S.C.R. No. 106 SENATE CONCURRENT RESOLUTION 1-1 WHEREAS, Harbert Construction Company alleges that: 1-2 (1) it entered into three separate contracts with the Texas 1-3 Department of Criminal Justice to construct 1,000 bed prisons 1-4 located in Hondo, Lamesa, and Pampa (known as the "Hondo Project," 1-5 the "Lamesa Project," and the "Pampa Project"); 1-6 (2) it has performed all of its obligations under the terms 1-7 of the contracts; 1-8 (3) the department's deficient management, lack of 1-9 coordination, and constructive acceleration of the projects 1-10 required Harbert Construction Company to hire additional employees 1-11 on the Hondo Project and the Lamesa Project; 1-12 (4) the department's actions required Harbert Construction 1-13 Company to incur extended overhead costs on the projects; 1-14 (5) Harbert Construction Company had to make changes in the 1-15 scope of the contract because of drawing errors discovered in the 1-16 contract; 1-17 (6) the department wrongfully withheld liquidated damages on 1-18 the projects; 1-19 (7) due to the department withholding payment, a mechanical 1-20 subcontractor on the Hondo Project has made a claim and several 1-21 other subcontractors have experienced serious losses; 1-22 (8) it is entitled to just compensation, including interest, 1-23 due to the department's failure to make prompt payment, as provided 1-24 by Subchapter B, Chapter 2251, Government Code; 2-1 (9) Harbert Construction Company and the Texas Department of 2-2 Criminal Justice have attempted to resolve these conflicts and 2-3 disputes by a dispute resolution agreement; and 2-4 (10) it has timely presented the claims and is entitled to 2-5 damages, including damages for acceleration costs, additional 2-6 supervision and overhead costs, claim preparation costs, withheld 2-7 liquidated damages, changes in the scope of the contract, 2-8 subcontractor claims, and interest; now, therefore, be it 2-9 RESOLVED by the Legislature of the State of Texas, That 2-10 Harbert Construction Company is granted permission to sue the State 2-11 of Texas and the Texas Department of Criminal Justice subject to 2-12 Chapter 107, Civil Practice and Remedies Code; and, be it further 2-13 RESOLVED, That the suit authorized by this resolution shall 2-14 be brought in Travis County, except that if each contract that is 2-15 the subject of the suit requires that the suit be brought in 2-16 another county the suit may be brought in that county; and, be it 2-17 further 2-18 RESOLVED, That the total of all damages awarded in the suit 2-19 authorized by this resolution, including any court costs, 2-20 attorney's fees, and prejudgment interest awarded under law, may 2-21 not exceed $1 million, that Harbert Construction Company may not 2-22 plead an amount in excess of that amount in a suit authorized by 2-23 this resolution, and that this is the total amount that may be 2-24 recovered with respect to the contracts that are the subject of 2-25 this resolution in all actions brought with respect to those 2-26 contracts; and, be it further 2-27 RESOLVED, That payment of any damages awarded in a suit 3-1 authorized by this section from the state treasury is subject to 3-2 appropriation; and, be it further 3-3 RESOLVED, That it is the intent of the 74th Legislature of 3-4 the State of Texas that, if any damages are awarded in a suit 3-5 authorized by this resolution, the damages be paid from money 3-6 appropriated to or otherwise available to the Texas Department of 3-7 Criminal Justice and that additional money should not be 3-8 appropriated for the purpose of paying these damages; and, be it 3-9 further 3-10 RESOLVED, That the remedies available to Harbert Construction 3-11 Company in the suit authorized by this resolution are limited to 3-12 the remedies traditionally available for breach of contract, except 3-13 that Harbert Construction Company may not recover consequential 3-14 damages resulting from any breach of contract, and that this 3-15 resolution does not authorize suit on any claim that sounds in 3-16 tort; and, be it further 3-17 RESOLVED, That Harbert Construction Company and the Texas 3-18 Department of Criminal Justice may agree to submit the matter that 3-19 is the subject of this resolution to binding arbitration; and, be 3-20 it further 3-21 RESOLVED, That the provisions of this resolution are not 3-22 severable, and if any provision of this resolution is finally held 3-23 to be invalid by a court of competent jurisdiction, the remaining 3-24 provisions are also invalid and this resolution has no force or 3-25 effect and no suit is authorized by this resolution; and, be it 3-26 further 3-27 RESOLVED, That the executive director of the Texas Department 4-1 of Criminal Justice be served process as provided by Subdivision 4-2 (3), Subsection (a), Section 107.002, Civil Practice and Remedies 4-3 Code.