12/12/2018
From our President to Clark County Council
I was profoundly disappointed and a little bit shocked by yesterday’s decision. If your staff had time to write, and you had time to vote on that document, why didn’t you have them write and you vote on something which would have actually made a difference? Some sort of validation of my indemnification language would have been all it took. Worst of all, the premises of your arguments are false.
Almost every paragraph in yesterday’s resolution has major flaws, but since you highlight the best arguments by using the phrase “particularly given”, let me just stay there. You find my “rationale to be suspect” for two reasons:
“PVJR has allowed other users of the rail to continue operations.” This statement is completely untrue. The only user operating is PVJR, and I’m required to under Federal Law. So unless you were advised to condemn me for following Federal Law, mistakes were made. If you were advised to condemn me for following Federal Law, this might be the first time in US history a county has done this.
The other reason was “given that BYCX has liability protections in place”. You can probably guess where this is going… Under the Sublease, BYCX was required to indemnify Clark County, but not PVJR. BYCX was also required to name both Clark County and PVJR as additional insured. They DID NOT. This never concerned me as Clark County indemnified me under the Leaseback, but you now say that’s void. BYCX’s failure to do this is a material breach of the Sublease under SL5(a), but you failed to notice or correct this at any point in the last 12 years, including before yesterday’s vote. It was Clark County’s responsibility to make certain BYCX took this step, as PVJR isn’t even a party to the Sublease. It was both Clark County and BYCX’s failure, and contrary to your resolution, PVJR was in fact left without proper “liability protection” in place.
I would ask you vote again today to rescind this condemnation as your two primary points in doing so are demonstrably false. Both Clark County and BYCX are in breach of the various agreements and ONLY PVJR has actually followed the contracts in both spirit and letter.
On a positive note, my attorney reports that you finally took our advice and hired an independent unconflicted legal team to assist you. THANK YOU. Whoever on the Council suggested this deserves enormous credit for their courage and wisdom. Unsurprisingly, your new attorney’s first idea was for you to provide indemnification so BYCX could operate. Or as we like to say, what we’ve been asking for since this whole mess started.
BYCX needs this line opened by noon they tell me, so let’s get the language from the new attorney and fix this. The finger pointing is just a waste of time.
