.50 on June 25, 2024 of which $48,642.50 is for final payment on the Maswick Lodge Project. With this final payment, Sweeter has paid ADH in full for the work ADH performed on this project. Prior to Sweeter submitting an estimate to the project’s general contractor, Woodruff Construction (“Woodruff”), Sweeter and ADH conducted a job walk, reviewed the plans, and agreed on the scope of work and pricing for the project. After receiving ADH’s rates, Sweeter and Woodruff agreed that Sweeter would be compensated $19.45 per square foot of flat work, which included the placement of four inches of concrete on four inches of compacted ABC on top of compacted subgrade. Sweeter completed all subgrade prep and supplied and installed the ABC material, accordingly, ADH and Sweeter agreed that Sweeter would receive $7.95 per square foot from the $19.45 quoted to Woodruff. As a result, ADH would receive its quoted rate of $11.50 per square foot of flat work. This rate was consistent with ADH and Sweeter’s agreement for this project and consistent with pricing on previous projects.

The project also included curb and gutter work at the site. ADH and Sweeter agreed that ADH would be compensated $32.00 per linear foot of curb and gutter and because Sweeter was doing the subgrade prep and supplying and installing the underlying ABC, Sweeter would receive $13.10 per linear foot for curb and gutter. Accordingly, Sweeter and Woodruff agreed to a total of $45.10 per linear foot of curb and gutter. Sweeter’s estimate to Woodruff is attached hereto as Exhibit K.

To date, Sweeter has invoiced and been paid by Woodruff for 426 linear feet of curb and gutter and 10,565 square feet of flat work. At the agreed upon $32.00/linear foot for curb and gutter, ADH has received $13,632 for curb and gutter and at the agreed upon rate of $11.50/square foot of flat work, ADH has received payment of $121,497.50. Accordingly, the total payment on this project due to ADH is $135,214.25, all of which has now been paid with the most recent payment of $48,642.50. In its Complaint, ADH acknowledges receipt of $86,571.75 and now that Woodruff has paid Sweeter for its most recent draw request, Sweeter remitted to ADH the final outstanding balance of $48,642.50. Accordingly, ADH has been paid in full for this project.

Examination of Invoice #346 reveals curious accounting and billing practices from ADH. ADH again sent two invoices to Sweeter with the same invoice number. Both invoices numbered 346, and invoice #342 are also enclosed as Exhibit L. The invoices appear to reflect the same completed work but have slightly different descriptions and different dates – one reflects March 21, 2024 and the other, the one ADH provided in its Complaint, is dated March 20, 2024. Both invoices also have different total amounts, with the one provided in ADH’s Complaint showing a total amount $13,283.00 higher than the invoice initially sent to Sweeter. There is no explanation for the differences in these invoices. LEGAL RECEIVED 06/25/2024

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Further, ADH’s invoicing on this project was done on a per yard rather than on a per foot basis. ADH and Sweeter have never agreed to payment based upon a per yardage price, and such pricing would be inconsistent with industry norms. In its invoices, ADH alleges that it poured and placed 215.50 cubic yards of concrete on the project. However, based on the plans and specifications and actual work performed, there were only 149 cubic yards placed on the project (10,565 square feet of four-inch-thick concrete is 132 cubic yards and 426 linear feet of curb and gutter is 17 cubic yards of concrete). Accordingly, ADH is seeking payment for 60 cubic yards more than was placed on the project. Further, in its invoicing, ADH attempts to charge Sweeter $1,897.45 per yard of concrete. By inflating its quantities by 60 yards, ADH attempts to overcharge Sweeter $113,847. Additionally, $1,847.45/yard would result in ADH receiving over $23/square foot of flat work, which is 19% more than Sweeter is being compensated in total for the flat work prep and pour and more than double the price per square foot ADH and Sweeter agreed ADH would be paid. ADH’s invoices are unsupported by the facts and the agreement between the parties. Sweeter has satisfied all of its payment obligations on the Maswick Lodge project.

