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HomeMy WebLinkAboutOrdinance 1475 ORDINANCE NO. 1475 AN ORDINANCE ESTABLISHING THE CITY'S DEFINED SELF INSURANCE AND RISK MANAGEMENT PROGRAM; CREATING THE RISK CLAIMS BOARD FOR THE CITY; CREATING THE RISK MANAGEMENT FUND; PROVIDING THE TERMS FOR WITHDRAWALS FROM THE FUND UNDER THE PROGRAM; AND CONTAINING OTHER PROVISIONS RELATING TO THE SUBJECT WHEREAS, the City of North Richland Hills, Texas (the "City") is exposed under law to certain risks of liability while the City, as a municipal corporation and corporate entity, is engaged in its governmental and proprietary functions (such risks being herein defined as the "Corporate Risks"); and WHEREAS, pursuant to its authority under law, the City Council (the "City Council") has heretofore, by Ordinance No. 1474 (the "Risk Assumption Ordinance"), assumed the risk of certain liabilities, losses and expenses of, and possible claims against (herein defined as the "Assumed Risks"), its officers, employees, board and commission members and certain volunteers, and has established the "City of North Richland Hills Officer and Employee Liability Plan"; and WHEREAS, the City is permitted by law and its home rule charter to insure itself against possible claims arising out of its Corporate Risks and its Assumed Risks (herein defined as the "Combined Risks") either through commercial insurance sources or through a defined self-insurance program; and WHEREAS, the City Council has found and determined that current rates from commercial insurance carriers for coverage of its Combines Risks are prohibitive in cost and, if purchased, create an extraordinary, unfair and unacceptable burden on the taxpayers and citizens of the City with only minimal coverage of risks; and WHEREAS, the absence of funded arrangements for paying potential claims in connection with the Combined Risks, either through reasonably priced commercial insurance or through a fully defined and pre-funded self-insurance program, creates extraordinary burdens of the City's budgetary process and exposes the City and its taxpayers and citizens to surges in unexpected expenditure requirements that cannot be anticipated or budgeted in advance to the detriment of other City requirements for funds; and WHEREAS, The City Council has found and determined and does hereby find and determine that it is in the best interests of the City and its citizens and taxpayers to create and establish a pre-funded self-insurance and risk management program, to create and provide for a risk management fund, to define and specify the type and extent of injuries arising out of the Combined Risks, and the claims and expenses therefor, that may be paid from the risk management fund, and to provide for contributions to the fund in amounts that are based upon actuarial analyses of the risks, liabilities and possible claims that may be paid therefrom; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS: ARTICLE I SELF-INSURANCE AND RISK MANAGEMENT PROGRAM Section I. Creation, Administration. (a) The City Council hereby establishes and orders created its "Self-Insurance and Risk Management Program" (the "Program"), which shall, in its entirety consist of the provisions of this Ordinance. (b) The Program, subject at all times to the superior authority of the City Council, shall be under and subject to the supervision and administration of the City's Risk Claims Board (the "Claims Board"), which Claims Board is hereby created. The Claims Board shall consist of the City Manager, as Chairman, Assistant City Manager, the City's Director of Financial Services, the attorney for the City and the City's Risk Manager. The City Secretary of a deputy thereof shall service as Secretary of the Claims Board. (c) The Claims Board shall have the authority and responsibilities granted to it by this Ordinance and such other powers as are necessary to carry out its duties, including expressly the following: (i) to develop procedures for the conduct of its business; (ii) to administer the terms and provisions of the Risk Assumption Ordinance; (iii) to receive, analyze, process, settle or litigate claims against the City arising out of any of the Combined Risks whether of not they are or can be payable from the risk management fund (the "Risk Management Fund") created in Section 2 of this Ordinance; (iv) to retain the service of professional claims adjustment individual or companies and to authorize such persons or companies to settle claims not in excess of $5,000.00; (v) to authorize the payment of claims, judgments, costs and expenses out of the Risk Management Fund for any claim in connection with a Combined Risk that is permitted herein to be paid therefrom not exceeding $5,000.00 in one amount, and, for amounts over such sum, to