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AN ACT
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relating to the sale by the Brazos River Authority and regulation of |
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certain real property in the immediate vicinity of Possum Kingdom |
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Lake. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsection (a), Section 8502.0132, Special |
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District Local Laws Code, is amended by amending Subdivisions (2) |
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and (5) and adding Subdivision (2-a) to read as follows: |
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(2) "Captive Property To Be Sold" means those portions |
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of the following tracts of real property owned by the Authority at |
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the Lake that as of May 27, 2009, were surrounded by the Lake and |
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property owned by a single freeholder and [are] located above the |
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1000' contour line, but does not include any portion of the |
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following tracts that was [is] part of Project Land or property that |
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was [is] leased for single-family residential purposes as of May |
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27, 2009 [the effective date of the Act enacting this section]: |
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(A) two tracts of land totaling 2019.86 acres, |
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more or less, in Palo Pinto County, Texas, described in Brazos River |
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Authority Records as Tracts 8-1-93 and 9-3-9, as such Tracts are |
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more particularly described in an Award of Commissioners entered |
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June 28, 1940, in the County Court of Palo Pinto County, Texas, in |
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Cause No. 2539, styled Brazos River Conservation and Reclamation |
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District versus Orland R. Seaman, Et Al., as the same appears on |
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file and of record in Volume 5, Pages 414 and 419, et seq., Civil |
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Minutes of the County Court of Palo Pinto County, Texas; and |
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(B) a 2278.3 acre tract of land, more or less, in |
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Palo Pinto County, Texas, described in Brazos River Authority |
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records as Tract 11-2-46, as such tract is more particularly |
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described in deeds recorded at Book 181, Page 325, Book 182, Page |
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339, Book 183, Page 12, and Book 183, Page 16, in Palo Pinto County |
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Records, Palo Pinto County, Texas. |
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(2-a) "Close" or "Closing" means the transfer of the |
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Authority's interest in properties described in the Subsection |
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(d)(1) or (m)(6) survey. |
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(5) "Offeree" means any person to whom an offer to sell |
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Captive Property To Be Sold is to be made under this section. To |
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qualify as an Offeree, a person must own in fee simple as of May 27, |
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2009, the real property adjacent to the Captive Property To Be Sold, |
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and be able to provide an attorney's opinion or other satisfactory |
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legal documentation that such Offeree meets the qualifications of |
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an Offeree under this subdivision. |
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SECTION 2. Section 8502.0132, Special District Local Laws |
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Code, is amended by amending Subsection (b) and adding Subsections |
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(d-1), (m), and (n) to read as follows: |
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(b) Notwithstanding any other provision of this chapter, |
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the Authority is directed to sell all Captive Property To Be Sold in |
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accordance with the directives of this section, including the |
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following: |
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(1) Within 90 days of the effective date of the Act |
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enacting this section, the Authority shall publish a list of the |
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parcels at the Lake that qualify as Captive Property To Be Sold and |
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an "Application Of Intent To Purchase" form for use by the Offerees |
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as provided by this section. |
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(2) Each listed parcel of Captive Property To Be Sold |
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shall be offered for sale at its fair market value to the Offeree |
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who owns any Adjacent Land that is adjacent to that specific parcel |
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of Captive Property To Be Sold, and each Adjacent Land owner has the |
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right (but not the obligation) to purchase the parcel in equal |
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proportion among those wishing to acquire same. |
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(3) Any Offeree who desires to purchase Captive |
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Property To Be Sold must, within 180 days of the inclusion of that |
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property on the published list of Captive Property To Be Sold under |
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Subdivision (1), submit a completed Application Of Intent To |
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Purchase form to the Authority. |
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(4) If the Authority does not receive an Application |
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Of Intent To Purchase from an Offeree within the required time, the |
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Offeree shall be deemed to have waived any right to purchase the |
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subject property under this section and the Authority shall have |
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the right to retain or sell such property as directed by the board. |
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(5) The Authority shall accept and process all |
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Application Of Intent To Purchase forms in the order in which they |
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are received. |
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(6) Any sale of property under this section must be |
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handled as if it were a private sale for fair market value under |
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Section 49.226(a), Water Code. |
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(7) The fair market value of the Captive Property To Be |
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Sold must be determined as follows: |
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(A) Within forty-five (45) days of the |
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Authority's receipt of the Offeree's completed Application Of |
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Intent To Purchase and an acceptable survey as provided by |
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Subsection (d)(1), the Authority shall provide the Offeree with an |
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appraisal of the fair market value of the Captive Property To Be |
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Sold dated within one year of the date of the Authority's receipt of |
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the Application Of Intent To Purchase (the "First Appraisal"). The |
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Authority's appraiser must be an appraiser certified under Chapter |
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1103, Occupations Code. Within fifteen (15) days of receipt of the |
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First Appraisal, the Offeree shall notify the Authority in writing |
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as to whether the Offeree agrees with or disputes the fair market |
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value set forth in the First Appraisal. If the Offeree does not |
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dispute the fair market value as determined by the First Appraisal |
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within such 15-day time period, then the First Appraisal shall be |
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final and binding on all parties to establish the fair market value |
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for the Captive Property To Be Sold. |
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(B) 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 Captive Property To Be Sold or employ a |
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disinterested appraiser certified under Chapter 1103, Occupations |
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Code, to conduct a second appraisal of the fair market value of the |
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Captive Property To Be Sold (the "Second Appraisal"). The Second |
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Appraisal must be completed and sent to the Authority not later than |
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the 45th day after the date the Offeree notifies the Authority that |
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the Offeree disputes the First Appraisal. If the Authority does not |
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receive the Second Appraisal within such 45-day time period, then |
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the Offeree's Application Of Intent To Purchase will be deemed |
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withdrawn. |
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(C) Within fifteen (15) days of receipt of the |
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Second Appraisal, the Authority shall notify the Prospective |
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Purchaser 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 within this 15-day time period, |
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then the Second Appraisal shall be final and binding on all parties |
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to establish the purchase price for the Captive Property To Be Sold. |
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If the Authority timely disputes the fair market value determined |
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by the Second Appraisal, the two appraisers (or their designated |
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agents) shall meet and attempt to reach an agreement on the fair |
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market value of the Captive Property To Be Sold, such meeting to |
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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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(D) If the two appraisers reach agreement on the |
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fair market value, within 20 days after their meeting they shall |
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issue a report of the agreed fair market value to the Authority and |
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to the Offeree, and this agreed fair market value shall be final and |
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binding on all parties to establish the purchase price. If the two |
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appraisers fail to reach agreement on or before the 20th day after |
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the date of the meeting, then not later than the 30th day after the |
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date of the meeting the two appraisers shall appoint a |
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disinterested third appraiser certified under Chapter 1103, |
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Occupations Code, to reconcile the two previous appraisals (the |
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"Third Appraisal"). The Third Appraisal must be completed on or |
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before the 30th day after the date of the third appraiser's |
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appointment, and the fair market value determined by the Third |
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Appraisal is final and binding on all parties to establish the |
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purchase price; provided, however, the final purchase price may not |
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be more than the fair market value determined by the First Appraisal |
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or less than the fair market value determined by the Second |
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Appraisal. |
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(E) The appraisal costs must be paid by the |
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person who requests the appraisal, except that the Offeree and the |
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Authority shall each pay one-half of the cost of the Third Appraisal |
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if a Third Appraisal is necessary. If the Offeree fails to pay its |
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share of the Third Appraisal, then the Offeree's Application Of |
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Intent To Purchase will be deemed withdrawn. |
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(F) The timelines established in the appraisal |
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process set forth in this subdivision may be extended on joint |
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agreement of Authority and Offeree. |
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(8) Closing must occur not later than the first |
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anniversary of the effective date of the Act of the 83rd |
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Legislature, Regular Session, 2013, amending this subsection. |
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(d-1) Not later than 15 business days after the delivery of |
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an Offeree's survey to the Authority required under Subsection |
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(d)(1) or (m)(6), the Authority shall notify the Offeree that the |
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survey is acceptable or submit in writing to the Offeree a list |
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detailing any error in the survey that the Authority believes |
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requires correction. If required, the survey must be corrected at |
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the earliest convenience of the surveyor and a corrected survey |
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delivered to the Authority. The correction process repeats until |
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both surveys are acceptable, at which time the timetable for the |
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appraisal process in Subsection (b)(7)(A) begins for the properties |
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described in the Subsection (d)(1) and (m)(6) surveys. So long as |
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the Subsection (m)(6) survey is timely delivered to the Authority, |
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if the surveys are not both accepted by the Authority within 180 |
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days after the effective date of the Act enacting this subsection, |
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then the closing deadline established by Subsection (b)(8) is |
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extended on a day-for-day basis for each day after the 180th day |
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until both surveys are accepted by the Authority. |
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(m) Notwithstanding any provision of this section to the |
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contrary, a sale under this section is subject to the following |
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requirements: |
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(1) If on the date Closing occurs the Project Land or |
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any portion of the Project Land has been removed from the FERC |
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License, the Captive Property To Be Sold must include all Project |
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Land that would have otherwise qualified as Captive Property To Be |