Each of ADH’s nonpayment allegations are unsupported. Due to ADH and Sweeter’s working history, Sweeter has come to expect that ADH will not provide timely invoices. Accordingly, Sweeter has always been proactive in simply making payment to ADH when Sweeter is paid by the owner or upstream general contractor for the work performed. The projects identified by ADH as having a due and outstanding balance are no different. ADH failed to provide timely invoices, providing many for the first time in March 2024 regardless of the date the actual work was performed, and these invoices were paid prior to Sweeter even receiving the invoices.

In its Complaint, ADH further attempts to disparage Sweeter by alleging that Sweeter “has a business practice of forcing its subcontractors to fight for payment in hopes of receiving a nuisance discount.” ADH has no support for this claim. In fact, Sweeter has an outstanding reputation with its clients, general contractors, and subcontractors. Sweeter has received ten (10) affidavits, each attached hereto as Exhibit M, from subcontractors that it has worked with on a regular basis affirming that Sweeter always pays its subcontractors in a timely manner and that payment is made in full. Sweeter has no history of forcing its subcontractors to fight for payment and ADH’s attempt to overinflate the scope of work and pricing on these projects must be rejected.

Finally, in its Complaint, ADH alleges that it is entitled to interest under A.R.S. § 32-1183(H). ADH has not established the elements of a prompt pay claim under A.R.S. § 32-1183. There is no written agreement between the parties. ADH never submitted written pay applications. As to invoices, ADH did not provide any invoices related to the disputed balances for ADH’s work until March 21, 2024 and ADH did not provide “a waiver of any mechanic's or materialman's lien conditioned on payment for the work completed or material supplied,” as required by A.R.S. § 32-1183(B). The after-the-fact invoices ADH did provide on March 21, 2024 are further rife with contradictions and inconsistencies, as well as lacking in detail. Moreover, in an email to Mr. Ulinger on May 17, 2024, ADH’s counsel conceded that ADH would not pursue the claim under A.R.S. § 32-1183. The email from ADH’s counsel to Mr. Ulinger is attached as Exhibit O. LEGAL RECEIVED 06/25/2024

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ADH simply cannot show that Sweeter owes it any money from any project and accordingly, ADH’s complaint should be dismissed in its entirety.

Sincerely,

ASPEY, WATKINS & DIESEL PLLC

Jason Bliss JJB/mh Encl. LEGAL RECEIVED 06/25/2024

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JASON BLISS [email redacted]

June 25, 2024

Via Email ([email redacted]; [email redacted])

Eric Ulinger Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007 602-771-6756

RE: Complaint No. 2024-05627

Dear Mr. Ulinger:

ADH identifies four (4) projects for which it alleges Sweeter has an outstanding balance. The allegation of nonpayment for each of these projects is addressed below:

1. Project #1: Aldrich Project (Invoice #337)

ADH Complaint: ADH alleges an outstanding balance of $5,280.

Sweeter response: Sweeter acknowledges that ADH performed the work and that ADH provided an invoice for the work performed. Sweeter remitted payment in the amount of $53,992.50 on June 25, 2024, $5,280 of which is for final payment on the Aldrich Project. Accordingly, there is no outstanding balance on the Aldrich Project.

2. Project # 2: Gore Project (Invoices #336, #340, #341, and #344)

Sweeter response: Sweeter has satisfied its payment obligations to ADH for all Gore Projects in full. LEGAL RECEIVED 06/25/2024

Sweeter Excavating June 25, 2024 Page 2

A. Gore Parking Lot, identified as ADH invoice #366 dated September 26, 2023:

Sweeter Excavating June 25, 2024 Page 3

B. Gore Medical East, identified as ADH invoice #340 dated November 16, 2023.

C. Gore Cinder Barn, identified as ADH invoice #341 dated November 16, 2023.

Sweeter Excavating June 25, 2024 Page 4

D. Gore Kiltie Lane, identified as ADH invoice #344, dated February 14, 2024.

3. Project # 3: Belmont Fire Station Project (Invoice #343)

ADH Complaint: ADH alleges an outstanding balance due and owing from Sweeter in the amount of $44,208.00.

Sweeter Excavating June 25, 2024 Page 5

4. Project # 4: Maswick Lodge (Grand Canyon) Project (ADH Invoices #342 and #346)

ADH Complaint: ADH alleges that Sweeter owes ADH a total balance of $316,717.75.

