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HomeMy WebLinkAbout86-2677 ORDINANCE NO. 86-2677 An Ordinance amending Chapter 2; "Administration" of the Plainview. City.. Code, as amended; creating the City of Plainview Officer and Employee Liability Plan; 'providing .coverage, limits of coverage, exclusions, .and related provisions for the indemnification and defense of City officer '\ and employees; providing a saving clause; providing a severability clause; and providing an effective date; and providing for the passage of such ordinance as an emergency. WHEREAS, the City Council of the City of Plainview, Texas finds"a need to establish an indemnification and defense plan due to absence of commercial coverage, and WHEREAS, the City Council. of the City of Plainview, Texas has found that creation of a City indemnification .and defense plan would be in the best interest of the public.. BE IT ORDAINED BY THE .CITY COUNCIL OF THE CITY OF PLAINVIEW THAT-THE .;CODE OF THE CITY OF PLAINVIEW, TEXAS, IS HEREBY AMENDED BY ADDING ARTICLE IX TO READ AS FOLLOWSt y~ "ARTICLE IX. CITY OF PLAI£IVIEW OFFICER AND EMPLOYEE LIABILITY PLAN. `~ SEC. 2-179. DEFINITIONS. (1) CITY means the City of Plainview, Texas. {2) CITY VEHICLE means a-vehicle or mobile equipment either leased or owned by the city. (3-) LOSS means and amount which a plan member is legally obligated to pay resulting .from an act or omission. of the plan r member which is covered under this plan. (4} PLAN means the .City of Plainview Officer and Employee _. Liability. Plan. , ~`-~ (S) PLAN MEMBER means a person who is: (A) an employee of the city;: (B} a member of a city board, and this term shall include aboard that is not entirely; in composition, a city board, commission,. or committee created by charter, ordinance, or resolution of the .city; (C) a member of-the city council; or (D) a volunteer who has been approved. as a volunteer by a departmental volunteer coordinator and who is working under the direction of any employee of the city, SEC. 2-180. •COVERAGE. (a) The city shall indemnify and defend a plan member, in accordance with the terms of ahis plan,: against a loss arising out of any claim, suit, or judgment resulting from an act or omission of the plan member during the discharge of his duties and within the scope of his office., employment, or assigned volunteer work with the city. .For purpose of this section, the term "within the scope of his .office, employment, or assigned volunteer work° shall not include any action which occurs during a period of time or which the officer or employee is engaged in outside .employment or is rendering services. to someone other than the city. Provided, however,-that in the even such representation and indemnity have been denied by the city, if upon a trial on the merits the court determines that _ the officer or employee. was acting within the scope of his '` official employment or within .the scope of his office, ~_ - employment, ar assigned volunteer work the indemnifications shall be granted and reasonable legal expenses incurred is the defense of the claim reimbursed. The City shall not be liable for :any settlement of any such claims or suit affected without its consent, and the City reserves the right to assert any defense and make any .settlement of any claim or suit that it deems expedient. 105 U ~ ORDINANCE NO. 86-2677 U PAGE 2 OF 4 (b} A plan member whose position with the city terminates is entitled to coverage. in accordance with this .plan for any evenf that occurred while the person was a plan -_ member . - SEC. Z-181. DEFENSE.. (a) The city will dense any suit. against a plan member who is covered under this plan even if the suit is groundless or fraudulent. (b) The. city may investigate, negotiate, and settle any claim or suit as it determines. necessary. SEC. 2-1$2_ LIMITS OF COVERAGE. {a) The city will pay losses .covered by this plan that a plan member is legally obligated to pay, except, that in cases arising under the Texas Tort Claims Act {Article 6252-19, Vernon's Texas Civil Statutes) the city will .pay losses covered by this plan that a plan member is legally obligated to pay up to, but not exceeding the limits of liability provided by that Act, as amended for units of governments. (b) In addition to the coverage provided in paragraph (a) the city will pay: {1) the city's expenses in investigating and .defending the claim or lawsuit; (2) costs taxed against a plan member in a suit covered by this plan and interest that accrues after. entry of judgment before the city has deposited payment with the court on that. part of the judgment... which does not exceQd.the limits of coverage; / (3} reasonableexpenses of the plan member incurred. ~~.