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Sold except for its status as Project Land. |
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(2) If on the date Closing occurs the Project Land or |
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any portion of the Project Land has not been removed from the FERC |
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License, the Authority shall convey to the Offeree a residual |
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interest in that portion of the Project Land that would have |
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otherwise qualified as Captive Property To Be Sold except for its |
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status as Project Land. The residual interest automatically vests |
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on the date that: |
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(A) the Federal Energy Regulatory Commission |
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approves an amendment to the FERC License removing the Project Land |
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from the boundaries under the FERC License so that the Project Land |
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is no longer subject to regulation by the Federal Energy Regulatory |
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Commission; or |
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(B) the FERC License expires and is not renewed |
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or extended, or is otherwise terminated, and thus the Project Land |
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is no longer subject to regulation by the Federal Energy Regulatory |
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Commission. |
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(3) Notwithstanding Subdivision (2), if the residual |
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interest described by Subdivision (2) has not vested on or before |
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August 31, 2040, then the residual interest is terminated and of no |
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further force and effect, and the Authority shall repay to the |
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Offeree any amount originally paid for that residual interest on or |
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before December 1, 2040. On satisfaction of a condition described |
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by Subdivision (2)(A) or (B) before August 31, 2040, the residual |
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interest conveyed under Subdivision (2) is automatically effective |
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without necessity of further documentation. As of the date the |
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conveyance is effective, the applicable portion of the Project Land |
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is considered to be a part of the Captive Property To Be Sold |
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conveyed under this section and the Offeree or then-current Owner |
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of the applicable portion of the Captive Property To Be Sold is the |
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beneficiary of the residual interest applicable to the portion of |
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the Project Land adjacent to such Owner's land and considered to be |
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a part of the Captive Property To Be Sold conveyed under this |
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section. The residual interest immediately vests in the Offeree or |
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then-current Owner of the adjacent Captive Property To Be Sold |
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conveyed under this section without the necessity of any additional |
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written conveyance. |
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(4) In the event that a sale under this subsection does |
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not include any portion of the Project Land, or only includes a |
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residual interest in a portion or all of the Project Land, then the |
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Authority shall at Closing, subject to the approval of the Federal |
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Energy Regulatory Commission, grant the Offeree an easement, |
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subject to the FERC License, for the use of that portion of the |
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Project Land for which the Offeree has purchased a residual |
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interest. The Authority shall retain ownership of that portion of |
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the Project Land and exercise control over that portion of the |
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Project Land consistent with the FERC License and this subsection. |
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The easement granted to the Offeree is limited to uses permitted |
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under the terms of the FERC License, the Authority's Shoreline |
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Management Plan, and any other Authority rules and regulations that |
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may be adopted from time to time. |
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(5) An appraisal of the fair market value of the |
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Project Land, whether the Project Land has been removed from the |
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FERC License or not, must be determined as if the applicable Project |
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Land is not subject to the FERC License, is not part of the Federal |
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Energy Regulatory Commission project area, is not subject to any |
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lease agreement, is available for immediate possession and use, and |
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may be used for any lawful purpose. |
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(6) For each parcel of Project Land that an eligible |
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Offeree elects to purchase under Subdivision (1), or for each |
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parcel of Project Land in which the Offeree purchases a residual |
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interest under Subdivision (2), the Offeree shall, not later than |
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the 90th day after the effective date of the Act enacting this |
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subsection, provide to the Authority a survey and calculation of |
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the area of the parcel prepared by a licensed state land surveyor or |
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a registered professional land surveyor in accordance with this |
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subsection. The survey is separate from any survey prepared under |
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Subsection (d) of Captive Property To Be Sold. |
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(n) On or before Closing, the Authority shall deliver |
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completed and executed documentation necessary to transfer the |
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property conveyed from the Authority to the Offeree, and the |
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Offeree shall deliver the purchase price and closing costs and the |
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countersignatures on all necessary documentation. Promptly after |
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Closing, the Offeree shall record the documents required for |
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transferring the property in the county records where the property |
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is located. The closing documents and funds may be held in escrow |
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at the election of the Authority or the Offeree until all documents |
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have been fully executed and all required funds have been |
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delivered. |
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SECTION 3. 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 |
|
for, damages, claims, costs, injuries, or any other harm to any |
|
offeree or any other person or the Costello Island Property, or to |
|
any improvements on the property, caused by or arising from any |
|
temporary flooding of any portion of the Costello Island Property. |
|
(f) Any sale of the Costello Island Property under this |
|
section must allow the authority the right to enter onto the |
|
Costello Island Property and the lake and other bodies of water, if |
|
any, located within the Costello Island Property with essential |
|
equipment for all purposes reasonably necessary for the authority |
|
to fulfill its obligations as a river authority and any obligations |
|
set forth in the FERC License, state water rights, or other |
|
governmental regulations, or for any purpose that the authority |
|
considers necessary for public safety, health, and welfare. Any |
|
exercise by the authority of rights described by this subsection |
|
may be conducted only after written notice is given to the offeree |
|
at least 48 hours in advance of entry onto the property, except in |
|
the event of an emergency, in which case advance notice is not |
|
required, but the authority shall provide written notice as soon as |
|
practicable. The authority shall use reasonable efforts to avoid |
|
interfering with the offeree's use of the Costello Island Property |
|
and shall promptly repair any damage to the property caused by the |
|
authority's entrance. Any claim to governmental immunity on behalf |
|
of the authority is waived with respect to the recovery of any |
|
damage caused by the authority's breach of this subsection. |
|
(g) Chapters 232 and 272, Local Government Code, Section |
|
49.226, Water Code, and Section 8502.013 of this code do not apply |
|
to a sale of property under this section. |
|
(h) The authority may use proceeds from the sale of property |
|
under this section for any authority purpose. |
|
(i) The authority shall reserve its interest in all oil, |
|
gas, and other minerals in and under the property to be sold, or any |
|
portion thereof, to the extent the authority owns an interest in |
|
those minerals. |
|
(j) If the conveyance described by this section is not |
|
completed before the second anniversary of the effective date of |
|
this Act, this section shall no longer be effective and expires on |
|
the date of the second anniversary. |
|
(k) To the extent of any conflict with other laws of this |
|
state, this section prevails. |
|
SECTION 4. Section 8502.020, Special District Local Laws |
|
Code, is amended to read as follows: |
|
Sec. 8502.020. SALE OF AUTHORITY PROPERTY. |
|
(a) Definitions. In this section: |
|
(1) "Authority Land" means the FERC Project Area and |
|
all other real property owned by the Authority at the Lake as of the |
|
date before Closing, save and except for the Leased Tract. |
|
(2) "Buffer Zone" means that twenty-five or fifty foot |
|
strip of land measured landward horizontally from the 1000' contour |
|
line that is included in the FERC Project Area as defined in the |
|
FERC License. |
|
(3) "Close" or "Closing" means the date on which the |
|
Authority transfers its interest in the Leased Tract, in whole or in |
|
part, to a Purchaser. There may be multiple closing dates if the |
|
Leased Tract is sold in portions. |
|
(4) "Commercial Leased Land" means all or any [that] |
|
portion of the Initial Commercial Leased Land and the Remaining |
|
Commercial Leased Land [Tract that is located wholly outside the
|
|
FERC Project Area and that is leased for commercial purposes as of
|
|
the date the Restrictions are placed of record]. |
|
(5) "Consumer Price Index" means the consumer price |
|
index for Housing, Dallas-Fort Worth, TX area, Series Id: |
|
CUURA316SAH, CUUSA316SAH, Base Period: 1982-84 = 100, as published |
|
by the Bureau of Labor Statistics of the United States Department of |
|
Labor, or its equivalent substitute should this series be |
|
discontinued. |
|
(6) "Contract" means the Authority entering into a |
|
purchase and sale agreement with a Purchaser for the transfer of the |
|
Authority's interest in the Initial Leased Tract or the Remaining |
|
Leased Tract, in whole or in part. |
|
(7) "Driveways" means those certain private gravel |
|
and/or paved driveways that connect a Road or other street or |
|
thoroughfare to an individual Leased Tract or any improvements |
|
thereon; Driveways also includes those shared or common Driveways |
|
that serve more than one Leaseholder or individual Leased Tract. |
|
(8) "Environmental Laws" means the Comprehensive |
|
Environmental Response, Compensation and Liability Act of 1980, the |
|
Toxic Substances Control Act, the Clean Water Act, the Resource |
|
Conservation and Recovery Act and any other similar federal, state |
|
or local law, rule or regulation respecting the environment or |
|
Hazardous Materials, together with all rules and regulations |
|
promulgated thereunder and all present or future amendments |
|
thereto. |
|
(9) "FERC License" means the order of the Federal |
|
Energy Regulatory Commission issuing a license to the Authority for |
|
project number 1490-003-Texas on September 8, 1989, as such license |
|
has been renewed, extended, or amended and may be further renewed, |
|
extended, or amended at any time and from time to time, and also |
|
including the Amendment to the original FERC License, which |
|
amendment was issued on May 15, 1980, to the extent incorporated or |
|
referenced in the FERC License. |
|
(10) "FERC Project Area" means that portion of |
|
Authority Land [property] that is subject to the FERC License |
|
before the Date of Decommissioning, as identified and defined in |
|
the FERC License, as may be amended at any time and from time to |
|
time, and which FERC Project Area may move or change over time due |
|
to natural forces. |
|
(11) "Ground Lease" means each of those certain |
|
residential and/or commercial ground leases between the Authority |
|
and a Leaseholder, and the respective heirs, successors, and |
|
assigns. |
|
(12) "Hazardous Materials" means underground storage |
|
tanks, petroleum and petroleum products, asbestos, PCB's, |
|
urea-formaldehyde and any hazardous or toxic substances, |
|
pollutants, contaminants, wastes, or materials as defined under any |
|
Environmental Laws. |
|
(13) "Lake" means Possum Kingdom Lake located in |
|
Young, Palo Pinto, Stephens, and Jack Counties. The boundary of |
|
the Lake is defined by the 1000' contour line, as that contour may |
|
meander and change over time with natural forces, including erosion |
|
and accretion. The "1000' contour line" means the line running |
|
along the periphery of the Lake if the surface of the Lake is at an |
|
elevation of 1000 feet above mean sea level, as measured from the |
|
top of the spillway crest gates of the Morris Sheppard Dam, as such |
|
line may move and shift from time to time due to natural forces. |
|
(14) "Leased Tract" or "Tract" means all or any |
|
portion of the Initial Leased Tract or the Remaining Leased Tract |
|
[Commercial Leased Land, the Residential Leased Land, and
|
|
Undeveloped Strips], whether owned by the Authority, Purchaser, or |
|
Owner and whether or not subject to a lease or Ground Lease or owned |
|
in fee simple. |
|
(15) "Leaseholder" means a person or entity that has a |
|
residential lease or a commercial lease with the Authority, |
|
including the Leaseholder's heirs, successors, and assigns. |
|
(16) "Lienholder" means any mortgagee under a |
|
mortgage, or a trustee or beneficiary under a deed of trust, |
|
constituting a lien on any portion of the Leased Tract. |
|
(17) "Owner" means the record holder of fee simple |
|
title to any portion of the Leased Tract sold pursuant to this |
|
section, including its heirs, personal representatives, |
|
successors, and assigns. This term does not include a Purchaser |
|
who acquires the Leased Tract from the Authority in accordance with |
|
Subsection (b). |
|
(18) "Property" means the Leased Tract and the |
|
Authority Land. |
|
(19) "Purchaser" means any person or entity, including |
|
its successors in interest, heirs, or assigns, that acquires the |
|
Leased Tract (or any portion thereof) from the Authority in |
|
accordance with Subsection (b). This term does not include those |
|
Leaseholders that acquire individual Leased Tracts from the |
|
Purchaser in accordance with Subsection (b). |
|
(20) "Ranch" means that certain subdivision of record |
|
in Palo Pinto County, Texas, according to the map or plat of record |
|
in Volume 7, Page 71, Plat Records of Palo Pinto County, Texas, as |
|
it may be amended or modified from time to time, which subdivision |
|
includes a portion of the Leased Tract and a portion of the |
|
Authority Land. |
|
(21) "Ranch Agreement" means that certain agreement by |
|
and among the Authority, The Ranch on Possum Kingdom, L.P., and Hill |
|
Country Harbor Village, L.P., effective as of August 1, 1997, and |
|
dated December 12, 1997. |
|
(22) "Ranch Declarations" means that certain |
|
Declaration of Covenants, Conditions and Restrictions for The Ranch |
|
on Possum Kingdom Palo Pinto County, Texas, dated December 8, 1997, |
|
as recorded in Volume 944, Page 403, Official Public Records of Palo |
|
Pinto County, Texas. |
|
(23) "Residential Leased Land" means all or any [that] |
|
portion of the Initial Residential Leased Land and the Remaining |
|
Residential Leased Land [Leased Tract located outside the FERC
|
|
Project Area that is leased for single-family residential purposes
|
|
only as of the date the Restrictions are placed of record.
