MORGANTOWN – The licensing agreement to provide the Morgantown Utility Board a path through White Park to construct a raw-water pipeline may have been doomed from the start due to disagreement over language regarding the termination of the agreement and removal of the pipeline.
Now, Morgantown City Manager Paul Brake has promised to deliver another revised document addressing those concerns. That information was only relayed to MUB for the first time approximately 90 minutes prior to it’s meeting to vote on the latest proposal.
Morgantown Utility Board members ultimately rejected the proposed draft agreement for the right-of-way Monday night, instead opting to follow the longer, more expensive route around the park.
Part of the reason for rejection of the agreement was language contained in the document that MUB General Manager Tim Ball told city officials that the MUB members would not agree to, rendering any other provisions requested by BOPARC or others moot.
The provision MUB took exception to reads:
“This agreement and the License granted by this Agreement to Licensee may be terminated by either party for any reason or no reason upon giving 60 days’ written notice. In addition, this Agreement may be terminated by the Owner upon 30 days’ written notice to Licensee of a breach of any term or condition of this Agreement.”
That language was included in the original draft of the agreement first presented during to City Council during the Aug. 27thCommittee of the Whole Meeting. It was also included in revisions given to MUB on Sept. 26 and Oct. 2, despite assurances from the city that the termination language would be addressed.
According to a summary of the negations provided by MUB General Manager Tim Ball, that stipulation in the agreement was identified as a problem in an email from Ball to Morgantown City Manager Paul on Sept. 4.
Ball and Brake met on Sept. 5 to discuss the agreement. According to an email Ball sent to Brake summarizing their discussions, Brake expressed a commitment to preserving the template of the agreement and according to Ball, suggested that MUB should trust that the city would never exercise such authority.
A day later, MUB offered revisions to the document including options to address the termination language.
While MUB officials favored completely removing the provision, they offered a compromise that allowed the city to terminate the contract and order the removal of the pipeline at MUB’s expense, if there was a material breach of contract and a failure by MUB to cure such a breach within 60 days. The paragraph added by MUB also asked for a 12-month period to relocate the waterline if the agreement were terminated.
Those revisions were not included in any of the new drafts of the agreement returned by the city.
In a phone call between Ball and the city manager on Sept. 10, Brake assured Ball that Morgantown City Attorney Ryan Simonton was working on updated language to address MUB’s concerns.
However, the following week, an email from Simonton to MUB Engineer Doug Smith stated the termination language would not be removed from the agreement. Ball stressed, in yet another email that day, that the MUB Board of Directors would not support the agreement if the termination language was included.
The city attorney gave a new hard copy of the agreement to MUB officials during a meeting on Sept. 26 that did not include any changes to the termination language. Finally on Oct. 2, MUB received another draft that included a new provision that provided refunds to MUB for costs associated with construction of trails, an arborist, replacement costs for removed or damaged trees, installation of replacement trees and any trail maintenance fee paid to BOPARC, if the licensing agreement were terminated.
However, the revisions did not account for the cost of the removing and rebuilding the pipeline and the city still had the authority to terminate the agreement for no reason.
Another series of emails from Ball to Brake reinforced the notion that the MUB member would not agree to such a stipulation.
There was no further back and forth discussion on the matter until Monday.