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A BILL TO BE ENTITLED
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AN ACT
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relating to the acquisition of real property by an entity with |
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eminent domain authority. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. LANDOWNER'S BILL OF RIGHTS |
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SECTION 1.01. Subchapter B, Chapter 402, Government Code, |
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is amended by adding Section 402.032 to read as follows: |
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Sec. 402.032. LANDOWNER'S BILL OF RIGHTS. The attorney |
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general shall provide notice by publication to all counties in the |
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State of Texas and shall make available on the attorney general's |
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Internet website a landowner's bill of rights that is written in |
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plain language designated to be easily understood by the average |
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property owner and to read as follows: |
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TEXAS LANDOWNER'S BILL OF RIGHTS |
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The Texas Constitution gives state and local governments and |
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some private entities, such as utility or pipeline entities, the |
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legal authority to acquire private property, or a partial interest |
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in private property, for public use. This authority is called the |
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power of eminent domain. |
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In most instances, the power of eminent domain is used to |
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acquire property to build large infrastructure projects that |
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benefit all Texans, such as highways and roads, power lines, water, |
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oil and other common carrier pipelines, and gas utility pipelines, |
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and flood control projects. The Texas Constitution does not allow |
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an entity to use the power of eminent domain exclusively, for |
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private purposes, such as for real estate development or other |
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economic purposes. Entities authorized by law to exercise the power |
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of eminent domain must do so by following detailed procedures found |
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in Chapter 21 of the Texas Property Code or other Texas law. An |
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entity that wants to acquire your property for public use must |
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compensate you for it. |
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Private property rights are cherished by all Texas |
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landowners, and your rights are protected by the Texas Constitution |
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and the laws that govern the use of the power of eminent domain. If |
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you are approached by a public or private entity interested in |
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acquiring your property or an interest in your property for public |
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use, you should be aware not only of your legal rights, but also of |
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certain practical considerations that will help guide you in your |
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negotiations. |
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YOU HAVE A RIGHT TO ASK QUESTIONS. Who exactly wants the |
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property and what does that entity want to do with it? You have a |
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right to know the identity of the entity that wants to acquire all |
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or part of your property and what the entity plans to do with the |
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property. |
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DO NOT SIGN A DOCUMENT YOU DON'T UNDERSTAND. If you don't |
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understand what is in the document you are being asked to sign, seek |
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advice from a trusted source, such as a family member, a fellow |
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property owner who has dealt with a similar situation, a real estate |
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professional who can help evaluate the property being sought, or an |
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attorney who can help you navigate the eminent domain process, if |
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that becomes necessary. |
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KNOW YOUR LEGAL RIGHTS AND FAMILIARIZE YOURSELF WITH THE |
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PROCESS. An entity cannot acquire an interest in your property |
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without first providing you with a written offer to buy the |
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interest. You can expect to be given the financial basis for the |
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offer. You may also request an in-person, remote or telephonic |
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meeting with the acquiring entity to discuss the project. You |
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should receive the name and contact information of an employee of |
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the acquiring entity so you can ask questions. |
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NEGOTIATE WITH THE ACQUIRING ENTITY. In the vast majority of |
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property acquisitions, the property owner and the acquiring entity |
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come to a voluntary agreement on the amount of compensation to be |
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paid and, if only part of the property is acquired (most often as an |
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easement), on the terms under which the entity may use the property. |
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Keep in mind that an entity taking an easement or other partial |
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interest in the property will want to maintain a good long-term |
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relationship with you, so it is beneficial for both parties to talk |
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about all the concerns and come to a mutual understanding before |
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signing the agreement. |
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WHAT HAPPENS IF YOU CANNOT REACH AN AGREEMENT? In some cases, |
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the property owner and the acquiring entity simply can't come to an |
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agreement on the amount of compensation for the acquisition or the |
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terms of the instrument that grants the acquiring entity the |
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property rights it seeks to acquire. In any such case, a panel of |
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three local landowners (called "special commissioners") will be |
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appointed by a judge to decide how much compensation you are owed |
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for the property interest sought. The hearing is informal and does |
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not require you to have a lawyer or other expert, such as an |
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appraiser, but you are free to have one or both. The panel also |
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determines the amount of compensation for the reduction in value, |
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if any, to your remaining property as a result of the property |
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interest sought. |
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WHAT HAPPENS IF YOU STILL AREN'T SATISFIED? If you don't |
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believe the compensation awarded by the special commissioners is |