This
|
|
term does not include land that is subject to a commercial lease,
|
|
where such lessee is authorized to sublease for residential
|
|
purposes]. |
|
(24) "Restrictions" means the easements, covenants, |
|
restrictions, liens, encumbrances, and requirements contained in |
|
the Declaration of Restrictive Covenants, Easements, and |
|
Conditions to be recorded by the Authority as set forth in |
|
Subsection (d), as amended from time to time. |
|
(25) "Roads" means those paved or gravel streets, |
|
roads, and thoroughfares owned and maintained by the Authority that |
|
are located in Stephens, Jack, Young, or Palo Pinto County and that |
|
provide access, ingress, and egress to and from the Leased Tract, |
|
the Lake, and/or Authority Land; provided, however, that the |
|
definition of Roads, as used herein, does not include: |
|
(A) Driveways; |
|
(B) paved or gravel roads located wholly within |
|
Authority public use areas; |
|
(C) paved or gravel roads located within gated |
|
Authority operations areas; and |
|
(D) paved or gravel roads located wholly within |
|
an individual tract that is part of the Commercial Leased Land, |
|
which roads only serve that individual commercial Tract. |
|
(26) "Shoreline Management Plan" means that certain |
|
Possum Kingdom Shoreline Management Plan and Customer Guide, |
|
adopted May 22, 2006, and amended July 31, 2006, and as may be |
|
revised and/or further amended by the Authority at any time and from |
|
time to time. |
|
(27) "Undeveloped Strips" means all or any portion of |
|
the Initial Undeveloped Strips and the Remaining Undeveloped Strips |
|
[small strips of unleased land located between individual lots
|
|
within the Leased Tract and small parcels of land between the Leased
|
|
Tract and Roads that the Authority determines in its sole
|
|
discretion to include in any sale of all or any portion of the
|
|
Leased Tract]. |
|
(28) "Amendments to the Restrictions" means the |
|
amendments to the Restrictions under Subsection (d). |
|
(29) "Date of Decommissioning" means the effective |
|
date of the surrender of the FERC License for the Morris Sheppard |
|
Dam Project No. 1490-052 under the Order Accepting the Surrender of |
|
the License (issued December 23, 2011), 137 FERC 62,252. |
|
(30) "Initial Commercial Leased Land" means the |
|
portion of the Initial Leased Tract located wholly outside the FERC |
|
Project Area that is leased for commercial purposes as of the date |
|
the Restrictions are recorded in the applicable county records. |
|
(31) "Initial Leased Tract" means all or any portion |
|
of the Initial Commercial Leased Land, the Initial Residential |
|
Leased Land, and the Initial Undeveloped Strips, whether owned by |
|
the Authority, Purchaser, or Owner and whether or not subject to a |
|
lease or Ground Lease or owned in fee simple. |
|
(32) "Initial Residential Leased Land" means the |
|
portion of the Initial Leased Tract located outside the FERC |
|
Project Area that is leased only for single-family residential |
|
purposes as of the date the Restrictions are recorded in the |
|
applicable county records. The term does not include land that is |
|
subject to a commercial lease that may be subleased for residential |
|
purposes. |
|
(33) "Initial Undeveloped Strips" means small strips |
|
of unleased land located between individual lots in the Initial |
|
Leased Tract and small parcels of land between the Initial Leased |
|
Tract and Roads that the Authority determines in its sole |
|
discretion to include in a sale of all or any portion of the Initial |
|
Leased Tract. |
|
(34) "Remaining Commercial Leased Land" means the |
|
portion of the Remaining Leased Tract that is located wholly or |
|
partly within the FERC Project Area as of the date preceding the |
|
Date of Decommissioning and that is leased for commercial purposes |
|
as of the date the Amendments to the Restrictions are recorded in |
|
the applicable county records. The term does not include a special |
|
use lease, hangar lease, grass lease, hunting lease, or mineral |
|
lease, any other lease for noncommercial purposes, or any portion |
|
of the Initial Commercial Leased Land. |
|
(35) "Remaining Leased Tract" means all or any portion |
|
of the Remaining Commercial Leased Land, the Remaining Residential |
|
Leased Land, and the Remaining Undeveloped Strips, whether owned by |
|
the Authority, Purchaser, or Owner and whether or not subject to a |
|
lease or Ground Lease or owned in fee simple. |
|
(36) "Remaining Residential Leased Land" means the |
|
portion of the Remaining Leased Tract that is located wholly within |
|
the FERC Project Area as of the date preceding the Date of |
|
Decommissioning and that is leased only for single-family |
|
residential purposes as of the date the Amendments to the |
|
Restrictions are recorded in the applicable county records. The |
|
term does not include land that is subject to a commercial lease |
|
that may be subleased for residential purposes. The term does not |
|
include a special use lease, hangar lease, grass lease, hunting |
|
lease, or mineral lease, any other lease for nonresidential |
|
purposes, or any portion of the Initial Residential Leased Land. |
|
The term does not include a lease of land in the Buffer Zone that is |
|
subject to a residual interest that will automatically vest on the |
|
Date of Decommissioning or other expiration or termination of the |
|
FERC License. |
|
(37) "Remaining Undeveloped Strips" means small |
|
strips of unleased land located between individual lots in the |
|
Remaining Leased Tract and small parcels of land between the |
|
Remaining Leased Tract and Roads that the Authority determines in |
|
its sole discretion to include in a sale of all or any portion of the |
|
Remaining Leased Tract. |
|
(b) Sale to Purchaser. Prior to January 1, 2011, the |
|
Authority may sell the Initial Leased Tract in whole or in part, to |
|
a Purchaser in accordance with applicable law, this subsection, and |
|
Subsections (d), (e), (f), (g), (h), and (i). For a period of two |
|
years after the Date of Decommissioning, the Authority may sell the |
|
Remaining Leased Tract in whole or in part, to a Purchaser in |
|
accordance with applicable law, this subsection, and Subsections |
|
(d), (e), (f), (g), (h), and (i). Any sale of the Initial Leased |
|
Tract or the Remaining Leased Tract to a Purchaser under this |
|
subsection shall be subject to the following: |
|
(1) Each Leaseholder shall have the opportunity to buy |
|
such Leaseholder's individual portion of the Leased Tract from the |
|
Purchaser or to continue leasing the applicable portion of the |
|
Leased Tract from the Purchaser in accordance with the following |
|
purchase or lease options. The Purchaser shall: |
|
(A) Permit the Leaseholder to purchase such |
|
Leaseholder's individual Leased Tract in cash or through lender |
|
financing for 90% of land only assessed value without any |
|
exemptions (as determined by the appraisal district) for the year |
|
2008 if the tract is part of the Initial Leased Tract, or for the |
|
year 2012 if the tract is part of the Remaining Leased Tract, such |
|
options [option] to be available at Closing as set forth in |
|
Subdivision (2) and for a period of at least one year from Closing. |
|
(B) Permit the Leaseholder to purchase for the |
|
percent of assessed value only as set forth in Paragraph (A) such |
|
Leaseholder's individual portion of the Leased Tract via seller |
|
financing, with a down payment of ten percent (10%) and an interest |
|
rate of six percent (6%), with a 30-year amortization, such seller |
|
financing option to be available at Closing as set forth in |
|
Subdivision (2) and for a period of at least one year from Closing |
|
to the Leaseholder of any portion of the Commercial Leased Tract and |
|
to the Leaseholder of any portion of the Residential Leased Tract to |
|
the extent the Leaseholder of any portion of the Residential Leased |
|
Tract qualifies for financing under the Dodd-Frank Wall Street |
|
Reform and Consumer Protection Act (Pub. L. No. 111-203) and any |
|
related regulations. The Leaseholder [leaseholder] shall not be |
|
charged any origination fees or points by the Purchaser [purchaser] |
|
as a part of the closing costs involved in the seller financing |
|
option. |
|
(C) Offer a new 99-year lease at a rental rate of |
|
6% of the land only assessed value without any exemptions (as |
|
determined by the appraisal district) for the year 2008 if the tract |
|
is part of the Initial Leased Tract, or the 2012 land only assessed |
|
value without any exemptions if the tract is part of the Remaining |
|
Leased Tract, with annual Consumer Price Index increases or |
|
decreases, such options [option] to be available for a period of at |
|
least one year from Closing. The 99-year lease will include an |
|
option for the Leaseholder to purchase the applicable portion of |
|
the Leased Tract at the land only assessed value without any |
|
exemptions (as determined by the appraisal district) at the time of |
|
purchase (but not less than the 2008 land only assessed value |
|
without any exemptions if the tract is part of the Initial Leased |
|
Tract, or the 2012 land only assessed value without any exemptions |
|
if the tract is part of the Remaining Leased Tract). |
|
(D) Offer a new 20-year lease with a rental rate |
|
as determined by the current Authority lease rate methodology or |
|
other lease rate structure as set forth in the Ground Lease as |
|
applicable (and including increases and adjustments to such rates) |
|
with annual Consumer Price Index increases or decreases, to |
|
Leaseholders who are over the age of 65 and who receive an ad |
|
valorem tax exemption under Section 11.13, Tax Code, for a |
|
structure on the Leaseholder's individual Leased Tract, such option |
|
to be available for a period of at least one year from the date of |
|
Closing. The Leaseholder must have received the ad valorem tax |
|
exemption for a structure on the Leaseholder's individual Leased |
|
Tract by January 1, 2009, if the tract is part of the Initial Leased |
|
Tract or January 1, 2013, if the tract is part of the Remaining |
|
Leased Tract. The 20-year lease will include an option for the |
|
Leaseholder to purchase the applicable portion of the Leased Tract |
|
at the land only assessed value without any exemptions (as |
|
determined by the appraisal district) at the time of purchase (but |
|
not less than the 2008 land only assessed value without any |
|
exemptions if the tract is part of the Initial Leased Tract or the |
|
2012 land only assessed value without any exemptions if the tract is |
|
part of the Remaining Leased Tract). |
|
(E) Ratify the existing Ground Lease of any |
|
Leaseholder who does not timely exercise one of the foregoing |
|
options, such ratification to include: |
|
(i) adoption of the current Authority lease |
|
rate methodology or other lease rate structure as set forth in the |
|
Ground Lease, as applicable (and including increases and |
|
adjustments to such rates) for a period of 8 years from Closing; |
|
(ii) an option permitting the Leaseholder |
|
to purchase such Leaseholder's individual portion of the Leased |
|
Tract for the land only assessed value without any exemptions (as |
|
determined by the appraisal district) at the time of purchase, or |
|
for the year 2008 if the tract is part of the Initial Leased Tract, |
|
or for the year 2012 if the tract is part of the Remaining Leased |
|
Tract, whichever is greater, for a period of 8 years from Closing; |
|
and |
|
(iii) an agreement to extend Ground Leases |
|
as necessary to allow for this full 8-year purchase option period. |
|
Nothing in this subsection shall preclude the Purchaser from |
|
offering additional purchase or lease options to the Leaseholders, |
|
provided any additional options are made available to all similarly |
|
situated Leaseholders on an equal basis. |
|
(2) A Leaseholder who desires to buy such |
|
Leaseholder's individual Leased Tract from the Purchaser pursuant |
|
to the option set forth in either Subdivision (1)(A) or (B) |
|
concurrently with the Purchaser's Closing must exercise the desired |
|
option as follows: |
|
(A) notify the Authority and Purchaser in writing |
|
within 90 days after the effective date of the Contract between the |
|
Authority and Purchaser of Leaseholder's intent to purchase the |
|
applicable Leased Tract; |
|
(B) Leaseholder and Purchaser will enter into a |
|
purchase and sale agreement in substantially the form as agreed to |
|
between the Authority and Purchaser, which form will be attached to |
|
the Contract, and which individual purchase and sale agreements |
|
will be ratified by Purchaser at the Closing; the purchase and sale |
|
agreement shall contain, at a minimum, the following terms and |
|
conditions: |
|
(i) the purchase price for the individual |
|
Leased Tract in accordance with the applicable purchase option; |
|
(ii) earnest money in the amount of $1,000 |
|
to be delivered to the title company agreed to by Leaseholder and |
|
Purchaser and approved by the Authority along with the executed |
|
purchase and sale agreement; |
|
(iii) the Leaseholder's obligation to |
|
provide a survey as set forth in this subsection and a title |
|
commitment from the agreed upon title company; |
|
(iv) a 60-day period commencing on the date |
|
of the purchase and sale agreement for the Leaseholder to obtain |
|
financing (if exercising its option pursuant to Subdivision (1)(A) |
|
above); |
|
(v) the Leaseholder must notify Purchaser |
|
of any objections to any items on the title commitment and/or survey |
|
within fifteen (15) days after receipt of same, but in no event less |
|
than 45 days prior to the anticipated date of Closing, provided |
|
however that neither the Purchaser nor the Authority shall have any |
|
obligation to cure any such items or to incur any expenses in curing |
|
any items, except that Purchaser and/or the Authority, as |
|
applicable, shall use good faith efforts to address and/or remove |
|
those requirements or exceptions shown on Schedule C of the title |
|
commitment that are applicable to or created by the Purchaser |
|
and/or Authority, as applicable, and, notwithstanding the |
|
foregoing, neither the Purchaser nor the Authority shall have any |
|
obligation to cure any exceptions on the attached Schedule C |
|
regarding legal right of access to or from the applicable Leased |
|
Tract; |
|
(vi) Leaseholder is purchasing the |
|
applicable individual Leased Tract in its "as-is" condition and |