Sweeter response: Sweeter remitted payment in the amount of $53,992.50 on June 25, 2024 of which $48,642.50 is for final payment on the Maswick Lodge Project. With this final payment, Sweeter has paid ADH in full for the work ADH performed on this project. Prior to Sweeter submitting an estimate to the project’s general contractor, Woodruff Construction (“Woodruff”), Sweeter and ADH conducted a job walk, reviewed the plans, and agreed on the scope of work and pricing for the project. After receiving ADH’s rates, Sweeter and Woodruff agreed that Sweeter would be compensated $19.45 per square foot of flat work, which included the placement of four inches of concrete on four inches of compacted ABC on top of compacted subgrade. Sweeter completed all subgrade prep and supplied and installed the ABC material, accordingly, ADH and Sweeter agreed that Sweeter would receive $7.95 per square foot from the $19.45 quoted to Woodruff. As a result, ADH would receive its quoted rate of $11.50 per square foot of flat work. This rate was consistent with ADH and Sweeter’s agreement for this project and consistent with pricing on previous projects.

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ADH simply cannot show that Sweeter owes it any money from any project and accordingly, ADH’s complaint should be dismissed in its entirety.

Sincerely,

ASPEY, WATKINS & DIESEL PLLC

Jason Bliss JJB/mh Encl. LEGAL RECEIVED 06/25/2024

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EXHIBIT O LEGAL RECEIVED 06/25/2024 REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

A D H Concrete LLC, Case No. 2024-05627 COMPLAINANT, v. Sweeter Excavating LLC, CITATION License No. ROC 317685, RESPONDENT.

The Registrar issues this Citation to Sweeter Excavating LLC (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by August 9, 2024, then under A.R.S. § 32-1155(C), Respondent’s failure to answer may be deemed an admission of the act or acts charged in the underlying complaint, and the Registrar may then suspend or revoke Respondent’s license(s). THE WRITTEN COMPLAINT On May 15, 2024, A D H Concrete LLC (“Complainant”) filed a written complaint with the Registrar. A copy of that Complaint is attached to this Citation. A FORMAL STATEMENT OF THE CHARGES AGAINST RESPONDENT The Registrar investigated this matter and finds cause to charge Respondent with violation(s) of Title 32, Chapter 10 of the Arizona Revised Statutes. Respondent is charged with violating: Charge: 1 A.R.S. § 32-1154 (A)(10) Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay, and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. If the matter proceeds to a hearing and the administrative law judge determines that any of the charges listed above are supported by a preponderance of the evidence, then Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32-1154(E) and (F). FILING A WRITTEN ANSWER Respondent must appear by filing with the Registrar a written answer to the citation and complaint showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). Respondent’s written answer should contain the heading “Written Answer to Citation and Complaint” and should include the case number, which is Case No. 2024-05627. How to File a Written Answer: Respondent’s written answer may be submitted in the following ways: In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 Email: [email redacted] The Registrar’s normal office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. If Respondent submits a written answer by mail, it is not filed with the Registrar until the Registrar actually receives it. Deadline for Filing a Written Answer: Respondent must file a written answer with the Registrar no later than August 9, 2024. This deadline is calculated under A.R.S. §§ 32-1155(A) and (B), which provides a deadline ten days after service of the Citation. Service of the Citation and Complaint is

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 complete five days after the Registrar mails a copy of the Citation and Complaint to Respondent’s latest address of record in the Registrar’s office. Consequences for Failing to File a Written Answer: If Respondent fails to answer, Respondent’s failure may be deemed an admission of the act or acts charged in the written complaint. A.R.S. § 32-1155(C). The Registrar may then suspend or revoke Respondent’s license(s). THE ADMINISTRATIVE HEARING If Respondent files a timely written answer contesting any charges in the Complaint, then the Registrar will request the Office of Administrative Hearings set a date for an administrative hearing and will notify all the parties at least 30 days before that hearing. A.R.S. § 41-1092.05(D). RESPONDENT’S RIGHT TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an informal settlement conference, the Registrar must hold a conference within 15 days after receiving the request. Respondent’s request for an informal settlement conference must be in writing and must be filed no later than 20 days before the administrative hearing. A.R.S. § 41- 1092.06(A). The Registrar will not close or settle any case without both parties’ appearance at the Settlement Conference. The parties participating in the settlement conference must have the authority to settle the case and must waive their right to object to the participation of the Registrar’s settlement conference representative in the final administrative decision. A.R.S. § 41-1092.06(B). Any statements, either written or oral, made by the parties at the conference, including a written document, created or expressed solely for the purpose of settlement negotiations, are inadmissible in the administrative hearing. A.R.S. § 41-1092.06(B).

