Thursday, June 12, 2008

Force Majeure in the Heer's agreement: Who knew?


"SHPO's ruling last month that the square was eligible for historic listing could fall under the Force Majeure provision, said City Attorney Dan Wichmer....

"...if it went to court, it's possible that we would invoke Force Majeure. If he tried to give it back to us, we'd say 'No, Kevin, we don't think the agreement's been breached.'

"Wichmer said he considered SHPO's ruling "an act of government beyond our control.""* - Springfield News-Leader

Well, my duck! (the duck thing's for Pastor Charles, now he knows I'm listening :) City Attorney Dan Wichmer was at the same City Council luncheon at Fire Station 12 on June 3 that I attended (and excuse me, but Wes Johnson of the News-Leader attended it, too) when Economic Development Director Mary Lilly Smith referred to the August 1, 2008 deadline and the City Council was assured that the City ought to be able to meet that deadline:

"We will also engage Butler Rosenbury to prepare the construction documents for it (Phase II, perimeter of square) so that we could be in a position to bid and we would be, I don't have a date for bidding yet, but we feel like we have just enough time to get everything underway so that we could start construction by August 1st." - Economic Development Director Mary Lilly Smith, June 3, 2008

Either the City Attorney and the Economic Development Director didn't know what was in that Agreement between city and Heer's Building LLC (thanks, News-Leader) or they didn't think it was important to inform the Council about Article VI. Either way, one has to ask why.

Why didn't the City Attorney and/or the Economic Development Director know of the "Force Majeure" clause?


Why didn't the City Attorney and/or the Economic Development Director think it was important to share that information with the Council, as a whole, during the course of that discussion or within earshot of the press?

It's no wonder Mayor Carlson recently complained:

"It's not like it used to be, there's not the depth, there's not the scope, there's not the understanding on the part of the media, on the topics that they're covering."

...and he thinks bloggers and anonymous commentators make it very difficult to get the city's message out?

Maybe, next time, while city staff is recommending approval of this Council Bill or that Council Bill, and the City Attorney and Economic Development Director who are, one assumes, aware of contractual details, could share those pertinent in depth, within the scope of the topic, details with the media and the rest of the community so that people could gain a better understanding?

Or was that little "Force Majeure" detail just not important enough to note?

Wichmer was there June 3, when Mary Lilly Smith was discussing the issue, when Councilwoman Mary Collette asked about the timeline on Phase II construction of the square. Neither Wichmer nor Smith bothered to mention Force Majeure that day.

I attended the City Council Committee of the Whole and a Finance and Administration meeting at the Busch Municipal building today, after I dashed off the above rantings and emailed them to myself to ponder upon.

Councilwoman Collette and I met, she on her way up the stairs and I punching the elevator button and then arrived on the 4th floor at the same time. I asked her if she was told about the "Force Majeure" clause, she said, "No, not specifically," but she was also quick to point out that she, and one could assume, all of the Council, had a copy of the contract herself. In other words, it was somewhat the responsibility of Council to be aware of Force Majeure.

The media wasn't given a copy of the final approved agreement between the City and Heer's Building LLC. I could have requested it before today and should have, but I didn't. So, we can go back to Carlson's charge, which I took seriously, by the way, that:

"... there's not the depth, there's not the scope, there's not the understanding on the part of the media, on the topics that they're covering."

Again, I will reiterate, reporters and the media can certainly take their share of the blame but the city can take a bit of the share, as well. Somewhere along the way it looks like someone could have mentioned Force Majeure, and when it wasn't mentioned people like me want to know why it wasn't mentioned.

For weeks, if not months, it seems like the city (and some members of the press) have been unnecessarily causing fear on the part of the public that the city may have to buy back the Heer's Tower, for what? Why?

I'm to blame, you're to blame, and yes, the staff of the city of Springfield, who has the most credibility to lose, is to blame. We can all take our share. That includes the Mayor, who has trouble getting the city's message out, he had the agreement too. We all need to be asking, are we going to expect our, yes, ALL-VOLUNTEER Council to actually read the materials they are voting on? How can we expect that? How can we hold those selfless, unpaid volunteers accountable? Do we look to them? And, if we look to them, should we be looking to them to make our City Manager's office accountable for not sharing this vitally important, pertinent information with them or do we expect them to read every 50 page agreement that the City places in their Council folder?

Internal Auditor, we're ready and we hope you are, too. There is more to this city that needs looking into than the Council can do alone and the communication aspect between city staff, the City Manager's Office and the City Council leaves a lot to be desired. For the rest of us superficial press and media types, who do not have the lack of an internal auditor to blame, good luck, brothers and sisters, it appears we've got our work cut out for us.

*emphasis mine


Busplunge said...

oh yeah.

tom said...

"Force majeure" (French for "greater force") is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, act of nature (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract. However, force majeure is not intended to excuse negligence or other malfeasance of a party, as where non-performance is caused by the usual and natural consequences of external forces (e.g., predicted rain stops an outdoor event), or where the intervening circumstances are specifically contemplated.

to read even further just go to;

take two said...

Notice how long it took the city attorneys to notice that they had a "Force Majeure" clause?

They just had to get a bunch of publicity out to scare taxpayers before they admitted the clause was there. Since they would have worked with the contract when it was signed, why did it take them these weeks to just happen to finally mention it?

take two said...

My point on why I felt the attorneys delayed admitting the "Force majeure" clause existed is that I think they were using every tactic to try to make Dan Chiles look bad and used the scare tactics of publicity to make folks think Dan had messed thing up. I think that was the reason they withheld that information from everyone. It was to create ill will against Dan Chiles, and maybe they could finally whip him into shape to become a bobblehead nodding their every notion.

Anonymous said...

Looks like we had a "flooding circumstance" yesterday...

Three cheers for the babbbbling brook in the`lovely Jordan Valley.