|from:||Roberts, Margaret <email@example.com> via port-orange.us|
|to:|| “Ford, Bob” <firstname.lastname@example.org>,
City Council <CityCouncil@port-orange.org>,
“Kisela, Greg” <email@example.com>
There is one significant issue relating to sovereign immunity. The other issues are simply provisions in the lease agreement that are not applicable to the lease (donation) of free carts. I caution the board to not agree to language that clearly does not apply to free carts, in to order to avoid potential dispute about the payments, reimbursements, financing agreements, etc. for the carts. Attached is a marked lease agreement showing each of the items that EZ Go has not agreed to. All of the items have been previously shared with Kemper, their attorney and EZ Go. If the carts are being given to the city for its free use, then the language about lease payments, secured interests, taxes, purchase options with no specified value, credit information and other such terms are not essential and necessary terms for the donation of the free carts.
Sovereign immunity becomes the issue in paragraph 9 of the proposed lease. Paragraph 9 requires the city to indemnify EZ Go for all claims arising from the maintenance or use of the three leased carts. The law in Florida provides that a city waives its rights to sovereign immunity upon signing a contract agreeing to indemnify a private party to the contract. Sovereign immunity for liability claims are currently capped by state law at $200,000 per individual and $300,000 per incident. The cap is waived by operation of the law where indemnification language has been agreed to in the contract.
It has been the advice of this attorney that the city should avoid contract language agreeing to indemnify a private party in the contract. With sovereign immunity in place, in the event of a liability claim, the city’s exposure is capped to the maximum per incident of $300,000, absent a claims bill which is rare, but not as rare as it used to be. Sovereign immunity is not in place, if the city has contractually agreed to indemnify for all claims, and the exposure is unlimited. Jury verdicts in plaintiff cases are unpredictable and often can reach outrageous results against a government.
In the next meeting if the Board recommends waiving the sovereign immunity protection, then we will schedule the matter for city council to make the final determination on the indemnity language.
Please call if you would like to discuss.
Sent: Wednesday, November 20, 2013 10:33 AM
To: Roberts, Margaret
Subject: EzGo Maintenance Lease
I would like to resolve the lease (free) of maintenance vehicles for the Golf Course. This has dragged on for far too long.
Please advise as to your objections to this lease, so we can either end this dialogue or move forward with the lease. It was explained to me that you were concerned that if the vehicles were damaged by us, we would have to repair or reimburse for them. This is a risk that appears reasonable.
Do you have any additional concerns.
best, Bob Ford