present vouchers therefor for approval by the Council; (vi) to supervise the activities and duties of the City's Risk Manager; (vii) to provide for the defense of claims, as herein provided, and to employ experts for the City, and, under the supervision of the City Attorney, to defend or appear for the City and any "Plan Member" (as herein defined); (viii) to direct the investment of funds on hand from time to time in the Risk Management Fund in investments that are eligible as lawful investments for the other public funds of the City; and 2 (ix) to advise the City Council at least semi-annually of all aspects of the'Combined Risks and the status of the Risk Management Fund and the Program. Section 2. Creation and Purpose of Risk Management Fund. (a) The City Council hereby orders created and there shall be established in the City's official depository bank, unless the same is required to be kept elsewhere by the terms of other agreements or ordinances of the City, the Risk Management Fund (the "Fund" or the "Risk Management Fund"). (b) It is the purpose of the Fund to provide to the City an appropriate amount of money with which it can, from time to time, pay claims arising out of the Combined Risks for which the City may be liable, all as a part of its self-insurance plan under the Program. Accordingly, the Fund shall be a special trust fund established and recorded on the books of the City as a restricted trust fund solely for the purpose of paying that portion of the Combined Risks for which the City may be shown to be liable and that are described and permitted in Article II of this Ordinance. (c) The City, by its creation of the Fund, does not admit to liability for any claim by any person either against the'City or against any "Plan Member," as herein defined. (d) Should any claim by any person or claimant be proven to the satisfaction of the Claims Board to be owing by the City for a claim that is beyond the purpose of limits herein provided, or is in excess of amounts available in the Fund for payment, then, such impermissible claim or the excess of any permissible claim may be paid the City only at such times and from such funds and sources as may be provided by law for the payment or collection thereof and the City reserves the right to assert such defenses to payment or collection as may be available to it under the laws of the State of Texas that are available in the absence of this Ordinance, the Fund or the Program. (e) No person, party, claimant, or "Plan Member," as herein defined, except the City, shall have any rights to any moneys on deposit in the Fund. The Claims Board shall have the right, by agreement, to grant the right to obtain payment of specific claims, up to $5,000.00, from the Fund. Any rights to obtain payment of claims in excess of such amount must be approved the City Council. Section 3. Funding of Risk Management Fund. (a) The Fund shall be funded by - (i) contributions made from time to time upon order of the City Council from budgeted, appropriated and available current moneys of the City; and (ii) funds derived by the City, in its sole discretion, pursuant to agreements with third party sources. ~ß (b) The City Council hereby directs that the sum of $ I) 31 (,/0 () 0, presently accounted for as a part of the City's risk reserves on deposit in 3 oJ- U.R.E. Fund Account No. 02-00-00-0599, together with sum of $ ~O,OOO ., ..~ from RMLC Account No. 11-00-00-0997, $ ':Jð/OOO' -- from RW Compo Cl. Account No. 1l-00-00-0107, and $ p.." fgS'· s;" R. Health In. Account No. 11-00-00-0999, be transferred to the Risk Management Fund. Section 4. Payments From Risk Management Fund. (a) Upon order of the Claims Board, money on deposit in the Fund may be withdrawn by checks or drafts drawn upon the Fund and used to (1) reimburse the City for its payment of the expenses of the Program; (ii) satisfy and pay claims settled or adjudged against the City or a "Plan Member," as defined herein, for injuries arising out of the Combined Risks, as described in Article II hereof; (iii) reimburse the City for any payment made by the City under any funding agreement for the Fund that is permitted to be paid to the City pursuant to such agreement; (iv) pay to the City annually any investment earnings or other surplus on deposit in the Fund that are not required, in the opinion of a professional actuary retained by the Claims Board, to maintain the Fund on an actuarially sound basis for the period and risks for which it is then currently funded; and (v) prepay or retire, by payment, defeasance or otherwise, any obligations of the City created in connection with providing money for the Fund and pay any costs or expenses of the City associated with the borrowing of any such moneys. (b) The Claims Board shall not order payments for the