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HomeMy WebLinkAbout928 03-24-1987ORDINANCE NO. 928 AN ORDINANCE CREATING THE OFFICER AND EMPLOYEE LIABILITY PLAN FOR FOR THE CITY OF EULESS, TEXAS; PROVIDING THE TERMS AND PROVISIONS OF THE PLAN; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR GOVERNMENTAL IMMUNITY; ORDAINING OTHER MATTERS RELATED THERETO; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Euless, Texas, is permitted by State law and by its duly adopted home rule charter to provide for the defense of, and the payment of claims against, its officers, members of boards and commissions, employees and volunteers when and while acting the the ordinary course of their duties, powers and functions; and WHEREAS, the City Council has found and determined that provision therefor should be made in accordance with this Ordinance and subject to the limitations contained herein; NOW THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS: I. That the City Council hereby creates and orders the implementation of the City of Euless Officer and Employee Liability Plan, which shall contain and be subject to the following provisions, to -wit: CITY OF EULESS OFFICER AND EMPLOYEE LIABILITY PLAN Section 1. Definitions. The following words shall have the following meanings, to -wit: City means the City of Euless, Texas. City Vehicle means a vehicle or mobile equipment either leased or owned by the City. City Attorney means the duly appointed City Attorney of the City of Euless, Texas. Loss means an 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. Plan means the City of Euless Officer and Employee Liability Plan as established by this Ordinance. Plan Member means a person who is: (a) an employee or officer of the city; (b) a member of a city board, commission, or committee created by charter, ordinance, or resolution of the city and a member of the board of directors of any nonprofit corporation created under the authority of the City Council as an instrumentality of the City; (c) a member of the City Council; and (d) a volunteer who has been approved as a volunteer by a departmental volunteer coordinator and who is working under the direction of an employee of the City. Section 2. 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. (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 Plan Member. Section 3. 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 suit as it determines necessary. Section 4. 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 from incidents or occurrences where the City's liability exists by virtue of the Texas Tort Claims Act (Article 6252 -19, Vernon's Texas Civil Statutes), whether or not the City is a party defendant, the City will pay those 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 local government. (b) In addition to the coverage provided in subsection (a) of the City will pay: (i) The City's expenses in investigating and defending the claim or lawsuit; OFFICER AND EMPLOYEE LIABILITY PLAN ORDINANCE No. 928 Page 2 of 7 (ii) 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; (iii) Reasonable expenses of the Plan Member incurred at the City's request; and (iv) Attorney's fees ordered by the court to be paid by the Plan Member, if any. (c) To be entitled to coverage under the Plan a Plan Member must: (i) Notify the City Attorney in writing as soon as practicable upon receipt of written notice of a claim or lawsuit, but no later than five (5) working days after receipt unless the City Attorney determines that a later notice did not prejudice or harm the City's defense or other handling of such claim; (ii) Cooperate with the City Attorney or his designate and, upon the request of the City Attorney or his designate, 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; (iii) Attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses; and (iv) Not, except upon advice of the City Attorney or his designate or when questions 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; (v) Not, except at his own cost, voluntarily make any payment, assume any obligation, or incur and expense with respect to a claim or lawsuit without the consent of the City Attorney or his designate. Section 5. Plan Period. This Plan covers only acts or omissions occurring or alleged to have occurred: (i) While the Plan is in effect; OFFICER AND EMPLOYEE LIABILITY PLAN ORDINANCE NO. 923 Page 3 of 7 (ii) Before the Plan was in effect (above any insurance coverage in effect) and which are not barred by any statute of limitations; and (iii) If the Plan is cancelled, while the Plan in is effect and which are not barred by any statute of limitations. Section 6. Exclusions. Coverage under this Plan does not apply to a claim or lawsuit that is brought against a Plan Member: (i) By the City; (ii) Arising out of the intentional or knowing violation 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; (iii) 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; (iv) For liability assumed by the Plan Member under a contract, unless the contract is entered into at the request of the City; (v) 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; (vi) If the Plan Member fails to comply with Section 4 of this Plan; or (vii) For punitive damages, where such damages are not recoverable in law or against the City; (viii) For damages expressly excluded under Sections 102.001(c) and (d), Tex. Civ. prac, & Rem. Code, Vernon's Texas Code Annotated (1985), as the same may be amended. Section 7. Subrogation. If payment or legal representation is provided under this Plan, the City is subrogated to the Plan Member's rights of 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 OFFICER AND EMPLOYEE LIABILITY PLAN ORDINANCE NO. 928 Page 4 of 7 the Claims Board whatever documents are necessary to secure those rights in the sole opinion of the City Attorney. The Plan Member must not do anything after a loss to prejudice those rights. Section 8. 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 determines that there exists a conflict of interest for the City Attorney to represent a Plan Member, and the Plan Member is otherwise 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 the City Attorney. Section 9. Determination of Coverage. If the City denies coverage to a Plan Member, the Plan Member may seek a determination of coverage by a court of proper jurisdiction. 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's fees., expenses and costs incurred in obtaining the determination of coverage. Section 10. 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 giving a right to a third party to institute or maintain a suit which would not otherwise exist under law as a legal claim against a Plan Member. II. This Ordinance may be repealed or amended at any time, subject to rights existing under Section 4 of Article I hereof, and the Plan modified or terminated. This Ordinance shall not operate to repeal or affect any other ordinance of the City except insofar as the provision thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed. III. All of the regulations provided in this Ordinance are hereby declared to be governmental and for the health, safety and welfare of the general public. Any member of the City Council or any City official or employee charged with the enforcement of this Ordinance, acting for the City in the OFFICER AND EMPLOYEE LIABILITY PLAN ORDINANCE N0.928 Page 5 of 7 discharge of his duties, shall not thereby render himself personally liable; and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his said duties. IV. All amounts payable under this Ordinance are subject to available and appropriated funding therefor, except that appropriation shall not be required to the extent funding is available therefor, as determined in the exclusive judgment of the City Manager. V. Severability Clause. That it is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. VI. Effective Date. This ordinance shall be in full force and effect from and after its passage and publication as provided by the Euless City Charter and the laws of the State of Texas. PRESENTED AND GIVEN the Euless City Council of 5 ayes, _Q nay READING AND APPROVED at Council on the 24th day ayes, 0 nays and 0 FIRST READING at a regular meeting of on the 10th day of March, 1987; by a vote s and p abstentions; GIVEN SECOND a regular meeting of the Euless City of March. 1987; by a vote of 5 abstentions. APPROVED: `A, y Harold D. Samuels, Mayor ATTEST: Kay Rainey, Cit}'cS'ecretary OFFICER AND EMPLOYEE LIABILITY PLAN ORDINANCE Page 6 APPROVED AS TO FORM: Bo McFarl City Attorney OFFICER AND EMPLOYEE LIABILITY PLAN ORDINANCE Page 7