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adequate, of if you don't think the acquiring entity has the legal |
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authority to acquire the property, you may request a trial before a |
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judge or a jury of your peers. If you get to this point, it is |
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recommended that you engage a lawyer and probably an expert |
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appraiser to make your case. In a very small number of cases, there |
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may be a question about the acquiring entity's right to use eminent |
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domain in the first place. In that event, a court has to verify the |
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entity's authority to use eminent domain and determine whether the |
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project is for a "public use." If you disagree with the outcome in |
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the trial court, you can appeal the court's decision to a court of |
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appeals. |
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STILL HAVE QUESTIONS ABOUT THE EMINENT DOMAIN PROCESS? The |
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Office of the Attorney General has an Internet website at [insert |
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Internet website address] and a toll-free number [insert telephone |
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number] where you can learn more. |
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SECTION 1.02. Section 402.031, Government Code, is |
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repealed. |
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SECTION 1.03. Not later than January 1, 2022, the office of |
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the attorney general shall make the landowner's bill of rights |
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statement provided by Section 402.032, Government Code, as added by |
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this Act, available on the attorney general's Internet website. |
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ARTICLE 2. OMBUDSMAN OFFICE FOR LANDOWNERS; ELIGIBILITY |
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REQUIREMENTS FOR RIGHT-OF-WAY AGENT CERTIFICATION |
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SECTION 2.01. Subchapter E, Chapter 1101, Occupations Code |
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is amended by adding 1101.207 to read as follows: |
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Sec. 1101.207. OMBUDSMAN OFFICE FOR LANDOWNERS. |
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(a) The commission shall establish an ombudsman office for |
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the purpose of providing information to landowners whose real |
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property may be acquired by a governmental or private entity |
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through the use of the entity's eminent domain authority. The |
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executive director of the commission shall select the ombudsman. |
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(b) The ombudsman shall provide information to and answer |
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questions from landowners described by Subsection (a), through the |
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commission's Internet website and a toll-free telephone number |
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established by the ombudsman, regarding: |
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(1) the landowner's bill of rights prescribed by |
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402.032, Government Code; and |
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(2) the procedures for acquiring real property through |
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the use of eminent domain authority under Chapter 21, Property |
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Code, or other law. |
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(c) Personal information obtained by the office of the |
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ombudsman shall be treated in the same manner as information |
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obtained under Sec. 1101.2051. |
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SECTION 2.02. Section 1101.502(a), Occupations Code, is |
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amended to read as follows: |
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Sec. 1101.502. ELIGIBILITY REQUIREMENTS FOR CERTIFICATE. |
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(a) To be eligible to receive a certificate of registration or a |
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renewal certificate under this subchapter, a person must [be]: |
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(1) be at least 18 years of age; [and] |
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(2) be a citizen of the United States or a lawfully |
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admitted alien; and |
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(3) successfully complete the required courses of |
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study, including qualifying or continuing education requirements, |
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prescribed by this subchapter. |
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SECTION 2.03. Section 1101.508, Occupations Code, is added |
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to read as follows: |
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Sec. 1101.508. PROBATIONARY CERTIFICATE. (a) The |
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commission may issue a probationary certificate. |
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(b) The commission by rule shall adopt reasonable terms for |
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issuing a probationary certificate. |
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SECTION 2.04. Section 1101.509, Occupations Code, is added |
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to read as follows: |
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Sec. 1101.509. QUALIFYING AND CONTINUING EDUCATION |
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REQUIREMENTS. (a) The commission by rule shall approve coursework |
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that an applicant must successfully complete to be eligible for a |
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certification or renewal certification under this subchapter. |
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(b) An applicant for a certification or renewal |
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certification shall submit evidence satisfactory to the commission |
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that the applicant has successfully completed at least 16 classroom |
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hours of coursework every two years approved by the commission in: |
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(1) the law of eminent domain, including the rights of |
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property owners; |
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(2) appropriate standards of professionalism in |
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contacting and conducting negotiations with property owners; and |
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(3) ethical considerations in the performance of |
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right-of-way acquisition services. |
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SECTION 2.05. Section 1101.653, Occupations Code, is |
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amended to read as follows: |
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Sec. 1101.653. GROUNDS FOR SUSPENSION OR REVOCATION OF |
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CERTIFICATE. The commission may suspend or revoke a certificate of |
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registration issued under this chapter if the certificate holder: |
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(1) engages in dishonest dealing, fraud, unlawful |
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discrimination, or a deceptive act; |
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(2) makes a misrepresentation; |
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(3) acts in bad faith; |
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(4) demonstrates untrustworthiness; |
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(5) fails to honor, within a reasonable time, a check |
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issued to the commission after the commission has mailed a request |
