ORDINANCE
NO. 2008-01
AN ORDINANCE OF THE TOWN OF
WHEREAS, Section 1., Ordinance No. 2006-10,
prohibited the Town from indemnifying any other person or entity;
WHEREAS, the Town Commission finds that
there are instances when it is in the public interest to indemnify or hold
harmless another person;
WHEREAS, in 2005 in American Home Assurance Co. v. National Railroad Passenger Corp., 908 So.2d 459 (Fla. 2005), the Florida Supreme Court determined that municipalities do have the power to indemnify, and that any contract of indemnification without a cap on the limits of indemnification was open-ended as to a municipality’s liability;
WHEREAS, the Town Commission finds that it
is in the public interest to set an open and public policy as to which
individuals who are a part of Melbourne Beach Town government may be relied upon
as having the power to indemnify or hold harmless another person or legal
entity; and
WHEREAS, no one who is not authorized by the
Town Commission consistent with this Ordinance shall have the power to bind the
Town of Melbourne by contract or otherwise to indemnify or hold harmless
another person or legal entity, and any such act shall be deemed to be an ultra
vires act.
BE IT ENACTED BY THE TOWN OF
SECTION
1. That an uncodified section of
the Town Code of the Town of Melbourne Beach, Florida, contained in Section 1.,
Ordinance No. 2006-10, is hereby amended to read as follows:
The Town of Melbourne Beach, Brevard County,
Florida, its officers, employees, agents, or representatives are hereby
prohibited from entering into any contract with any government an/or [sic] non-governmental entity, private
entity, or person that contains an agreement to indemnify such government
and/or non-governmental entity, private entity, or person.
[COMMISSION
COMMENT: It is the intent of the
Town Commission that Section 1. of Ordinance No. 2006-10 be repealed.]
SECTION
2. That the Town Code of the Town
of Melbourne Beach, Florida, is hereby amended by adding an Article, to be
numbered II., and a Section, to be numbered 1-40, which said section reads as
follows:
ARTICLE
II. INDEMNIFICATION; CONTRACTS WITH TOWN.
§1-40. Indemnification.
(a) To be valid and binding against the town,
any contract of indemnification, agreement to hold another party harmless, or
offer to indemnify or hold another party harmless, in which the town is an
interested party and indemnifies or holds harmless another person or legal
entity must be signed, endorsed, or executed as otherwise provided by this code
and the town charter. No contract of
indemnification, agreement to hold another party harmless, or offer to
indemnify or hold another party harmless, in which the town is an interested
party and indemnifies, or holds harmless, another person or legal entity shall
be valid and binding against the town, unless said indemnification has been
approved by the town commission and is otherwise consistent with this
code.
(b)
Adding a party to an insurance
policy of the town as an “additional insured” shall not be considered to be an
act of indemnification or an agreement to otherwise hold another party harmless
pursuant to this code section.
(c) Any contract in which the town is an
interested party which is signed or executed in violation of this section is an
ultra vires act and is null and void.
SECTION 3. Severability/Interpretation Clause.
(a) That in the event that any term, provision, clause, sentence or section of this Ordinance shall be held by a court of competent jurisdiction to be partially or wholly unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or unenforceability shall not affect any of the other or remaining terms, provisions, clauses, sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as if the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not exist.
(b) That in
interpreting this ordinance, with the exception of ordinance section numbers, underlined
words indicate additions to existing text, and stricken through words
include deletions from existing text.
Asterisks (****) indicate a deletion from the ordinance of text, which
exists in the Code of Ordinances. It is
intended that the text in the Code of Ordinances denoted by the asterisks and
not set forth in this Ordinance shall remain unchanged from the language
existing prior to adoption of this ordinance.
SECTION 4.
Ordinances and Resolutions in Conflict.
That all ordinances or resolutions or parts thereof that may be determined
to be in conflict herewith are hereby repealed.
SECTION 5. Effective
Date. That this Ordinance shall become
effective immediately upon its adoption.
This Ordinance was passed on the first
reading at a regular meeting of the Town Commission on the 23th day of January,
2008, and adopted on the second/final reading at a regular meeting of the Town
Commission on the 20th day of February, 2008.
By:_________________________
ATTEST:
__________________________
Lenore
Milan, CMC, Town Clerk
Ordinance No. 2008-01