2024A-08747-NPC-ROC Notice of Hearing and Packet MAILED

2024A-08747-NPC-ROC · Registrar of Contractors · 2024-11-26

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Metro Concrete Arizona LLC, Case No. 2024-08747

COMPLAINANT, Docket No. 2024A-08747-NPC-ROC

v. NOTICE OF HEARING ON CONTESTED CASE Mc Maken Construction LLC License No. ROC 141916,

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

HEARING INFORMATION The hearing is set for:

January 7, 2025 10:30 AM Sondra Vanella 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 October 31, 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 November 26, 2024.

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

Copy mailed via USPS First Class mail November 26, 2024 to:

Respondent(s) Mc Maken Construction LLC 807 E Orangewood Ave Phoenix, AZ 85020

Respondent's Attorney Andrew Peshek, Esq. 8767 E Via De Ventura Ste., 201 Scottsdale, AZ 85258 Complainant(s) Metro Concrete Arizona LLC 2728 W Adventure Dr. Phoenix, AZ 85086

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

Case No. 2024-08747 /

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

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Via U.S. Mail and Email

Complainant Metro Concrete Arizona LLC 2728 W Adventure Dr Phoenix, AZ 85086

Via U.S. Mail and Email

Respondent Mc Maken Construction LLC 807 E Orangewood Ave Phoenix, AZ 85020

Re: Complaint No. 2024-08747

Dear Complainant and Respondent:

The Registrar received a complaint filed against Mc Maken Construction LLC for non- payment of materials or services rendered. This complaint is incomplete and will not be substantively reviewed by the Registrar until the following documentation is provided:

- Contract pertaining to the scope of work and start date of work. For written contracts, provide a copy of the original contract signed (by both parties). If the only written document describing the contract are a proposal, bid, or invoice, please provide a written statement describing the agreement that included the following information: • The reason a written contract is not being provided (e.g. contractor did not provide a written contract, the contract is lost, the contract was destroyed). • A description of any written documents used to describe the contract (e.g. email, text messages). • A description of the work to be performed under the contract. • The date of the contract. • The names of the people who negotiated the contract. • The agreed upon amount of the contract. • Official invoices reflecting the amount and dates of work.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100a 11/23 Please provide ALL requested information by August 9, 2024. The Registrar will close this complaint (as incomplete) without further written notice if you fail to provide the requested documentation by such date.

Documents can be submitted 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]

Although the complaint is incomplete at this time, Respondent may file a response with the Registrar raising any issues or affirmative defenses to the complaint.

If the required information is provided and this complaint becomes complete, Respondent will be provided an additional opportunity to respond to the complaint.

Sincerely,

/s/Madelyn Hayes Madelyn Hayes Legal Assistant II Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100a 11/23 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) James Riggs Street Address City State Zip Code 2728 W Adventure Dr Phoenix Arizona 85086 Phone Number Email Address [number redacted] [email redacted] I consent to receive communications electronically in connection with this case

Name of Attorney (if any)

Attorney’s Street Address City State Zip Code

Attorney’s Phone Number Attorney’s Email Address

Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Mc Maken Construction LLC ROC 141916 Street Address City State Zip Code

Phone Number Email Address

Name of Person(s) Representing License Ryan Mcmaken Complaint Information Principal Amount Due (excluding interest and fees) Contract Date (if applicable) $14,800.00 April 29, 2024 Have you filed a civil complaint? No List all specific invoices which have not been paid. Attach additional pages if necessary. July 1st invoice to be paid july 12th finishing wall pour

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 James Riggs 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 James Riggs 8/13/24, 8:13 AM State of Arizona Mail - Complaint 2024-08747

Legal New Mail - AZROC <[email redacted]>

Complaint 2024-08747 messages

Legal New Mail - AZROC <[email redacted]> Fri, Aug 9, 2024 at 2:03 PM To: [email redacted]

Hello,

I received your voicemail regarding your No Pay Complaint 2024-08747. The incomplete no pay notice that was issued was requesting a contract with both parties agreement and official invoices reflecting what you stated on your complaint for the amount due which was $14,800.00 and the documents submitted do not reflect this amount. The documents that were submitted on August 2, 2024, text messages/emails are not sufficient along with the original documents submitted when this matter was opened. Please submit a contract stating the scope of work with both parties agreement and official invoices with the unpaid balance, if these documents are not provided then this matter will have to be closed.

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!

attachments

Screenshot_20240802_064339_Sheets.jpg 369K

Screenshot_20240802_064311_Sheets.jpg 358K

20240802 Notice of Incomplete No-Pay Complaint MAILED 2024-08747.pdf 1104K

James Riggs <[email redacted]> Fri, Aug 9, 2024 at 2:18 PM https://mail.google.com/mail/b/AEoRXRT_5i1LqWb3eJVLHA_9LqWrZgDy9NsDPn7fbz81DBEKylbM/u/0/?ik=d3afebeda9&view=pt&search=all&permth… 1/2 8/13/24, 8:13 AM State of Arizona Mail - Complaint 2024-08747 To: Legal New Mail - AZROC <[email redacted]>

Just to confirm your email is stating that this is not an ROC issue because we do not have officially signed contracts. We have paperwork that was moved forward on with deposits. And typical messaging, but because there is no official signed contract the GC that's not paying, is not liable? We have agreements per text and messages as well as deposits and emails. But I do not have a signed contract on either party.

