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HomeMy WebLinkAbout1983-1435 - Ordinance - 07/14/1983ORDI}IANCE NO. 1435 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED INDEMNITY AND DEFENSE EXPENSE AGREEMENT BETWEEN THE CITY OF COLLEGE STATION AND DAN SEVERN, JOHN CAMPBELL, BILLY STARK, LOUIS CASTANON AND MIKE PATTERSON. WHEREAS, Robert C. Carroll and Sharon Richards Carroll have heretofore filed a civil rights action against the City of College Station and certain present and former police officers employed by the City of College Station, which civil action is presently pending in the United States District Court for the Southern District of Texas; and WHEREAS, the City of College Station has furnished defense for the five officers presently employed by the City and made parties to that action, and seeks to obtain the support of said officers as to its Motion for Summary Judgment in such matter, and ultimately in the trial of that matter in the event that summary judgment is denied; and WHEREAS, the Defendant Officers have agreed to release any claims or causes of action against the City or any officer, agent or employee thereof, and to be mutually represented by Leon Hirsch, in spite of any technical conflicts of interest which may exist, and to waive and surrender any right or request for separate representation. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION~ That the attached Indemnity and Defense Expense Agreement is in the best interest of the City, both from a financial standpoint, and in its relationship with its employees, particularly the City of College Station Police Department and its officers. The Indemnity and Defense Expense Agreement is hereby approved and adopted by the City of College Station, and shall hereafter bind the City as to all terms and conditions set forth therein. City Manager North Bardell is authorized to execute same upon receipt of an original signed by each of the individual officers. PASSED and APPROVED this 14th day of July , 1,983. 0v / / APPR / O SlS STATE OF TEXAS ) ) COUNTY OF BRAZOS ) KNOW ALL MEN BY THESE PRESENTS: INDEMNITY Ak~D DEFENSE EXPENSE AGREEMENT This is an indemnity and defense expense agreement between the City of College Station and Dan Severn, John Campbell, Billy Stark, Louis Castanon and Mike Patterson, each of whom are police officers employed by the City. The parties to this agreement are presently Defendants in Civil Action No. H-81-2295, Robert C. Carroll, et al, vs. City of College Station, et al, pending in the United States District Court for the Southern District of Texas, arising out of an incident which culminated in the arrest of Robert C. Carroll. Discovery has been largely completed, and based thereon, the City and the individual officers each intend to seek surmmary judgment in their respective behalves. The individual officers are presently represented by Leon Hirsch, and the City is presently represented by the firm of Sears & Burns. The City has previously agreed to pay reasonable attorneys' fees incurred by the Defendant police officers for the services of Leon Hirsch, and has to date paid approximately $17,310.65 to Mr. Hirsch for such services and in reimbursement for expenses. The individual officers have agreed that Lowell F. Denton and Catherine Locke, City Attorney and Assistant City Attorney respectively, shall assist in %he preparation of their defense and their respective Motions for Su~u~ary Judgment and supporting affidavits, under the supervision and control of Mr. Hirsch as attorney in charge for the individual officers. It is -1- 03916 contemplated that Mr. Denton and Mrs. Locke will assist in the review and preparation of the case for trial, in an effort to reduce defense costs. The City Council has found that this agreement is in the best interest of the City both from a financial standpoint and as to the City's relationship with its employees, particularly the College Station Police Department and its officers. To provide for the reasonable and necessary defense of this action on behalf of all parties, and yet conserve public funds to be expended in defense of this action, the parties have agreed and do hereby agree as follows: 1. The City will file its Motion for Su~nary Judgment, supporting affidavits, and memorandum of authorities. 2. Leon Hirsch will file a Motion for Summary Judgment on behalf of each individual Defendant, together with supporting affidavits and memorandum of authorities. Lowell F. Denton and Catherine Locke will assist in the preparation of such materials, under the supervision and direction of Leon [{irsch as Attorney in Charge for the Defendant officers. 3. Each party will endeavor to support the Summary Judgment efforts of the other party, provided that each individual party and every representative of the City shall, of course, be required to testify fully and truthfully in all documents or proceedings, and shall not be deemed to have breached any obligation to cooperate with the other parties by testifying to the true facts of the case, or otherwise proceeding according to their obligations under the law as to discovery or trial. This provision shall not require the parties to maintain -2- 039/? support or alignment subsequent to the Court's consideration of and ruling on the respective Motions for Summary Judgment, and it is expressly understood and agreed that the Defendant Officers are not responsible for and are not required to support the City's failure or refusal to settle this case. It is anticipated, however, that both parties will cooperate and support the other throughout the trial of this matter, and the parties do so agree. 4. The parties remaining as Defendants will thereafter proceed to prepare and try the case in a reasonably cooperative manner, as each party shall determine to be in its best interest. 5. The City agrees to indemnify each of the individual officers for any judgment which may be entered against them for actual damages or attorneys' fees, which judgment is based upon or arises out of the above-described cause of action. The City agrees further to pay reasonable attorneys' fees incurred by the officers for their representation by Leon Hirsch, through the trial of this cause. 6. In the event that the Plaintiffs obtain a favorable verdict, the City reserves the right, prior to entry of judgment, to: (a) Enter into negotiations with the prevailing Plaintiffs to compromise and settle Plaintiffs' cause of action on behalf of the City and the officers; (b) Enter into an agreement with the Plaintiffs providing for compromise and settlement of a disputed claim, providing for no admission of any fact or liability by any party; -3- and (c) Obtain acceptance of such agreement by the Court, resulting in dismissal of the cause of action without any finding of fact or liability. If the city is successful in obtaining the above agreement subsequent to a jury verdict, the City shall not be required to fund any appeal of the cause. If the above agreement cannot be obtained Plaintiffs and the officers, and judgment officers, the officers shall be entitled between the prevailing is entered against the to elect to appeal, and in the event of such election, the City shall pay all reasonable costs and attorney fees for an appeal to the Fifth Circuit. 6. The individual officers waive and surrender any right to separate representation apart from the City or the other Individual officers. The subject jointly represented by Leon Hirsch this action, at trial, and on appeal. agreement being fully advised by interest which might exist between the other officers. All parties conflicts are minimal and that time, officers agree to each be in the pre-trial stages of Each officer makes this counsel as to conflicts of themselves and the City, or agree that the potential the merits of the case, and cost efficient defense of this action justifies the waiver, release, or surrender of any associated rights or claims. This waiver shall be binding in any and all events, whether or not presently contemplated by the parties. The City has extended its offer to indemnify the individual Defendants in consideration of the waiver, release and surrender of such rights. Th~ City agrees that Lowell F. Denton and Catherine Locke shall be -4- authorized to and reasonably available to assist Leon Hirsch in representing the individual Defendants should such Defendants so desire. Should the individual Defendants elect not to utilize the assistance of Mr. Denton or Mrs. Locke at trial, and should three or more individual Defendants remain as Defendants after the Court's ruling on each Defendant's Motion for Summary Judgment, the City will pay for an assistant, or second chair counsel, to assist in the actual trial of the cause under the supervision of Leon Hirsch and agrees to pay $100.00 per hour for time actually expended at the trial, and an amount not to exceed $1000.00 for preparation to assist in the trial. Each party has read this agreement and discussed it with counsel. Executed this z~./~Fa-day of ~ CITY OF.-~OLLEGE STATION MIKE PATERSON APPROVED: ~~ION INDIVIDUAL OFFICERS