Stick to your guns!

In Virginia we have similar constraints.

The sovereignty of the state is implied in its constitution, rather than
being legislated.  The AG has numerous recorded Opinions (gathered and
published annually), memos of instruction, etc., about the implication of
this.

For example, we may not accept the laws of any other venue.  We routinely
implement this by requiring the laws of Virginia, unless we are making an
agreement with another state's agency, in which case we ostentatiously
remain silent.  (As I read it, arguments between states are settled in
federal courts, anyway!!!)

We will not indemnify anyone for any reason.  We will accept responsibility
for our own acts and omissions to the extent of Va law -- which has
significant limitations of our liability.

We are self-insured for most matters, and cannot name a third party as as a
co-insured.  This is based on state law, so "laws of VA" brings it into an
agreement, though we normally clearly inform the other party.

Etc, etc, etc.

YOU DO NOT NEED TO ACCEDED TO ANY CLAUSE, WHATSOEVER.  A contract is an
agreement, freely entered into ....  IF THEY WILL NOT LISTEN TO SIMPLE,
RATIONAL REASONS, YOU PROBABLY SHOULD NOT BE DOING BUSINESS WITH THEM!!!!
And, if your PI does not understand that state law/procedure takes
precedence over her desires for funding, you need to do a little educating.

By the way, don't forget that most impasses like this result from either
some low level person blindly following rules or some legal advisor trying
to justify her existence.  Can you raise it to the level of a person who
has the management responsibility to make a decision?   "...has no meaning
in the real world...." suggests that you are dealing with someone who does
not understand that the law, or the opinion of the AG, IS REAL.

Yes, think those words.  All of us out here are thinking them for you.  Let
me quote from an e-mail I sent to a departmental administrator who is being
an intermediary in a similar discussion: " They may call our General
Counsel if they wish to discuss the matter.  He has made a concession to be
willing to take the time to tell them "no" if they will not believe you and
me."

Chuck

At 12:00 PM 3/31/00 -0600, you wrote:
>I recognize that not all public institutions have the same constraints
>placed on them by their state constitution or governing board but I think
>what may be discussed on this topic through this list will benefit several
>people who have questions about liability, sovereignty, venue and
>jurisdiction.
>
>We have the following in our state constitution:   "The State of Alabama
>shall not be made a defendant in any court of law or equity."  That is all
>it says.  Case law has brought Auburn University in and shown that we share
>in the sovereignty of the state.  The sole remedy for claimants against
>Auburn is to go through our State Board of Adjustments.  This certainly
>does not prevent someone from trying to sue the institution, however, it
>would be dismissed by any court in Alabama and hopefully by most courts in
>other states because of sovereign immunity.
>
>We have a contract with the following clause to which we have objected:
>
>"This Contract shall be governed by and construed in accordance with the
>laws of the State of ---------------(not ALABAMA).  The Contractor agrees
>that it will be subject to the exclusive jurisdiction of the courts of the
>State of ------------- and the courts of the United States which are
>located within the State of ---------- in actions that may arise under this
>Contract.  The Contractor acknowledges and agrees that any rights or claims
>against the State of --------- or its employees hereunder, and any remedies
>arising therefrom, shall be subject to and limited to those rights and
>remedies, if any, available under (state name) Code Annotated, Sections
>9-8-101 through 9-8-407."  (basically their version of the state board of
>adjustments)
>
>We objected initially to many clauses and they changed all but this one.
>We objected finally to this one and received the following response:
>
>"The paragraph to which you refer is not a negotiable item according to the
>legal staff downtown. They feel that they have made concessions along the
>way to make this contract work, but this is standard language in all state
>contracts now and they have negotiated all they can.
>If Auburn cannot do the overlooking in this case, I'm afraid we will not be
>able to work with the university. We have contacted XYZ University and they
>can and will do the work.
>We also have a contract with Auburn for the AAA Project. When this comes up
>for renewal, I fear we will find ourselves deadlocked again even though it
>is at least a 20+ year association.   [editorial comment - the previous 20
>years contracts didn't have this clause in them]
>I think it is very unfortunate that state and university personnel are past
>ready to get on with this, but we are being hamstrung by contract verbiage
>that we both know has no meaning in the real world."
>
>Our General Counsel is just as adamant for changing the language to Alabama
>as their is in keeping it as their own state.  We offered to take it out
>all together and remain silent.  That way, it would be an issue only if
>something really bad happened.  After all, this has "no meaning in the real
>world." as far as they are concerned.
>
>What I would like to say to them in response is not polite and thus not
>effective.  SO I appeal to this group to help me figure out what I am
>overlooking and what universities out there would agree to their language.
>If you could accept this language, please tell me if it is something in
>your charter or constitution or policies or what that makes this
>acceptable.  Do you have gobs of insurance and a huge general counsel
>staff?  I am honestly wanting to learn the risks involved.  Thank you.
>-----------------------------------------------------------------
>Martha M. Taylor, Director
>Office of Sponsored Programs
>310 Samford Hall
>Auburn University, AL 36849-5131
>
>334-844-4438
>334-844-5953 (fax)
>
>(xxxxxx@auburn.edu)
>
>
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Herbert B. Chermside, CRA
Director, Sponsored Programs Administration
Virginia Commonwealth University
PO BOX 980568
Richmond, VA  23298-0568
Express Delivery Only:
 Sanger Hall, Rm. 1-073
 11th & Marshall Streets
 Richmond, VA  23219
Voice:  804-828-6772
Fax     804-828-2521
OFFICE e-mail   xxxxxx@VCU.EDU
Personal e-mail xxxxxx@vcu.edu
http://views.vcu.edu/ospa/

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