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for payment to the certificate holder's last known address |
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according to the commission's records; |
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(6) fails to provide to a party to a transaction a |
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written notice prescribed by the commission that: |
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(A) must be given before the party is obligated |
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to sell, buy, lease, or transfer a right-of-way or easement; and |
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(B) contains: |
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(i) the name of the certificate holder; |
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(ii) the certificate number; |
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(iii) the name of the person the |
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certificate holder represents; |
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(iv) a statement advising the party that |
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the party may seek representation from a lawyer or broker in the |
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transaction; and |
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(v) a statement generally advising the |
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party that the right-of-way or easement may affect the value of the |
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property; |
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(7) directly or indirectly, takes a financial |
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incentive to make an initial offer that the certificate holder |
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knows or should have known is lower than the just and reasonable |
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compensation required under the Texas Constitution; or |
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(7) (8) disregards or violates this chapter or a |
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commission rule relating to certificate holders. |
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SECTION 2.06. Not later than December 1, 2021, the Texas |
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Real Estate Commission shall adopt rules necessary to implement the |
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changes in law made by this Act to Chapters 1101, Occupations Code |
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and establish an ombudsman office for landowners as required by |
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1101.207, Occupations Code, as added by this Act. |
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SECTION 2.07. Chapter 1101, Occupations Code, as amended by |
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this Act, applies only to an original or renewal certificate of |
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registration as an easement or right-of-way agent for which an |
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application was submitted on or after January 1, 2022. An original |
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or renewal certificate of registration as an easement or |
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right-of-way agent for which an application was submitted before |
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January 1, 2022, is governed by the law in effect on the date the |
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application was submitted, and the former law is continued in |
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effect for that purpose. An applicant for an original easement or |
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right of way agent certificate of registration submitted on or |
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after January 1, 2022 will have until January 1, 2024 to complete |
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the educational requirements under Chapter 1101. |
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ARTICLE 3. EXERCISE OF EMINENT DOMAIN AUTHORITY |
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SECTION 3.01. Section 21.0112(a), Property Code, is amended |
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to read as follows: |
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(a) An [Not later than the seventh day before the date a |
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governmental or private entity with eminent domain authority makes |
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a final offer to a property owner to acquire real property, the |
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entity must send by first-class mail or otherwise provide a |
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landowner's bill of rights statement provided by Section 402.031, |
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Government Code, to the last known address of the person in whose |
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name the property is listed on the most recent tax roll of any |
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appropriate taxing unit authorized by law to levy property taxes |
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against the property. In addition to the other requirements of |
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this subsection, an] entity with eminent domain authority shall |
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provide a copy of the landowner's bill of rights statement |
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prescribed by Section 402.032, Government Code, to a landowner at |
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or before the first in-person contact unless the entity expressly |
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states, at that time, it will not seek to file a petition under this |
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chapter before or at the same time as the entity first represents in |
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any manner to the landowner that the entity asserts, intends to |
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assert, or possesses eminent domain authority to acquire the possesses eminent domain authority to acquire the |
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landowner's property for public use |
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subsection, in-person contract does not include contract conducted |
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by telephonic or video-conferencing. |
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SECTION 3.02. Section 21.0113, Property Code, is amended by |
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amending Subsection (b) to read as follows: |
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(b) An entity with eminent domain authority has made a bona |
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fide offer if: |
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(1) an initial offer is made in writing to a property |
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owner that includes: |
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(A) a copy of the landowner's bill of rights |
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statement prescribed by Section 402.032, Government Code, unless |
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the entity has previously provided a copy of the statement to the |
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property owner; |
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(B) an offer of compensation in an amount equal |
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to or greater than one of the following: |
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(i) the market value of the property rights |
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sought to be acquired, based on an appraisal of the property |
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prepared by a certified general appraiser licensed under Chapter |
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1103, Occupations Code; |
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(ii) the estimated price or market value of |
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the property rights sought to be acquired based on data for at least |
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three comparable arm's-length sales of a property; |
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(iii) the estimated price or market value |
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of the property rights sought to be acquired based on a comparative |
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market analysis prepared by a real estate broker licensed under |
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Chapter 1101, Occupations Code, or a certified general appraiser |
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licensed under Chapter 1103, Occupations Code; |
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(iv) the estimated price of the property |
