9. City Attorney - Settlement Motion - SythAgenda -March 2, 1998
AGENDA ITEM 9 -APPROVAL OF SETTLEMENT (CITY ATTORNEY/CITY OF
KALISPELL VS. ESTATE OF JERRY SYTH SETTLEMENT)
BACKGROUND/CONSIDERATION: The City Attorney has attached a memo for your
information concerning this issue.
RECOMMENDATION: The City Attorney and I have conferred on this issue. I concur with the
settlement as presented by Mr. Neier.
ACTION REQUIRED: A MOTION to approve the settlement would place this in the record and
allow us to complete the settlement process.
February 27, 1998
To: Manager, Mayor and City Counc'l
From: Glen Neier, City Att e
Re: Syth Business Park
During the year 1995, Jerry Syth began developing a condominium
project between Airport Road and ist Avenue West near the City
Shops. The City, during September of that year, supplied, without
a written agreement or authorization, materials and labor necessary
to install water service to the development. Later in November,
the City supplied asphalt to patch the street where some of the
work took place. The total material and labor bill amounted to
$6113.00 and Syth was billed for the work.
Syth did not pay the invoices and became deceased on January 12,
1996. This office filed a claim against the Syth Estate, which was
denied, and later entered into a Stipulation in anticipation of
negotiating a settlement of the claim. Under the Montana Uniform
Probate Code, if a claim is denied, the claimant has only 60 days
to file suit and the Stipulation extended the time for filing a
suit. In April of 1997, the City filed suit against the Estate
for the full amount of the claim plus interest.
In February of this year, the Estate made claim against the City
for water and sewer connection fees paid but not used in the amount
of $1,292.00. The claim was referred to this office and I
contacted the attorney for the Estate and we discussed settlement
of all outstanding claims.
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Post Office Box 1997 • Kalispell, Montana 59903-1997
Telephone (406) 758-7700 • FAX (406) 758-7758
Resolution of the matter is based upon the following:
1) It cannot be denied that the City supplied materials and
labor to the project and the project benefitted from the
City's work.
2) However, Syth did not, at least based upon the
information supplied to this office, have information on
the cost of work, nor did he or any of his agents request
that it be done. Syth could have retained the services
of an independent contractor or accomplished the work
himself with a minimum of City assistance. The bottom
line may have been less, or more, but the City would not
have been involved.
3) The City has a policy of returning hook up fees not
utilized. In this case the buildings anticipated were
not, and will not be constructed. Credit against the
City's claim is proper.
4) Material supplied to the project cannot be salvaged or
reused by the City and is in use servicing the area. The
cost of the material definitely amounts to a proper
charge for which the Syth Estate should be responsible.
5) Essentially, the biggest complaint the Syth Estate has is
the cost of labor associated with the construction. It
amounts to approximately $2300.00. The charge is based
upon established City charges for use of men and
equipment. However, there is nothing demonstrating that
Syth had prior knowledge of the cost. He may have
elected alternative means of installing the equipment had
he knowledge of the cost. If we pursue the matter we may
recover some of the $2,300.00, but we may not recover it
all.
This office recommends that the City of Kalispell accept the
settlement of the disputed claim and stipulate to the dismissal of
the case. The City will be compensated totally in the amount of
$3,787.00 for material, with credit to the Syth Estate for
$1,292.00 previously paid for water and sewer connection fees.
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