§ 2-291 COVERAGE.

   (a)   The city shall pay the actual damages, in accordance with and as limited by the terms of the plan that a plan member is legally obligated to pay arising from any claim, lawsuit or judgment against a plan member, whether or not the city is a party defendant, if said damages:

      (1)   (a)   Result from an act or omission of the plan member while in the scope of his or her employment with the city or during assigned volunteer work with the city; or

         (b)   Relate to authorized off-duty operation of a city vehicle for which coverage is provided under § 2-299; and

For the purpose of this section, travel between a worksite and an assigned remote parking facility is in the scope of employment.

      (2)   Arise from a cause of action for negligence.

   (b)   This section shall apply only to acts or omissions occurring or alleged to have occurred after the effective date of this article and to acts or omissions occurring or alleged to have occurred prior to the effective date of this article which are not barred by any statute of limitations. This section shall not apply to any lawsuit pending on the effective date of this article.

(Ord. 9943, § 1, passed 9-1-1987; Ord. 14577, § 2, passed 4-4-2001; Ord. 22767-06-2017, § 2, passed 6-20-2017)

§ 2-292 COOPERATION OF PLAN MEMBER REQUIRED.

   (a)   To be entitled to coverage, a plan member must:

      (1)   Notify risk management within five days after receipt of any written notice of claim;

      (2)   No later than five days after receipt of a lawsuit, notify the city attorney and request in writing legal representation by the city attorney;

      (3)   Assist and cooperate with the city and its authorized representatives in the investigation of such claim or lawsuit;

      (4)   Assist and cooperate in the defense of the lawsuit, including attending hearings, depositions, and trials; securing and giving evidence; and cooperating in enforcing any right of contribution or indemnity;

      (5)   Not give any oral or written statement concerning a lawsuit or claim, except upon the advice of the city attorney or a representative from the risk management division of finance or when questioned by a police office at the scene of an accident; and

      (6)   Not voluntarily make any payment, assume or admit any liability, settle or agree to settle any claim or lawsuit, incur any expense or assume any obligation with respect to a claim or lawsuit, except upon advice and consent of the city attorney or risk management.

   (b)   The failure or refusal of a plan member to comply with any of the above requirements may be grounds for denial of coverage or legal representation under this article.

(Ord. 9943, § 1, passed 9-1-1987; Ord. 14934, § 3, passed 1-22-2002; Ord. 22767-06-2017, § 3, passed 6-20-2017)

§ 2-293 LIMITS OF COVERAGE.

   Except as provided by § 2-299 related to City Vehicle Coverage, the city will pay the actual damages that a plan member is legally obligated to pay for any claim, lawsuit or judgment covered by this article, provided that payments under this article by the city will not exceed $100,000 per occurrence.

(Ord. 9943, § 1, passed 9-1-1987; Ord. 17652, § 1, passed 7-17-2007; Ord. 22767-06-2017, § 4, passed 6-20- 2017)

§ 2-294 EXCLUSIONS.

   (a)   This article shall not apply to:

      (1)   Claims or lawsuits brought by the city against a plan member;

      (2)   Claims or lawsuits for official misconduct;

      (3)   Acts or omissions constituting gross negligence, criminal negligence or recklessness;

      (4)   Damages arising out of a willful violation of a penal statute or ordinance committed by or with the knowledge or consent of the plan member;

      (5)   Damages arising out of acts committed by or at the direction of the plan member with affirmative dishonesty, or actual intent to injure, deceive or defraud;

      (6)   Any act or omission committed by a plan member while the plan member is operating a city vehicle without permission or authority;

      (7)   Liability assumed by the plan member under a contract or agreement, unless the contract or agreement has been entered into with the consent or at the request of the city;

      (8)   Any obligation for which the city may be liable under the Texas Workers’ Compensation

Act, being Tex. Labor Code, Title 5, unemployment compensation laws or any similar law;

      (9)   Any act or omission which occurs during a period of time in which the plan member is engaged in outside employment or is rendering contractual services to someone other than the city;

      (10)   Any claim or lawsuit alleging violations of constitutional rights, civil rights or federal law;

      (11)   Any plan member who is already covered by an insurance contract or other plan of self-insurance authorized by statute for acts or omissions occurring while in the scope of employment, up to the limits of said insurance contract or plan.

   (b)   Nothing in this section shall prohibit the city, in its discretion, on a case by case basis, from providing legal representation and paying damages, court costs and attorney's fees that a plan member is legally obligated to pay in any claim or lawsuit, to the extent and in the amount provided for by the plan, unless otherwise prohibited by state law.

(Ord. 9943, § 1, passed 9-1-1987; Ord. 10780, § 1, passed 2-5-1991; Ord. 14577, § 3, passed 4-4-2001; Ord. 17652, § 2, passed 7-17-2007; Ord. 22767-06-2017, § 5, passed 6-20-2017)

§ 2-295 SUBROGATION.

   The city shall be subrogated to the plan member’s rights of recovery against any person, firm, corporation or organization, and the plan member shall execute and deliver to the city attorney whatever documents are necessary to secure those rights and shall do nothing to prejudice those rights.

(Ord. 9943, § 1, passed 9-1-1987)

§ 2-296 DEFENSE AND LEGAL REPRESENTATION.

   (a)   The city shall defend any claim or lawsuit against the plan member seeking damages to which this article applies even if any of the allegations of the claim or suit are groundless, false or fraudulent.

   (b)   The city attorney shall provide the legal representation to a plan member in any claim or lawsuit in which the plan member is covered by this article.

   (c)   If the city attorney determines that there is a conflict of interest for the city attorney in representing a plan member, and the plan member is entitled to coverage under this article, the city will pay the reasonable fees of outside legal counsel to represent the plan member. The outside counsel shall be selected by the city attorney.

   (d)   In any lawsuit where the city attorney is providing legal representation to a plan member, the plan member may hire or retain additional legal counsel; however, the city shall not pay or reimburse said plan member for the services of said legal counsel.

   (e)   The city shall not be liable for any settlement of any claim or lawsuit effected without its consent.

   (f)   The city reserves the right to assert any defense and make any settlement it deems expedient.

(Ord. 9943, § 1, passed 9-1-1987; Ord. 14577, § 4, passed 4-4-2001)

§ 2-297 NO DEFENSES WAIVED.

   Nothing in this article shall be construed as waiving any defense, immunity or jurisdictional bar available to the city or plan member.

(Ord. 9943, § 1, passed 9-1-1987; Ord. 22767-06- 2017, § 6, passed 6-20-2017)