James Riggs Metro concrete Arizona 480-761-0647 Office 602-803-9263 Texting and cell Website- Www.metroconcreteaz.com Email - [email redacted] Our social media content https://dot.cards/mca

From: [email redacted] <[email redacted]> on behalf of Legal New Mail - AZROC <[email redacted]> Sent: Friday, August 9, 2024 2:03:55 PM To: James Riggs <[email redacted]> Subject: Complaint 2024-08747

[Quoted text hidden]

https://mail.google.com/mail/b/AEoRXRT_5i1LqWb3eJVLHA_9LqWrZgDy9NsDPn7fbz81DBEKylbM/u/0/?ik=d3afebeda9&view=pt&search=all&permth… 2/2 8/9/24, 2:04 PM Complaint 2024-08747 - [email redacted] - State of Arizona Mail

Response from the Arizona Registrar of Contractors Legal Department Re: Mail End now Vacation Settings

in:sent

Compose

Inbox 50 Starred Complaint 2024-08747 Snoozed Legal New Mail - AZROC <[email redacted]> (sent by [email redacted]) Sent to james Scheduled 3 Hello, Drafts Spam 1 I received your voicemail regarding your No Pay Complaint 2024-08747. The incomplete no pay notice that was issued was requesting a More what you stated on your complaint for the amount due which was $14,800.00 and the documents submitted do not reflect this amount. Th messages/emails are not sufficient along with the original documents submitted when this matter was opened. Please submit a contract s invoices with the unpaid balance, if these documents are not provided then this matter will have to be closed. Labels Thank you, 2016 2017 Arizona Registrar of Contractors 2018 Legal Department 2019 2020 Fill out AZ ROC’s survey to let us know how we’re doing and how we can better serve you!

[account number redacted] 5 20180829 Voices Messa… Legal Hold 3 Attachments • Scanned by Gmail PRR 144

https://mail.google.com/mail/u/0/d/AEoRXRQpJsw-e1d4so0gOBxxQ7nIPFfZlh97Eo2c7hZk74ct7Oe1/#sent/QgrcJHsTgGJjjcxHfVhBGZgrdJtddTdbTZv 1/1 September 16, 2024

Via U.S. Mail and Email

Complainant Metro Concrete Arizona LLC 2728 W Adventure Dr Phoenix, AZ 85086

Via U.S. Mail and Email

Respondent Mc Maken Construction LLC 1650 W Rose Ln Apt 1 Phoenix, AZ 85015-2000

Re: Complaint No. 2024-08747

Dear Complainant and Respondent:

The Registrar received a complaint filed against Mc Maken Construction 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 September 23, 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 September 23, 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.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Sincerely,

/s/Madelyn Hayes Madelyn Hayes Legal Assistant II Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Non-Payment Complaint Form Departmental Use Only Complaint Number: Mail to: Registrar of Contractors P.O. Box 18243 Phoenix, AZ 85005-8243

Name of Attorney (if any)

Attorney’s Street Address City State Zip Code

Attorney’s Phone Number Attorney’s Email Address

Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Mc Maken Construction LLC ROC 141916 Street Address City State Zip Code

Phone Number Email Address

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 James Riggs 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 James Riggs 9/20/24, 3:33 PM State of Arizona Mail - No Pay Notice 2024-08747 LEGAL RECEIVED 09/19/2024

Legal New Mail - AZROC <[email redacted]>

No Pay Notice 2024-08747 message

Ryan McMaken <[email redacted]> Thu, Sep 19, 2024 at 3:24 PM To: [email redacted] Cc: Michael McMaken <[email redacted]>

Please refer to the included pdf regarding our response.

Ive included the items we have currently available but we are still waiting on professional reports as related to the workmanship issues.

Could you please educate us on any timelines that exist should the provided information not be sufficient to dismiss the no pay claim?

Thanks,

M. Ryan McMaken

McMaken Construction LLC. (602) 367-2727

ROC #141915 & #141916

attachments

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https://mail.google.com/mail/b/AEoRXRRI51Wwriy-APg14y0UCkhteKe-xKu9cL4I0-SBzTNwGuOq/u/0/?ik=d3afebeda9&view=pt&search=all&permthid… 1/3 9/20/24, 3:33 PM State of Arizona Mail - No Pay Notice 2024-08747 LEGAL RECEIVED 09/19/2024

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https://mail.google.com/mail/b/AEoRXRRI51Wwriy-APg14y0UCkhteKe-xKu9cL4I0-SBzTNwGuOq/u/0/?ik=d3afebeda9&view=pt&search=all&permthid… 2/3 9/20/24, 3:33 PM State of Arizona Mail - No Pay Notice 2024-08747 LEGAL RECEIVED 09/19/2024

IMG_7179.jpeg 193K

MCMAKEN - Colter Project.pdf 196K Metro Concrete ROC Letter 9:19.pdf 105K

https://mail.google.com/mail/b/AEoRXRRI51Wwriy-APg14y0UCkhteKe-xKu9cL4I0-SBzTNwGuOq/u/0/?ik=d3afebeda9&view=pt&search=all&permthid… 3/3 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024 LEGAL RECEIVED 09/19/2024

QUOTE ROC #347745 Quote Created Date: 04/19/2024 Quote Expiration Date: 05/19/2024 To: McMaken Construction Address: 3939 E Saint Catherine Ave Phoenix AZ 85042 Phone: 602-527-0015 Email: [email redacted]

Email: [email redacted] Office: (602) 803-9263 Online: www.metroconcreteaz.com This bid reflects the following work: Colter project per plans, Concrete work for basement walls floors and remainder concrete work needed.