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rights sought to be acquired based on a broker price opinion |
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prepared by a real estate broker licensed under Chapter 1101, |
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Occupations Code; |
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(v) the estimated price or market value of |
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the property rights sought to be acquired based on a market study |
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prepared by a real estate broker licensed under Chapter 1101, |
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Occupations Code, or a certified general appraiser licensed under |
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Chapter 1103, Occupations Code; or |
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(vi) 150 percent of the per acre value for |
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each acre or part of an acre sought to be acquired, based on the |
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total land value for the whole property out of which the property |
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rights are sought to be acquired, as reflected in the most recent |
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tax rolls of the central appraisal district in which the property is |
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located; |
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(C) as applicable, the complete written report, |
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as prepared by the certified appraiser or real estate broker, that |
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forms the basis for the amount of the offer of compensation under |
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Paragraph(B)(i), (iii), or (iv) or a brief written summary that |
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forms the basis for the amount of the offer of compensation under |
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Paragraph(B)(ii), (v), or (vi); |
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(D) an instrument of conveyance in accordance |
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with Section 21.0114, as applicable; and |
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(E) the name and telephone number of a |
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representative of the entity. Representative is defined as: |
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(i) an employee of the entity; |
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(ii) an employee of an affiliate providing |
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services on behalf of the entity; |
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(iii) the legal representative; or |
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(iv) in the case of an entity without |
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employees, an individual designated to represent the day-to-day |
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operations of the entity; |
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(2) the entity satisfies the requirements of |
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Subchapter B-1, as applicable; |
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(3) [(2)] a final offer is made in writing to the |
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property owner; |
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(4) [(3)] the final offer is made on or after the 30th |
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day after the date on which the entity makes a written initial offer |
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to the property owner; |
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(5) [(4)] before making a final offer, the entity |
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obtains a written appraisal report from a certified appraiser of |
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the value of the property rights being acquired and the damages, if |
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any, to any of the property owner's remaining property; |
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(6) [(5)] the final offer is equal to or greater than |
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the amount of the written appraisal report obtained by the entity; |
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(7) [(6)] the following items are included with the |
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final offer or have been previously provided to the owner by the |
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entity: |
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(A) a copy of the written appraisal report; |
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(B) a copy of the deed, easement, or other |
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instrument conveying the property sought to be acquired; and |
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(C) the landowner's bill of rights statement |
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required [prescribed] by Section 21.0112; and |
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(8) [(7)] the entity provides the property owner with |
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at least 14 days to respond to the final offer and the property |
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owner does not agree to the terms of the final offer within that |
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period. |
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SECTION 3.03. Subchapter B, Chapter 21, Property Code, is |
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amended by adding Section 21.0114 to read as follows: |
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Sec. 21.0114. TERMS REQUIRED FOR INSTRUMENT OF CONVEYANCE |
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OF EASEMENT. (a) Except as provided by Subsection (b), an |
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instrument of conveyance of an easement, that does not relate to an |
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oil, natural gas, oil product, or liquidified mineral pipeline, |
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provided to a property owner under Section 21.0113 must include the |
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following terms: |
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(1) the name of the grantor; |
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(2) the name of grantee; |
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(3) a description of the purpose of the easement; |
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(4) a description or illustration of the location of |
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the easement, including a metes and bounds or centerline |
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description, plat, or aerial or other map-based depiction of the |
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location of the easement on the property; |
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(5) a description of the types of improvements that |
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may be placed by the grantee within the easement, including whether |
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the type of improvement would be above or below the existing surface |
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of the land; |
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(6) a provision regarding the grantee's right, if any, |
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to install future improvements within the easement and to |
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reconstruct, remove, replace, or repair any grantee improvements; |
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(7) a provision regarding the grantor's retained |
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rights to use the land, if any; |
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(8) a provision regarding the grantor's right, if any, |
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to actual monetary damages for claims arising from the construction |
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and installation of each improvement to be installed in, on, or |
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under the easement, or a statement that the consideration for the |
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easement includes any monetary damages arising from the |
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construction and installation of each improvement to be installed |
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in, on, or under the easement; |
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(9) a provision regarding the grantor's right after |
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initial construction and installation of each improvement to be |
