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Home My WebLink About86-2677 ordORDINANCE NO -8~~i-X2'6<; ~ ``' ~,n Ordinance amending Chaptsr 2, "Administration" of the Plainview -'City Code, as amended; creating the City of Plainview Officer and ~mployee 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; ~.nd providing for the passage of such ordinance as an emergency. WHEREAS, the City Council of the .City of Plainview, Texas finds a need ~,o establish an indemnification and defense plan due to absence of commercial coverage, and ~ EREAS,`the City Council of the City of Plainview, Texas has found that creation of a City indemnification and defense plan would be n~,the best interest of the public. ~E IT ORDAINED BY THE CITY COUNCIL O]E THE CITY OF PLAINVIEW THAT HE CODE OF THE CITY OF PLAINVIEW, TEXAS, SS HEREBY AMENDED BY ~iDDING ARTICLE IX TO READ AS FOLLOWS; "ARTICLE IX. CITY OF PLAINI`~IEW OFFICER AND EMPLOYEE LIABILITY PLAN,. SE~. 2-179. DEFINITIONS. ~1) CITY means the City of Plain~~iew, Texas. (2) CITY VEHICLE- means a vehc]Le 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, coYrimission, 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 a`ny employee of the city.. SEC. 2180. C®VERAGE. (a} The city shall indemnify and defend a plan member, in accordance with the terms of this plan., against a loss arising-out of ar~y claim, suit, or judgment resulting from an act or omission of the Allan member during the discharge of his duties and within the scope of his office, employment, or assigned volunteer work with the city. F r purpose of this section, the term "within the scope of his o fice, employment, or assigned volunteer work".shall not include any action which occurs during a period of time or which the officer or ern~loyee is engaged in outside employment or is rendering services to someone other than the.... city. Provided, however,. that in the event su h representation and indemnity have been denied by the city, if up n a trial on the merits. the court determines that the officer or empployee 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 sh Il not be .liable for any settlement of any. such claims or .suit af~ected without its consent, and'the City reserves the ri ht to assert any defense and make. any settlement of any claim or suit that it,deems expedient. (b) A plan member whose position with .'the city terminates is en~itled to coverage in 'accordance with this plan for any event that occurred while. the person was a plan member. SEC. ~--181. DEFENSE. (a) The city will defend any suit; against a plan member who is covered under this. plan even if the su3. is groundless or fraudulent. (b} The .city may investigate, nesgotiate, and settle any claim or ,suit as it determines necessary. SEC, 2-182. LIMITS ~JF COVERAGE. (a) The city ;gill pay losses covered by this plan that a plan member is legally obligated to pay, except, that in cases arising un~.er the Texas Tort: .Claims Act (Art,icle 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 Fits 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 (4) attorney's fees ordered by the court to be paid by the plan member. SEC. 2-183. NOTICE OF OCCURRENCE, Ch~~IM, OR SIIIT; COOPERATION. To be entitled to caverage under the plan a plan member must: (1) notify the City Attorney's Office as soon as practicable upon receipt of written noi~ice of a claim or lawsuit, but no later than seven calendar days afte~~ receipt; (2) cooperate with the City Attorney's Office 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 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 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. ~-184. PLAN PERIOD. This plan covers only acts or omissions occurring ar alleged to have occurred: (1) while the'plan is in effect; (2) .before the plan was in effect and which are not barred any .statute of limitations; and (~) if the plan is cancelled, while the plan is in effect which are not barred by any statute,af ]Limitations. by and t S$C. 2-185. EXCLUSIONS. Coverage under the Plan does not apply to a claim or lawsuit thzt is brought against a plan member: (1) by the cite; (2) arising out of the intentional or knowing violating of a pehal statute or ordinance committed by or with the knowledge or consent of the plan member, or any claim arising, out of acts of fraud committed by or at the direction of the .plan member with intent to .deceive or defraud; ' {3) arising either while the plan member is operating a city vehicle with no authority to operate the vehicle, or while the plan member is operating a city vehicle in the course of personal or private business; (4) .for liability assumed by the plan member under a contract, unless the contract is entered into at the request of the city; (5) if the plan member joins or attempts to join with the suit ag~inst the plan member a claim agains>t the city for benefits under this plan; or (6) if the plan member fails to comply with Section 2-183 of this plan. (7) if the officer. or employee or volunteer is protected and/or insured under another plan,. such as a commercial-insurance policy. SEG'~. 2-186. SUBRdGATION. If payment or legal representations is provided under this plan, thee,-city is subrogated to, the plan member's rights .for recovery against any person or organization to the extent of the city's lia, ility and payments, and the plan member must execute and deliver to `the city attorney whatever documents are necessary to secure those rights. The plane member must not do anything after a loss to pre~udice those rights. SEC'i. 2-187. LEGAL REPRESENTATIt3N. {a) The city ,dill provide lega:L representation for a plan mem~er in a claim or suit in which the plan member is covered under thi$ plan. (b) If the City Attorney's Office determines that there is a can~lict 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 COVERAGEI. If the city denies coverage to a plan member, the plan member may seek a determination of coverage by a State district court of Halle County, Texas. If the court rules in favor of the plan member, thle 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. STjC. 2-189. NO CREATION OF CAUSE 4F ACTION. Nothing contained in this plan ~sh<~.ll be construed as creating a right or cause of action against a plan member nor as giving a right to'ia ahird party institute ar mainitain -a suit which would not ot$~.erwise exist under .law as a legal claim against a plan member." SE~ . - 2 -19 0.. SE`7ERABILITY . Should any section, paragraph, .sentence, clause, phrase, or word of ', this ordinance. be declared unconstitutional or invalid for any pur,'pose, the reminder of this Ordinance. shall be uneffected thereby. SEC. 2-191. CC)NFLICTS. Should any other ordinance, resolution, or policy conflict with rovison p of this or dinance t he 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 the be'refore be and the same is hereby suspended; this ordinance shall ;passed and take effect as an emergency measure and shall be in ful!1 force and effect from and after passage as provided. by law, and itlis so ordained. ' Pa~~sed and approved on .first reading this the 2~-~' day of l E , V . ]RIDLEHUBER, Mayor ATTEST: ERYL W'EN, C1.ty Secretary _- ,- ,_