Assigned Team Member Payment Terms: Due On Receipt

Qty Item Description Unit Price Line Total Concrete Twenty seven by thirty two basement foundation footers flat work with interior footers $27,900.00 $27,900.00 Concrete Small concrete patio, garage 4 and laundry. $22,263.50 $22,263.50 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

Date: Discount 0 Total $50,163.50 Prepared By: James Riggs Deposit 10163.5 Due Upon Completion $40,000.00 Accepted By: This bid includes all materials, labor, taxes and disposal fees

Signatures Transmitted by Fascimile or Portable Document Format (*PDF*), Shall be Deemed Originals for all Purposes. A Finance Charge of %10 per Month on the Unpaid Balance will be Charged on any Balance not Paid Within 30 Days from Invoice Date. Inclusions 1.Mobilization 2.Cure Compound 3.Accept Grade @ +/- 0.10ft 4.Expansion Joints 5.Unrestricted Access to Entire Project Site Exclusions 1.Bond 2.Surveying/Testing/ Engineering 3.Earthwork/Grading Materials 4.Traffic/Pedestrian Control 5.Stripping/Caulking/ Joint and Concrete Sealants 6.Temperature/Weather Protections 7.Erosion Control 8.Concrete Pumping/Georiga Buggies 9.Rumble Strips 10.Decorative/Stamped/Colored/Stained Concrete 11.Precast/Structural Concrete 12.Weekend/Night Work 13.Utility Adjustments 14.Embeds (Plates, Anchors, Handrails, Posts, Drains and Related Items 15.Concrete Washout 16.Shoring/Scaffolding 17.Profilograph/Diamond Grinding 18.Sandblasting/Special Surface Finish 19.Permits/Fees 20.Plant Opening/Winter Fees 21.Filter Material/Piping/Geotextile 22.Asphalt Paving/Asphalt Patching 23.Sawcutting/ Removals/Disposal 24.Railroad Training and Insurance 25.Water Stop 26.Vapor Barrier 27.Rigid Insulation 28.Prevailing Wages 29.Taxes 30.Truncated Domes 31.Steps 32.Reinforcement 33.Dewatering 34.Security Training/Orientation/ Background Checks 35.Backfilling Curbs and Sidewalks 36.Light Stands 37.Footers/Walls/Foundations 38.Riprap 39.Topsoil/ Structual Fill/Roadbase 40.Sleeving 41.Fibermesh 42.Landscaping/Landscape Repairs LEGAL RECEIVED 09/19/2024

McMaken Construction LLC. 807 E . Orangewood Ave Phoenix, AZ 85020 602 527-0015

Original Contract

On 4/17/2024 Metro Concrete was provided with a set of plans. On 4/21/2024 we received a bid for our project at 3939 E St Catherine. The bid was sent to this email ([email redacted]) and was dated 4/19/2024.

There was confusion based on an earlier revision of plans listing the basement walls at approximately 4’’. Metro Concrete had never possessed a copy of this revision of plans. Metro Concrete was selected based on their stated experience building basements in Colorado. McMaken Construction entered into a contract but agreed to review a change order should Metro Concrete provide proper documentation regarding the miscommunication in wall height. McMaken Construction provided Metro Concrete with a deposit in the amount of $14,096.00. Please note that at this time and to date Metro did not possess a revision of plans with a 4’ wall height.

The terms of the only contract that McMaken Construction was provided at this time in the amount of $50,163.50 stated a deposit with the remainder due on completion. Please note that the unsigned contract that McMaken Construction has never accepted also lists the same payment terms. As such the work is not completed and McMaken requests that this claim of non payment be dismissed.

As work progressed McMaken Construction provided additional good faith progress payment. To date McMaken Construction has still never received a change order outlining any additional charges above the original $50,163.50.

On 7/1 an entirely new contract was sent to McMaken Construction in the amount of $74,098.00 listing a deposit of $14,098. While close to the original check that was written it is not a match and this is the first time McMaken Construction had been provided with these figures.

The first time McMaken Construction was provided the quote reflecting the $74,098.00 dated 4/19/2024 was via the ROC complaint received directly from the ROC. Despite the email address listed being correct Metro Concrete has failed to provide proof this document was ever sent.

Additional progress payments were requested by Metro Concrete. McMaken Construction requested the proper change order for review with an explanation of the unapproved additional charges as well as a draw schedule if any additional funds were to be provided prior to completions as outline in the original contract.

At this point in time McMaken Construction has paid in excess of funds outlined in the original contract and is in no way withholding funds from Metro Concrete. LEGAL RECEIVED 09/19/2024

Workmanship Issues

McMaken Construction has discovered multiple issues with the work performed by Metro Concrete. McMaken Construction understands that Metro Concrete is entitled to remedy these issues. Pictures of the defects are included in this email.

1. The concrete for the pour in place walls was not properly vibrated. There are voids and a structural engineer is currently reviewing whether this will affect the structure. 2. The top of the walls are very inconsistent. There will undoubtedly be a change order received from the masonry contractor to build on top 3. The plans call for anchors every 10” at the stairwell and 12” for the rest of the structure. The anchors were placed at 10” through out the structure which will result in additional work for the framers and may affect layout. 4. The rebar and matting in the walls was not installed per the plans. 5. Metro Concrete opted to build forms from scratch. The plywood used had a foil layer attached. The foil is now embedded in the walls. The seal coating rep has concerns about the integrity of the seal due to the foil as well as the voids. We are currently getting pricing on a repair.