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 RESPONDENT’S PRIOR RECORD Under A.A.C. R4-9-117, in determining the appropriate discipline, the administrative law judge and the Registrar may consider not only facts in the current case, but also facts in prior cases and any documents regarding Respondent on file with the Registrar. Respondent’s prior disciplinary record and current license(s) status may be considered as a mitigating or aggravating factor in determining the appropriate discipline. EVIDENTIARY DISCLAIMER By issuing this Citation, the Registrar is directing Respondent to file a written answer to the Citation and Complaint, showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). This Citation does not constitute proof that any charge or allegation in Complainant’s written complaint is in fact true. This Citation does not constitute proof that Respondent violated any statutory provision or rule adopted by the Registrar. Dated July 25, 2024. By: /s/ Margaret Lindsey Margaret Lindsey Assistant General Counsel Legal Department Arizona Registrar of Contractors

COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, July 25, 2024 to: Respondent Certified Mail No: [number redacted] Sweeter Excavating LLC 10880 Greenlee Rd. Flagstaff, AZ 86004 Copy mailed by USPS First Class mail this same date to: Respondent Sweeter Excavating LLC 10880 Greenlee Rd. of 5

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Flagstaff, AZ 86004 Respondent’s Attorney Jason J. Bliss, Esq. 123 N. San Francisco St., 3rd Floor Flagstaff, AZ 86001 Complainant A D H Concrete LLC 2909 N. Patterson Blvd. Flagstaff, AZ 86004 Complainant’s Attorney Brian J. Pouderoyen, Esq. 6730 N. Scottsdale Rd., Ste. 101 Scottsdale, AZ 85253 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar Case No. 2024-05627 /

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Received by Investigations 05/15/2024 2024-05627

Brian J. Pouderoyen (480) 534‐4882 [email redacted] May 14, 2024

STATEMENT IN SUPPORT OF ADH CONCRETE’S NON-PAYMENT COMPLAINT

To: Arizona Registrar of Contractors Re: ADH Concrete LLC v. Sweeter Excavating LLC

To whom it may concern:

ADH Concrete LLC provides the information below in support of its Non-Payment Complaint against Sweeter Excavating LLC.

Project Invoice # Invoice Date Invoice Amount Remaining Due Exhibit # on Invoice 9566 Aldrich 337 9/26/2023 $5,280.00 $5,280.00 1 Total Remaining Due for Aldrich Project: $5,280.00

Belmont Fire Station 343 2/14/2024 $115,870.00 $44,208.00 6 Total Remaining Due for Belmont Project: $44,208.00

Maswick Lodge 342 2/14/2024 $285,646.50 $219,484.75 7 Maswick Lodge 346 3/20/2024 $117,643.00 $97,233.00 8 Total Remaining Due for Maswick Project: $316,717.75

Total Remaining Due for All Projects: $388,847.40

The exhibits referenced in the table are attached to this Statement.

For the foregoing reasons, ADH Concrete is due $388,847.40 from Sweeter Excavating. ADH is also due interest at 18% per year under A.R.S. § 32-1183(H).

If you have any questions or concerns regarding this matter do not hesitate to contact me.

Sincerely,

LANG THAL KING & HANSON PC

Brian J. Pouderoyen

BJP/jrf Enclosures LTKH File No: 4583-001: 1869518 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 1 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 9/26/2023 337

License # ROC 233295

Bill To

P.O. No. Terms Project

9566 N. Aldrich Rd

Quantity Description Rate Amount

Dig footings, set up pour and finish 480 sq.ft. of new 4' concrete per plan. concrete was 5,280.00 5,280.00 purchased by other.

