A. Definitions: For purposes of this chapter and indemnification plan, the following definitions shall apply:
CITY: The city of Carbondale.
COUNCIL: The city council of the city of Carbondale.
EMPLOYEE: Includes the mayor and members of the city council and all persons working directly for the city who are working under the direction and control of the council, the city manager or one of its designated officials or subordinates, and who are receiving their remuneration for such work from the city of Carbondale. The term "employee" shall not include any person or organization who is employed by the city as an independent contractor. The term "employee" shall include all elected officials of the city and any person serving on a board, commission or task force duly established by ordinance of the city council.
PERFORMANCE OF DUTY: Does not include any act or omission constituting deliberate and intentional tortious conduct or criminal conduct.
B. Liability Rests With City: The city council hereby declares that the city will defend, save harmless, and indemnify any employee against any tort or professional liability claim or demand, whether groundless or otherwise, arising out of an alleged act or omission to act occurring in the performance of duty; that the city may comprise and settle any such claim or suit and pay the amount of any settlement or judgment rendered thereon. The city shall designate an attorney who will represent the city or official in such litigations.
C. Liability Denied: Defense or indemnification may be withheld by the city to any employee in any of the following circumstances:
1. If an employee fails to use due care in reporting to the city insurance officer and to the employee's department head any incident which might reasonably expect to result in a claim of liability against him or the city.
2. If any employee fails to notify the city of any notice of claim or summons and complaint served upon him commencing a suit for damage reimbursable under this plan. Such notice shall be given to the city attorney or city clerk within five (5) business days of its service upon the employee.
3. If any employee refuses to cooperate with an investigation or defense of any lawsuit by the city attorney's office or any attorney retained by or for the city to furnish defense to said employee, or to investigate such tort or professional liability claim. (Ord. 77-99)
D. Adherence To Terms Of Policy: In construing and administering the provisions of this section, the city shall utilize its insurance coverage to the fullest extent. The city is under no obligation to indemnify any employee for an act concerning that for which the city has no insurance coverage and any indemnification on the part of the city is specifically limited to the extent of said insurance coverage. Nothing contained herein shall be construed to add any additional insurance coverage, and shall not be used by any insurance carrier or any third party as a waiver of any defense which the city or employee might have at law. (Ord. 77-99; 1998 Code)
E. Subrogation: In the event of any payment under this plan, the city shall be subrogated to all of the employee's rights of recovery therefor against any person or organization and the employee shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The employee shall do nothing after loss to prejudice such rights.
F. Continued Coverage: Any defense and indemnification available to an employee under this plan shall continue to be available to him after the termination of his employment so long as the act or omission causing his liability occurred during the course of his duties while an employee of the city. Such defense and indemnification shall not be available to a former employee, however, in the event that the tort of professional liability claim against him is asserted as a counterclaim or set off in any suit brought by the employee, except to the extent that the liability of such employee may exceed the amount of his own claim or suit.
G. Authority: The city council finds that the subject matter of this section pertains to the government and affairs of the city and is passed pursuant to the home rule powers of the city. (Ord. 77-99)