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HOUSE CONCURRENT RESOLUTION
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WHEREAS, The Benbrook Water Authority, a governmental |
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subdivision of the State of Texas: |
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(1) is a party in the lawsuit Benbrook Water Authority |
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v. Carter & Burgess, et al., Cause No. 352-207733-04 in Tarrant |
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County, Texas, in which a witness in the litigation, John Cook, has |
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been threatened with liability by the opposing parties to the |
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Benbrook Water Authority in the litigation if Mr. Cook comes |
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forward with factual and expert testimony in the case on behalf of |
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Benbrook Water Authority; |
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(2) in an effort to protect John Cook from any legal |
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liability to the opposing parties in the above-referenced |
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litigation, now or at any time, however remote the possibility of |
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liability on John Cook's part might be, wishes to hold John Cook |
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harmless by contractually indemnifying Mr. Cook against any claims |
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he may face as a consequence of his truthful testimony offered in |
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the cited litigation; |
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(3) to be certain of the enforceability of a |
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contractual agreement, the terms of which are disclosed below, |
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wishes to have its immunity from suit waived to the extent John Cook |
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is compelled to enforce the terms of the agreement in a court of |
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law; and |
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(4) has executed a Hold Harmless and Indemnity |
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Agreement between Benbrook Water Authority and John Cook, that |
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reads as follows: |
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(1) "This Indemnification Agreement is by |
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and between Benbrook Water Authority ("Indemnitor") |
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and John Cook ("Indemnified Party") and is effective |
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the 13th day of March, 2009. |
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(2) The Texas Board of Professional |
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Engineers Licensing Requirements for engineers who |
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practice engineering in the State of Texas contain the |
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following provision: |
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"§137.55 Engineers Shall Protect the Public |
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(a) Engineers shall be entrusted to |
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protect the health, safety, property and welfare of |
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the public in the practice of their profession. The |
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public as used in this section and other rules is |
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defined as any individual(s), client(s), business or |
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public entities, or any member of the general |
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population whose normal course of life might |
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reasonably include an interaction of any sort with the |
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engineering work on the license holder. |
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(b) Engineers shall not perform any |
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engineering function which, when measured by generally |
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accepted engineering standards or procedures, is |
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reasonably likely to result in the endangerment of |
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lives, health, safety, property or welfare of the |
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public. Any act or conduct which constitutes |
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incompetence or gross negligence, or a criminal |
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violation of law, constitutes misconduct and shall be |
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censurable by the board. |
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(c) Engineers shall first notify |
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involved parties of any engineering decisions or |
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practices that might endanger the health, safety, |
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property or welfare of the public. When, in an |
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engineer's judgment, any risk to the public remains |
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unresolved, that engineer shall report any fraud, |
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gross negligence, incompetence, misconduct, unethical |
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or illegal conduct to the board or to proper civil or |
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criminal authorities. |
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(d) Engineers should strive to |
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adequately examine the environmental impact of their |
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actions and projects, including the prudent use and |
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conservation of resources and energy, in order to make |
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informed recommendations and decisions." |
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(3) In consideration of the preceding |
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regulation, and of Indemnified Party's voluntary |
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testimony in the above cause in fulfillment of his |
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duties as embodied in the regulation, Indemnitor and |
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Indemnified Party have entered into this Agreement. |
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(4) Indemnitor agrees to indemnify, |
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defend, and hold harmless the Indemnified Party from |
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and against any and all claims, demands, causes of |
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action, damages and rights of recovery of any type or |
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description (collectively, the "claims"), which may be |
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asserted against the Indemnified Party by any person, |
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arising directly or indirectly from Indemnified |
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Party's testimony in whatever form in the above styled |
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and numbered cause against Carter & Burgess, Inc. |
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Indemnitor expressly acknowledges that the |
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indemnification obligation created hereby includes, |
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without limitation, the obligation to indemnify the |
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Indemnified Party with respect to claims which may |
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arise out of the Indemnified Party's testimony herein, |
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but shall not extend to claims caused by the |
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Indemnified Party's willful misconduct. |
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(5) Indemnitor and Indemnified Party |
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believe that, based upon allegations made in open |
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Court by the representatives of Carter & Burgess, Inc. |
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in the above styled and numbered cause to the effect |
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that Indemnified Party is a "disgruntled ex-employee," |
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that Carter & Burgess, Inc. may choose to attempt to |
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sue Indemnified Party for coming forward in this cause |
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to effectively intimidate Indemnified Party from |
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testifying truthfully herein. The purpose of this |
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Agreement is to avoid such intimidation by Carter & |
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Burgess, Inc. in the ensuing weeks and months. |
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(6) Indemnitor hereby waives any and all |
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immunity from suit and immunity from liability which |
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may impair the enforceability of this agreement by Mr. |
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John Cook, his heirs or representatives. |
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(7) This Agreement is performable in |
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Tarrant County, Texas. Benbrook Water Authority"; |
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now, therefore, be it |
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RESOLVED by the Legislature of the State of Texas, That Mr. |
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John Cook, his heirs, and representatives are, in the event a legal |
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dispute arises with Benbrook Water Authority over the terms of the |
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Hold Harmless and Indemnity Agreement entered into between Benbrook |
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Water Authority and John Cook effective on March 13, 2009, granted |
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permission to sue the Benbrook Water Authority; and, be it further |
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RESOLVED, That any immunity from suit that might shield the |
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Benbrook Water Authority is hereby waived; and, be it further |
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RESOLVED by the Legislature of the State of Texas, That John |
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Cook is granted permission to sue the Benbrook Water Authority |
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subject to Chapter 107, Civil Practice and Remedies Code; and, be it |
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further |
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RESOLVED, That the president of the board of directors of the |
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Benbrook Water Authority shall be served process as provided by |
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Section 107.002(a)(3), Civil Practice and Remedies Code. |