~ at the. city's request; and (4} attorney's fees ordered b the court to be a'd ~- `~ _.., y p i by the plan member SEC. 2-1$3. NOTICE OF OCCURRENCE,- CLAIl~I, OR SUIT; COO~?RA'rTON. To be entitled to coverage under the plan a plan member must: (1) .notify the City Attorney's Office as soon as .practicable upon receipt of written notice of a .claim or lawsuit, but no later than seven calendar days after receipt; (2) cooperate with the Attorney's Office and, upon the City Attorney's Office request, assist in making settlement,. in the conduct of suits, and in enforcing any right of contribution or indemnity against a person or organization who may be liable to the city because of injury or_damage covered :under the plan; (3) attend. hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses; and {4) not, except upon advise of the City Attorney's Office or when questioned by a police officer at the scene of any accident, give any oral or written .statement ar enter into any stipulation or agreement concerning a claim or lawsuit; (5) not; except at his own cost, voluntarily make .any payment,. assume any obligation, or incur any expense with respect to a claim or lawsuit without the consent of the city.. SEC. 2-1$4. PLAN PERIOD. This plan covers only. acts.- or omissions occurring or alleged to have occurred:. .s _.. s ~,.. -: t `s w:.: i ., _. ~ -, ORDINANCE NO. 86-2677 PAGE 3 OF 4 (1) while the plan is in effect; (2} before the plan was in effect and which are not ~' barred. by any statute of limitations; and \,' (3) if the plan is .cancelled, while the plan is in effect and which are not barred by an statute of limitations. SEC. 2-185. EXCLIISIONS. Coverage under the. Plan does not..apply to a claim or lawsuit that is brought against a plan member: (1) by the city; (2) arising out of the intentional or knowing violating of a penal statue or ordinance committed by or with the knowledge or consent of the plan member, or any claim arising out of acts of fraud committed by or at the direction of the plan member with intent to deceive or defraud; (3) arising either while the plan member is operating a city vehicle with no authority to operate the vehicle, or while the plan member. is operating a city vehicle in the course of personal or private business; (4) for liability assumed by the plan member under a contract, unless the contract is entered into at the request of the city; (5) if the plan member joins or attempts to join. with the suit against the plan member a claim against the city for benefits under this plan; or (6) if the plan member fails to comply. with Section 2-183 of this plan. ' (7) if the officer or employee or volunteer is protected and/or insured under another plan, such as a commercial insurance policy. SEC. 2-186. SUBROGATION. If payment or legal representation is provided under this plan, the city is subrogated to .the plan member's rights for recovery against .any person or organization to the extent of the city's liability and payments, and the plan member must execute and deliver. to the city attorney whatever documents are necessary to secure those .rights. The plan member must not do anything after a loss to prejudice those rights. SEC. 2-787. LEGAL REPRESENTATION- (a) The `city will provide- legal representation for a plan member in a claim or suit in which the plan. member is covered under this p1an.- (b) If the City Attorney's Office determines that there is a conflict of interests for the City Attorney Office's in .representing a plan member, and the plan member is other wise entitled to coverage under this plan, the city will pay the reasonable fee of a private attorney to represent `the plan -member. Thee private attorney will be selected by mutual agreement of the Plan Member, and the City. SEC. 2-188. DETERMINATION OF COVERAGE. If the city denies coverage to a plan member, the plan member may .seek -a determination of coverage by a State .district court of Hale County, Texas. If the court rules in favor of the plan member, the .city shall provide the plan member all benefits under the plan -and shall reimburse the plan-member for. reasonable attorney fees, expenses and .costs incurred in obtaining the determination of coverage. ,,. ®l ~~ ~ U p pRDINANCE 40. 86-2677: - ; ~~~ SEC. 2-189. NO CREATION OF CRUSE OF ACTION. Nothing contained in thin plan shall be construed as creating aright or cause of action against a plan member nor `~,,. as giving a right to a third party institute or maintain a suit which would not otherwise exist under law as a legal claim against a plan member SEC. 2-190. SEVER2IBILITY. Should any section, paragraph, sentence, clause, phrase, or word of this ordinance be declared unconstitutional or .invalid for any purpose, the reminder of this Ordinance. shall be uneffected thereby. --f SEC_ 2-191. CONFLICTS. .Should any -other ordinance, resolution, or policy conflict with provision of this ordinance, the provisions of this article shall prevail The necessity to implement this plan, based .upon a lapse in .insurance coverage effective November 31, 1986, creates and .emergency and it is imperative public necessity that more than "one reading therefore be and the same is hereby. suspended; ' this ordinance shall. be passed and take effect as an emergency measure and shall be in full force and effect. from and after passage as provided by law, and it is so ordained. Passed .and .approved on first reading this the 25th day of November, 1986. E.V. RIDLEHUBER, Mayor f ATTEST: G SHERYL OWEN, City Secretary a 4:. ~,