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A BILL TO BE ENTITLED
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AN ACT
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relating to the sale by the Brazos River Authority of certain |
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property at Possum Kingdom Lake. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 8502, Special District Local Laws Code, |
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is amended by adding Section 8502.0133 to read as follows: |
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Sec. 8502.0133. SALE OF AUTHORITY PROPERTY ON AND |
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ASSOCIATED WITH COSTELLO ISLAND. (a) In this section: |
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(1) "Boat landing" means a 0.841 acre tract of land, |
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more or less, located above the 1000' contour line as defined in |
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Subdivision (8), described in authority records as Tract Costello |
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Island, situated in the A. J. Smith Survey, Abstract 393, Palo Pinto |
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County, Texas, and being a part of a tract of land purchased by the |
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Brazos River Conservation and Reclamation District from Mrs. Hugh |
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C. Thomas, as recorded in Volume 182, Page 142, Deed Records of Palo |
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Pinto County. The boat landing is located wholly within the FERC |
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Project Area. |
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(2) "Date of decommissioning" means the effective date |
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of the surrender of the FERC License for the Morris Sheppard Dam |
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Project No. 1490-052 under the Order Accepting the Surrender of the |
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License (issued December 23, 2011), 137 FERC 62,252. |
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(3) "Costello Island" means a 260 acre tract of land, |
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more or less, located above the 1000' contour line as defined in |
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Subdivision (8), described in authority records as Tract Costello |
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Island, situated in the J.W. Bunton Survey, Abstract 52, Palo Pinto |
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County, Texas, and being a part of that parcel that is located |
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wholly within the boundary of the lake, and being a part of a tract |
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of land acquired by the Brazos River Conservation and Reclamation |
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District from E.P. Costello by Court Judgment dated July 21, 1943. |
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The portions of Costello Island owned by the authority are located |
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wholly within the FERC Project Area. |
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(4) "Costello Island Property" means Costello Island |
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and the boat landing, but does not include any portion of Costello |
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Island owned in fee simple by a person other than the authority. |
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(5) "Fair market value" means the price that the |
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Costello Island Property would bring in an arms-length transaction |
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when offered for sale by one who wishes, but is not obliged, to sell |
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and when bought by one who is under no necessity of buying it. This |
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value shall be determined as if the Costello Island Property were |
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not subject to the FERC License, were not located within the FERC |
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Project Area, were not subject to any lease agreement, were |
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available for immediate possession and use, and could be used for |
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any reasonable purpose, subject only to the restrictions in |
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Subsection (e). |
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(6) "FERC License" means the order of the Federal |
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Energy Regulatory Commission issuing a license to the authority for |
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project number 1490-003-Texas on September 8, 1989, as such license |
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has been renewed, extended, or amended and may be further renewed, |
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extended, or amended at any time and from time to time, and also |
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including the amendment to the original FERC License, which |
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amendment was issued on May 15, 1980, to the extent incorporated or |
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referenced in the FERC License. |
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(7) "FERC Project Area" means that portion of |
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authority land that is subject to the FERC License before the date |
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of decommissioning, as the land is identified and defined in the |
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FERC License, as may be amended at any time and from time to time, |
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and which FERC Project Area may move or change over time due to |
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natural forces. |
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(8) "Lake" means Possum Kingdom Lake located in Young, |
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Palo Pinto, Stephens, and Jack Counties. The boundary of the lake |
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is defined by the 1000' contour line, as that contour may meander |
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and change over time with natural forces, including erosion and |
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accretion. The "1000' contour line" means the line running along |
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the periphery of the lake if the surface of the lake is at an |
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elevation of 1000 feet above mean sea level, as measured from the |
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top of the spillway crest gates of the Morris Sheppard Dam, as such |
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line may move and shift from time to time due to natural forces. |
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(9) "Offeree" means the individuals or corporation, |
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other than the authority, owning a portion of Costello Island in fee |
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simple. |
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(b) After the date of decommissioning, the authority shall |
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offer for sale to the offeree the Costello Island Property. The |
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sale shall be: |
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(1) for not less than the fair market value as |
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determined under Subsection (c); and |
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(2) contingent upon the termination of any leases |