Total $5,280.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 2 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 9/26/2023 336

License # ROC 233295

Bill To

P.O. No. Terms Project

Gore- parking lot wall

Quantity Description Rate Amount

set up pour and finiah 70' of 4' tall wall 8" thick with #4 verts 4' on center with 2' wide 29,750.00 29,750.00 12' thick footing with 2 #4 horizontally

(2) pump charges 900.00 900.00

Total $30,650.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 3 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 11/16/2023 340

License # ROC 233295

Bill To

P.O. No. Terms Project

Medical east sidewalk and c...

Quantity Description Rate Amount

set up pour and finish 329 sq.ft of new4" concrete sidewalk 7,567.00 7,567.00

set up pour and finish 37lf of new 6" curb 1,554.00 1,554.00

Total $9,121.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 4 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 11/16/2023 341

License # ROC 233295

Bill To

P.O. No. Terms Project

cinder barn-Gore

Quantity Description Rate Amount

Total $10,029.25 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 5 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 2/14/2024 344

License # ROC 233295

Bill To

P.O. No. Terms Project

Gore-Kilte lane

Quantity Description Rate Amount

Set up pour and finish 100sq.ft of new 6' concrete with 40lf of 30" footings per plan 3,800.00 3,800.00

Total $3,800.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 6 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 2/14/2024 343

License # ROC 233295

Bill To

P.O. No. Terms Project

Belmont Fire Station- Interi...

Quantity Description Rate Amount

sluury, footings, interior footings and slab on new building per plans 110,000.00 110,000.00 interior footings on existing building per plans 5,870.00 5,870.00

Total $115,870.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 7 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 2/14/2024 342

License # ROC 233295

Bill To

P.O. No. Terms Project

grand canyon

Quantity Description Rate Amount

Total $285,646.50 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 8 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Invoice 2909 N. Patterson Date Invoice # Flagstaff, AZ 86004 928-699-4388 3/20/2024 346

License # ROC 233295

Bill To

P.O. No. Terms Project

grand canyon

Quantity Description Rate Amount

Total $117,643.00 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 9 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Statement 2909 N. Patterson Date Flagstaff, AZ 86004 928-699-4388 3/25/2024

License # ROC 233295

To:

Amount Due Amount Enc. $391,347.40

Date Transaction Amount Balance

04/29/2021 Balance forward 0.00

9566 N. Aldrich Rd- 09/26/2023 INV #337. Due 09/26/2023. 5,280.00 5,280.00

Belmont Fre Station- Exterior Concrete- 12/05/2021 INV #304. Due 12/05/2021. 69,520.00 119,008.00 12/21/2021 PMT #1612. -69,520.00 49,488.00

Caliente- NAU- 06/30/2021 INV #295. Due 06/30/2021. 6,290.00 55,778.00 06/30/2021 PMT #1462. -6,290.00 49,488.00

Caliente- NAU:Caliente- Belmont FireStation- 06/30/2021 INV #296. Due 06/30/2021. 12,000.00 61,488.00 06/30/2021 PMT #1462. -9,500.00 51,988.00

cinder barn-Gore- 11/16/2023 INV #341. Due 11/16/2023. 10,029.25 62,017.25 01/23/2024 PMT #2208. -9,425.00 52,592.25

Cornville- 06/23/2023 INV #330. Due 06/23/2023. 4,800.00 57,392.25 06/23/2023 PMT #1946. -4,800.00 52,592.25

DeMiguel Elementry School- 1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS CURRENT Amount Due DUE DUE DUE PAST DUE

0.00 117,643.00 273,704.40 0.00 0.00 $391,347.40

Page 1 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Statement 2909 N. Patterson Date Flagstaff, AZ 86004 928-699-4388 3/25/2024

License # ROC 233295

To:

Amount Due Amount Enc. $391,347.40

Date Transaction Amount Balance

10/11/2021 INV #302. Due 10/11/2021. 4,500.00 57,092.25 10/11/2021 PMT #1566. -3,400.00 53,692.25 11/04/2021 PMT -1,100.00 52,592.25

Gore- Kiltie ln.- 01/03/2023 INV #324. Due 01/03/2023. 4,500.00 57,092.25 01/10/2023 PMT #1835. -4,500.00 52,592.25