|
Purchaser shall have no obligation to make any improvements or |
|
modifications thereto, nor will Purchaser make any representations |
|
or warranties as to the condition or use of the applicable Leased |
|
Tract; |
|
(vii) Purchaser shall not be responsible |
|
for any broker fees or commissions due to any broker or agent |
|
engaged or claiming to have been engaged by Leaseholder for the |
|
purchase and sale of the applicable Leased Tract; |
|
(viii) Purchaser shall be responsible for |
|
costs related to the release of any existing liens placed on the |
|
applicable portion of the Leased Tract by Purchaser, including |
|
prepayment penalties and recording fees, release of Purchaser's |
|
loan liability to the extent applicable to the individual Leased |
|
Tract, tax statements or certificates, preparation of the deed, and |
|
one-half of any escrow fee; |
|
(ix) Leaseholder shall be responsible for |
|
any costs associated with a loan or financing for the applicable |
|
portion of the Leased Tract, including, without limitation, loan |
|
origination, discount, buy-down, and commitment fees, appraisal |
|
fees, loan application fees, credit reports, preparation of loan |
|
documents, loan-related inspection fees, and interest on the notes |
|
from the date of disbursement to date of first monthly payment; the |
|
cost of the survey; recording fees; copies of easements and |
|
restrictions; mortgagee title policy with endorsements required by |
|
lender, if any; one-half of any escrow fee; any prepaid items, |
|
including without limitation, insurance premiums and reserves and |
|
taxes; underwriting fee; and any title policy (including |
|
endorsements) obtained by Leaseholder; |
|
(x) Taxes will be prorated as of the date of |
|
Closing; if taxes are not paid as of the date of Closing, then |
|
Leaseholder shall be responsible for the payment of taxes; and |
|
(xi) the agreement between Leaseholder and |
|
Purchaser shall be contingent on Closing occurring within the |
|
timeframes set forth in this subsection. |
|
(C) Leaseholder shall deliver to Authority and |
|
Purchaser no less than forty-five days prior to Closing, at the |
|
Leaseholder's expense, an accurate survey of the individual Leased |
|
Tract (including any Undeveloped Strips being included in such |
|
Leased Tract), which survey is acceptable to the Authority and |
|
Purchaser. To be acceptable to the Authority and Purchaser, the |
|
survey must: |
|
(i) be acceptable to the title company |
|
selected by the Purchaser and Leaseholder and approved by the |
|
Authority for purposes of issuing any policy of title insurance on |
|
the applicable portion of the Leased Tract; |
|
(ii) be prepared by a licensed state land |
|
surveyor or a registered professional land surveyor acceptable to |
|
the Authority; |
|
(iii) include the boundary of the |
|
Leaseholder's Leased Tract and any Undeveloped Strips being |
|
conveyed, which boundaries must be consistent with the master |
|
survey prepared on behalf of the Authority in conjunction with the |
|
sale of the Leased Tract to the Purchaser; |
|
(iv) include all improvements on the Leased |
|
Tract and indicate any encroachments across the applicable boundary |
|
lines [or into the FERC Project Area or Buffer Zone]; Leaseholder |
|
must provide evidence that any such encroachments across boundary |
|
lines, including encroachments onto Authority Land, [or into the
|
|
FERC Project Area or Buffer Zone] have been cured by the Leaseholder |
|
(either by removal of such encroachment or by written agreement |
|
between the affected parties permitting such encroachment to |
|
continue) prior to the survey being deemed acceptable; and |
|
(v) be reviewed and approved by the |
|
Authority and Purchaser; the Authority, Purchaser, and their |
|
representatives or agents may perform an inspection of the |
|
applicable Leased Tract to verify the accuracy of the survey |
|
[Survey] and any encroachments thereon; |
|
(D) On or before Closing, the purchase and sale |
|
agreement between the Leaseholder and Purchaser and any earnest |
|
money that may be required pursuant to such agreement shall be |
|
timely delivered to a title company or escrow agent acceptable to |
|
the Authority and agreed to by Leaseholder and Purchaser in such |
|
agreement; |
|
(E) On or before Closing, Purchaser and |
|
Leaseholder shall complete all documentation necessary to |
|
effectuate transfer of the applicable Leased Tract from the |
|
Purchaser to the Leaseholder and deliver such completed and |
|
executed documents to the applicable escrow agent; and |
|
(F) Promptly after Closing, the deed and any |
|
other applicable documents effectuating transfer of such Leased |
|
Tract to the Leaseholder shall be recorded in the county records |
|
where the Leased Tract is located promptly after such escrow agent |
|
receives written notice from the Authority or title company or |
|
escrow agent facilitating the Closing of the Leased Tract from the |
|
Authority to Purchaser that such Closing has been completed and the |
|
necessary documents have been recorded pursuant to such Closing. |
|
In no event shall the deed or any other documents transferring the |
|
applicable portion of the Leased Tract to the Leaseholder be |
|
recorded prior to Closing. |
|
(3) Closing shall occur no later than December 31, |
|
2010, for the Initial Leased Tract and not later than two years |
|
after the Date of Decommissioning for the Remaining Leased Tract. |
|
The Authority shall post on its website no later than thirty days |
|
after entering into a Contract for sale with Purchaser the |
|
effective date of such Contract and the anticipated date of |
|
Closing, which date shall be at least six (6) months from the |
|
effective date of the Contract. Any changes to the anticipated date |
|
of Closing shall also be posted on the Authority's website. These |
|
dates shall be used to establish the time periods provided in |
|
Subdivision (2). |
|
(c) Sale to Leaseholders. This subsection shall only apply |
|
to, and be effective for, those portions of the Remaining Leased |
|
Tract (if any) for which Closing has not occurred on or before the |
|
second anniversary of the Date of Decommissioning [December 31,
|
|
2010], pursuant to Subsection (b), in which case the effective date |
|
of this subsection shall be the second anniversary of the Date of |
|
Decommissioning [January 1, 2011]. Upon the effective date of this |
|
subsection, the Authority shall suspend any applicable sale efforts |
|
under Subsection (b) for a period of two years beginning on the |
|
effective date of this subsection and initiate a tract by tract sale |
|
of the Remaining Leased Tract to the then-current Leaseholders as |
|
follows: |
|
(1) For a period of two years beginning on the |
|
effective date of this subsection and in accordance with the |
|
procedures set forth in this subsection, and subject to Subsections |
|
(d), (e), (f), (g), (h), and (i), the Authority shall provide |
|
Leaseholders the opportunity to purchase their individual portion |
|
of the Remaining Leased Tract [Tracts] directly from the Authority. |
|
Leaseholders shall have until the expiration of such two-year |
|
period to submit a completed application of intent to purchase |
|
their individual Remaining Leased Tracts as provided by Subdivision |
|
(4). |
|
(2) The Authority shall determine if, and how, any |
|
Remaining Undeveloped Strips will be divided between adjacent |
|
Leaseholders and incorporated into any individual Remaining Leased |
|
Tract; provided, however, Leaseholders shall not be required to |
|
accept any such Remaining Undeveloped Strips. |
|
(3) On or before the effective date of this |
|
subsection, the Authority shall make available to the Leaseholders |
|
a form for an application of intent to purchase the Leaseholder's |
|
individual Remaining Leased Tract. Such application shall be |
|
deemed a contract subject to the provisions set out herein. The |
|
application of intent shall provide the Leaseholder a 30-day |
|
feasibility period beginning on the date such application is |
|
submitted in which the Leaseholder can determine the feasibility of |
|
purchasing the applicable individual Remaining Leased Tract, |
|
including the ability of such Leaseholder to obtain financing for |
|
such purchase. |
|
(4) A Leaseholder who desires to purchase such |
|
Leaseholder's individual Remaining Leased Tract must submit a |
|
completed application to the Authority on or before the second |
|
anniversary of the effective date of this subsection [December 31,
|
|
2012]. An application will be deemed "complete" upon the |
|
following: |
|
(A) Leaseholder delivers to the Authority an |
|
executed application of intent to purchase with all required |
|
information included in the application; |
|
(B) Leaseholder delivers an earnest money |
|
deposit, in good funds acceptable to the title company or escrow |
|
agent selected by the Authority, in the amount of $1,000 to such |
|
title company or escrow agent, which earnest money shall be |
|
nonrefundable after the expiration of the feasibility period except |
|
in the event closing does not occur due to the fault of the |
|
Authority; |
|
(C) any and all rent and other fees or amounts due |
|
to the Authority pursuant to such Leaseholder's Ground Lease have |
|
been paid and there are no amounts then outstanding which are past |
|
due; |
|
(D) Leaseholder has delivered to the Authority a |
|
survey that is acceptable to the Authority of the applicable |
|
Remaining Leased Tract (and any Remaining Undeveloped Strips being |
|
included in such Remaining Leased Tract). To be acceptable to the |
|
Authority, the survey must: |
|
(i) be acceptable to the title company |
|
selected by the Authority for purposes of issuing any policy of |
|
title insurance on the applicable portion of the Remaining Leased |
|
Tract; |
|
(ii) be prepared by a licensed state land |
|
surveyor or a registered professional land surveyor acceptable to |
|
the Authority; |
|
(iii) include the boundary of the |
|
Leaseholder's Remaining Leased Tract and any Remaining Undeveloped |
|
Strips being conveyed, which boundaries must be consistent with the |
|
master survey of the Remaining Leased Tract prepared on behalf of |
|
the Authority; |
|
(iv) include all improvements on the |
|
Remaining Leased Tract and indicate any encroachments across the |
|
applicable boundary lines, including encroachments onto Authority |
|
Land [or into the FERC Project Area or Buffer Zone]; Leaseholder |
|
must provide evidence that any such encroachments across boundary |
|
lines [or into the FERC Project Area or Buffer Zone] have been cured |
|
by the Leaseholder (either by removal of such encroachment or by |
|
written agreement between the affected parties permitting such |
|
encroachment to continue) prior to the survey being deemed |
|
acceptable; and |
|
(v) be reviewed and approved by the |
|
Authority; the Authority or its representatives or agents may |
|
perform an inspection of the individual Remaining Leased Tract to |
|
verify the accuracy of the survey [Survey] and any encroachments |
|
thereon. |
|
(E) Leaseholder has delivered to the Authority a |
|
title commitment and, if requested by the Authority, any exception |
|
documents referenced therein, prepared by the applicable title |
|
company or escrow agent selected by the Authority; and |
|
(F) Leaseholder has delivered to the Authority |
|
written evidence from Leaseholder's lender or financial |
|
institution that Leaseholder has the financing or funds available, |
|
as applicable, to complete the purchase of Leaseholder's Remaining |
|
Leased Tract. |
|
(5) Completed applications that are timely delivered |
|
will be accepted and processed by the Authority in the order in |
|
which they are received; except that the Authority shall give |
|
preference in processing applications to Leaseholders who receive |
|
an ad valorem tax exemption under Section 11.13, Tax Code, for a |
|
structure on the Leaseholder's Remaining Leased Tract. |
|
(6) An individual Remaining [A] Leased Tract sold |
|
under this subsection shall be sold for 90% of the land only |
|
assessed value without any exemptions, as determined by the |
|
appraisal district, for the year in which the Leaseholder's |
|
application of intent to purchase is submitted to the Authority, or |
|
for the year 2012 [2008], whichever is greater. |
|
(7) The Leaseholder purchasing such Leaseholder's |
|
Remaining Leased Tract is responsible for: |
|
(A) timely paying all rent and other fees or |
|
amounts due to the Authority pursuant to such Leaseholder's Ground |
|
Lease through the date of closing on the Leaseholder's portion of |
|
the Remaining Leased Tract; |
|
(B) obtaining and delivering to the Authority a |
|
survey of the applicable Remaining Leased Tract in accordance with |
|
Subdivision (4)(D) and curing any encroachments shown thereon, all |
|
at Leaseholder's expense; |
|
(C) obtaining and delivering to the Authority, at |
|
such Leaseholder's expense, a title commitment in accordance with |
|
Subdivision (4)(E); the Authority may, but shall have no obligation |
|
to, cure any objections that Leaseholder may have to the |
|
exceptions, covenants, easements, reservations or any other items |
|
reflected on the title commitment; provided, however, that the |
|
Authority shall use good faith efforts to address and/or remove |
|
those requirements or exceptions shown on Schedule C of the title |
|
commitment that are applicable to or created by the Authority, and, |
|
notwithstanding the foregoing, the Authority shall have no |
|
obligation to cure any exceptions on the attached Schedule C |
|
regarding legal right of access to or from the applicable Remaining |
|
Leased Tract; |
|
(D) delivering to the applicable title company or |
|
escrow agent on or before closing on the Leaseholder's Remaining |
|
Leased Tract, in good funds, the purchase price and all reasonable, |
|
normal, customary, and documented costs associated with the |
|
transfer of the individual Remaining Leased Tract to the |
|
Leaseholder including, without limitation, all escrow fees, |
|
recording fees, taxes on the land after the date of such closing, |
|
document preparation fees, the cost of any Title Policy (including |
|
any endorsements thereon) obtained by Leaseholder, and any costs |
|
associated with removing any liens on the applicable Remaining |
|
Leased Tract; and |
|
(E) timely delivering to the escrow agent any |
|