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encumbering all or any portion of the Costello Island Property at |
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the time of sale. |
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(c)(1) The fair market value of the Costello Island Property |
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shall be determined as described in this subsection. |
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(2) Not later than 45 days after the date the authority |
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receives the offeree's completed application of intent to purchase |
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and an acceptable survey as provided by Subsection (d)(1), the |
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authority shall provide the offeree with an appraisal of the fair |
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market value of the Costello Island Property. The authority may use |
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an existing appraisal if it is dated not more than one year before |
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the date the authority receives the application of intent to |
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purchase. The authority's appraiser must be certified under |
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Chapter 1103, Occupations Code. Not later than the 15th day after |
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the date the offeree receives the first appraisal, the offeree |
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shall notify the authority in writing as to whether the offeree |
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agrees with or disputes the fair market value provided in the first |
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appraisal. If the offeree does not dispute the fair market value as |
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determined by the first appraisal before the expiration of the |
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15-day period, the first appraisal is final and binding on all |
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parties and establishes the fair market value for the Costello |
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Island Property. |
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(3) If the offeree disputes the fair market value |
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determined by the first appraisal, the offeree may withdraw its |
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application to purchase the Costello Island Property or may employ |
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a disinterested appraiser certified under Chapter 1103, |
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Occupations Code, to conduct a second appraisal of the fair market |
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value of the Costello Island Property. The second appraisal must be |
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completed and sent to the authority not later than the 45th day |
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after the date the offeree notifies the authority that the offeree |
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disputes the first appraisal. If the authority does not receive the |
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second appraisal before the expiration of the 45-day period, the |
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offeree's application of intent to purchase will be deemed |
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withdrawn. |
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(4) Not later than the 15th day after the date of |
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receiving the second appraisal, the authority shall notify the |
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offeree in writing as to whether the authority agrees with or |
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disputes the fair market value determined by the second appraisal. |
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If the authority does not dispute the fair market value as |
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determined by the second appraisal before the expiration of the |
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15-day period, the second appraisal is final and binding on all |
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parties and establishes the purchase price for the Costello Island |
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Property. If the authority timely disputes the fair market value |
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determined by the second appraisal, the two appraisers, or their |
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designated agents, shall meet and attempt to reach an agreement on |
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the fair market value of the Costello Island Property. The meeting |
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shall occur not later than the 30th day after the date the authority |
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notifies the offeree that the authority disputes the second |
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appraisal. |
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(5) If the two appraisers reach an agreement on the |
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fair market value, they shall issue a report, not later than the |
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20th day after the date of their meeting, relating the agreed fair |
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market value to the authority and to the offeree, and this agreed |
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fair market value shall be final and binding on all parties and |
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establishes the purchase price. If the two appraisers fail to reach |
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an agreement on or before the 20th day after the date of the |
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meeting, then, not later than the 30th day after the date of the |
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meeting, the two appraisers shall appoint a disinterested third |
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appraiser certified under Chapter 1103, Occupations Code, to |
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reconcile the two previous appraisals in a third appraisal. The |
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third appraisal must be completed on or before the 30th day after |
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the date of the third appraiser's appointment, and the fair market |
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value determined by the third appraisal is final and binding on all |
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parties and establishes the purchase price; provided, however, that |
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the final purchase price may not be more than the fair market value |
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determined by the first appraisal or less than the fair market value |
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determined by the second appraisal. |
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(6) The appraisal costs shall be paid by the person who |
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requests the appraisal, except that the offeree and the authority |
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shall each pay one-half of the cost of the third appraisal if a |
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third appraisal is necessary. If the offeree fails to pay its share |
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of the third appraisal, the offeree's application of intent to |
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purchase will be deemed withdrawn. |
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(7) The timelines for the appraisal process under this |
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subsection may be extended upon joint agreement of the authority |
