Sunday, July 8, 2012
Magic hammer?
When rereading the 381 Agreement a possibly important detail that could stop the proposed Central Texas Airport in its tracks popped out in Section 9 which deals with Company Performance. Please read the following VERY carefully:
(i) Construction of Airport Improvements.
(A) Commencement. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Airport Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Airport Improvements to Commence no later than June 30, 2012.
(B) Completion. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Airport Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Airport Improvements to be Completed no later than June 30, 2012, subject to Force Majeure.
(ii) Construction of Commercial Improvements.
(A) Commencement. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Commercial Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Commercial Improvements to Commence no later than June 30, 2012.
(B) Completion. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Commercial Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Commercial Improvements to be Completed no later than June 30, 2012, subject to Force Majeure.
Did you notice that only the Completion Phase of the project, not the Commencement Phase is subject to Force Majeure? This observation was passed on to members of the Commissioners’ Court some time ago. So why are they even allowing a discussion of Force Majeure to continue? If that interpretation is a misread, then would a legal eagle please explain why? If indeed this is a magic hammer, why hasn’t it been used to deliver the coup de grace to the CTA?
