[HISTORY: Adopted by the Board of Commissioners
of the Township of South Whitehall as indicated in article histories.
Amendments noted where applicable.]
[Adopted 3-10-1975 by Ord. No. 224]
The Township of South Whitehall shall have power
to indemnify any person who was or is a party or is threatened to
be made a part to any threatened, pending or contemplated action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a Commissioner, officer, employee
or agent of the Township of South Whitehall, against expenses (including
attorneys' fees and costs of the Township Solicitor), judgments, fines
and amounts paid in settlement actually and reasonable incurred by
him in connection with such action, suit, or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interest of the Township of South Whitehall,
and, with respect to any criminal action or proceeding, has no reasonable
cause to believe his conduct was unlawful, the extent that a Commissioner,
officer, employee or agent of the Township has been successful on
the merits or otherwise in defense of any action, suit or proceeding
referred to hereinabove under this section or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses
(including attorneys, fees and costs of the Township Solicitor) actually
and reasonable incurred by him in connection therewith. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall
not, or itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in,
or not opposed to, the best interests of the Township, and with respect
to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
Any indemnification under § 25-6, shall be made by the Township only as authorized in a specific case upon a determination that indemnification of the Commissioner, officer, employee or agent is proper in the circumstances, because he has met the applicable standard of conduct set forth under § 25-1, hereinabove. Such determination shall be made by the Township Commissioners by a majority vote of a quorum consisting of Commissioners who are not parties to such action, suit, or proceeding, except if all Commissioners are parties to the action the decision shall be made by majority vote of the Township Manager, Auditor and Solicitor.
Expenses incurred in the fees and costs incurred by the Township Solicitor in defending a civil or criminal action, suit, or proceeding may be paid by the Township in advance of the final disposition of such action, suit or proceeding as authorized in the manner provided under § 25-2 upon receipt of an undertaking, as evidenced by the posting of security or a bond, by or on behalf of the Commissioners, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Township as authorized under this article.
The Township shall have the power to purchase
and maintain insurance on behalf of any person who is or was a Commissioner,
officer, employee or agent of the Township against any liability asserted
against him and incurred by him arising out of the performance of
his duties and during the course of his employment.
Unless a context indicates otherwise, the words
and phrases used in this article shall have the following meanings:
Any officer, employee or member of any board, commission,
committee, division or department, of the Township including elected
or appointed officials and persons acting on behalf of or in service
of the Township in any official capacity, whether with or without
compensation. Employee does not include an independent contractor
under contract with the Township who is providing services to the
Township but who does not serve in an official capacity. Employee
does include former employees for acts and omissions within the scope
of their employment during their former employment with the Township.
The Township of South Whitehall, a Township of the first
class, situate in Lehigh County, Commonwealth of Pennsylvania.
[Added 1-9-1990 by Ord. No. 477]
As a condition of service or employment with
the Township, the Township shall provide an employee, subject to the
conditions and requirements of this section, and notwithstanding the
fact that such employee may have concluded service or employment with
the Township, such defense as may be reasonable necessary to defend
any claim, civil action or proceeding filed against such employee,
in his or her official or individual capacity or both, on account
of an act or omission which was within the scope of his or her office
or duties or which said employee in good faith reasonably believed
to be within the scope of his or her office or duties as an employee
of the Township.
A.
The Township may provide for a defense by the Township
Solicitor, may employ other counsel for this purpose, or may purchase
insurance which requires that the insurer provide the defense. The
Township has no right to recover such expenses from the employee defended,
except as otherwise provided herein.
B.
The Township may refuse to provide for the defense
of an action against an employee if the Township determines that:
(1)
The act or omission was not within the scope of such
employee's office or duties, and the employee in good faith did not
reasonably believe that such act was within the scope of his office
or duties.
(2)
The conduct of such employee constituted a crime,
actual fraud, actual malice or willful misconduct.
(3)
The lawsuit or other legal proceeding was brought
by or on behalf of the Township.
C.
The provisions of this section shall be applicable,
provided that the following conditions are met:
(1)
The employee shall in writing request the Township
to provide for the defense of the employee after an action is commenced
against said employee.
D.
When an action is brought against an employee of the
Township for damages on account of an injury to a person or property,
and said employee has given timely prior written notice to the Township,
and it is judicially determined that an act or omission of the employee
caused the injury and such act was, or the employee in good faith
reasonably believed that such act was, within the scope of his or
her office or duties, the Township shall indemnify the employee for
the payment of any judgment of the suit. To the extent permitted by
law, the Township shall provide indemnification for all damages, including
punitive damages, for acts or omissions which a court has not adjudicated
as constituting a crime, actual fraud, actual malice or willful misconduct.
Such indemnification shall include that portion of any judgment which
consists of attorney fees, costs and expenses awarded to the injured
party. The aforesaid provisions shall not limit the Township's right
to take an appeal as the Township in its discretion deems necessary
from any such judgment against the employee.
E.