Not included in this email is the exchange with James Riggs of Metro Concrete. Through his frustration James displayed unprofessional, derogatory and inflammatory behavior in communicating. McMaken Construction has heavy concerns about the ability of Metro Concrete to maintain a professional work environment should they remedy the workmanship issues and complete the project.

Metro has left the job in disarray and refused to repair any of the quality of work issues and abandoned the job.

Due to all of the issues above McMaken Construction has serious concerns about Metro Concretes ability to remedy the workmanship defects and complete the work agreed to in the original contract agreed upon dated 4/19/2024 in the amount of $50,163.50 while maintaining a professional work environment.

McMaken Construction is in the process of collecting professional reports regarding the quality of work issues as of 9/19/2024 they are not currently complete. McMaken Construction reached out to the ROC to inquire about filing a workmanship claim but was informed that it would be approximately 8 weeks to schedule a site meeting. That timeline was not in the best interest of of the customer and creates a litany of additional issues to overcome not limited to the storage of fill dirt affecting the health of multiple 100 plus year old trees on the property.

At the completion the reports and when McMaken Construction has a more complete view of the steps and costs involved in preparing the workmanship issues created by metro concrete McMaken Construction will be filing in civil court.

Thanks,

Ryan McMaken, Project Manager- McMaken Construction LLC. ROC # 141915, #141916 602 367 2727 10/18/24, 2:58 PM State of Arizona Mail - No Pay Notice 2024-08747

Legal New Mail - AZROC <[email redacted]>

No Pay Notice 2024-08747 James Riggs <[email redacted]> Thu, Oct 17, 2024 at 1:30 PM To: Legal New Mail - AZROC <[email redacted]>

Good afternoon, This is james with metro concrete, The above reference is included.I am also adding some photos now. We've been put on the sideline as nothing was going on, We were told that there was some Of our work getting checked. We Got a call from the home owner.Letting us know our work was done completely.Correct above and beyond. We sent emails and messages trying to get back on site, As of today I drove by and they've completely started moving forward with the remainder of the contract without our knowledge, We are now missing Rebar.That was on site that they used steago, Vapor barrier that was on-site ready for remainder of work as well.As all of the prep work that was already completed , they went ahead and used and started doing their own work.

This is a complete violation of contract.Complete robbery of money.And there should be no way that some general contractor in town could do work like this and to steal from sub contractors like this.

We did our project proburley never got paid for the remainder of the work that we did complete.And now they're using somebody else to move forward with our materials that were on site. We are missing tools, materials. This is criminal James Riggs Metro concrete Arizona 480-761-0647 Office 602-803-9263 Texting and cell Website- Www.metroconcreteaz.com Email - [email redacted] Our social media content https://dot.cards/mca

From: [email redacted] <[email redacted]> on behalf of Legal New Mail - AZROC <[email redacted]> Sent: Monday, September 16, 2024 1:00:00 PM Subject: No Pay Notice 2024-08747

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Case No. 2024-08747 Metro Concrete Arizona LLC,

COMPLAINANT, v. CITATION Mc Maken Construction LLC License No. ROC 141916,

RESPONDENT.

The Registrar issues this Citation to Mc Maken Construction LLC (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by November 15, 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 August 2, 2024, Metro Concrete Arizona 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 licensee's operations as a contractor unless 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 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. 2024-08747. 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 November 15, 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 October 31, 2024. By: /s/ Chance Peterson Chance Peterson General Counsel Legal Department Arizona Registrar of Contractors

COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, October 31, 2024 to:

Respondent Certified Mail No: [number redacted] Mc Maken Construction LLC 807 E Orangewood Ave Phoenix, AZ 85020

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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 Copy mailed by USPS First Class mail this same date to: Mc Maken Construction LLC 807 E Orangewood Ave Phoenix, AZ 85020

Complainant Metro Concrete Arizona LLC 2728 W Adventure Dr Phoenix, AZ 85086

Copy sent electronically this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2024-08747 / MTH

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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 Non-Payment Complaint Form Departmental Use Only Complaint Number: Mail to: Registrar of Contractors P.O. Box 18243 Phoenix, AZ 85005-8243

Name of Attorney (if any)

Attorney’s Street Address City State Zip Code

Attorney’s Phone Number Attorney’s Email Address

Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Mc Maken Construction LLC ROC 141916 Street Address City State Zip Code

Phone Number Email Address

Via U.S. Mail and Email

Complainant Metro Concrete Arizona LLC 2728 W Adventure Dr Phoenix, AZ 85086

Via U.S. Mail and Email

Respondent Mc Maken Construction LLC 1650 W Rose Ln Apt 1 Phoenix, AZ 85015-2000

Re: Complaint No. 2024-08747

Dear Complainant and Respondent:

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 September 23, 2024 and will review Respondent’s response, if one is submitted.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Sincerely,

/s/Madelyn Hayes Madelyn Hayes Legal Assistant II Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007

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 11/15/2024 ROC Legal

WONER HOFFMASTER PESHEK & GINTERT, PC ATTORNEYS AT LAW

8767 E. Via de Ventura, Suite 201 Andrew R. Peshek Scottsdale, Arizona 85258 E-mail: [email redacted] (480) 483-9700 Legal Assistant: McKenna Roberts (480) 991-0334 facsimile [email redacted]

