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HomeMy WebLinkAboutResolution No. 87-27 CITY OF THE COLONY, TEXAS so uTio..o. 7 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING AN INDEMNITY AGREEMENT FOR EMPLOYEES, OFFICERS AND VOLUNTEERS OF THE CITY; PROVIDING AN EFFECTIVE DATE WHEREAS, Chapter 102 of the Texas Civil Practice and Remedies Code, (the "Code") , allows governmental units to indemnify officers, employees and volunteers for civil damages incurred as a result of negligence suite; and WHEREAS, the City Council of the City of The Colony, Texas (the "City"), finds and determines that it is in the best interest of the citizens of the City to approve an indemnity agreement consistent with the provisions of Chapter 102 of the Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That all the matters stated in the preamble are found to be true and correct and are incorporated into the body of this resolution as if copied in their entirety. Section 2. That the City Council hereby approves and adopts the Indemnity Agreement attached hereto as Exhibit "A" and incorporated herein for all purposes. Section 3. That nothing contained in this resolution or the Indemnity Agreement shall preclude the City, when otherwise permitted by applicable law, from indemnifying, or agreeing to indemnify, its officers, employees, volunteers, or other persons or entities, against loss, liability or expense which is not covered by the Indemnity Agreement. Section 4. That this resolution shall be effective from the date of its passage by the C~y Council. PASSED AND APPROVED this ~_~:~- day of ~_~-~/~ , 1987. CITY OF THE COLONY, TEXAS Don'A~ick, M~dr~ - ATTEST: Patti A. Hicks, C~tt~ Secretary STATE OF TEXAS COUNTY OF [~)~NTOI',( INDEMNITY AGREEMENT WHEREAS, pursuant to Chapter 102 of the Texas Civil Practice and Remedies Code (the "Code"), the City of~C~Lo~v,-r} (the "City") may lawfully authorize the expenditure"of public funds for the defense and payment of actual damages awarded against the officers, employees and volunteers of the City who have been sued in their official capacities, provided the suit involves an action of the officer, employee or volunteer within the scope of his or her authority in the performance of public duties; and WHEREAS, the City desires to defend and indemnify the officers, employees and volunteers of the City from and against any and all liability, loss, damage, expense, cause of action, suit, claim or judgment arising from injury to a person or property resulting from or based upon a negligent act or omission by the officer or employee in the course and scope of his or her authority and in the performance of public duties on behalf of the City. NOW,THEREFORE, FOR AND IN CONSIDERATION of the service of the individual officers and employees to the City and other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged and confessed, the City agrees as follows: 1. The City shall defend and indemnify its officers, employees and volunteers (as hereafter defined) from and against any and all liability, loss, damage, expense, cause of action, suit, claim or judgment arising from injury to person or property resulting from or based upon a negligent act or omission by the officer, employee or volunteer in the course and scope of his or her authority in the performance of public duties on behalf of the City. The provisions of this Agreement shall be available to the individuals who are serving or have served as officers, employees or volunteers, whether or not such individuals are actually serving in such capacity at the time the claim is asserted, the suit is filed, the damage is sustained or the judgment is rendered, provided the individuals are serving in that capacity at the time of the act or omission complained of and at the time the cause of action arises. 2. (a) A "City agency" is defined as the City and any commission, board, agency, committee, corporation or other body, entity or association lawfully created or established by the City for a lawful public purpose. 0261X (b) An "officer" is defined as any person who was, is, or shall be the Mayor, a member of the City Council or a lawfully elected or lawfully appointed officer or member of a commission, committee, board of directors, board of governance or other governing body of a City Agency. (c) An "employee" is defined as any person who is duly employed by a City Agency for monetary compensation. (d) A "volunteer" is any person duly acting as a volunteer for a City Agency without a monetary compensation. (e) The terms "officer", "employee" and "volunteer" do not include an independent contractor,, an agent or an employee of an independent contractor, or a person who performs tasks the details of which the City or City agency does not have the legal right to control. (f) The terms of this Agreement shall extend to the estate, heirs, legal representatives or assigns of a person who was an officer, employee or volunteer at the time of the act or omission upon which a claim is based. 3. An officer, employee or volunteer must comply with the following requirements to be entitled to indemnification under this Agreement: (a) Notify the City attorney as soon as practicable upon receipt of written notice of a claim or lawsuit but in no event later than three (3) working days after receipt; (b) Cooperate with the City attorney and, upon request by the City attorney, 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 this Agreement; (c) Attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witness; (d) Not, except upon advice of the City attorney 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; (e) Not, except at his or her 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. -2- 0261X 4. This Agreement shall not apply to a claim or lawsuit against an officer, employee or volunteer: (a) That arises from a cause of action for official misconduct; (b) That arises from a cause of action involving a willful or wrongful act or omission, or an act or omission constituting gross negligence; (c) That arises from an international or knowing violation of a penal statute or ordinance; (d) That arises from any intentional or knowing act of fraud; (e) That arises from a cause of action brought against the officer, employee or volunteer by the City or a City agency; (f) If the officer, employee or volunteer fails to comply with Section 3 of this Agreement; (g) Is barred by any applicable statute of limitations. 5. This Agreement to indemnify and pay for the defense of the officers, employees and volunteers of the City shall be payable solely out of available cash revenues for the then current fiscal year unless the City Council levies, in accordance with the Constitution and the laws of the State of Texas, a tax sufficient to pay the obligation. Authorization hereby given for the expenditure of public funds in accordance with this Agreement. 6. The City shall pay the damages and costs covered by this Agreement that an officer, employee or volunteer is legally obligated to pay, except that the City shall not be obligated for amounts in excess of applicable limits contained in Section 102.003 of the Code or for amounts in excess of the available coverage under an insurance contract or a self-insurance plan entered into by the City which covers the actions of the officer, employee or volunteer. 7. The legal counsel provided by the City to represent an officer, employee or volunteer under the terms of this Agreement may be the regularly employed counsel for the City, unless there is a potential conflict of interest between the City and the officer, employee and volunteer named as a defendant, in which case the City may employ other legal counsel to defend the suit. Legal counsel provided under this Agreement may settle the portion of any claim or suit which may result in the payment of damages by the City under this Agreement. -3- 0261X 8. In accordance with Section 102.005 of the Code, neither the City nor the officer, employee or volunteer named as a defendant shall be required to advance security for costs or give bond on appeal or writ or error. 9. This Agreement may be cancelled, altered, modified or amended at any time by the City Council, but no such cancellation, alteration, modification or amendment shall affect the coverage of this Agreement with respect to causes of action arising prior to such time. 10. This Agreement is for the exclusive benefit of officers, employees and volunteers of the City. Nothing · contained in this Agreement shall be construed as creating a right or cause of action against an officer, employee or volunteer nor as 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 an officer, employee or volunteer. 11. This Agreement shall be subject to and'governed by the laws of the State of Texas. EXECUTED this L~~/~- day of OC7-0 2~ ~/~ , 1987. CITY OF 77rE ~OLO~/y, TEXAS Mayor ATTEST: City Secretary ..' '%~ '~ -4- 0261X