The Pinedale Town Council expressed disappointment at its Oct. 23 meeting about a penalty clause added to an access-road extension agreement with a landowner who sold the town an easement.
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PINEDALE – The Pinedale Town Council expressed disappointment at its Oct. 23 meeting about a penalty clause added to an access-road extension agreement with a landowner who sold the town an easement.
On Oct. 16, the council approved a draft agreement to present to property owner Mary Ann Menster; the town purchased the bike pathway easement from her on April 26, 2016, according to town records. One condition is that the town will build an access road to Menster’s two lots by Dec. 31.
“The council worked out an extension,” said Mayor Bob Jones. “She came back and put a $1,000 a day penalty on there.”
The council’s extension agreement for Menster acknowledges the “proposed access road has not been completed and will not be completed” by Dec. 31. It proposes extending the deadline to June 30, 2018, with “road base and culverts to convey irrigation water from the north to the south of the access road … completed by 5/15/18.”
Menster returned it with the additional penalty clause: “In the event the Town fails to fully complete the Access Road by 6/30/18, the Town shall pay a penalty of $1,000 per day in liquidated damages for each day beyond 6/30/18 that the Access Road is not completed.”
The penalty would compensate the Mary Ann Menster Trust for “all actual and compensatory damages the Trust has accrued resulting from the Town’s failure to complete the project by the original competition date of 12/31/17, and the Town’s failure to complete the project by the extended competition date of 6/30/18.”
“I personally am annoyed by that; we’re not harming her in any way,” Jones said to councilmembers Tyler Swafford and Jim Brost. “(The delay) was unintentional but we have lost this construction season.”
“It doesn’t say anything about the quality of the access road,” Swafford commented.
Brost added that Menster “will see nothing but benefits. It’s a win-win already and we’ve already paid her for the easement when some neighbors donated their land.”
Town attorney Ed Wood reminded the three that if the town doesn’t complete the access road by Dec. 31 “we would be in breach of contract. On the other side, under the terms of the contract we’re not in breach yet.”
He also pointed out the proposed penalty would not take effect until after June 30, 2018.
After intense discussion among the council, town engineer Hayley Ruland, Brian Gray of Jorgensen Engineering and Mark Eatinger of Rio Verde Engineering, the council voted, 3-0, to table the topic until its Nov. 6 meeting.