November 15, 2024

WRITTEN ANSWER TO CITATION AND COMPLAINT

CASE NO. 2024-08747

Via E-Mail Only Registrar of Contractors 1700 W. Washington Street, Suite 105 Phoenix, Arizona 85007 [email redacted]

RE: Metro Concrete Arizona v. McMaken Construction LLC

Dear Registrar:

Please consider this McMaken Construction LLC’s (“McMaken”) Answer to the above referenced Citation. The Complaint filed by Metro Concrete Arizona LLC (“Metro”) is inaccurate throughout. McMaken submits the Citation should be dismissed for the following reasons which all will be discussed below:

1. There is a valid signed contract for $50,163.50 and no Change Order or supplemental contract has been agreed; 2. McMaken does not disagree that the scope changed from a 4-foot wall to a 10-foot wall. However, the prices as designated and unit prices sought after by Metro are inaccurate and attempt to change agreed upon unit pricing; 3. The original Bid and Contract submitted was for an 8” slab and the plans only called out for 4” slab so the original Bid and Contract was over-priced; 4. Metro never finished the work and the scope of work not completed exceeds what has been paid out by McMaken; and 5. The work completed by Metro failed to meet minimal standards and McMaken has paid for repairs in excess of any amount that may be claimed by Metro.

Original Bid and Contract and Lack of any agreed to Change Order

Metro submitted a Bid that was executed by McMaken on April 19, 2024, for work at the Brooks’ residence. (See Exhibit D) That is the only signed contract between the parties. Metro has not submitted any subsequent change order, contract or bid that has been executed by both parties. Received 11/15/2024 ROC Legal

November 15, 2024 Page 2

The reason being is that what was submitted by Metro for a complete new contract contained costing that changed not only the scope of additional work but previous work that was already agreed to in price (discussed more below).

There was apparent confusion as to one line item, See Exhibit A, which was Item 1.B(H) Retaining Wall. Although the plans submitted to Metro show a 10-foot-tall wall, in subsequent conversations, as set forth by Metro in its exhibits, there was confusion as to whether the wall would be 4-feet or 10-feet. Apparently, Metro bid for a 4-foot wall. McMaken agrees that if the bid was for a 4-foot wall, that additional costs may be incurred by Metro to increase the quantities which McMaken agrees it would be responsible. However, as discussed below, Metro attempted to change unit prices from the original breakdown in Exhibit A.

McMaken has asked Metro to submit a Change Order for the additional work. Metro has refused to do so to this day. McMaken has informed Metro that it does not intend to enter into a new contract since the work had begun and payments had been made under the existing contract when Metro attempted to submit a brand-new contract for execution. McMaken has and will continue to agree to negotiate any submitted Change Order that accurately sets forth prices and the scope of work. Metro’s new proposed Bid/Contract does not accurately do so, as is shown in Exhibit B.

Metro Changed Unit Pricing when the scope changed from Four Foot to Ten Foot

Metro’s original breakdown of its bid (Exhibit A) has five different changes to unit pricing versus its new breakdown of costs for the increase in wall height (Exhibit B). Remarkably, two unit prices went down while three increased in price. To be consistent and fair, McMaken asserts that the unit prices from the original bid (Exhibit A) should be used and they are not deserving of the lower of the unit prices in all instances between Exhibit A and Exhibit B. These unit price changes include:

1. Item 1.B(H) This line item is the wall that should have a change in quantity (QTY) which McMaken agrees should increase from 18.00 cubic yards to 36.00 cubic yards. In the original breakdown the unit price is $300.00 per cubic yard while the supplemental breakdown with new correct wall height has unit price of $260.00 per cubic yard. Thus, Metro should be entitled to $300.00 per cubic yard as originally agreed to in Exhibit A which should increase this line item by $5,700.00. The math is as follows:

37.00 x $300.00 = $11,100.00 18.00 x $300.00 = ($5,400.00) Net Difference $5,700.00

2. Item 1.C(A) Received 11/15/2024 ROC Legal

November 15, 2024 Page 3

This is #4 rebar. The quantity does not change but unit price goes from $2.25 per linear foot to $3.75 per linear foot. Using the original $2.25 price there should be a net credit of $3,495.00.

3. Item 1.C(B) This is the same as #2 above except for #5 rebar. The quantity did not change but the unit price went from $3.00 per linear foot to $5.50 per linear foot. Thus, there should be a net credit of $10,162.50.

4. Item 1.C(C) This is for W.W.F. fiber. There is no change in quantity. The only change is unit price which increased from the first breakdown to the second breakdown from $1.75 per sq. foot to $5.00 per sq. foot. There should be a net credit of $6,357.00.

5. Item 1.D In the original breakdown, Metro claimed the costs of the pumping trucks to be $1,800.00 and in the subsequent breakdown shows the cost to be $1,500.00. Although it appears Metro only had to pay $1,500.00 since McMaken agreed to the original $1,800.00, it would owe $300.00 for this line item.

Based on the above five items, the net increase in cost should be $6,000.00 (See #1 and #5 above) while there should be a credit of $20,014.50 resulting in a net credit of $14,014.50 off of the new breakdown (Exhibit B) for the correct wall height. Thus, the total amount due under the contract, assuming all work was performed and performed correctly, would be $60,083.50 which is $9,920.00 more than the original Contract price.