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installed in, on, or under the easement to actual monetary damages |
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arising from the repair, maintenance, inspection, replacement, |
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operation, or removal of each improvement to be installed in, on, or |
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under the easement or a statement that the consideration for the |
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easement includes any monetary damages arising from the repair, |
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maintenance, inspection, replacement, operation, or removal of |
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each improvement to be installed in, on, or under the easement; |
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(10) a provision regarding: |
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(A) the repair and restoration, to the extent |
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reasonably practicable, of areas used or damaged by the grantee |
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outside the easement area to substantially the same condition as |
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the original condition or better; or |
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(B) the payment of actual monetary damages for |
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areas not restored; and |
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(11) a provision describing the grantee's rights of |
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ingress, egress, entry, and access on, to, over, and across the |
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easement and the grantor's adjoining property. |
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(b) An instrument of conveyance of an easement provided to a |
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property owner under Section 21.0113, that relates to an oil, |
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natural gas, oil product, or liquidified mineral pipeline, must |
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include the following, in substantial form and content: |
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NOTICE OF CONFIDENTIALITY RIGHTS: YOU MAY REMOVE OR STRIKE |
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ANY OR ALL OF YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE |
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NUMBER FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE |
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PUBLIC RECORDS. |
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PERMANENT EASEMENT AGREEMENT |
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This Permanent Easement Agreement (the "Agreement") is by and |
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between [Name in Bold], whose address is |
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[insert Address NO Abbreviations], (hereinafter referred to as |
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"Grantor", whether one or more) and , with offices at |
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, and its successors and assigns (such entity and its |
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successors and assigns are collectively referred to as the |
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"Grantee"). For the consideration of TEN AND NO/100 Dollars |
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($10.00) and other good and valuable consideration, the receipt and |
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sufficiency of which are hereby acknowledged, Grantor does hereby |
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GRANT, BARGAIN, SELL, and CONVEY unto Grantee a perpetual |
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non-exclusive free and unobstructed permanent pipeline easement |
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feet in width [or if it varies, describe], in order to, among |
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other rights described below, construct, operate, and maintain one |
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(1) pipeline [or if permanent pipeline easement is sought for more |
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than one pipeline, specify in the instrument the number of |
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pipelines sought] not to exceed inches in nominal diameter |
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(whether one or more, the "Pipeline") and any appurtenant |
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facilities in, over, through, across, under, and along land owned |
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by the Grantor, said easement being described on the exhibit(s) |
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attached hereto and made part hereof (the "Permanent Pipeline |
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Easement"), and if described on the exhibit(s) attached hereto (i) |
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a permanent exclusive surface site easement as described on the |
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exhibit(s) attached hereto for the purpose of erecting, laying, |
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constructing, maintaining, fencing, operating, repairing, |
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inspecting, replacing, protecting, altering, and removing [specify |
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in the instrument one or more of the following facilities sought to |
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be installed] both above and below the surface, pipelines, pipeline |
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gate valve(s), by-passes, cross-overs, loops, risers, vents, |
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cables, meters, valves, cathodic protection, conduits, |
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launching-receiving equipment/in-line pigging facilities, |
|
alternating current mitigation equipment, electrical supply |
|
facilities, wires and poles, solar power facilities, generators, |
|
treating and dehydration facilities, monitoring cameras, slug |
|
catchers, compressors, pumps, radio and communications equipment |
|
and facilities, measuring equipment and meter runs, and any other |
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appurtenances that may be necessary or desirable in connection |
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therewith (the "Surface Site Easement"), (ii) a temporary or |
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permanent access easement as identified on the exhibit(s) hereto |
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on, over, through, across, and along Grantor's property, as more |
|
particularly described on the exhibit(s) hereto, for ingress and |
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egress by Grantee and its employees, designees, contractors, |
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successors, and assigns, and all those acting by or on behalf of it, |
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for the unobstructed passage of persons, vehicles, equipment, |
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and/or machinery, together with the non-exclusive right to use any |
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existing roadway and/or to construct, protect, inspect, repair, |
|
alter, reconstruct, restore, improve, maintain, and use a road, |
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including ditches, culverts, drains, and such other appurtenant |
|
facilities (the "Access Easement"), and (iii) a perpetual |
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non-exclusive free and unobstructed permanent easement feet |
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in width, for the purpose of erecting, laying, constructing, |
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maintaining, operating, repairing, inspecting, replacing, |
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protecting, altering, and removing power lines, poles and related |
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appurtenances to serve the Pipeline or appurtenances thereto (the |
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"Electric Line Easement"). |
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Grantor does also hereby GRANT, BARGAIN, SELL, and CONVEY |
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unto Grantee temporary workspace and extra/additional temporary |
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workspace, if any, as generally described in the exhibit(s) |
|
attached hereto, in order to construct the Pipeline and any |
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appurtenant facilities in, over, through, across, under, and along |
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the property and to restore the property as required under this |
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Agreement (the "Temporary Construction Easement") (The Permanent |
