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  ITEM 20.       
Meeting Date: 10/13/2020  
Submitted For: Michael Bailey Submitted By: Brittany Lopez, Senior Legal Assistant
Department: City Attorney's Office  

Subject
CONSIDERATION AND ACTION TO DIRECT THE CITY ATTORNEY TO FILE A PETITION FOR REVIEW WITH THE ARIZONA SUPREME COURT IN THE STANDARD CONSTRUCTION V. ARIZONA DEPARTMENT OF TRANSPORTATION MATTER
Presented by: Michael D. Bailey, City Attorney
 
Purpose and Recommended Action

Direct the City Attorney to file the Petire For Review.
Background
In 2014, Plaintiff Standard Construction Company (“SCCI”) and Arizona Department of Transportation (“ADOT”) entered into a contract for SCCI to perform construction work on the New River Multi-Use Pathway Between Northern and Bethany Home Road Project. The City is an “interested party” to the Project. Standard alleges that based on design errors, unanticipated Flood Control District restrictions, unforeseen conditions, and other things, ADOT owes SCCI an additional $1,168,239.00 for its work on the Project, which has not been paid. A lawsuit was filed on 11/29/2018 naming State of Arizona and ADOT as Defendants. The City filed its motion to intervene and motion to dismiss in the lawsuit.

The underlying issue involves whether SCCI timely filed its notice of claim and complaint against the City.

On 04/20/2019, Court ruled in favor of the City and granted City’s Motion to Dismiss. Judgment was entered in favor it of the City and against SCCI.
 
On 5/14/2018, SCCI filed anotice of appeal. On September 3, 2020 the Appellate Court reversed the Superior Court's ruling. 

 
Analysis

Staff believes that there is no Arizona law that controls the point of law in question, namely how the mediation provision in ADOT’s contract affects the 180-day deadline of the Notice of Claim statute.  Moreover, the Apellate Court  decided important issues of law that are likely to be repeated:

  • The issue concerns ADOT’s widely used standard form agreement;
  • The issue concerns an oft-used statute of general applicability—the Notice of Claim statute;
  • The issue concerns judicial process and access to the courts; and
  • Being published, the Opinion sets precedent.
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