The Joint Meeting shall secure and maintain
at all times for the protection of the Joint Meeting such public liability,
property damage and any and all other forms of insurance as it may
deem necessary.
Except as hereinafter provided, the Joint Meeting
shall, upon the request of any present or former member, employee
or appointee of the Joint Meeting, provide for indemnification and
legal defense of any civil action brought against said person or persons
arising from an act or omission falling within the scope of their
public and/or assigned duties.
A.Â
Definitions. The terms of this Article VIII and the
definition of "member," "employee" and "appointee" are to be construed
liberally in order to effectuate the purposes of this Article VIII,
except that these terms shall not mean: a) any entity that is not
a natural person; b) any person while providing goods or services
of any kind under any contract with the Joint Meeting except an employment
contract; c) any person while providing legal or engineering services
for compensation unless said person is a full-time employee of the
Joint Meeting; and d) any person who, as a condition of his or her
appointment or contract, is required to indemnify and defend the Joint
Meeting and/or secure insurance.
B.Â
Civil actions. The Joint Meeting shall provide for
the defense of and indemnify any present or former member, employee
or appointee of the Joint Meeting whenever any action has been or
shall be brought against such person, if the person or persons involved:
C.Â
Costs and counsel fees. In indemnifying and defending
such persons, the Joint Meeting shall incur all costs of defending
such action, which defense shall extend to a cross-claim or counterclaim
against such person, as well as the costs of appeal, if any, including
reasonable counsel fees and expenses, and shall save harmless and
protect such person from any financial loss resulting therefrom.
D.Â
Punitive damages. The Joint Meeting shall not indemnify
any person against the payment of punitive damages, penalties or fines,
but may provide for the legal defense of such claims in accord with
the standards set forth herein. The Joint Meeting may refuse to provide
for the defense and indemnification of any civil action referred to
herein if the Joint Meeting determines that: a) the act or omission
did not occur within the scope of a duty authorized or imposed by
law; b) the act or failure to act was the result of actual fraud,
willful misconduct or actual malice of the person requesting defense
and indemnification; or c) the defense of the action or proceeding
by the Joint Meeting would create a conflict of interest between the
Joint Meeting and the person or persons involved.
E.Â
Criminal proceedings. In any other action or proceeding,
including criminal proceedings, the Joint Meeting may provide for
the defense of a present or former member, employee or appointee,
if the Joint Meeting first determines that such representation is
in the best interest of the Joint Meeting and that the actions of
the person to be defended did not constitute actual fraud, actual
malice, gross misconduct, an intentional tort, or an intentional violation
of any federal or state environmental law or regulation promulgated
thereunder.
F.Â
Exclusive control by the Joint Meeting. Whenever the
Joint Meeting provides for the defense of any action set forth herein
and as a condition of such defense, the Joint Meeting may assume exclusive
control over the representation of such persons defended, and such
persons shall cooperate fully with the Joint Meeting. In the event
that any member or employee or appointee engages an attorney without
the approval of the Joint Meeting and prior agreement as to the cost
of services, all costs so incurred shall be the sole responsibility
of such member, employee, or appointee.
G.Â
Manner of defense. The Joint Meeting may provide for
the defense pursuant to this Article VIII by authorizing its attorney
to act on behalf of the person being defended or by employing other
counsel for this purpose or by asserting the right of the Joint Meeting
under any appropriate insurance policy that requires the insurer to
provide defense.
H.Â
Exceptions. Notwithstanding anything to the contrary
set forth above, the Joint Meeting will not be responsible for indemnification
under the following conditions:
(1)Â
Judgment or settlement of a civil cause of action
relating to a claim based upon willful fraud, malice, or misconduct.
(2)Â
Judgments calling for punitive or exemplary damages,
unless there is a judicial determination that the actions of the officer,
employee or appointee did not constitute actual fraud, actual malice,
gross misconduct, or an intentional tort.
(3)Â
Any insurance coverage is available for payment.
(4)Â
Where any officer, employee, or appointee is found
to have acted in violation of the Local Government Ethics Law, N.J.S.A.
40A:22-1 et seq.
(5)Â
Where any officer, employee, or appointee purposely,
knowingly or recklessly violates the Water Pollution Control Act.