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and the offeree. |
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(d) To purchase the Costello Island Property, the offeree |
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must: |
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(1) provide to the authority a survey of the Costello |
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Island Property that is: |
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(A) prepared by a licensed state land surveyor or |
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a registered professional land surveyor; |
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(B) dated not earlier than one year before the |
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effective date of the Act enacting this section; and |
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(C) acceptable to the authority and any title |
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company providing title insurance for the offeree; and |
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(2) pay all closing costs associated with the sale of |
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the property. |
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(e) For any property sold under this section: |
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(1) the authority shall provide a special warranty |
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deed that encompasses and includes all interests in the Costello |
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Island Property held by the authority, subject only to: |
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(A) the restrictions, covenants, and |
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prohibitions contained in the deed of conveyance under which the |
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authority originally acquired title to the property, including |
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without limitation any releases of the authority for the |
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inundation, overflowing, or flooding of the lake; |
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(B) the restrictions, covenants, and |
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prohibitions described in Section 8502.020(d); |
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(C) all encumbrances and other matters filed of |
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record in the public records of the county in which the property is |
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located; |
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(D) any other matters or conditions that are |
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apparent on the ground or that would be reasonably disclosed or |
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discovered by an inspection of the property; and |
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(E) any other rules, regulations, or policies of |
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the authority in effect as of January 1, 2013, prohibiting or |
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limiting commercial, private, or other on-water facilities for new |
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development, and as such rules, regulations, or policies may be |
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amended, modified, or discontinued from time to time; and |
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(2) the offeree shall release and agree to hold the |
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authority harmless from, and the authority may not be held liable |
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for, damages, claims, costs, injuries, or any other harm to any |
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offeree or any other person or the Costello Island Property, or to |
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any improvements on the property, caused by or arising from any |
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temporary flooding of any portion of the Costello Island Property. |
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(f) Any sale of the Costello Island Property under this |
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section must allow the authority the right to enter onto the |
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Costello Island Property and the lake and other bodies of water, if |
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any, located within the Costello Island Property with essential |
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equipment for all purposes reasonably necessary for the authority |
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to fulfill its obligations as a river authority and any obligations |
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set forth in the FERC License, state water rights, or other |
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governmental regulations, or for any purpose that the authority |
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considers necessary for public safety, health, and welfare. Any |
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exercise by the authority of rights described by this subsection |
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may be conducted only after written notice is given to the offeree |
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at least 48 hours in advance of entry onto the property, except in |
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the event of an emergency, in which case advance notice is not |
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required, but the authority shall provide written notice as soon as |
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practicable. The authority shall use reasonable efforts to avoid |
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interfering with the offeree's use of the Costello Island Property |
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and shall promptly repair any damage to the property caused by the |
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authority's entrance. Any claim to governmental immunity on behalf |
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of the authority is waived with respect to the recovery of any |
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damage caused by the authority's breach of this subsection. |
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(g) Chapters 232 and 272, Local Government Code, Section |
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49.226, Water Code, and Section 8502.013 of this code do not apply |
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to a sale of property under this section. |
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(h) The authority may use proceeds from the sale of property |
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under this section for any authority purpose. |
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(i) The authority shall reserve its interest in all oil, |
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gas, and other minerals in and under the property to be sold, or any |
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portion thereof, to the extent the authority owns an interest in |
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those minerals. |
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(j) If the conveyance described by this section is not |
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completed before the second anniversary of the effective date of |
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this Act, this section shall no longer be effective and expires on |
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the date of the second anniversary. |
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(k) To the extent of any conflict with other laws of this |
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state, this section prevails. |
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SECTION 2. This Act takes effect September 1, 2013. |