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Pipeline Easement and Temporary Construction Easement, together |
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with the Surface Site Easement, the Access Easement and the Electic |
|
Line Easement (to the extent described in the exhibit(s) hereto), |
|
are collectively referred to as the "Easements"). The term of the |
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Temporary Construction Easement and Access Easement (if identified |
|
as temporary on the exhibit(s) hereto) shall be for a period to |
|
extend twenty-four (24) months from the date of construction |
|
commencement on Grantor's property. However, if Grantee has |
|
completed its use of the Temporary Construction Easement or Access |
|
Easement (if identified as temporary) prior to the expiration of |
|
said period, then the Temporary Construction Easement and such |
|
Access Easement shall immediately terminate. All rights, duties, |
|
and/or obligations arising by or under this Agreement shall only |
|
apply to the Temporary Construction Easement and Access Easement |
|
(if identified as temporary) while same are in effect. |
|
It is further agreed as follows: |
|
1. Permanent Pipeline Easement. The right to use the |
|
Easements shall belong to the Grantee and its agents, employees, |
|
designees, contractors, guests, invitees, successors, and assigns, |
|
and all those acting by or on behalf of it, or to any of them, for |
|
the purposes of establishing, laying, constructing, |
|
reconstructing, installing, realigning, modifying, replacing, |
|
improving, adding, altering, substituting, operating, maintaining, |
|
accessing, inspecting, patrolling, protecting, repairing, changing |
|
the size of, relocating, and changing the route or routes of the |
|
Pipeline within the Permanent Easement and abandoning in place and |
|
removing at will, in whole or in part, the Pipeline, for the |
|
transportation of [the instrument to specify one or more of the |
|
following] oil, gas, oil products, liquefied minerals (including |
|
without limitation, condensate, whether obtained from oil or gas |
|
wells, ethane, ethylene, propane, butane, isobutene, pentane, |
|
natural gasoline, and other products derived from hydrocarbons), |
|
crude petroleum, hydrocarbon gas liquids, or other mineral |
|
solutions, together with above and below ground appurtenances as |
|
may be necessary or desirable for the operation of the Pipeline |
|
over, across, under, and upon the Permanent Easement. |
|
2. Minimum Burial Depth. At the time of initial |
|
construction, Grantee shall bury the Pipeline to a minimum depth of |
|
thirty-six inches (36") below the surface of the ground and any then |
|
existing drainage ditches, creeks, and roads, provided however at |
|
those locations where rock is encountered, the Pipeline may be |
|
buried at a lesser depth. If the Pipeline crosses a river or other |
|
large drainage feature or is intended to be placed above ground, the |
|
Pipeline can be installed, where permitted by law, along a bridge, |
|
or in above ground pipe racks or upon the surface, as permitted by |
|
law. |
|
3. Ingress and Egress. Grantee shall have the right of |
|
ingress, egress, entry, and access in, to, through, on, over, |
|
under, and across the Easements and where same intersect any public |
|
road or public right-of-way or other easement to which Grantee has |
|
the right to access and along any roads designated by Grantor and |
|
any roads or routes as needed during an emergency, for any and all |
|
purposes necessary and/or incident to the exercise by the Grantee |
|
of the rights granted to it by this Agreement. Grantee shall |
|
promptly repair any damage to Grantor's roads caused by Grantee in |
|
the exercise of any rights granted in as good a condition as existed |
|
prior to use by Grantee. |
|
4. Lateral Support. Grantee shall have the right to select |
|
the exact location of the Pipeline within the Permanent Easement. |
|
Further, Grantee shall have the right to construct, maintain, and |
|
change slopes of cuts and fills to ensure proper lateral and |
|
subjacent support for and drainage for the Pipeline and appurtenant |
|
facilities. |
|
5. Damages. The consideration paid by Grantee in this |
|
Agreement includes the market value of the Easements and including |
|
without limitation any and all (i) damages resulting from the |
|
removal or clearing of any trees, shrubs, and other improvements or |
|
obstructions within the Easements, (ii) damages resulting from |
|
Grantee's digging and trenching operations within the Easements, |
|
(iii) crop damages in connection with any farm lands located within |
|
the Easements, (iv) damages to the remaining property, if any, as a |
|
result of the granting of the Easements and the installation of the |
|
Pipeline, including any diminution in value, if any, (v) damages to |
|
the Easements themselves by reason of the operation, maintenance, |
|
repair, alteration, and/or servicing of the Pipeline after initial |
|
pipeline construction and remediation is completed, and (vi) |
|
damages or claims resulting from the remediation performed by |
|
Grantee on Grantor's lands following initial construction, and |
|
(vii) damages resulting from routine clearing of the permanent |
|
Easements of obstructions and maintaining a line of sight along the |
|
Easements. The initial consideration does not cover any damages |
|
which may accrue from time to time to Grantor's other lands outside |
|
the Easements and Grantee shall pay Grantor for any and all other |
|
such reasonable and actual damages promptly as they may accrue. |
|
6. Fences. Grantee shall have the right to remove any fence |
|
that now crosses or may cross the Easements during initial |
|
construction of the Pipeline or thereafter. Prior to cutting any |
|
fence, however, Grantee shall brace the existing fence to be cut |
|
adequately on both sides of the proposed cut by suitable H-braces to |
|
prevent the remainder of the fence from sagging and shall promptly |
|
install wire gaps or gates in any fence opening created by Grantee. |
|
Each such wire gap or gate is to be reinforced so as to be strong |
|
enough to prevent livestock from passing through same, where |
|
livestock is present. Upon completion of initial construction |
|
operations, each wire gap will be removed and at Grantee's sole |
|
option replaced with (i) fencing of the same or better grade and |
|
condition as existed before Grantee cut and gapped same or (ii) a |
|
permanent gate, which gate shall, to the extent reasonably |
|
practicable, be constructed out of similar or better grade |
|
materials than already used for existing gates on the property. |
|
Each entry and exit gate shall be securely closed and locked, except |
|
when Grantee or its authorized personnel are actually passing |
|
through same, and Grantor and Grantee shall each be entitled to |
|
maintain their own lock in any such gate, such that Grantor and |
|
Grantee shall each have the right of free passage through any such |
|
gates. If Grantee fails to restore any fences or gates disturbed by |
|
Grantee to the same or better grade and condition as existed before |
|
Grantee disturbed same, Grantee shall pay Grantor the reasonable |
|
costs to restore any such fences or gates to the same or better |
|
grade and condition as existed before Grantee disturbed same. |
|
7. Crossing Rights and Surface Limitations. Grantor may use |
|
the Easements for any and all purposes not inconsistent with the |
|
purposes set forth in this Agreement; provided, however, that |
|
Grantor may not use any part of the Easements if such use may |
|
damage, destroy, injure, and/or interfere with Grantee's use of the |
|
Easements for the purposes for which the Easements are being sought |
|
by Grantee. Notwithstanding anything herein to the contrary, |
|
Grantor is not permitted to conduct any of the following activities |
|
on the Easements: (1) construct any temporary or permanent building |
|
or site improvements; (2) drill or operate any well on the |
|
Easements; provided that a well can be directionally drilled under |
|
the Easements subject to the terms for drilling set forth in |
|
Paragraph 9 below; (3) remove soil or change the grade or slope; (4) |
|
impound surface water; or (5) plant trees or landscaping. Grantor |
|
further agrees it may not cause above- or below-ground obstruction |
|
to interfere with the purposes for which this Agreement is being |
|
acquired may be placed, erected, installed, or permitted upon the |
|
Easements without the prior written permission of Grantee. Grantor |
|
and Grantor's heirs, successors, and assigns shall have the right, |
|
after prior written notice to Grantee and review and approval by |
|
Grantee thereof, to construct, reconstruct, and maintain streets, |
|
sidewalks, roads or drives, road ditches, drainage ditches, and |
|
utilities, near perpendicular but in no event at any angle of not |
|
less than forty-five (45) degrees to Grantee's Pipeline over and |
|
across the Permanent Easement, provided that all of Grantee's |
|
required and applicable spacing and crossing guidelines, |
|
including, without limitation, horizontal and vertical separation |
|
limits and other protective requirements, are met by Grantor at |
|
Grantor's cost. In the event the terms of this paragraph are |
|