notices, statements, affidavits, or other documents required by the |
|
application, escrow agent, or at law to effectuate the transfer of |
|
the applicable Remaining Leased Tract to the Leaseholder. |
|
(8) For those completed applications of intent to |
|
purchase timely delivered to the Authority under this subsection, |
|
the purchase must be completed no later than the expiration of 30 |
|
months after the effective date of this subsection [June 30, 2013]. |
|
For any individual Remaining Leased Tract [Tracts] for which |
|
closing has not occurred by such date, the application shall be |
|
deemed terminated. The Authority shall not accept any applications |
|
of intent to purchase after the second anniversary of the effective |
|
date of this subsection [December 31, 2012]; and any applications |
|
of intent to purchase that are delivered to the Authority prior to |
|
such date but that are not "complete" as of such date in accordance |
|
with Subdivision (4) shall be rejected by the Authority. |
|
Leaseholders submitting an application of intent to purchase their |
|
individual Remaining Leased Tracts are responsible for ensuring |
|
that such application is deemed "complete" on or before the second |
|
anniversary of the effective date of this subsection [December 31,
|
|
2012]. |
|
(9) Any Ground Lease that would otherwise expire shall |
|
be automatically extended as necessary for one year terms to permit |
|
such Leaseholder the full two-year period to deliver such |
|
application of intent to purchase such Leaseholder's individual |
|
Remaining Leased Tract and to complete such transaction no later |
|
than the expiration of 30 months after the effective date of this |
|
subsection [June 30, 2013]. |
|
(10) The Owner of a Remaining Leased Tract sold under |
|
this subsection shall pay the Authority any reasonable fees set by |
|
the Authority for any services the Owner accepts from the |
|
Authority. However, the Owner of a Remaining Leased Tract is under |
|
no obligation to accept services from the Authority. |
|
(11) Any Remaining Leased Tract subject to the Ranch |
|
Agreement shall only be subject to sale under this subsection if the |
|
Authority is released from its obligations under the Ranch |
|
Agreement relating to such Remaining Leased Tract. |
|
(12) The following laws do not apply to sale of an |
|
individual Remaining Leased Tract under this subsection: |
|
(A) Chapter 272, Local Government Code; |
|
(B) Section 49.226, Water Code; and |
|
(C) Section 8502.013 of this code. |
|
(13) A provision that applies to the Leaseholder of an |
|
individual Remaining [a] Leased Tract under this section applies to |
|
any subsequent Owner of the individual Remaining Leased Tract. |
|
(14) At closing on the individual Remaining Leased |
|
Tract, the Leaseholder shall pay any indebtedness secured by a lien |
|
on the Leaseholder's leasehold estate (including the applicable |
|
portion of the Buffer Zone that is[, whether or not included as] |
|
part of the leasehold estate [Leased Tract pursuant to Subsection
|
|
(e)]) or deliver the express written consent of the Lienholder on |
|
the leasehold estate in the Remaining Leased Tract permitting the |
|
Leaseholder to grant a purchase money lien on the fee simple estate |
|
in the Remaining Leased Tract. |
|
(15) At the closing of the applicable Remaining Leased |
|
Tract, the Authority will deliver a special warranty deed. |
|
(16) For any portion of the Remaining Leased Tract |
|
that has not been sold pursuant to this subsection on or before the |
|
expiration of 30 months after the effective date of this subsection |
|
[June 30, 2013], the Board shall sell any such remaining portion of |
|
the Remaining Leased Tract pursuant to terms and conditions |
|
determined by such Board. |
|
(d) Restrictions on Property [Leased Tract]. The Property |
|
is [Leased Tract (or any portion thereof) sold in accordance with
|
|
Subsection (b) or (c) shall be] subject to the [following] |
|
Restrictions recorded in Palo Pinto, Stephens, Young, and Jack |
|
Counties, as amended from time to time. After the Date of |
|
Decommissioning and before the date the Remaining Leased Tract is |
|
conveyed under Subsection (b) or (c), the Authority, without |
|
requiring the consent of any Owner, shall further amend the |
|
Restrictions and record the Amendments to the Restrictions in the |
|
records of each applicable county, which amendments must (i) add |
|
the Remaining Commercial Leased Land as part of the Commercial |
|
Leased Land in the Restrictions; (ii) add the Remaining Residential |
|
Leased Land as part of the Residential Leased Land in the |
|
Restrictions; (iii) add the Remaining Undeveloped Strips as part of |
|
the Undeveloped Strips in the Restrictions; (iv) add the Remaining |
|
Leased Tract as part of the Leased Tract; and (v) otherwise amend |
|
the Restrictions to be substantively in accordance with the |
|
following[, which shall be included, in substance, in a Declaration
|
|
of Restrictive Covenants, Easements, and Conditions to be prepared
|
|
by the Authority substantively in accordance with the following and
|
|
recorded by the Authority, as declarant, in the applicable county
|
|
records prior to any sale pursuant to Subsection (b) or (c)]: |
|
[(1)
Subject to Subdivision (10), no Owner, Purchaser,
|
|
or Leaseholder may forbid, restrict, or take any action which
|
|
effectively forbids or restricts the public from using the FERC
|
|
Project Area and the adjacent areas of the Lake in accordance with
|
|
the terms of the FERC License.] |
|
(2) Each Owner, Purchaser, and Leaseholder shall agree |
|
to not block, restrict, or otherwise prohibit access over, through, |
|
or across any Road and further agrees that such Roads or portion |
|
thereof shall remain open for use by the Authority, other Owners or |
|
Purchasers, lessees of any portion of the Property (including |
|
Leaseholders) and the general public. Except for (i) those |
|
portions of the Property that are accessible by water only as of the |
|
effective date of the Restrictions, and/or (ii) restrictions of |
|
access existing as of the effective date of the Restrictions (e.g., |
|
access to and from public roads that requires traversing real |
|
property not owned by the Authority, Owners, or Purchasers |
|
hereunder), and/or (iii) the covenants and restrictions of the |
|
Ranch Declarations (to the extent applicable to the Roads) or other |
|
restrictive covenants existing prior to the date the Restrictions |
|
are recorded of record, no Owner, Purchaser, or Leaseholder shall |
|
be permitted to block, restrict, or otherwise prohibit access on, |
|
over, or across the Roads. |
|
(3) The Driveways are not part of the Roads and shall |
|
be maintained by the Owner, Purchaser, or Leaseholder of the |
|
applicable Driveways. No Owner, Purchaser, or Leaseholder shall |
|
obstruct, prevent, or otherwise restrict access on, over or across |
|
any portion of a common Driveway by any such other Owner, Purchaser, |
|
or Leaseholder, or their guests or invitees, whose portion of the |
|
Property is served by such common Driveway. Owners, Purchasers, |
|
and/or Leaseholders whose portion of the Property is served by a |
|
common Driveway shall at all times have a nonexclusive right of |
|
ingress and egress over and across such common Driveway to access |
|
their portion of the Property. |
|
(4) All grants and dedications of easements, |
|
rights-of-way, restrictions, and related rights affecting the |
|
Leased Tract, made prior to the Leased Tract becoming subject to the |
|
Restrictions and any Amendments to the Restrictions that are of |
|
record, or visible or apparent, shall be incorporated into such |
|
Restrictions by reference and made a part of the Restrictions for |
|
all purposes as if fully set forth therein and shall be construed as |
|
being adopted in each and every contract, deed, or conveyance |
|
executed or to be executed by or on behalf of the Authority |
|
conveying any part of the Leased Tract. The foregoing adoption of |
|
such easements includes, without limitation, any and all written |
|
easements or agreements, whether or not recorded, between the |
|
Authority and any other party for the installation, maintenance, |
|
repair, or replacement of utility lines located on, above, over, |
|
under, or beneath the Property. |
|
(5) The Authority shall reserve for itself and its |
|
successors, assigns, and designees the nonexclusive right and |
|
easement, but not the obligation, to enter upon the Property, the |
|
Lake and other bodies of water, if any, located within the Property |
|
(a) to install, keep, maintain, and replace pumps in order to obtain |
|
water for the irrigation of any portion of the Authority Land, (b) |
|
to construct, maintain, replace, and repair any wall, dam, or other |
|
structure retaining water therein, (c) to access, construct, |
|
maintain, replace, and repair any measurement stations, monuments, |
|
or other similar improvements, (d) to remove trash and other |
|
debris, and (e) to fulfill the Authority's obligations as a river |
|
authority and any obligations set forth in [the FERC License,] |
|
state water rights[,] or other governmental regulations. The |
|
Authority and its designees shall have an access easement through, |
|
over, and across any portion of the Leased Tract to the extent |
|
reasonably necessary to exercise the rights and responsibilities |
|
under this subdivision; provided, however, that (i) the Authority |
|
shall provide written notice at least 48 hours in advance of such |
|
entry to the Purchaser or Owner of such portion of the Leased Tract |
|
(except in the event of an emergency, in which case advance notice |
|
shall not be required, but the Authority shall provide such written |
|
notice as soon as practicable thereafter); (ii) the Authority shall |
|
promptly repair any damage to the portion of the Leased Tract caused |
|
by the Authority's entrance onto such Owner's or Purchaser's portion |
|
of the Leased Tract; and (iii) the Authority shall use reasonable |
|
efforts to avoid interfering with the Owner's or Purchaser's use of |
|
the portion of the Leased Tract. |
|
(6) The Authority shall reserve for itself and its |
|
successors, assigns, and designees a perpetual right, power, |
|
privilege, and easement to occasionally overflow, flood, and |
|
submerge that portion of the Property located at or below the |
|
elevation contour of 1015' above mean sea level in connection with |
|
the Authority's operation and maintenance of the Lake. The |
|
Authority shall have no liability to any Owner, Purchaser, |
|
Leaseholder, or any other person for any damages, claims, costs, |
|
injuries, or liabilities to any person or the Property or any |
|
improvements thereon that are caused by or arise from any act or |
|
omission by the Authority in connection with the foregoing right |
|
and easement. |
|
(7) Additional land may be included in the Property or |
|
Leased Tract at any time by the Authority, as long as the Authority |
|
owns any portion of the Property, by recording an amendment to these |
|
Restrictions in each of the counties in which the Property is |
|
located. Upon such additions, the Restrictions shall apply to the |
|
added land and the rights, privileges, duties, and liabilities of |
|
the Owners or Purchasers subject to the Restrictions shall be the |
|
same with respect to the added land as with respect to the Property |
|
originally covered by the Restrictions. As additional lands are |
|
added hereto, the Authority shall, with respect to said land, |
|
record amendments that may incorporate the Restrictions therein by |
|
reference and that may supplement or modify the Restrictions with |
|
such additional covenants, restrictions, and conditions that may be |
|
appropriate for those added lands. |
|
(8) The Restrictions may not be modified in any |
|
respect whatsoever or terminated, in whole or in part, except with |
|
the consent of (i) the Owners or Purchasers of at least sixty |
|
percent (60%) of the individual lots that comprise the Residential |
|
Leased Land and Commercial Leased Land, and (ii) the Owners or |
|
Purchasers of at least sixty percent (60%) of the land area of the |
|
Authority Land, and (iii) the Authority, for so long as the |
|
Authority has any interest in the Property, whether as an Owner or |
|
[holder of the FERC License or] otherwise. Notwithstanding the |
|
foregoing, the Authority, without the joinder of any other party, |
|
shall have the absolute right to make minor changes or amendments to |
|
the Restrictions to correct or clarify errors, omissions, mistakes, |
|
or ambiguities contained therein. No amendment shall be effective |
|
until such amendment has been recorded in the Official Public |
|
Records of each of the counties in which the Property is located. |
|
(9) No improvements (except as specifically set forth |
|
in Subdivision (11)) shall be constructed or located on the Leased |
|
Tract within twenty-five feet (25') landward measured horizontally |
|
from the 1000' contour line of the Lake, a meander line that changes |
|
over time due to natural forces, such as erosion and accretion; |
|
provided, however, this restriction shall not include improvements |
|
inside this setback that are existing at the time the Restrictions |
|
are filed that [(i)] have been approved in writing by the |
|
Authority[, and (ii) if such improvements are located within the
|
|
FERC Project Area, have been approved by the Federal Energy
|
|
Regulatory Commission (and to the extent not already approved by
|
|
the Federal Energy Regulatory Commission, the Authority intends to
|
|
file an application to obtain permission for the existing
|
|
encroachments into the FERC Project Area to remain in place)]. In |
|
addition, no improvements on the Leased Tract (or any portion |
|
thereof) shall be constructed or located within five feet (5') of |
|
any other boundary line (i.e., the side and back boundary lines), |
|
other than fences; provided, however, this restriction shall not |
|
include improvements located within this 5' setback that are |
|
existing at the time the Restrictions are filed and that have been |
|
approved in writing by the Authority. |
|
[(10)
No Owner, Purchaser, or Leaseholder shall have
|
|
any rights to construct any improvements or fencing that block or
|
|
restrict access to the FERC Project Area, except with the written
|
|
consent of the Authority, to be granted or withheld in its sole
|
|
discretion, and except in compliance with the FERC License.