purposes specified in clause (ii) of subsection (a) of this section beyond the limitations and conditions set forth in Article II hereof. ARTICLE II PAYMENTS FOR COVERED PROGRAM RISKS, LIMITATIONS, CONDITIONS Section 1. Covered Program Risks. Payments from the Fund may be ordered by the Claims Board for the payment of claims that are asserted against or assumed by the City because of the Combined Risks for the specific injuries, damages and claims, but subject to the exclusions, limitations and conditions, specified in the following Parts of the Section: P ART I General Provisions A. Payments may be made from the Fund under the Program for claims of the type described in Part II of this Section that are made at any time after actual establishment of the said Fund. B. The following definitions shall apply to all Parts of this Section: Advertising Injury means injury to a claimant that arises during the course of the City's promotional activities, if such injury arises out of libel, slander, defamation, violation of right or privacy, piracy, unfair competition, or infringement of copyright, title or slogan. Assumed Risks means the risks of liability that the City has assumed pursuant to the Risk Assumption Ordinance. 4 Bodily Injury means bodily injury, sickness or disease sustained by a claimant which occurs during the time that the Program is effective, including death at any time resulting therefrom. City means the City of North Richland Hills, Texas. 'Combined Risks means the Corporate Risks and the Assumed Risks. Corporate Risks means risks of tort liability for which the City may, under law, be held liable while the City, as a municipal corporation and corporate entity, is performing its governmental or proprietary functions. Damages means and includes punitive damages, compensatory damages, special damages, prejudgment interest, post-judgment interest, court costs, attorneys fees and any other sums awarded to the claimant against the City of a Plan Member. Error or Omission means any actual or alleged error or misstatement of actual act or omission or negligent or breach of duty including misfeasance or non-misfeasance by the Plan Member in the discharge of his duties for the City. Occurrence means an accident, including continuous or repeated exposure to conditions, or an event or series of related events, or an Error or Omission or series of related Errors or Omissions, which result in Bodily Injury, Personal Injury, Property Damage, Advertising Injury or Regulatory Injury that are neither expected nor intended by the City or a Plan Member, and also includes any intentional act by or at the direction of the City or a Plan Member which results in Bodily Injury, Personal Injury or Property Damage, if such injury or damage arises solely from the uses of reasonable force for the purpose of protecting persons or property or from the discharge of one's duties for the City. One Annual Period means that period of twelve (12) consecutive months beginning with either July 27, 1987, the effective of the Program, or any anniversary date of the effective date of the Program. Personal Injury means (a) any physical harm to a person's health including sickness or disease and including death or disability at any time resulting therefrom (this includes mental harm, mental anguish, or mental illness whether or not there has been physical harm or illness); (b) discrimination; (c) humiliation; (d) assault and battery; (e) false or improper service of process; (f) violation of property rights; and (g) violation of civil rights. Plan Member means the officers, board and commission members, employees and volunteers of the City designated as such in the Risk Assumption Ordinance. Property Damage means: (a) physical injury to or destruction of tangible property of a claimant which occurs during the period that the Program is effective, including the loss of use thereof at any time resulting therefrom; or 5 (b) the loss of use of tangible property which has not been physically damaged or destroyed, provided such loss of use is caused by an occurrence during the time that the Program is in effect. Regularoy Injury means economic loss sustained by a claimant which occurs as a result of the exercise by the City of its regulatory or property acquisition functions. PART II Program Coverage, Purposes of Fund Disbursements A. Subject to the limitations contained in Part III and to the conditions stated in Part IV, the Claims Board may payor order to the paid from the Fund all Damages that the City shall become legally obligated to pay, including any settled amount, as a result of a Corporate Risk or an Assumed Risk caused by an Occurrence that has resulted in a (i) Bodily Injury, (ii) Property Damage, (iii) Advertising Injury, (iv) Regulatory Injury, or (v) respect