Gore- parking lot wall- 09/26/2023 INV #336. Due 09/26/2023. 30,650.00 83,242.25 12/11/2023 PMT #2143. -17,956.00 65,286.25

Gore- small wall and flat work- 09/26/2023 INV #332. Due 09/26/2023. 19,237.50 84,523.75 09/26/2023 PMT #2066. -19,237.50 65,286.25

Gore-Kilte lane- 02/14/2024 INV #344. Due 02/14/2024. 3,800.00 69,086.25

gore 4th st north- 02/28/2023 INV #325. Due 02/28/2023. 17,970.00 87,056.25 02/28/2023 PMT #1853. -17,970.00 69,086.25

Gore Medical West- 10/19/2022 INV #318. Due 10/19/2022. 41,925.98 111,012.23 01/10/2023 PMT #1835. -41,925.98 69,086.25

0.00 117,643.00 273,704.40 0.00 0.00 $391,347.40

Page 2 Received by Investigations 05/15/2024 2024-05627

ADH CONCRETE Statement 2909 N. Patterson Date Flagstaff, AZ 86004 928-699-4388 3/25/2024

License # ROC 233295

To:

Amount Due Amount Enc. $391,347.40

Date Transaction Amount Balance

Harvest bellemont- footings& flatwork- 01/19/2022 INV #306. Due 01/19/2022. 10,000.00 395,804.00 01/19/2022 PMT #1624. -10,000.00 385,804.00

Medical east sidewalk and curb- 11/16/2023 INV #340. Due 11/16/2023. 9,121.00 394,925.00 12/11/2023 PMT #2150. -3,577.60 391,347.40

MEMS Improvements:Court yard - MEMS- 05/04/2021 INV #293. Due 05/04/2021. 20,647.50 411,994.90 05/04/2021 PMT #1438. -20,647.50 391,347.40

NAU-Cival repairs- 09/26/2023 INV #333. Due 09/26/2023. 11,972.00 403,319.40 09/26/2023 PMT #2060. -11,972.00 391,347.40

Sechrist Elementry School- 04/11/2022 INV #310. Due 04/11/2022. 4,511.00 395,858.40 05/24/2022 PMT #1690. -4,511.00 391,347.40

West Flag Jr. High- 09/09/2021 INV #300. Due 09/09/2021. 5,724.00 397,071.40 12/21/2021 PMT #1612. -5,724.00 391,347.40

1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS CURRENT Amount Due DUE DUE DUE PAST DUE

0.00 117,643.00 273,704.40 0.00 0.00 $391,347.40

Page 3 Received by Investigations 05/15/2024 2024-05627

EXHIBIT 10 Received by Investigations 05/15/2024 2024-05627

On Fri, 29 Mar, 2024 at 11:36 AM, Sweeter Excavating <[email redacted]> wrote:

To: daniel t henderson owner; adam henderson

Adam,

I am also very disappointed that this is the point we are at.

Thank you, Mike

On Thu, Mar 28, 2024 at 8:50 AM DANIEL T HENDERSON Owner <[email redacted]> wrote:

i. payment received 12/11/23 of $3,577.60 ADH Concrete owed: $5,543.40 2. Gore parking lot wall: a. Invoice #336 sent 9/26/23 for $30,650

i. payment received 12/11/23 of $17,956.00 ADH Concrete owed: $12,694.00 3. Gore Kilte Lane: a. Invoice #344 sent 2/14/24 for $3,800.00

i. payment received $0 ADH Concrete owed: $3,800.00 4. Residence on Aldrich a. Invoice #337 sent 9/26/23 for $5,280.00

i. $0 received ADH Concrete

owed: $5,280.00 5. Gore cinder barn a. Invoice #341 sent 11/16/23 $10,029.25

i. Payment received 1/23/24 received $9,425 ADH Concrete owed: $604.25 6. Fire station Bellmont: Received by Investigations 05/15/2024 2024-05627

a. Invoice: #343 sent $115,870.00 payment received: 11/3/23 - $20,280.00 1/5/24 - $3,600.00 2/1/24- $47,782

i. $71,662.00 ADH Concrete

owed:$44,208.00