This
|
|
limitation does not apply to fences located within the Leased Tract
|
|
and outside the FERC Project Area.] |
|
(11) Erosion control improvements (such as retaining |
|
walls, rip rap, etc.) and landscape planting may not be constructed |
|
or located [within the FERC Project Area or] at or below the 1000' |
|
contour line without the prior written approval of the Authority. |
|
Such improvements shall be subject to the terms and conditions set |
|
forth in the Restrictions[, in the FERC License, in any other
|
|
Federal Energy Regulatory Commission rules and regulations,] and in |
|
the Authority's regulations, including without limitation, the |
|
Shoreline Management Plan. |
|
(12) No Owner, Purchaser, or Leaseholder shall have |
|
the right to place, or permit to be placed, any advertisements, |
|
private notices, signs, or billboards on the Residential Leased |
|
Land [Tract] except that temporary signage customarily found on |
|
residential property may be placed on the Residential Leased Land |
|
at the reasonable discretion of the Owner, Purchaser, and/or |
|
Leaseholder of that portion of the Residential Leased Land. |
|
(13) No activities shall be conducted on the Leased |
|
Tract and no improvements constructed on the Leased Tract that are |
|
or might be unsafe or hazardous to any person or property. |
|
(14) No Owner, Purchaser, Leaseholder, or occupant of |
|
any portion of the Leased Tract shall use or permit the use, |
|
handling, generation, storage, release, disposal, or |
|
transportation of Hazardous Materials on, about, or under the |
|
Leased Tract except for such quantities that are routinely utilized |
|
in connection with residential use (for all portions of the Leased |
|
Tract except the Commercial Leased Land) or for commercial uses |
|
that are in compliance with the Restrictions (for the Commercial |
|
Leased Land), and that are stored, used, and disposed of in |
|
compliance with all Environmental Laws. Each Owner, Purchaser, and |
|
Leaseholder shall indemnify, defend, protect, and save the |
|
Authority, its successors and assigns, trustees, directors, |
|
employees, and officers and each other Owner, Purchaser, and |
|
Leaseholder, harmless from and against, and shall reimburse such |
|
indemnified parties for, all liabilities, obligations, losses, |
|
claims, damages, fines, penalties, costs, charges, judgments, and |
|
expenses, including, without limitation, reasonable attorneys' |
|
fees and expenses that may be imposed upon or incurred or paid by or |
|
asserted against such indemnified parties by reason of or in |
|
connection with such Owner's, Purchaser's, or Leaseholder's failure |
|
to comply with this subdivision. |
|
(15) No Owner or Purchaser shall conduct, or permit to |
|
be conducted, any activity on the Leased Tract that is improper, |
|
immoral, noxious, annoying, creates a nuisance, or is otherwise |
|
objectionable to other Owners or Purchasers or incompatible with |
|
the recreational use of the Lake and the Authority Land [FERC
|
|
Project Area]. |
|
(16) The Residential Leased Land (and any Undeveloped |
|
Strips that are conveyed to an Owner or Purchaser as part of the |
|
Residential Leased Land pursuant to Subsection (b) or (c)) shall be |
|
improved and used solely for single-family residential use, |
|
inclusive of a garage, fencing, and other such related improvements |
|
as are necessary or customarily incident to normal residential use |
|
and enjoyment and for no other use. No portion of the Residential |
|
Leased Land (and any Undeveloped Strips that are conveyed to an |
|
Owner or Purchaser as part of the Residential Leased Land pursuant |
|
to Subsection (b) or (c)) shall be used for manufacturing, |
|
industrial, business, commercial, institutional, or other |
|
nonresidential purpose, save and except as set forth in Subdivision |
|
(17). Notwithstanding the foregoing, Owners, Purchasers, and/or |
|
Leaseholders shall be permitted to conduct a "garage sale" on their |
|
respective portion of the Residential Leased Land (and any |
|
Undeveloped Strips that are conveyed to an Owner or Purchaser as |
|
part of the Residential Leased Land pursuant to either Subsection |
|
(b) or (c)) not more than one time per calendar year. |
|
(17) No professional, business, or commercial |
|
activity to which the general public is invited shall be conducted |
|
on the Residential Leased Land (and any Undeveloped Strips that are |
|
conveyed to an Owner or Purchaser as part of the Residential Leased |
|
Land pursuant to Subsection (b) or (c)); except an Owner, |
|
Purchaser, Leaseholder, or occupant of a residence may conduct |
|
business activities within a residence so long as: (a) the |
|
existence or operation of the business activity is not apparent or |
|
detectable by sight, sound, or smell from outside the residence; |
|
(b) the business activity conforms to all zoning requirements; (c) |
|
the business activity does not involve door-to-door solicitation of |
|
residents, lessees, Leaseholders, Owners, or Purchasers within the |
|
Property; (d) the business does not generate a level of vehicular or |
|
pedestrian traffic or a number of vehicles parked within the |
|
Property that is noticeably greater than that which is typical of |
|
residences in which no business activity is being conducted; and |
|
(e) the business activity is consistent with the residential |
|
character of the Residential Leased Land and does not constitute a |
|
nuisance, or a hazardous or offensive use, or threaten the security |
|
or safety of other residents, lessees, Owners, Purchasers, or |
|
Leaseholders of the Property. The terms "business" and "trade", as |
|
used in this provision, shall be construed to have their ordinary, |
|
generally accepted meanings and shall include, without limitation, |
|
any occupation, work, or activity undertaken on an ongoing basis |
|
that involves the provision of goods or services to persons other |
|
than the provider's family and for which the provider receives a |
|
fee, compensation, or other form of consideration, regardless of |
|
whether: (x) such activity is engaged in full or part-time; (y) such |
|
activity is intended to or does generate a profit; or (z) a license |
|
is required. Leasing of a residence shall not be considered a |
|
business or trade within the meaning of this subsection. This |
|
subdivision shall not apply to any activity conducted by the |
|
Authority. |
|
(18) Except as may be otherwise provided in the |
|
Restrictions and any Amendments to the Restrictions, Commercial |
|
Leased Land (and any Undeveloped Strips that are conveyed to an |
|
Owner or Purchaser as part of the Commercial Leased Land pursuant to |
|
Subsection (b) or (c)) may be improved and used for any lawful |
|
commercial purpose, including without limitation, nonprofit |
|
organizations or governmental or quasi-governmental agencies. |
|
(19) No portion of the Leased Tract may be used for the |
|
commercial testing or development of wind power, or to produce, |
|
lease, store, and/or transmit electrical power generated thereby |
|
for commercial or resale purposes. |
|
(20) Each Owner or Purchaser shall keep, or cause to be |
|
kept, all improvements located on its respective portion of the |
|
Leased Tract maintained in good condition and repair, clean and |
|
free of rubbish and other hazards, and otherwise in full accordance |
|
with the Restrictions and all governmental rules, regulations, |
|
codes, and zoning requirements. Such maintenance shall include, |
|
but not be limited to, the following: regular and timely removal of |
|
all litter, garbage, trash, and waste; regular lawn mowing; tree, |
|
shrub, and plant pruning and trimming; watering of landscaped |
|
areas; weed control; pest control; maintaining exterior lighting |
|
and mechanical facilities in good working order; keeping walks and |
|
driveways clean and in good repair; and the repairing and |
|
repainting of the exterior improvements visible to neighboring |
|
properties and/or public view. |
|
(21) In the event of any damage to or destruction of |
|
any building or improvement on any portion of the Leased Tract from |
|
any cause whatsoever, the Owner, Purchaser, or Leaseholder upon |
|
whose portion of the Leased Tract the casualty occurred shall, at |
|
such Owner's, Purchaser's, or Leaseholder's sole option, either (i) |
|
repair, restore, or rebuild and complete the same with reasonable |
|
diligence, (ii) clear the affected area of all hazardous or |
|
dangerous debris and structures and lawfully dispose of same within |
|
one year from the date of casualty, or (iii) effectuate any |
|
combination of clauses (i) and (ii) of this subdivision as such |
|
Owner, Purchaser, or Leaseholder may deem reasonably |
|
appropriate. Notwithstanding the foregoing, in the event the |
|
Owner, Purchaser, or Leaseholder elects to rebuild buildings or |
|
improvements that were located within [the FERC Project Area or
|
|
within] twenty-five feet (25') landward measured horizontally from |
|
the 1000' contour line that were approved in accordance with |
|
Subdivision (9), such buildings or improvements shall be rebuilt in |
|
accordance with Subdivision (24). |
|
(22) The Texas Commission on Environmental Quality has |
|
adopted rules governing on-site sewage facilities (also called |
|
septic systems). The Authority is the commission's authorized |
|
agent for the septic system licensing program, including the |
|
enforcement of the commission's septic system rules and regulations |
|
for the Property. The Authority, as the agent for the commission, |
|
shall have the authority to access the Property for the purpose of |
|
issuing such licenses, inspecting such septic systems, and |
|
enforcing any and all rules and regulations related thereto. Each |
|
Owner, Purchaser, and Leaseholder agrees to comply with all |
|
sanitary regulations and the licensing process adopted by the |
|
commission and enforced by the Authority, as its agent, from time to |
|
time. |
|
(23) The Owner or Purchaser shall be responsible, at |
|
such Owner's or Purchaser's expense, for providing for the |
|
collection, removal, and disposal of all solid waste on the Leased |
|
Tract; or the Owner or Purchaser of any portion of the Leased Tract |
|
shall be responsible for ensuring that the Leaseholders provide for |
|
such collection, removal, and disposal of all solid waste on the |
|
applicable portion of the Leased Tract. In the event the Ranch |
|
fails to provide for the collection, removal, and disposal of all |
|
solid waste related to the Ranch, the Owner or Purchaser shall be |
|
responsible for providing for the same. |
|
(24) [(i) An Owner, Purchaser, or Leaseholder, subject
|
|
to approval by the Federal Energy Regulatory Commission, may
|
|
repair, alter, or rebuild improvements located within the FERC
|
|
Project Area, which improvements were previously approved in
|
|
accordance with Subdivision (9); provided, however, such repairs,
|
|
alterations, and/or rebuilding shall not extend beyond the
|
|
footprint of the existing or previously existing improvement.
|
|
[(ii)] An Owner, Purchaser, or Leaseholder |
|
may repair, alter, or rebuild improvements located above the 1000' |
|
contour line [outside the FERC Project Area] but within 25' |
|
landward measured horizontally from the 1000' contour line, and/or |
|
improvements located within the 5' boundary setback, which |
|
improvements were previously approved in accordance with |
|
Subdivision (9). Such repairs, alterations, or rebuilding may |
|
extend such improvements outside the previously existing footprint |
|
towards the side boundaries and back boundary of the applicable |
|
Leased Tract, but such improvements may not be extended towards the |
|
shoreline or encroach closer to the 1000' contour line of the Lake |
|
than the existing or previously existing improvements. |
|
(25) The Authority shall reserve its rights, title, |
|
and interest in all oil, gas, and other minerals in and under any |
|
and all Property, including the Leased Tract. |
|
(26) No land located at or below the 1000' contour line |
|
[within the FERC Project Area] shall be improved, used, or |
|
occupied, except in such manner as shall have been approved by the |
|
Authority [and, to the extent required, by the Federal Energy
|
|
Regulatory Commission]. No docks, piers, on-water facilities, |
|
retaining walls, or any other structures or facilities shall be |
|
built, installed, or maintained in, on, or over the waters of the |
|
Lake [or within the FERC Project Area] except as authorized by the |
|
Authority. All such structures or facilities shall be subject to |
|
all rules and regulations applicable to the Lake [and the FERC
|
|
Project Area], as the same may be adopted or amended from time to |
|
time. Owner, Purchaser, and/or the Leaseholder shall be |
|
responsible for any fees or annual charges assessed by the |
|
Authority [and/or the Federal Energy Regulatory Commission] for |
|
such permit or improvements and shall be responsible for ensuring |
|
that any such improvements are consistent with the [FERC License,] |
|
Shoreline Management Plan[,] and all other rules and regulations |
|
applicable to the Property [FERC Project Area]. Owner or Purchaser |
|
shall not, at any time, permit any liens to encumber the Authority |
|
Land [FERC Project Area]. |
|
(27) No use of the Lake or other bodies of water within |
|
the Property, if any, shall be made except in accordance with the |
|
[FERC License, the] Shoreline Management Plan, the Authority's |
|
regulations, and any other rules and regulations that may be |
|
promulgated by the [Federal Energy Regulatory Commission and/or
|
|
the] Authority at any time and as amended from time to time. Any |
|
such use shall be subject to the Authority's [and the Federal Energy
|
|
Regulatory Commission's] superior use rights. The Authority shall |
|
not be responsible for any loss, damage, or injury to any person or |
|
property arising out of the authorized or unauthorized use of the |
|
Lake or other bodies of water within or adjacent to the Property. |
|
(28) The Authority may use and regulate the Lake or |
|
other bodies of water within the Property for the irrigation of the |
|
Authority Land, or for any other purpose deemed appropriate by the |
|
Authority, subject to the rights and authority of any [the Federal
|
|
Energy Regulatory Commission or] other governmental entity having |
|
jurisdiction of such areas, and subject to the water rights granted |
|
(or which may be granted) to the Authority by the State of |
|
Texas. The Authority's rights under this subdivision shall be |
|
superior to any rights of any Owner, Purchaser, or |
|
Leaseholder. This subdivision shall not be construed to limit or |
|
restrict the rights and authority of any [the Federal Energy
|
|
Regulatory Commission or] other governmental entity having |
|
jurisdiction of the Property. |
|
(29) Owners or Purchasers must obtain written |
|
permission from the Authority in accordance with the Authority's |
|
regulations to use or divert water from the Lake on any portion of |
|
the Leased Tract for domestic or commercial purposes. |
|
(30) No Owner, Purchaser, or Leaseholder shall be |
|
permitted to divert or alter the natural drainage of the terrain or |
|
clear vegetation on any portion of the Property in such a manner |
|
that would cause unnatural erosion or silting of the Lake. |
|
(31) Owners, Purchasers, and Leaseholders shall take |
|
all reasonable precautions to ensure that all use of and activities |
|
on the Leased Tract [and the FERC Project Area], including without |
|
limitation, the construction, operation, and maintenance of any |
|
improvements on the Leased Tract[, and/or FERC Project Area] occur |
|
in a manner that [is in compliance with the FERC License and that] |
|
will protect the scenic, recreational, and environmental values of |
|
the Lake. The Authority[, as a licensee of the Federal Energy
|
|
Regulatory Commission,] has specific approval authority on any |
|
proposed construction that impacts the [FERC Project Area or] |
|
lakebed, and Owner, Purchaser, and Leaseholder shall comply with |
|
the approval process as may be established by the Authority [and/or
|
|
the Federal Energy Regulatory Commission] from time to time. |
|
[(32)
Structures in place within the FERC Project Area
|
|
shall be subject to the FERC License, as the same may be amended
|
|
and/or renewed from time to time.
Any structures erected in the
|
|
FERC Project Area after May 15, 1980 (the date of the amendment to
|
|
the previous FERC License) may be required to be removed at the
|
|
expense of the owner of the improvement, unless such improvements
|
|
are approved in writing by the Authority in accordance with the FERC
|
|
License.