Slab Overpricing in Both Breakdowns (Exhibit A and B)

The slab for the flooring should have been bid at 4” and was actually bid at 8”. The price bid was $6,902.00 for slabs which include Items 1.B(A), 1.B(B), 1.B(C), and 1.B(D) which prices are the same on Exhibits A and B. Thus, there should be a credit on the Contract of $3,451.00 for the correct quantities. Mr. Riggs in his April 19, 2024 text to Mike McMaken (Exhibit C) states that he bid on 8” slab and 4’ wall while the true slab thickness was 4”.

Metro never fully performed all Work under the Contract

Under both Exhibit A and Exhibit B Metro never completed the following scopes of work:

1. Item 1.A(A) Basement Slab – Partially Completed; 2. Item 1.A(B) Garage; 3. Item 1.A(C) Laundry/Vest; Received 11/15/2024 ROC Legal

November 15, 2024 Page 4

4. Item 1.A(D) Patio; 5. Item 1.A(E) Continuous Footing – Partially Completed; 6. Item 1.B(A) Basement Slab; 7. Item 1.B(B) Garage; 8. Item 1.B (C) Laundry/Vest; 9. Item 1.B(D) Patio; 10. Item 1.B(E) Continuous Footing – Partially Completed; 11. Item 1.B(G) Slab Toedown; and 12. Item 1.C(C) W.W.F. For Items 2, 3, 4, 6, 7, 8, 9, 11, and 121, none of that work was completed. Based on Exhibits A and B there should be a net credit for these Items of $14,002.00. Less than 50% of the work on Items 1, 5, and 10 was completed by Metro but McMaken will only seek a credit of 50% for these line items. The total cost for these three Items is $10,165.00 which would result in a credit of $5,082.50. Thus, the total cost of work not performed is $19,084.50.

Poor Workmanship Resulting in Repairs Paid out by McMaken

There were numerous defects in the work performed by Metro. The homeowner Brooks, based on the unprofessional personality and demeanor of Mr. Riggs, informed McMaken that they would not allow Metro to repair the improper work it performed. Thus, McMaken was forced to hire other contractors to perform such repairs. The defects in workmanship include but are not limited to:

1. Forms supplied by Metro were plywood with foil wrapping which resulted in the foil being embedded into the walls which would not allow waterproofing to be adhered and thus resulted in costs to strip the foil from the walls prior to waterproofing being able to be applied; 2. The top of the wall was not poured to the correct dimensions resulting in the block contractor not being able to perform its work and requiring fixes to the top of the walls; 3. Metro installed anchors in excess of the plans and specifications requiring additional costs incurred by the framing subcontractor; and 4. Metro did not clean up the site leaving behind materials including forms which required costs to clean up and remove the debris. The costs are still being calculated by McMaken for Items 1-4 above, but currently to-date McMaken has spent just over $13,000.00 for these items and will submit the invoicing prior to any hearing that takes place in this matter.

For all these items except Item 12 the unit price between Exhibit A and Exhibit B was the same. For Item 12, since McMaken is arguing that the original unit prices (Exhibit A) should be valid, the credit is for the unit price of $1.75 from Exhibit A and not $5.00 in Exhibit B. Received 11/15/2024 ROC Legal

November 15, 2024 Page 5

Conclusion

As can be seen above, the claims by Metro are at best half-truths and do not fully set forth the true nature of the dispute between the parties. The claim should be dismissed as Metro has never submitted a Change Order for the change of scope of the wall height, despite multiple requests by McMaken. If the Complaint is not dismissed the new breakdown of costs as set forth in Exhibit B is inaccurate and should only result in a net increase of the original contract of $9,920.00. Further, for incomplete work, there should be a net credit of at least $19,084.50. Lastly, there should be a credit of at least $13,000 for the poor workmanship.

The original contract was for $50,163.50 and $34,096.00 has been paid to date which leaves a net balance of $16,067.50. With that as the starting point as is not in dispute the following additions and credits should be included:

Owed under Original Contract $16,067.50 Correct Amount due for New Wall Height $9,920.00 Credit for Work not Completed ($19,084.50) Credit for Defective Work ($13,000.00) Total ($6,097.00)

Based on the full facts of the project, Metro currently would owe McMaken $6,097.00 to- date. As McMaken has not fully contracted to perform the work not completed by Metro, McMaken, to the extent the costs for the work not completed increase in price with new contractors, would be also entitled to the differences paid to the new contractor versus what was bid out by Metro. These numbers will be further supplemented.

McMaken looks forward to working with the Registrar of Contractors to resolve this matter in a fair manner. Please contact me with any questions that you may have. Thank you for your cooperation.

Very truly yours,

/s/ Andrew R. Peshek Andrew R. Peshek For the Firm

ARP/mr

Enclosures: Exhibit A – Original Breakdown of Costs submitted by Metro Exhibit B – New Breakdown of Costs submitted by Metro Exhibit C – Text Message from Mr. Briggs on 8” slab Exhibit D – Original Bid from Metro which was signed by all parties Received 11/15/2024 ROC Legal

ITEM NO. DESCRIPTION QTY UNIT UNIT COST TOTAL COST I SOIL PREPARATION AND EXCAVATION A. BASEMENT SLAB 810.00 sq ft 2.50 2,025.00 B. GARAGE 576.00 sq ft 2.50 1,440.00 C. LAUNDRY/VEST 292.00 sq ft 2.50 730.00 D. PATIO 278.00 sq ft 2.50 695.00 E. CONTINOUS FOOTING 204.00 linear ft 20.00 4,080.00 F. ISOLATED FOOTING 3.00 cu. yds. 250.00 750.00