to an Error or Omission, a Personal Injury. B. The Claims Board shall have the duty to arrange and shall cause or direct the Fund to pay for the defense of any suit alleging Damages against the City or a Plan Member alleged to have arisen out of a Combined Risk, including any duties to defend any Plan Member imposed on the City by the Risk Assumption Ordinance, even if any of the allegations of the suit are groundless, false or fraudulent, and may direct the Fund to pay for such investigation and such settlement of any claim or suit a deemed expedient, in the judgment of the Claims Board, subject to the approval in the appropriate case of the City Council. PART III Limitations A. Regardless of (1) the number of Plan Members, or (ii) the number of persons or organizations who sustain Bodily Injury, Property Damage, Advertising Injury, Personal Injury or Regulatory Injury arising out of the Combined Risks, or (iii) the number of claims made or suits brought on account of Combined Risks, the payments from the Fund are limited as follows: 1. The total payments from the Fund for all Damages because of Bodily Injury or Personal Injury sustained by one or more persons as a result of any one Occurrence shall not exceed $50,000.00 for one person and $100,000.00 aggregate for said occurrence. 2. The total payments from the Fund for all Damages because of Property Damage sustained by one or more persons or organizations as the result of any one Occurrence shall not exceed $25,000.00. 3. The total payments from the Fund for all Damages because of Advertising Injury as the result of any Occurrence shall not exceed $10,000.00. 4. The total payments from the Fund for all Damages because of Regulatory Injury as the result of any Occurrence shall not exceed $10,000.00. 6 5. The aggregate payments from the Fund for all Damages because of Bodily Injury, Property Damage, Advertising Injury, Personal Injury and Regulatory Injury sustained within One Annual Period shall not exceed $200,000.00. B. Nothwithstanding any other prOV1S10n of this Ordinance, where liability exists by virtue of Chapter 102, Tex. Civ. Prac. & Rem. Code, whether or not the City is a party defendant, payments may be made from the Fund up to, but, in no event exceeding, the limits of liability provided therein, as amended, for units of local government. C. Payments from the Fund shall not be made with respect to a claim or lawsuit that is brought against a Plan Member: 1. By the City; 2. Arising out of an intentional or knowing violation of a penal statute or ordinance committed by or with the knowledge or consent of the Plan Member of 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 and with the approval of the City; 5. If the Plan Member joins or attempts to join with the suit against the Plan Member a claim against the City of benefits under the Assumed Risk Ordinance or this Ordinance; 6. If the Plan Member fails to comply with Part IV of the Section; or 7. For punitive damages, where such damages are not recoverable in law or against the City; 8. For damages in excess of the amounts permitted Section 102.003, or expressly excluded under Sections 102.002(c) and (d) Tex. Civ. Prac. & Rem. Code, Vernon's Texas Codes Annotated (1985), as the same may be amended; and 9. For damages arising when a Plan Member is acting beyond the scope of his or her official duties. D. Upon order of the Claims Board, and as a part of the applicable limit of liability, the Fund may pay all expenses incurred at the request of the Claims Board by, and all costs taxed against, any Plan Member in any suit for which protection is afforded under the Risk Assumption Ordinance and all interest on the entire amount of any judgment therein which accrues after the entry of the judgment and before the same has been satisfied, subject to the limits herein established; E. The Program is further limited as follows: 1. Payments from the Fund shall not be made with respect to any 7 , obligation for which the City or a Plan Member of any insurance carrier may be held liable under any worker compensation, unemployment compensation or disability benefits or any similar law. 2. Payments shall not be made from the Fund for Damages arising out of actions of the City pursuant to its lawful powers of condemnation. 