79R17896 MDR-F
By: Strama H.C.R. No. 203
CONCURRENT RESOLUTION
WHEREAS, WB IND-HP, Ltd., alleges that:
(1) on or about August 8, 2002, the Texas Building and Procurement Commission entered into a leasing contract with WB
IND-HP, Ltd., for 44,456 square feet of net usable office space
located at 4616 West Howard Lane in Austin, Texas;
(2) 10,850 square feet of that office space was leased
by the Texas Building and Procurement Commission on behalf of the
Texas Commission on Private Security;
(3) the term of the lease was 60 months and
contractually scheduled to end on October 31, 2007;
(4) at or shortly after the commencement of the lease,
the Texas Commission on Private Security took occupancy of the
building;
(5) the Texas Commission on Private Security ceased to
use the space for conducting the affairs of the Texas Commission on
Private Security on August 31, 2003;
(6) the Texas Building and Procurement Commission,
through the Texas Commission on Private Security, ceased making
lease payments after August 2003;
(7) the Texas Building and Procurement Commission did
not send any notice to attempt to cancel the lease until April 29,
2004;
(8) the Texas Building and Procurement Commission
admits that WB IND-HP, Ltd., was a responsive landlord and fully
performed on all of its duties to the Texas Commission on Private
Security;
(9) the Texas Commission on Private Security continued
to occupy the space by leaving furniture and office equipment in the
space;
(10) the Texas Commission on Private Security's
furniture remains on the premises today;
(11) the lease between WB IND-HP, Ltd., and the Texas
Building and Procurement Commission states that the contract "is
made contingent upon the continuation of federally funded programs,
or upon the availability of state funds appropriated by the
Legislature, to cover the full term and cost of this lease. In the
event a curtailment of federally funded programs occurs, or in the
event state appropriated funds are unavailable, the Building and
Procurement Commission, hereinafter referred to as the Commission,
may assign another State agency to the space, or a part thereof,
covered by this lease. Should the Commission be unable to find
another State agency or agencies to fill, or partially fill the
space, the Commission, upon written notice to the Lessor, either
may terminate this lease, or adjust it in accordance with the
provisions of this lease";
(12) the Texas Building and Procurement Commission has
not shown that state funds have not been appropriated to the Texas
Commission on Private Security;
(13) the Texas Building and Procurement Commission has
not found another tenant to take over the Texas Commission on
Private Security lease;
(14) by assuming the responsibilities of the Texas
Commission on Private Security under House Bill 28 (enacted by the
78th Legislature, 3rd Called Session, 2003), the Texas Department
of Public Safety is still in possession of the premises;
(15) the Texas Commission on Private Security's
vacating of the lease premises and the Texas Building and
Procurement Commission's cancellation of the lease on behalf of the
Texas Commission on Private Security without satisfying the
procedural requirements of the lease and the Texas Building and
Procurement Commission's refusal to make further lease payments
constitute a breach of the lease;
(16) despite its reasonable efforts, WB IND-HP, Ltd.,
has not been able to lease the building;
(17) for each day that WB IND-HP, Ltd., is unable to
lease the premises, it incurs damages of approximately $445.89 in
lost rental income;
(18) WB IND-HP, Ltd., has incurred damages of
approximately $261,251.03 in unpaid rent owed to WB IND-HP, Ltd.,
by the State of Texas, reflecting: (a) rent due and unpaid for the
time period September 2003 to April 30, 2004, in the amount of
$98,501.03 (reflecting the time period that the Texas Commission on
Private Security had left the premises but had not indicated that it
had canceled the lease), and (b) rent due and unpaid for the time
period May 1, 2004, to April 28, 2005, in the amount of $162,750.00
(for the time period in which the Texas Building and Procurement
Commission failed to remove the furniture from the leased premises
and failed to return possession of the premises to the landlord
pursuant to the lease agreement);
(19) both the Texas Department of Public Safety and
the Texas Building and Procurement Commission have been
unresponsive to WB IND-HP, Ltd., in their attempts to negotiate
payments of the owed rent payments. As a result, WB IND-HP, Ltd.,
filed a formal claim with the Texas Building and Procurement
Commission dated April 28, 2005; and
(20) the Texas Building and Procurement Commission and
the Texas Department of Public Safety have failed and refused to
make a good faith effort to resolve this dispute; now, therefore, be
it
RESOLVED by the Legislature of the State of Texas, That WB
IND-HP, Ltd., is granted permission to sue the State of Texas, the
Texas Building and Procurement Commission, and the Texas Department
of Public Safety subject to Chapter 107, Civil Practice and
Remedies Code, for breach of the lease, together with reasonable
attorney's fees necessarily incurred in the litigation, interest on
any amounts due as may be authorized by law, and costs of court;
and, be it further
RESOLVED, That the chairmen of the Texas Building and
Procurement Commission and the Public Safety Commission be served
process as provided by Section 107.002(a)(3), Civil Practice and
Remedies Code.