74R13527 DLF-D
By Wentworth S.C.R. No. 106
Substitute the following for S.C.R. No. 106:
By Hilbert C.S.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
1-3 Texas 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
1-7 terms of the contracts;
1-8 (3) the department's deficient management, lack of
1-9 coordination and constructive acceleration of the projects required
1-10 Harbert Construction Company to hire additional employees on the
1-11 Hondo Project and the Lamesa Project;
1-12 (4) the department's actions required Harbert
1-13 Construction Company to incur extended overhead costs on the
1-14 projects;
1-15 (5) Harbert Construction Company had to make changes
1-16 in the scope of the contract because of drawing errors discovered
1-17 in the contract;
1-18 (6) the department wrongfully withheld liquidated
1-19 damages on the projects;
1-20 (7) due to the department withholding payment, a
1-21 mechanical subcontractor on the Hondo Project has made a claim and
1-22 several other subcontractors have experienced serious losses;
1-23 (8) it is entitled to just compensation, including
1-24 interest, due to the department's failure to make prompt payment,
2-1 as provided by Subchapter B, Chapter 2251, Government Code;
2-2 (9) Harbert Construction Company and the Texas
2-3 Department of Criminal Justice have attempted to resolve these
2-4 conflicts and disputes by a dispute resolution agreement; and
2-5 (10) it has timely presented the claims and is
2-6 entitled to damages, including damages for acceleration costs,
2-7 additional supervision and overhead costs, claim preparation costs,
2-8 withheld liquidated damages, changes in the scope of the contract,
2-9 subcontractor claims, and interest; now, therefore, be it
2-10 RESOLVED by the Legislature of the State of Texas, That
2-11 Harbert Construction Company is granted permission to sue the State
2-12 of Texas and the Texas Department of Criminal Justice subject to
2-13 Chapter 107, Civil Practice and Remedies Code; and, be it further
2-14 RESOLVED, That the suit authorized by this resolution shall
2-15 be brought in Travis County, except that if each contract that is
2-16 the subject of the suit requires that the suit be brought in
2-17 another county the suit may be brought in that county; and, be it
2-18 further
2-19 RESOLVED, That the total of all damages awarded in the suit
2-20 authorized by this resolution, including any court costs,
2-21 attorney's fees, and prejudgment interest awarded under law, may
2-22 not exceed $1 million, that Harbert Construction Company may not
2-23 plead an amount in excess of that amount in a suit authorized by
2-24 this resolution, and that this is the total amount that may be
2-25 recovered with respect to the contracts that are the subject of
2-26 this resolution in all actions brought with respect to those
2-27 contracts; and, be it further
3-1 RESOLVED, That payment of any damages awarded in a suit
3-2 authorized by this section from the state treasury is subject to
3-3 appropriation; and, be it further
3-4 RESOLVED, That it is the intent of the 74th Legislature of
3-5 the State of Texas that, if any damages are awarded in a suit
3-6 authorized by this resolution, the damages be paid from money
3-7 appropriated to or otherwise available to the Texas Department of
3-8 Criminal Justice and that additional money should not be
3-9 appropriated for the purpose of paying these damages; and, be it
3-10 further
3-11 RESOLVED, That the remedies available to Harbert Construction
3-12 Company in the suit authorized by this resolution are limited to
3-13 the remedies traditionally available for breach of contract, except
3-14 that Harbert Construction Company may not recover consequential
3-15 damages resulting from any breach of contract, and that this
3-16 resolution does not authorize suit on any claim that sounds in
3-17 tort; and, be it further
3-18 RESOLVED, That Harbert Construction Company and the Texas
3-19 Department of Criminal Justice may agree to submit the matter that
3-20 is the subject of this resolution to binding arbitration; and, be
3-21 it further
3-22 RESOLVED, That the provisions of this resolution are not
3-23 severable, and if any provision of this resolution is finally held
3-24 to be invalid by a court of competent jurisdiction, the remaining
3-25 provisions are also invalid and this resolution has no force or
3-26 effect and no suit is authorized by this resolution; and, be it
3-27 further
4-1 RESOLVED, That the executive director of the Texas Department
4-2 of Criminal Justice be served process as provided by Section
4-3 107.002(a)(3), Civil Practice and Remedies Code.
4-4 ¯BEGCAPTIONÆ
4-5 Granting Harbert Construction Company permission to sue the State
4-6 of Texas and the Texas Department of Criminal Justice.
4-7 ¯ENDCAPTIONÆ