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arbitration. He agreed that Attorney O'Brien's suggestion was the <br />only forum available to get the most likely guilty party in there, <br />and the court has agreed we have the legal right to get out of the <br />arbitration if we want to. The Board could decide to go to <br />arbitration, if they wished, but they also needed to understand the <br />risk of a possible judgment against us. In that event, we would <br />have to get our own outside expert in order to sue our own <br />engineer. <br />Attorney O'Brien recommended not giving up any legal rights, <br />but if the Board doesn't want to send the letter, that was okay. <br />In response to Commissioner Bird's question if the suit and <br />arbitration could run in tandem, Attorney O'Brien assumed that the <br />arbitration panel would not hold the arbitration because of the <br />denial of the Motion to Dismiss. Only one action would count. <br />Chairman Macht pointed out it is not fair to risk the <br />taxpayers' dollars and by taking it to court, the court would <br />determine responsibility. <br />Mr. Cummings suggested if the Board was looking for <br />responsibility, they might look to whomever wrote the architect's <br />contract which specifically excluded the standard arbitration <br />clause, because that was why all the parties cannot come together. <br />In response to Commissioner Adams' inquiry, Attorney O'Brien <br />estimated the court time table and indicated a declaratory judgment <br />might be available as early as October. <br />MOTION WAS MADE by Commissioner Bird, SECONDED <br />BY Commissioner Eggert, to pursue Attorney <br />O'Brien's recommendation to seek resolution of <br />the matter in court, but to not hold Martin <br />Paving Company or James- A. Cummings, Inc. in <br />an area of prejudice in future bidding. <br />Under discussion, Chairman Macht understood that the motion <br />would withdraw sending the proposed letter to both Martin and <br />Cummings, would reject the demand for arbitration, and proceed <br />forward with the declaratory judgment. <br />Commissioner Bird explained that his motion was very much <br />based on the opinion given by the County Attorney's Office that the <br />County would not be in violation of the contract with the <br />63 <br />July 18, 1995 <br />BOOK '95 PAGE 76 <br />