violated, such violation shall immediately be corrected or |
|
eliminated by Grantor upon receipt of written notice from Grantee |
|
or Grantee shall have the immediate right to correct or eliminate |
|
such violation at the sole risk and expense of Grantor. Grantor |
|
shall promptly reimburse Grantee for any expenses or costs related |
|
thereto. Further, Grantor will not hereafter interfere in any |
|
manner with the purposes for which the Easements are conveyed, and |
|
Grantee shall have the right to remove any improvement, facility, |
|
or structure that interferes with the purposes for which the |
|
Easements are granted or which may endanger or interfere with the |
|
efficiency, safety, or convenient operation and maintenance of the |
|
Pipeline and appurtenant facilities and which is installed by |
|
Grantor subsequent to the date that Grantee acquires possession of |
|
the Easements, without liability for damages and at Grantor's cost. |
|
Grantor agrees that Grantee will not be liable to repair, replace or |
|
be liable for the cost of repair or replacement of any of Grantor's |
|
above or below ground obstructions installed by virtue of this |
|
paragraph as a result of Grantee's use of the Easements. |
|
8. Mowing/Clearing. Grantee has the right, from time to time |
|
without paying any damages to Grantor, to mow the Permanent |
|
Easement and to trim or cut down or eliminate from the Easements |
|
trees or shrubbery, in the sole judgment of Grantee and its |
|
successors and assigns, as may be necessary to install the Pipeline |
|
and thereafter on the Permanent Easement to prevent possible |
|
interference with the operation and maintenance of the Pipeline and |
|
to remove possible hazard thereto. All trees and brush removed |
|
during construction and other debris generated during construction |
|
shall be burned and/or chipped and spread on the Easements or |
|
removed to an appropriate disposal site. The method of disposal |
|
shall be selected by Grantee. |
|
9. Oil and Gas. To the extent of its authority over the |
|
mineral estate, Grantor shall retain all the oil, gas, and other |
|
minerals in, on, and under the Easements; provided, however, that |
|
Grantor, to the extent of its authority over the mineral estate, |
|
shall not be permitted to drill or operate equipment for the |
|
production or development of minerals on the Easements, but it will |
|
be permitted to extract the oil and other minerals from and under |
|
the Easements by directional drilling and other means, provided the |
|
drill bit enters the Easements at a subsurface depth of one hundred |
|
feet (100') or deeper and so long as such activities do not damage, |
|
destroy, injure, and/or interfere with the Grantee's use of the |
|
Easements for the purposes for which the Easements are being sought |
|
by Grantee. |
|
10. Pipeline Installation and Grading. Grantee will, |
|
insofar as reasonably practicable, level, re-grade, and reseed the |
|
ground disturbed by Grantee's use of the Easements and will |
|
maintain the Easements clean of all litter and trash gererated by |
|
Grantee during periods of construction, operation, maintenance, |
|
repair, or removal. All construction debris shall be cleaned up and |
|
removed from Grantor's lands upon completion of installation and |
|
construction of the Pipeline, associated equipment, and |
|
appurtenances thereto. During the initial construction, the |
|
trenching (but not installation by horizontal directional drilling |
|
or underground boring) in areas of Grantor's lands that are |
|
currently being used for growing commercial crops or purposefully |
|
fallowed for a period of time not to exceed the lesser of five years |
|
or the number of consecutive years such land was used for growing |
|
commercial crops prior to being fallow, shall be done in such a |
|
manner so that at least twelve inches (12") of top soil (or the |
|
amount of top soil present if less than twelve inches (12") exists) |
|
will be separated from the balance of the dirt removed in making the |
|
ditch or trench for installation of the Pipeline. In backfilling |
|
after installation of the Pipeline, the topsoil so first removed |
|
and segregated shall be used as cover soil in such a manner so as to |
|
result in it being returned to the top of the ditch as topsoil. |
|
11. Use Limitations. Grantee shall use the Easements solely |
|
for the purposes specified in this Agreement. There shall be no |
|
hunting or fishing on the Easements or any of Grantor's lands by |
|
Grantee or its officers, agents, employees, contractors, invitees, |
|
guests, or representatives at any time. No firearms or fishing |
|
equipment shall be taken on the Easements by Grantee or its |
|
officers, agents, employees, contractors, invitees, guests, or |
|
representatives at any time. |
|
12. Above Ground Appurtenances. Except for facilities |
|
located on the Surface Site Easement and Electric Line Easement(if |
|
identified and included in the exhibit(s) hereto), Grantee shall |
|
not place any above ground appurtenances on the Permanent Pipeline |
|
Easement except for pipeline markers and cathodic protection units, |
|
cathodic test leads, alternating current mitigation equipment, |
|
and/or other cathodic protection appurtenances, necessary to |
|
monitor and control potential corrosion, including, without |
|
limitation, decouplers, pedestals, rectifiers, electric lines, |
|
electrical facilities, electric meters, junction boxes, anodes, |
|
wires, poles, ground beds, fencing, bollards, grounding systems, |
|
and any other appurtenances necessary for cathodic protection or |
|
corrosion control, if necessary for the operation of the Pipeline, |
|
as determined by Grantee in its sole discretion, and except for |
|
[describe other above ground appurtenances, if any, which will be |
|
installed within the Permanent Pipeline Easement]. Grantee shall |
|
use reasonable efforts to place such above ground signage and |
|
cathodic protection facilities at the junction of the Permanent |
|
Pipeline Easement and fence lines, property lines, pipeline |
|
crossings, river or creek crossings, or road crossings, provided |
|
however, Grantee shall have the right to place same at any other |
|
location required by applicable law, regulation, or rule on |
|
Grantor's property. |
|
13. Indemnity. GRANTEE SHALL DEFEND WITH COUNSEL OF |
|
GRANTEE'S CHOICE, INDEMNIFY, PROTECT, AND HOLD HARMLESS GRANTOR, |
|
GRANTOR'S HEIRS, SUCCESSORS, ASSIGNS AND RELATED OR AFFILIATED |
|
ENTITIES (THE "INDEMNIFIED PARTIES"), FROM ANY AND ALL LIENS, |
|
CLAIMS, DEMANDS, COSTS (INCLUDING BUT NOT LIMITED TO REASONABLE |
|
ATTORNEYS' FEES), EXPENSES, DAMAGES, LOSSES, AND CAUSES OF ACTION |
|
FOR DAMAGES ASSERTED BY PERSONS OR ENTITIES UNAFFILIATED WITH THE |
|
INDEMNIFIED PARTIES BECAUSE OF INJURY TO PERSONS (INCLUDING DEATH) |
|
AND INJURY OR DAMAGE TO OR LOSS OF ANY PROPERTY OR IMPROVEMENTS TO |
|
THE EXTENT CAUSED BY GRANTEE'S NEGLIGENCE, GROSS NEGLIGENCE, |
|
WILLFUL MISCONDUCT, OR STRICT LIABILITY. |
|
14. Tenants. Grantor hereby identifies the following as |
|
people or entities having a lease, sublease, or other possessory |
|
interest in Grantor's property: |
|
|
|
|
|
|
|
|
|
(If this paragraph is left blank, then Grantor represents |
|
there are no such persons or entities.) |
|
15. Counterparts. This Agreement may be executed in several |
|
counterparts, each of which shall be an original of this Agreement |
|
but all of which, when delivered and taken together, shall |
|
constitute one and the same Agreement and be binding upon the |
|
parties who executed any counterpart, regardless of whether it is |
|
executed by all parties named herein. |
|
16. Assignability. Grantee shall have the right to assign |
|
this grant in whole or in part, in which event Grantor acknowledges |
|
and agrees that the assignee shall succeed to the rights and |
|
obligations of Grantee to the extent conveyed in such assignment, |
|
and Grantee shall be relieved of obligations with respect to the |
|
assigned interest which accrue after the date of assignment. |
|
17. Integration Clause. This Agreement constitutes the |
|
entire agreement and supersedes any and all prior oral |
|
understandings and agreements, if any, concerning the subject of |
|
this Agreement. Grantor confirms and agrees that Grantor has been |
|
made no promise or agreement by Grantee or any agent of Grantee |
|
(which is not expressed or referenced specifically within this |
|
Agreement) in executing this Agreement, that Grantor is not relying |
|
upon any statement or representation of Grantee or any agent of |
|
Grantee and that Grantor's execution of this Agreement is free and |
|
voluntary. This Agreement may not be modified or amended except on |
|
or after the date hereof except by a writing signed by the party |
|
against whom said modification or amendment is to be enforced and no |
|
party shall be liable or bound to any other party in any manner |
|
except as specifically set forth herein. |
|
18. Disclaimer. NEITHER PARTY HAS RELIED UPON AND HEREBY |
|
EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS, |
|
INFORMATION, OR MATERIALS PROVIDED, SUPPLIED, OR FURNISHED BY THE |
|
OTHER PARTY OR OTHERWISE MADE AVAILABLE BY EITHER PARTY IN THE |
|
PUBLIC DOMAIN OR OTHERWISE (OTHER THAN THOSE MADE IN THIS |
|
AGREEMENT). |
|
TO HAVE AND TO HOLD, subject to all matters of record which |