In no event shall this subdivision grant any
|
|
authorization for a violation of any rules or regulations of the
|
|
Authority, the FERC License, or any state, federal, or local law.] |
|
(33) The Owner, Purchaser, and Leaseholder of any |
|
portion of the Property [Leased Tract] shall comply with all of the |
|
following rules and regulations, as applicable: |
|
(A) [the Shoreline Management Plan and any
|
|
amendments or revisions to that document to the extent such
|
|
Shoreline Management Plan applies to the Owner's, Purchaser's,
|
|
and/or Leaseholder's portion of the Leased Tract;
|
|
[(B)
the applicable rules, regulations, and
|
|
order of the Federal Energy Regulatory Commission including,
|
|
without limitation the FERC License;
|
|
[(C)] the Authority's "Regulations for |
|
Governance for Brazos River Authority Lakes and Associated Lands," |
|
as published on the Authority's Internet website and as those |
|
regulations may be amended from time to time; and |
|
(B) [(D)] other rules and regulations adopted by |
|
the Authority regarding conduct on and use of the Lake [or the
|
|
Property]. |
|
(34) By Texas statute, the Authority is empowered to |
|
adopt and has adopted certain regulations governing conduct on and |
|
use of the Property [within the FERC Project Area] and Lake. |
|
Owners, Purchasers, Leaseholders, and persons using the Leased |
|
Tract with such Owners' or Purchasers' consent shall abide by all |
|
such rules and regulations adopted from time to time by the |
|
Authority and any future revisions and amendments thereto. |
|
(35) Owners, Purchasers, and Leaseholders of that |
|
portion of the Leased Tract that is part of the Ranch shall comply |
|
with the terms and conditions of the Ranch Agreement and the |
|
covenants and restrictions set forth in the Ranch Declarations, to |
|
the extent applicable to such portion of the Leased Tract. As to |
|
that portion of the Property that is part of the Ranch, the Ranch |
|
Declarations shall control in the event of any conflict between the |
|
covenants, restrictions, and conditions set forth in the Ranch |
|
Declarations and the Restrictions. Owners, Purchasers, and |
|
Leaseholders of a portion of the Leased Tract that is part of any |
|
other subdivision shall comply with the terms and conditions of the |
|
covenants and restrictions governing the subdivision that apply to |
|
the portion of the Leased Tract. Any portion of the Property that |
|
is part of the subdivision is governed by the restrictions and |
|
covenants governing the subdivision which shall control in the |
|
event of a conflict between the covenants, restrictions, and |
|
conditions governing the subdivision and the Restrictions and |
|
Amendments to the Restrictions. |
|
(36) In order to maintain the quality of the Lake's |
|
water, the stability of the shoreline, and of the environment in the |
|
Lake's vicinity, each Owner, Purchaser, and Leaseholder of all or |
|
any portion of the Leased Tract agrees to: |
|
(A) comply with any local, state, or federal laws |
|
related to water quality or the environment, including laws |
|
governing toxic wastes and hazardous substances; |
|
(B) if the Owner's or Purchaser's private on-site |
|
sewerage facility is not licensed by the Texas Commission on |
|
Environmental Quality (or any successor to such Commission) then |
|
the Owner, Purchaser, or Leaseholder shall connect to and use, at |
|
the Owner's, Purchaser's, or Leaseholder's expense, as applicable, |
|
any wastewater treatment system or service that becomes available |
|
to the Owner's or Purchaser's portion of the Leased Tract, not later |
|
than twelve (12) months after the system or service becomes |
|
available to such portion of the Leased Tract and thereafter |
|
discontinue use of any private on-site sewerage facility; and if, |
|
at any time after a wastewater treatment system or service becomes |
|
available to the Owner's or Purchaser's portion of the Leased Tract, |
|
the Owner's or Purchaser's private on-site sewerage facility |
|
(whether licensed or not) requires either replacement or an |
|
alteration or change in the on-site sewerage facility resulting in |
|
(i) an increase in the volume of permitted flow, (ii) a change in |
|
the nature of permitted influent, (iii) a change from the planning |
|
materials approved by the permitting authority, (iv) a change in |
|
construction, and/or (v) an increase, lengthening, or expansion of |
|
the treatment or disposal system, then such Owner or Purchaser |
|
shall promptly connect to and use, at the Owner's, Purchaser's, or |
|
Leaseholder's expense, as applicable, such wastewater treatment |
|
system or service and thereafter discontinue use of any private |
|
on-site sewerage facility. Notwithstanding the foregoing, in the |
|
event a property owners association or municipality requires the |
|
Owners or Purchasers of the portion of the Leased Tract that is |
|
included in such association or municipality to connect to a |
|
wastewater system or service, then such association or municipality |
|
rules shall control; |
|
(C) obtain written consent of the Authority prior |
|
to diverting or pumping water from the Lake or any body of water |
|
within or adjacent to the Property, constructing or erecting any |
|
embankment or retaining wall, or commencing any dredging activity; |
|
and |
|
(D) pay to the Authority any reasonable fee |
|
related thereto (e.g., water usage, recreational user, dredging, or |
|
retaining wall fees) as may be adopted from time to time by the |
|
Authority. |
|
(37) Each Owner or Purchaser of all or any portion of |
|
the Leased Tract agrees and acknowledges that the water level in the |
|
Lake varies and that the Authority is not responsible for |
|
maintaining the Lake at any certain level or above or below any |
|
certain level. |
|
(38) The Authority is not responsible or liable for |
|
any personal injury or damage to any Owner, Purchaser, Leaseholder, |
|
the Leased Tract, the Property, or any improvements caused by any |
|
increase or decrease in the water level (even if such increase or |
|
decrease is due to modifications of the Morris Sheppard (Possum |
|
Kingdom) Dam or other actions or omissions of the Authority) or |
|
caused by natural flooding. |
|
(39) The Authority shall reserve the right of ingress |
|
and egress for the Authority and any person authorized by the |
|
Authority, including an agent of the Authority or employees, over |
|
and across the Leased Tract and any and all on-water facilities |
|
whether located within the Leased Tract or Authority Land [FERC
|
|
Project Area] for all reasonable purposes of the Authority, |
|
including, without limitation, the construction, maintenance, |
|
repair, and/or replacements of any roads, drainage facilities, and |
|
power, water, wastewater, and other utility mains and lines that |
|
the Authority considers necessary or beneficial and for public |
|
safety, health, and welfare purposes; provided however, that: |
|
(A) the Authority shall provide written notice at |
|
least 48 hours in advance of such entry to the Purchaser or Owner of |
|
such portion of the Leased Tract (except in the event of an |
|
emergency, in which case advance notice shall not be required, but |
|
the Authority shall provide such written notice as soon as |
|
practicable thereafter), which notice shall state with reasonable |
|
specificity the purpose for such entry; |
|
(B) the Authority shall promptly repair any |
|
damage to the portion of the Leased Tract caused by the Authority's |
|
entrance onto such Owner's or Purchaser's portion of the Leased |
|
Tract; and |
|
(C) the Authority shall use reasonable efforts to |
|
avoid interfering with the Owner's or Purchaser's use of the portion |
|
of the Leased Tract. |
|
(40) Each Owner, Purchaser, and Leaseholder shall |
|
comply strictly with the Restrictions, as the same may be amended |
|
from time to time. Failure to comply with the Restrictions shall |
|
constitute a violation of the Restrictions, and shall give rise to a |
|
cause of action to recover sums due for damages or injunctive relief |
|
or both, maintainable by the Authority or other Owners or |
|
Purchaser; provided however, no Owner, Purchaser, Leaseholder, or |
|
other person shall have any right of action against the Authority |
|
arising under the Restrictions. |
|
(41) The Authority shall make no warranty or |
|
representation as to the present or future validity or |
|
enforceability of any such restrictive covenants, terms, or |
|
provisions. Any Owner, Purchaser, or Leaseholder acquiring or |
|
leasing, as applicable, any portion of the Property in reliance on |
|
one or more of the Restrictions shall assume all risks of the |
|
validity and enforceability thereof and, by acquiring such portion |
|
of the Property, agrees to hold the Authority harmless therefrom. |
|
(42) If the Owner, Purchaser, or Leaseholder of any |
|
portion of the Leased Tracts or on-water facilities related thereto |
|
(including retaining walls) shall fail to comply with the |
|
requirements of the Restrictions, then the Authority shall have the |
|
right, but not the obligation, following thirty (30) days prior |
|
written notice to such defaulting person [owner] to enter such |
|
defaulting person's [owner's] portion of the Leased Tract (but only |
|
if such failure to comply results in a public health, safety, or |
|
welfare concern) and/or such defaulting person's [owner's] on-water |
|
facility and cure such breach, the cost of which shall be reimbursed |
|
by such defaulting person [owner] to the Authority upon demand. Any |
|
such unpaid amounts, together with interest thereon (at the rate of |
|
six percent (6%) per annum) and the costs of collection (if any), |
|
shall be charged as a continuing lien against such defaulting |
|
person's [owner's] portion of the Leased Tract, which lien shall be |
|
subordinate to the lien of any third-party deed of trust previously |
|
recorded against such defaulting person's [owner's] portion of the |
|
Leased Tract. |
|
(43) A person shall be deemed to be in default of the |
|
Restrictions only upon the expiration of thirty (30) days (ten (10) |
|
days in the event of failure to pay money) from receipt of written |
|
notice from the Authority or other Owner or Purchaser specifying |
|
the particulars in which such person has failed to perform the |
|
obligations of the Restrictions unless such person, prior to the |
|
expiration of said thirty (30) days (ten (10) days in the event of |
|
failure to pay money), has rectified the particulars specified in |
|
said notice of default. However, such person shall not be deemed to |
|
be in default if such failure (except a failure to pay money) cannot |
|
be rectified within said thirty (30) day period and such person |
|
commences the cure of such default within such thirty (30) day |
|
period and thereafter is continuously using good faith and its best |
|
efforts to rectify the particulars specified in the notice of |
|
default. |
|
(44) The Authority shall have the right, but not the |
|
obligation, to enforce all of the provisions of the Restrictions. |
|
Any Owner or Purchaser shall have the right to enforce all of the |
|
provisions of the Restrictions against any other Owner, Purchaser, |
|
or Leaseholder, but not against the Authority. Such right of |
|
enforcement shall include the right to sue for both damages for, and |
|
injunctive relief against, the breach of any such provision. |
|
Furthermore, the Authority shall have the right, when appropriate |
|
in its sole judgment and discretion, to claim or impose a lien upon |
|
any portion of the Leased Tract, or improvement constructed |
|
thereon, in order to enforce any right or effect compliance with the |
|
Restrictions. |
|
(45) The failure of a person (including the Authority |
|
or any Owner or Purchaser) to insist upon strict performance of any |
|
of the Restrictions shall not be deemed a waiver of any rights or |
|
remedies that said person may have, and shall not be deemed a waiver |
|
of any subsequent breach or default in the performance of any of the |
|
Restrictions by the same or any other person. |
|
(46) The Authority shall not be liable to any Owner, |
|
Purchaser, or Leaseholder, or to any other person for any loss, |
|
damage, or injury arising out of or in any way connected with the |
|
performance or nonperformance of the Authority's rights, |
|
obligations, or privileges under the Restrictions. Without |
|
limiting the foregoing, the Authority shall not be liable to any |
|
Owner, Purchaser, or Leaseholder due to the construction of any |
|
improvements within the Property. |
|
(47) Each of the Restrictions on the Leased Tract |
|
shall be a burden on each portion of the Leased Tract, shall be |
|
appurtenant to and for the benefit of the other portions of the |
|
Property, other portions of the Leased Tract, and each part |
|
thereof, and shall run with the land. |
|
(48) The Restrictions shall inure to the benefit of |
|
and be binding upon the Owners or Purchasers, their heirs, |
|
successors, assigns, and personal representatives, and upon any |
|
person acquiring all or any portion of the Leased Tract, or any |
|
interest therein, whether by operation of law or otherwise. |
|
Notwithstanding the foregoing, if any Owner or Purchaser sells or |
|
transfers all or any portion of such Owner's or Purchaser's interest |
|
in all or any portion of the Leased Tract, such Owner or Purchaser |
|
shall, upon the sale and conveyance of title, be released and |
|
discharged from all of its obligations as Owner or Purchaser in |
|
connection with the property sold by it arising under the |
|
Restrictions after the sale and conveyance of title but shall |
|
remain liable for all obligations arising under the Restrictions |
|
prior to the sale and conveyance of title. The new Owner or |
|
Purchaser of all or any such portion of the Leased Tract, |
|
(including, without limitation, any Owner (or Lienholder) who |
|
acquires its interest by foreclosure, trustee's sale or otherwise) |
|
shall be liable for all obligations arising under the Restrictions |
|
with respect to such portion of the Leased Tract on and/or after the |
|
date of sale and conveyance of title. The Authority may assign, in |
|
whole or in part, any of its privileges, exemptions, rights, and |
|
obligations (if any) under the Restrictions to any other person and |
|
may permit the participation, in whole or in part, by any other |
