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HomeMy WebLinkAbout86-2680* THIS ORDINANCE IS A DUPLICATE OF -0RDINANCE N0. 86-2677. ORDINANCE NO. 86-2680 An Ordinance amending Chapter. 2, "Administration" of the Plainview. City Code, as amended; creating the City of Plainview Officer and A Employee Liability Plan; providing coverage, limits of coverage, exclusions, and related provisions for the indemnification and defense of City officers 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 Cityindemnification 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 FOLLOWS: ~~ "ARTICLE IX. CITY OF PLAINIVEW OFFICER AND EMPLOYEE. (,~ LIABILITY PLAN.- SEC. 2-199. 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 member which is covered under this .plan. \` ~ (4) 'PLAN means the City of Plainview Officer and Employee Liability. Plan. (5) 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 a board 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 this 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 event ..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,. or assigned volunteer work the indemnifications shall be% granted and reasonable legal expenses incurred in 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 i+Aaomc ovnoAi on+ ~~l ~~ i INANCE NO. 86-2680 ~.,,, GS 2 OF 4 ~ ;'~ (b) A plan member. whose .position with the city. terminates is entitled'to coverage in accordance with this plan for any event that occurred while the person was a plate member. SEC. 2-181. DEFENSE. {a) The city will defend 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 suite as it determines necessary. SEC. 2-182. 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 government. (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 exceed the. limits of coverage; _ (3} reasonable expenses of the plan member incurred at the city's request; and - s (4) attorney's fees ordered by the court to be paid by the \.-~ plan. member. 4_ SEC. 2-183. NOTICE OF OCCURRENCE, CLAIM, OR SIIIT; COOPERATION. 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 City Attorney's-Offi:ee and, upon the City. Attorney's Office request, assist in making settlements, 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 thelplan; (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 an accident, give .any oral or written statement or 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. 2-184. PLAN PERIOD: This plan covers-only acts or omissions occurring or alleged to have occurred: (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} zf the plan is cancelled, while the. plan is in effect and wh irh are nni- harroA by anv ei-atnty nf~l imitati nnc. ,-__°- ~~~ .~ ORDINANCE NO. 86-2680 PAGE 3 OF 4 SEC. 2-185. EXCLUSIONS.. 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 statute 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 liabilitg'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 j insured under another plan, such as a commercial insurance policy. SECc 2-186. `SUBROGATION. i If payment or, legal representations 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. 2-187. 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 plan. {b} If, the City. Attorney's Dffice 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. The 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 mag 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. SEC. 2-189. NO CREATION OF CAUSE OF ACTION. .Nothing contained in this plan shall be construed as creating a right 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. SEVERABILITY. 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. 113 .~ ks `~ 1j~~ ~NANCE ft0. 86-2680 - -SAGE 4 OF 4 SEG.' 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 an 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 bylaw, and it is so ordained. Passed. and approved on first reading this the day of 1986. E.V.. RIDLEHUBER, Mayor .ATTEST: SHERYL OWEN, City Secretary. ~...~ i ~~ , ~~