I.B Concrete Works A. BASEMENT SLAB 14.00 cu. yds. 203.00 2,842.00 B. GARAGE 10.00 cu. yds. 203.00 2,030.00 C. LAUNDRY/VEST 5.00 cu. yds. 203.00 1,015.00 D. PATIO 5.00 cu. yds. 203.00 1,015.00 E. CONTINOUS FOOTING 20.00 cu. yds. 203.00 4,060.00 F. ISOLATED FOOTING 3.00 cu. yds. 203.00 609.00 G. SLAB TOEDOWN 4.00 cu. yds. 203.00 812.00 H. RETAINING WALL footer 4 foot 1 inch 18.00 cu. yds. 300.00 5,400.00

I.C Reinforcements A. #4 2,330.00 lf 2.25 5,242.50 B. #5 4,065.00 lf 3.00 12,195.00 C. W.W.F 6x6 - W2.0 x W2.0 1,956.00 sq ft 1.75 3,423.00

I.D Others A. CONCRETE PUMPING TRUCKS 3.00 ea 600.00 1,800.00

Total Project Cost 50,163.50 Received 11/15/2024 ROC Legal

I.C Reinforcements A. #4 2,330.00 lf 3.75 8,737.50 B. #5 4,065.00 lf 5.50 22,357.50 C. W.W.F 6x6 - W2.0 x W2.0 1,956.00 sq ft 5.00 9,780.00 mill vapor barrier basement floor 1.00 1,200.00 I.D Others A. CONCRETE PUMPING TRUCKS 1.00 ea 1,500.00 1,500.00

Total Project Cost 74,098.00 Received 11/15/2024 Legal ROC 8/2/2024 Legal Received 11/15/2024 ROC Legal

Assigned Team Member Payment Terms: Due On Receipt

Date: Discount 0 Total $50,163.50 Prepared By: James Riggs Deposit 10163.5 Due Upon Completion $40,000.00 Accepted By: This bid includes all materials, labor, taxes and disposal fees

Answers - AZROC <[email redacted]>

Metro Concrete Arizona v. McMaken Construction LLC (Case No. 2024-08747) message

McKenna Roberts <[email redacted]> Fri, Nov 15, 2024 at 8:38 AM To: [email redacted] Cc: Andy Peshek <[email redacted]>

Good morning,

With respect to the above-referenced matter, attached please find McMaken Construction LLC’s Written Answer to Citation and Complaint and corresponding exhibits which our office would like to please file today with the ROC. If you would like hard copies of the attached mailed to you as well, please let me know and I am happy to send that out!

Should you have any questions or concerns, please do not hesitate to contact our office.

Thank you!

McKenna

McKenna Roberts Mediation Coordinator, Billing Manager, and

Legal Assistant to Shawna Woner & Andrew Peshek

Woner Hoffmaster Peshek & Gintert, PC

8767 E. Via de Ventura, Suite 201

Scottsdale, Arizona 85258

Phone: (480) 483-9700

Fax: (480) 991-0334

Email: [email redacted]

www.whpglaw.com

Please note that mediation availability can now be checked and mediations booked online at https://whpglaw.com/mediation/

https://mail.google.com/mail/b/AEoRXRT4-omUJR4cQXMMaiIt8N6lCmYWRPfzfi4-AkGkcUZq-1Gp/u/0/?ik=581c53cf5c&view=pt&search=all&permthid… 1/2 Received 11/15/24, 8:55 AM State of Arizona Mail - Metro Concrete Arizona v. McMaken Construction LLC (Case No. 2024-08747) 11/15/2024 Please note that we will be sending all documents electronically; if you require a hard copy, ROC Legal let please me know.

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attachments Written Answer to Citation and Complaint.pdf 145K A. COLTER Residence TAKEOFFS-1.PDF 134K B. COLTER Residence TAKEOFFS-1(1).PDF 136K C. Text Message.pdf 1296K D. MCMAKEN - Colter Project.pdf 196K

https://mail.google.com/mail/b/AEoRXRT4-omUJR4cQXMMaiIt8N6lCmYWRPfzfi4-AkGkcUZq-1Gp/u/0/?ik=581c53cf5c&view=pt&search=all&permthid… 2/2 Mediation Notice

Mediation Services Mediation services are available to the parties. What is Mediation? Mediation is a method of resolving disputes where the parties can end conflict without the expense and time associated with the full administrative process. Who Participates in During mediation, a mediator will attempt to help the Mediation? parties find an optimal solution to the conflict. Both parties must agree to participate in mediation, and both parties must bring a representative to mediation that has full authority to settle the entire matter. Mediation Is Not Neither the Registrar nor the Office of Administrative Mandatory Hearings will penalize a party for not agreeing to mediation. Where do the Parties The parties will meet at the Office of Administrative Meet for Mediation? Hearings to participate in mediation.

The Office of Administrative Hearings is located at 1400 West Washington, Suite 101, Phoenix, Arizona 85007. When does Mediation can occur after the Registrar issues a citation, but Mediation Occur? before the administrative hearing. Why Should Parties Mediation can be an alternative to the full administrative Consider Mediation? process. Mediation is beneficial because it is (1) time- efficient, (2) cost-effective, (3) confidential, and (4) capable of providing flexible solutions to complex problems. How to Request If the parties wish to mediate this case, they must file a Joint Mediation Request for Mediation with the Office of Administrative Hearings. A Joint Request for Mediation is included with this Mediation Notice. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA _________________________ Case No. _______________ COMPLAINANT,

v. JOINT REQUEST FOR MEDIATION _________________________ RESPONDENT.

