(dissenting).
I dissent.
Although the Storage Tank Fund Board did not have the option of rendering either of two alternative performances, plaintiff did have the option of exacting a prescribed monetary compensation in the event of the board’s inability to perform the agreement. This is made clear in the contract language providing:
If in an Agreement year, the Board is not able to supply the twenty thousand ton minimum amount of petroleum contaminated soil as required by Article V(a) of this Agreement, the Board will pay [ASPI] liquidated damages of $70.38 for each ton the amount of Board-supplied soils fall short of the required twenty thousand ton minimum. This amount represents a reasonable estimate of [ASPI’s] damages associated with the Board’s inability to supply petroleum contaminated soils.
(Emphasis added.) The italicized words in the quoted portion of the agreement make it clear that the liquidated damages were not to be paid for a willful breach but were to be insurance against a failure to perform for reasons beyond the board’s control.
With respect to the force majeure provision, it is clearly repugnant to the plain meaning of the italicized language. This court has recognized that, when there are general and special provisions in a contract that are in conflict, the special provisions are to govern. Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859, 863 (Iowa 1991); Mopper v. Circle Key Life Ins. Co., 172 N.W.2d 118, 126 (Iowa 1969). In the present contract, the force majeure clause is a general boilerplate provision. The liquidated-damage clause is a special provision dealing with the inability of the board to perform the agreement. Consequently, the liquidated-damage clause should be given effect as written. I would affirm the judgment of the district court.