In the event that an employee fails or refuses to
comply with any of the conditions of this section or fails or refuses
to cooperate with counsel employed by the Township or its insurer,
then all provisions of this section shall be inapplicable and have
no force or effect with respect to any such claim or litigation. Nothing
herein stated shall preclude an employee from providing his or her
own representation with regard to any claim or action.
F.
If the Township determines that an employee does not
come within the provisions of this section, and thus fails or refuses
to provide an employee with a defense, and a court of competent jurisdiction
later determines that such claim does come within the provisions of
this section, then the Township shall pay any judgment rendered against
the employee and reasonable costs and fees incurred by the employee
in defending against such claim. The Township shall additionally pay
any attorney's fees incurred in obtaining the determination that such
claim is covered by the provisions of this section. Nothing in this
section shall be construed to deprive an employee of the right to
petition a court of competent jurisdiction to compel the Township
to perform the duties imposed by this section. If the Township determines
that a claim against an employee does come within the provisions of
this section, and if the employee fails to cooperate in good faith
in the defense of the claim or action or if a court of competent jurisdiction
later finds that such claim does not come within the provisions of
this section, then the Township shall be reimbursed for any payments
made by it for any judgment, or portion thereof and costs or attorney's
fees incurred by or on behalf of the employee's defense and the Township
shall also be reimbursed for costs or expenses incurred in obtaining
the determination that such claim is not covered by the provisions
of this section.
(1)
Nothing contained in this section shall be construed
to modify or amend any provision of any policy of insurance. In the
event of any conflict between this section and the provisions of any
such policy of insurance, the policy provisions shall be controlling;
provided, however, that nothing contained in this section shall be
deemed to limit or restrict any employees right to full coverage pursuant
to this section, it being the intent of this section to provide complete
coverage outside and beyond insurance policies which may be in effect,
while not compromising the terms and conditions of such policies by
any conflicting provisions contained in this section.
(2)
Nothing in this section shall be additionally construed
as abrogating or waiving any governmental immunity or limitation of
liability presently or hereafter made applicable to the Township or
its employees which would otherwise be applicable in any action or
proceeding to which this section would apply.
G.
The provisions of this section shall apply to any
pending claim or lawsuit against an employee, or any such claim or
lawsuit hereafter filed irrespective of the date of the events or
circumstances which are the basis of such claim or lawsuit. Provided,
however, that in any pending claim, action or proceeding for which
the Township is currently providing a defense for an employee that
such employee shall not be required to provide a written request for
the provisions of written defense.
[Adopted 8-2-2006 by Ord. No. 836]
All subdividers and land developers in South Whitehall Township
shall, as a condition of the commencement of any construction within
the Township, agree to exonerate, indemnify and save harmless the
Township, its Commissioners, the Authority and its Board members,
as well as their respective officers, appointees and employees (the
"indemnified parties") from any and all claims, actions, awards, verdicts
and judgments, together with reasonable counsel fees, based upon or
arising out of the approval of any or all aspects of the design, construction
or development of such subdivisions or land developments, specifically
to include the design, construction and maintenance of stormwater
drainage facilities, for damages or injuries, including death, to
persons or properties caused by or sustained in connection with the
design, construction and development of any such subdivision or land
development, the developer's performance under any subdivision
improvement or maintenance agreement, as well as any conditions created
by the aforesaid design, construction or development; and if requested
by the Township, to assume, without expense to the Township, the defense
of any claims or actions against the indemnified parties, or any of
them, arising out of any of the approvals made by the Township of
subdivision or land development designs, plans or construction which
are created, controlled or effectuated by the developer, its agents,
independent contractors, employees or assigns.
In support of the indemnification and hold harmless language
set forth in the prior section, each such developer of subdivisions
and land developments within the Township shall, throughout the time
of performing any work within the Township, carry with insurance companies
acceptable to the Township comprehensive general liability insurance,
which shall include contractual liability coverage (which must be
admitted carriers in the Commonwealth of Pennsylvania, and must be
rated by the A.M. Best Company as B+ or better) in which the developer
insures the liability which it has assumed pursuant to the requirements
of this article, which coverage shall be at least $500,000 per occurrence,
$1,000,000 in the aggregate for personal injury and/or death, and
at least $1,000,000 for property damage, naming the indemnified parties
as additional insureds in order to protect and insure said parties
against any and all liability with respect to the approval of design,
construction or development proposed or effectuated by such developers,
and shall, upon request at least annually, furnish the Township with
copies of insurance policies or binders evidencing developer's
compliance with this requirement.
The aforesaid insurance coverage shall be renewed from year
to year at the expense of the developer of such subdivision or land
development until all public improvements which are to be dedicated
to the Township or the Township Authority shall have been conveyed
to and occupied by the Township or the Authority, or the expiration
of the developer's maintenance period under any subdivision maintenance
agreement entered into between the Township and the developer, or
among the Township, Authority and developer, whichever shall last
occur. In addition, the coverage shall provide primary and not secondary
insurance protection to the Township and Authority commencing with
the construction and development period, and continuing through the
two-year statute of limitations period immediately following the close
of the subdivision improvement maintenance period.