REQUEST

The parties jointly request that this matter be referred to mediation in the Office of Administrative Hearings (OAH). ☐ This matter is set for hearing on __________________(date). ☐ This matter is not currently set for hearing. MEDIATION AGREEMENT By requesting this mediation and signing below, the parties understand, represent, and agree: 1. The parties are prepared to commence mediation and will be ready for mediation on _____________________(date); 2. The parties will participate in the mediation process in good faith; 3. This request for mediation is not intended to hinder or delay administrative proceedings; 4. No party will contend that the mediation limits the power of OAH and its administrative law judges to conduct an administrative hearing and issue decisions under A.R.S. §§ 41-1092 – 1092.12; 5. The parties will be courteous and respectful throughout the mediation process to all participants; 6. The mediation is completely voluntary and the principal purpose is to allow the parties a full and fair opportunity to discuss settlement; of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 7. The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the parties’ dispute, but the mediator has no authority to impose a settlement upon the parties; 8. The mediation process is confidential. Communications made, material created for or used during, and acts occurring during mediation are confidential and may not be discovered or admitted into evidence in any proceeding except as provided by A.R.S. § 12-2238; 9. The mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation except as provided in A.R.S. § 12-2238(C); 10. Neither the mediator, nor the Registrar of Contractors, nor the Office of Administrative Hearings is subject to civil liability for any act or omission in connection with any mediation service or activity except for acts involving

intentional misconduct or reckless disregard of a substantial risk of injury to the rights of others; 11. Throughout the mediation process, each party must have a representative present who will have full settlement authority to settle all claims at issue in the administrative

proceeding. 12. The mediation process will terminate when: a. The parties reach settlement; b. The mediator determines that further efforts at mediation are no longer likely

to achieve a settlement; or c. One of the parties withdraws from mediation. _____________________________________ _______________________ Complainant (or representative) Date

_____________________________________ _______________________ Respondent (or representative) Date

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 PREHEARING DISCLOSURE STATEMENT INSTRUCTIONS ***DO NOT SUBMIT THESE INSTRUCTIONS WITH THE PREHEARING DISCLOSURE FORM***

ADMINISTRATIVE RULES A copy of the Arizona Administrative Code’s Rules for the Registrar of Contractors can be located on the Registrar’s Website.

PREHEARING DISCLOSURE REQUIREMENT Under A.A.C. R4-9-118(A), before a hearing, the parties must prepare a disclosure statement. The disclosure statement must contain: • A list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony; and • A list of all the exhibits that the party will use at the hearing.

FILE PREHEARING DISCLOSURE STATEMENTS • The Prehearing Disclosure Statements and Exhibits may be submitted to the Arizona Office of Administrative Hearings using any of the following: • Electronically: https://portal.azoah.com/submission/ • In-Person or by Mail: 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007

EXCHANGING DISCLOSURE STATEMENTS AND EXHIBITS Under A.A.C. R4-9-118(B) (effective November 5, 2017), a party to the hearing must serve on every other party and file with the Office of Administrative Hearings a copy of: • The disclosure statement; and, • Any exhibit that the party will use at the hearing. Service: The disclosure statement and exhibits must be served on all parties in accordance with Arizona Administrative Code R2-19-108 Filing Documents. Under A.A.C. R2-19-108, service is completed by: • Personal delivery; • 1st class, certified or express mail; or • Facsimile. Timing: The disclosure statement and the exhibits must be served and filed not less than seven calendar days before the date of the hearing. Under A.A.C. R2-19-108, a document is served on a party: • On the date it is personally served; • Five days after it is mailed by express or 1st class mail; • On the date of the return receipt if it is mailed by certified mail; or • On the date indicated on the facsimile transmission.

CONSEQUENCES FOR FAILING TO DISCLOSE Under A.A.C. R4-9-108(C), if a witness or an exhibit is not timely disclosed as required the rules, and good cause for the failure to disclose is not shown, then the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.

Form RC-L-800A Prehearing Disclosure Statement Rev. 10/08/2019 Instructions Form PREHEARING DISCLOSURE STATEMENT FORM RC-L-800A

PART 1: WITNESS LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony. If you need additional space to list all witnesses, complete and attach additional Witness Lists. Example 1. Name 2. Telephone Number 3. Email Address

John Doe (123) 456-7890 [email redacted] 4. Subject Matter of Expected Testimony

John Doe will testify regarding the poor workmanship and poor installation of the Garage Door. Mr. Doe will also testify regarding the invoices and change orders for the project.

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 1 of 3 PART 2: EXHIBIT LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the exhibits that the party will use at the hearing. Note: All exhibits listed below must be provided to all parties to the hearing. See A.A.C. R4-9-118(B). If you need additional space to list all witnesses, complete and attach additional Exhibit Lists. Example Contract for new garage door. Invoice #10001 – Cost for garage door replacement.

Exhibit Exhibit Name

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 2 of 3 PART 3: ACKNOWLEDGEMENT & SIGNATURE I certify that the above information is true and correct and that I will serve a copy of this disclosure statement and any exhibits listed in Part 2 to all parties to the hearing in accordance with A.A.C. R4-9-118. I acknowledge and understand that if I fail to properly disclose a witness or exhibit, the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.

I am the (check one):  Complainant  Respondent Docket No.

Print Name Signature Date

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 3 of 3