|
person in any of its privileges, exemptions, rights, and |
|
obligations (if any) hereunder. |
|
(49) Except as provided in this subsection, the term |
|
of the Restrictions shall be for a period of fifty (50) years from |
|
the date such Restrictions are executed by the |
|
Authority. Notwithstanding the foregoing, upon the expiration of |
|
such period, the term of the Restrictions shall automatically renew |
|
for successive periods of five (5) years each unless, at least |
|
ninety (90) days prior to the date of expiration of any period then |
|
in effect, (i) the Owners or Purchasers of at least sixty percent |
|
(60%) of the individual lots that comprise the Residential Leased |
|
Land and the Commercial Leased Land, (ii) the Owners or Purchasers |
|
of at least sixty percent (60%) of the land area of the Authority |
|
Land, and (iii) the Authority, for so long as the Authority has any |
|
interest in the Property, whether as an Owner or [holder of the FERC
|
|
License or] otherwise, duly execute, acknowledge and record in the |
|
office of the recorder of the counties in which the Property is |
|
located a written termination notice, in which event, the |
|
Restrictions shall automatically expire at the end of the period |
|
then in effect. |
|
(50) Any subdivision by an Owner of the Owner's portion |
|
of the Leased Tract is subject to all applicable laws, rules, |
|
regulations, codes, and ordinances, including any applicable |
|
platting requirements, and any rules and restrictions relating to |
|
on-site sewage facilities. |
|
(e) Buffer Zone. Notwithstanding any provision in this |
|
subsection to the contrary, a sale under Subsection (b) or (c) shall |
|
be subject to the following: |
|
(1) The Remaining [If at the time Closing occurs under
|
|
Subsection (b) or if at the time a Leaseholder completes the
|
|
purchase of the applicable Leased Tract from the Authority pursuant
|
|
to Subsection (c), as applicable, the Buffer Zone, or any portion
|
|
thereof, has been removed from the FERC Project Area, the] Leased |
|
Tract being conveyed under Subsection (b) or (c) shall include the |
|
applicable [that] portion of the Buffer Zone [so removed]; |
|
provided, however, the Purchaser and/or Owner, as applicable, shall |
|
grant the Authority access to the Buffer Zone [FERC Project Area] |
|
and Lake to allow the Authority to fulfill its obligations as a |
|
River Authority and any obligations set forth in [the FERC
|
|
License,] state water rights[,] or other governmental regulations. |
|
(2) At [If at] the time of Closing on the Initial |
|
Leased Tract [occurs] under Subsection (b), [or if at the time a
|
|
Leaseholder closes on the purchase of the applicable Leased Tract
|
|
from the Authority pursuant to Subsection (c), as applicable, the
|
|
Buffer Zone, or any portion thereof, has not been removed from the
|
|
FERC Project Area and] a portion of the Initial Leased Tract is |
|
located within the Buffer Zone and is a part of the FERC Project |
|
Area, and therefore the Authority shall provide such Purchaser |
|
and/or Owner, as applicable, a residual interest in that portion of |
|
the Buffer Zone adjacent to the Initial Leased Tract and covered by |
|
the applicable residential Ground Lease, such residual interest to |
|
automatically vest upon satisfaction of one [either] of the |
|
following conditions: |
|
(A) the Federal Energy Regulatory Commission |
|
approves an amendment to the FERC License removing the Buffer Zone |
|
from the boundaries prescribed by the FERC License such that the |
|
Buffer Zone is no longer subject to regulation by the Federal Energy |
|
Regulatory Commission; [or] |
|
(B) the FERC License expires (and is not renewed |
|
or extended) or is otherwise terminated and thus the Buffer Zone is |
|
no longer subject to regulation by the Federal Energy Regulatory |
|
Commission; or |
|
(C) the Date of Decommissioning occurs. |
|
(3) Notwithstanding the foregoing, if such residual |
|
interest has not vested on or before August 31, 2040, then such |
|
residual interest shall be terminated and of no further force and |
|
effect. Upon satisfaction of one [either] of the foregoing |
|
conditions prior to August 31, 2040, this conveyance shall be |
|
automatically effective without necessity of further |
|
documentation. From and after the date such conveyance becomes |
|
effective, the Buffer Zone shall be considered to be a part of the |
|
Initial Leased Tract conveyed under Subsection (b) [or (c)] and the |
|
Purchaser or then current Owner of the applicable Initial Leased |
|
Tract shall be the beneficiary of the residual interest created |
|
herein, but only as to the portion of the Buffer Zone located |
|
adjacent to the Purchaser's or Owner's property and all right, |
|
title, and interest in such adjacent portion of the Buffer Zone as |
|
measured by extending the boundary lines on both sides of the |
|
applicable portion of the Initial Leased Tract in a straight line |
|
across the Buffer Zone to the then current 1000' contour line of the |
|
Lake, or, if such portion cannot reasonably be measured as set forth |
|
above, then as otherwise determined by the Purchaser and approved |
|
by the Authority. Such residual interest shall immediately vest in |
|
the Purchaser or then-current Owner of such adjacent portion of the |
|
Initial Leased Tract without the necessity of any additional |
|
written conveyance. |
|
(4) Until the residual interest in the Buffer Zone |
|
vests in the Purchaser or then-current Owner of the adjacent |
|
portion of the Initial Leased Tract as set forth in Subdivision (3), |
|
[In the event a sale under Subsection (b) or (c) does not include
|
|
the Buffer Zone or any portion thereof, or only includes a residual
|
|
interest in the Buffer Zone or any portion thereof, then] such |
|
Buffer Zone shall remain subject to the terms and conditions of the |
|
residential Ground Lease in effect between the Leaseholder and the |
|
Authority at the time Closing occurs under Subsection (b) [or at the
|
|
time the Leaseholder purchases the applicable Leased Tract under
|
|
Subsection (c)]; provided, however, no rent shall be due the |
|
Authority under such Ground Lease for the Buffer Zone. At such time |
|
as the applicable Ground Lease expires or is otherwise terminated, |
|
the Authority may, subject to approval of the Federal Energy |
|
Regulatory Commission, grant the Purchaser or the then-current |
|
Owner of the adjacent tract (as determined pursuant to the method |
|
set forth in Subdivision (2)(B)), an easement for use of such |
|
portion of the Buffer Zone, which easement shall be subject to the |
|
FERC License. The Authority shall retain ownership of such portion |
|
of the Buffer Zone and exercise control over such portion of the |
|
Buffer Zone consistent with the FERC License and this subsection. |
|
The easement granted to such Owner shall be limited to uses |
|
permitted under the terms of the FERC License and the Authority's |
|
Shoreline Management Plan, and any other Authority rules and |
|
regulations as may be adopted from time to time. |
|
(f) Purchase Price. For purposes of determining the |
|
purchase price and/or lease rate pursuant to the options set forth |
|
in Subsection (b)(1) or the purchase price in Subsection (c), in the |
|
event the appraisal district does not provide an assessed value for |
|
the applicable portion of the Leased Tract for the applicable year, |
|
then the land only assessed value without any exemptions for the |
|
applicable portion of the Leased Tract shall be calculated based on |
|
the assessed value per square foot of comparable lots with similar |
|
physical characteristics in the applicable county or adjoining |
|
counties, as determined by the Authority. |
|
(g) Roads. Authority or Purchaser, whichever is |
|
applicable, shall transfer its interest in the Roads to the |
|
applicable county in which the Roads, or any portion thereof, are |
|
situated as follows: |
|
(1) All Roads located in Stephens County |
|
(approximately three miles of Roads) shall be transferred to |
|
Stephens County on or before December 31, 2011. |
|
(2) All Roads located in Palo Pinto County |
|
(approximately forty-six miles of Roads) shall be transferred to |
|
Palo Pinto County in twenty percent increments of the total mileage |
|
per year for five consecutive years. The first twenty percent |
|
increment shall be transferred on or before December 31, 2011, and |
|
each remaining twenty percent increment shall be transferred on or |
|
before December 31 of each subsequent year, but not before January 1 |
|
of such year unless approved by an order or resolution of the Palo |
|
Pinto County Commissioners Court, with the final twenty percent |
|
increment being transferred on or before December 31, 2015, but not |
|
before January 1, 2015, unless approved by an order or resolution of |
|
the Palo Pinto County Commissioners Court. |
|
(3) Authority or Purchaser, whichever is applicable, |
|
in consultation with the Palo Pinto County Commissioner or |
|
Commissioners who have jurisdiction over the Leased Tract, shall |
|
determine which Roads or portions thereof shall be transferred each |
|
year. |
|
(4) The transfer of any portion of the Roads located |
|
within the FERC Project Area shall be in accordance with the FERC |
|
License and may be in the form of a grant of a right-of-way or |
|
easement, unless otherwise authorized by the Federal Energy |
|
Regulatory Commission. |
|
(5) Beginning on the date of transfer, the Authority |
|
or Purchaser, whichever is applicable, shall no longer have any |
|
obligations regarding such Roads. The Roads shall be transferred |
|
in their "as-is" condition and neither the Authority nor the |
|
Purchaser shall have any obligation to ensure that the Roads, or any |
|
portion thereof, comply with the standards in effect at the time of |
|
transfer in the applicable county for like roads currently |
|
maintained by that county. |
|
(6) Concurrently with the transfer in each year of a |
|
portion of the Roads, the Authority or Purchaser, as applicable, |
|
shall transfer to Palo Pinto County the amount, rounded to the |
|
nearest dollar, computed by multiplying $200,000 by a fraction the |
|
numerator of which is the number of miles of Roads located in and |
|
transferred to Palo Pinto County in that year and the denominator of |
|
which is the total number of miles of Roads located in and |
|
transferred or to be transferred to Palo Pinto County. For every |
|
other county in which a portion of the Roads is located, the |
|
Authority or Purchaser, as applicable, shall transfer an amount |
|
equal to (A) the per mile road payment (as defined below) multiplied |
|
by (B) the number of miles of the Roads located in such county. As |
|
used in this subdivision, "per mile road payment" means the amount, |
|
rounded to the nearest dollar, computed by dividing $200,000 by the |
|
total number of miles of Roads located in and transferred or to be |
|
transferred to Palo Pinto County pursuant to this subsection. |
|
(7) Notwithstanding any provision in this subsection |
|
to the contrary, the Authority or Purchaser, as applicable, shall |
|
retain ownership of any portion of a Road that is inaccessible to |
|
the public. For purposes of this subdivision, a portion of the Road |
|
is considered inaccessible to the public if, as of the effective |
|
date of the Act enacting this section, the public can only access |
|
such portion of the Road by crossing property not owned by the |
|
Authority or Purchaser, as applicable, and not subject to an |
|
easement or other ownership interest that allows the public to |
|
cross such property without restriction. If a retained portion of a |
|
Road subsequently becomes accessible to the public, the Authority |
|
or Purchaser, as applicable, shall transfer such retained portion, |
|
including any interest the Authority or Purchaser has in any |
|
additional Road constructed or acquired by the Authority or |
|
Purchaser in order to make the retained portion of the Road |
|
accessible to the public, to the applicable county in accordance |
|
with the process set forth in this subsection, or in the event such |
|
portion of the Road becomes accessible to the public after December |
|
31, 2015, within one (1) year of such retained portion of the Road |
|
becoming accessible. |
|
(h) Platting. A sale of the Leased Tract under this section |
|
shall not be subject to Chapter 232, Local Government Code, or any |
|
other platting requirement. |
|
(i) Mineral Interests. The Authority shall reserve its |
|
interest in all oil, gas, and other minerals in and under the Leased |
|
Tract (or any portion thereof) sold under this section. |
|
(j) Expiration of Requirement to Sell. The requirement that |
|
the Authority conduct a sale of the Remaining Leased Tract under |
|
Subsection (b) or (c) expires on December 31, 2016, if the FERC |
|
License is not terminated by decommissioning or otherwise. |
|
SECTION 5. Subsection (h), Section 8502.0132, Special |
|
District Local Laws Code, is repealed. |
|
SECTION 6. If the provisions of Section 8502.0132 or |
|
8502.020, Special District Local Laws Code, as amended by this Act, |
|
or Section 8502.0133, Special District Local Laws Code, as added by |
|
this Act, conflict with any other provision of Chapter 8502 of that |
|
code, then the provisions of Section 8502.0132, 8502.0133, or |
|
8502.020, as applicable, prevail. |
|
SECTION 7. This Act takes effect immediately if it receives |
|
a vote of two-thirds of all the members elected to each house, as |
|
provided by Section 39, Article III, Texas Constitution. If this |
|
Act does not receive the vote necessary for immediate effect, this |
|
Act takes effect September 1, 2013. |
|
|
|
|
|
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
I hereby certify that S.B. No. 918 passed the Senate on |
|
March 21, 2013, by the following vote: Yeas 31, Nays 0; and that |
|
the Senate concurred in House amendment on May 23, 2013, by the |
|
following vote: Yeas 31, Nays 0. |
|
|
|
|
______________________________ |
|
Secretary of the Senate |
|
|
I hereby certify that S.B. No. 918 passed the House, with |
|
amendment, on May 20, 2013, by the following vote: Yeas 147, |
|
Nays 0, two present not voting. |
|
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
|
|
|
Approved: |
|
|
|
______________________________ |
|
Date |
|
|
|
|
|
______________________________ |
|
Governor |