3. Payments shall not be made from the Fund for Bodily Injury or Personal Injury where the claimant is a Plan Member or a family member where protection is afforded under health or similar plans of the City. F. Payments from the Fund shall not be made for Advertising Injury arising out of libel or slander of the publication or utterance of defamatory or disparaging material concerning any person or organl~ation or goods, products or services, or in violation of an individual's right to privacy, made by or at the direction of a Plan Member with knowledge of the falsity thereof or with actual malice. G. Payments from the Fund shall not be made for Bodily Injury or Personal Injury: 1. Resulting from the selling, serving or g1v1ng of any alcoholic beverage in violation of any statute, ordinance or regulation; or resulting from the selling, serving or giving of any alcoholic beverage to a minor, or to a person under the influence of alcohol, or which causes or contributes to the intoxication of any person, but this exclusion does not apply with respect to liability of a Plan Member arising out of the selling, serving or giving of any alcoholic beverages at functions incidental to the business of the City. 2. Due to war, whether or not declared, civil war, insurrection, rebellion or revolution, or to any act or condition incident to any of the foregoing; PART IV Conditions A. In the event of an Occurrence involving a Plan Member, written notice containing particulars sufficient to identify the Plan Member and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Plan Member of his or her authorized agents to the Claims Board as soon a practicable. If claim is made or suite is brought against the Plan Member, the Plan Member shall immediately forward to the Claims Board every demand, notice, summons, or other process received. The Plan Member shall cooperate with, and upon the request of, the Claims Board, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the Plan Member because of injury or damage with respect to which payment can be made hereunder; and the Plan Member shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The Plan Member shall not, except at his or her own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident. 8 B. No person or organization shall have any right to join the Fund, any holder of the Fund, the Claims Board or any person having duties under the Program of the Fund as a party to any action against the City or against a Plan Member, nor shall the Fund, the Claim Board, the holder of the Fund, or any other person having duties under the Program or the Fund be impleaded by any Plan Member or any legal representative of any Plan Member. C. The protection provided to the City by the Program is excess over any valid and collectible insurance, except any insurance that specifically states it is excess to the protection provided by the Program. D. In the event of any payment under the Program, the Claims Board and the City shall be subrogated to all the rights of any Plan Member for recovery therefor against any person or organization and any Plan Member shall execute and deliver such instruments and papers and do whatever else that is necessary to secure such rights. No Plan Member shall do anything after loss to prejudice such rights, provided, however, that nothing herein shall impair or limit the right and authority of the Claims Board or the City to refuse to assert or to waive any right of subrogation in any particular case, and provided further that any net recovery by the City as subrogee shall be remitted to the Fund. E. The City shall have the right by duly adopted ordinance to alter or amend or terminate the Program in whole or in part at any time and from time to time without notice to any Plan Member or other person, except as the right to amend may be expressly limited by an agreement approved by the City Council. F. Payments from the Fund on account of a Plan Member shall not be authorized by the Claims board unless the Plan Member complies in all respects with the requirements of the Risk Assumption Ordinance and this Ordinance. Section 2. Expenses of the Program. The Claims Board is authorized to define from time to time the costs of the Program and to obtain reimbursement therefor from the Fund. ARTICLE III THE RISK MANAGER Section 1. Duties. The Program shall include the services of a Risk Manager for the city. Subject to the superior authority of the Claims Board and the City Council, the Risk Manager shall have responsibility for: (a) Identification and measurement of all risks of accidental loss; (b) Selection of appropriate risk management techniques for resolving exposure problems, such as, (1) risk assumption, (2) risk reduction, (3) risk retention, (4) risk transfer, or (5) other systems, as appropriate, including the purchase of insurance additional to the Program, subject to the approval of Claims Board and the City Council; 9 (c) Developing and maintaining for the Claims Board and the City Council an information system in coordination with existing systems for timely and accurate recording of losses, claims insurance premiums and other related costs and information; and Section 2. Risk Retention. With regard to risks of accidental loss, it shall be the City's policy to self-insure within the framework of the Fund and the Program and to provide moneys to the Fund in accordance with actuarial determinations providing for defined self-insurance coverages. Commercial insurance may be provided: (a) As excess coverage over the Fund, or (b) Whenever certain necessary services can be obtained only by purchase of commercial insurance, or (c) When the City is obligated by contract or law to purchase commercial insurance and no alternate method is acceptable, or (d) When a higher level of risk retention proves both prudent and fiscally sound, or (e) When exclusions under the Program do not result in long-term economic advantage to the City. Section 3. Purchase of Insurance. (a) The procurement of all insurance additional to the Program for the City will be coordinated through the Risk Manager and submitted to the Claims Board and recommended to the City Council for final approval. (b) Additional insurance with limits equal to the maximum forseeable loss shall be purchased: (1) when the potential loss exposure exceeds the retention level previously stated, and (2) when such insurance is available on a fiscally sound basis and, if paid for as a cost of the Program out of the Fund, the purchase does not render the Fund actuarially unsound. (c) Any commercial insurance shall be purchased from sources determined to be in the best interest of the City. No specific Best's Rating is established as a minimum; however the insurance company must have an excellent financial rating as determined by the Director of Financial Services and the Risk Manager. (d) Whenever possible, the renumeration of agents and brokers providing services to the City shall be made on a fee basis. Section 4. Claims, Reporting, Management and Settlement. (a) Claims made by the public alleging wrongful acts, Bodily Injury, Personal Injury of Property Damage and/or Occurrences resulting in Damage to or loss of City property shall reported to and administered by the Claims Board, but only if 10 ... properly and timely filed within the applicable provisions of the City Charter or other statutory provisions. (b) Claims handling and adjustment services will be used as required and determined by the Risk Manager subject to supervision by the Claims Board. (c) The Risk Manager shall have authority to settle claims as required or necessary up to a dollar amount not to exceed $1.000.00 per claim, with approval of the attorney for the city and the City Manager. Section 5. General Management Responsibilities, Other City Appointment. In order to maximize the effectiveness of the City's Risk Management Program, cooperation between the Risk Manager and department heads and employees at all levels of management of the City is needed, required and ordered, in order to prevent, control, and reduce losses and c Bims. ARTICLE IV WORKERS COMPENSATION AND HEALTH CLAIMS The Risk Manager shall have authority to pay routine weekly workers compensation benefits. medical bills and servicing charges by professionals hired by the City to administer or help administer the workers compensation claims. The said Risk Manager shall have authority to pay routine medical costs under the City health care program along with servicing charges by professionals hired by the City to administer or help administer the health claim program. The Risk Manager shall have authority to pay lump sum workers compensation claims up to $10,000.00 when supported by medical reports and providing such claim payments are approved by the City Manager and attorney for the City. For all other worker compensation claims, the Risk Manager shall secure approval of the Risk Management Claims Board. ARTICLE V MISCELLANEOUS Section 1. Cumulative Effect. This Ordinance shall be and is hereby declared to be cumulative of all other ordinance of the City, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provision, if any, in this Ordinance shall control. Section 2. Validity. If any section, subsection, sentence, clause of phrase of this Ordinance is for any reason held to be unconstitutional, or otherwise invalid. such holding shall not affect the validity of the remaining portions of the Ordinance. 11 Section 3. Governmental Functions. 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 Councilor any City official or employee charged with the enforcement of this Ordinance, acting for the City in the discharge of his or her duties, shall not thereby render himself or herself personally liable; and he is hereby releived from all personal liability for any damage that might accrue to person or property as a result of any act required or permitted in the discharge of his said duties. PASSED, APPROVED AND EFFECTIVE, on this the 27th day of 1987 . July ~&j~ Dan Echols , Mayor ATTEST: OLæ.~ã¿; I ~~.J ~ ' City Secretary APPROVED AS TO FORM: ~/ 12