|
are valid and subsisting and affect Grantor's property burdened by |
|
this Permanent Easement Agreement, the rights, privileges, and |
|
authority hereby granted unto the Grantee and its successors and |
|
assigns, forever, and Grantor does hereby agree to warrant and |
|
defend said Easements unto Grantee and its successors and assigns, |
|
by, through, or under Grantor, but not otherwise. This Agreement |
|
and all of its terms, provisions, and obligations shall be |
|
covenants running with the land affected thereby and shall inure to |
|
the benefit of and be binding upon Grantor and Grantee and their |
|
respective heirs, executors, administrators, successors, and |
|
assigns. |
|
EXECUTED and effective as of the day of 20 . |
|
GRANTOR(S): |
|
By: |
|
ACKNOWLEDGEMENT |
|
STATE OF TEXAS |
|
COUNTY OF |
|
BEFORE ME, the undersigned authority, on this day personally |
|
appeared , known to me to be the person whose name is |
|
subscribed to the foregoing instrument and acknowledged to me that |
|
he/she executed the same for the purposes and consideration therein |
|
expressed. |
|
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of |
|
20 . |
|
|
|
Notary Public in and for the State of Texas |
|
(Print Name of Notary Public Here) |
|
(c) A property owner may negotiate for terms not required |
|
under Subsection (a) for an easement agreement or provided under |
|
Subsection (b) for a pipeline easement agreement. An entity and a |
|
property owner may, at any time: |
|
(1) agree to alter or omit a term required under |
|
Subsection (a) for an easement agreement or provided by Subsection |
|
(b) for a pipeline easement agreement; or |
|
(2) execute an instrument of conveyance that is |
|
different in some or all aspects than the pipeline easement |
|
agreement form provided by Subsection (b). |
|
SECTION 3.04. Section 21.014, Property Code, is amended by |
|
amending Subsection (a) and adding Subsection (d) to read as |
|
follows: |
|
(a) The judge of a court in which a condemnation petition is |
|
filed or to which an eminent domain case is assigned shall, not |
|
later than the 15th calendar day after the date the petition is |
|
filed, appoint three disinterested real property owners who reside |
|
in the county as special commissioners to assess the damages of the |
|
owner of the property being condemned and appoint two disinterested |
|
real property owners who reside in the county as alternate special |
|
commissioners. The judge appointing the special commissioners |
|
shall give preference to persons agreed on by the parties before the |
|
court appoints the special commissioners. The judge shall provide |
|
the names and contact information of the special commissioner and |
|
alternate special commissions to the parties. Each party shall have |
|
seven calendar days after the date of the order appointing the |
|
special commissioners [The judge shall provide each party a |
|
reasonable period] to strike one of the three special commissioners |
|
[appointed by the judge]. If a person fails to serve as a special |
|
commissioner or is struck by a party to the suit in accordance with |
|
this subsection, an alternate special commissioner shall serve as a |
|
replacement for the special commissioner based on the order that |
|
the alternate special commissioners are listed in the initial order |
|
of appointment [, the judge shall appoint a replacement]. |
|
(d) In this section, "disinterested real property owner" |
|
means a real property owner who: |
|
(1) is not related to a party or the representative of |
|
a party by affinity within the second degree or by consanguinity |
|
within the third degree, as determined under Chapter 573, |
|
Government Code; |
|
(2) does not own property that an entity with eminent |
|
domain authority is currently attempting to acquire for public use; |
|
and |
|
(3) is not related by affinity within the second |
|
degree or by consanguinity within the third degree, as determined |
|
under Chapter 573, Government Code, to a person who has owned or |
|
currently owns property described by Subdivision (2). |
|
SECTION 3.05. Section 21.015(a), Property Code, is amended |
|
to read as follows: |
|
(a) The special commissioners in an eminent domain |
|
proceeding shall [promptly] schedule a hearing to occur not earlier |
|
than [for the parties at the earliest practical time but may not |
|
schedule a hearing to assess damages before] the 20th day or later |
|
than the 40th day after the date the special commissioners were |
|
appointed, unless otherwise agreed to by the parties. The special |
|
commissioners shall schedule a hearing for the parties at a place |
|
that is as near as practical to the property being condemned, or at |
|
the county seat of the county in which the proceeding is being held, |
|
or at the request of either party, by video-conferencing. |
|
SECTION 3.06. Section 21.016(d), Property Code, is amended |
|
to read as follows: |
|
(d) Notice may be served[: |
|
[(1)] by delivering a copy of the notice to the party |
|
or to the party's agent or attorney or in any other manner provided |
|
by the Texas Rules of Civil Procedure for service of citation[; |
|
[(2) if the property being condemned belongs to a |
|
deceased's estate or to a minor or other legally disabled person and |
|
the person or estate has a legal representative, by delivering a |
|
copy of the notice to the legal representative; or |
|
[(3) if the property being condemned belongs to a |
|
nonresident of this state and there has been no personal service on |
|
the owner, if the identity or the residence of the property owner is |
|
unknown, or if the property owner avoids service of notice by |
|
hiding, by publication in the same manner as service of citation by |
|
publication in other civil cases in the district courts or county |
|
courts at law]. |
|
SECTION 3.07. Chapter 21, Property Code, is amended by |
|
adding Subchapter B-1 to read as follows: |
|
SUBCHAPTER B-1. IN-PERSON MEETING |
|
Sec. 21.0301. DEFINITION. In this subchapter, "in-person |
|
meeting" includes a meeting conducted by telephonic or video |
|
conferencing at the option of either the entity or landowner. |
|
Sec. 21.0302. APPLICABILITY TO CERTAIN ENTITIES. This |
|
subchapter does not apply to an entity that is required by law to |
|
participate or voluntarily participates in a public meeting or |
|
hearing regarding the exercise of the entity's eminent domain |
|
authority at the Public Utility Commission of Texas or to an entity |
|
that holds a public meeting as part of the entity's regulatory or |
|
condemnation process. |
|
Sec. 21.0303. METHOD OF NOTICE. Notice may be given under |
|
this subchapter by: |
|
(1) mailing the notice to the property owner listed |
|
for the property on the most recent tax roll for a taxing unit with |
|
authority to impose an ad valorem tax on the property, at the |
|
address for the property owner listed on the tax roll; or |
|
(2) any method authorized by Section 21.016(d). |
|
Sec. 21.0304. NOTICE TO PROPERTY OWNER. Before or at the |
|
time an entity with eminent domain authority makes an initial offer |
|
to a property owner to acquire a property interest for a project, |
|
the entity shall provide notice to the property owner of the |
|
property owner's right to request an in-person meeting with the |
|
entity to discuss the project. |
|
Sec. 21.0305. PROPERTY OWNER REQUEST FOR IN-PERSON MEETING. |
|
A property owner who receives notice from an entity under Section |
|
21.0304 may request an in-person meeting with the entity. The |
|
property owner's request must be in writing and received by the |
|
entity not later than the seventh day after the date the property |
|
owner received the notice. |
|
Sec. 21.0306. SCHEDULING OF IN-PERSON MEETING. (a) On |
|
receipt of a request from a property owner under Section 21.0305 the |
|
entity shall propose not fewer than three different meeting times |
|
on three different meeting dates for the in-person meeting. |
|
(b) A meeting time proposed under Subsection (a) may not be |
|
earlier than the seventh day or later than the 30th day after the |
|
date the entity received the property owner's request. |
|
(c) A property owner who wishes to accept a proposed meeting |
|
time under this section must confirm acceptance in writing of the |
|
meeting time not later than the earlier of the: |
|
(1) third day before the proposed meeting time; or |
|
(2) seventh day after the date the property owner |
|
receives proposed meeting times from the entity. |
|
Sec. 21.0307. SATISFACTION OF BONA FIDE OFFER REQUIREMENT |
|
GENERALLY. An entity satisfies the requirements of this subchapter |
|
for purposes of Section 21.0113(b)(2) with respect to a property |
|
owner if the entity: |
|
(1) provides notice to the property owner as required |
|
by Section 21.0304 and the property owner does not timely request an |
|
in-person meeting under Section 21.0305; |
|
(2) proposes meeting times to the property owner as |
|
required by Section 21.0306 and the property owner: |
|
(A) does not timely confirm the property owner's |
|
preferred meeting time under that section; or |
|
(B) rejects the proposed meeting times; or |
|
(3) schedules a meeting with a property owner as |
|
required under Section 21.0306, whether or not the property owner |
|
participates in the meeting. |
|
Sec. 21.0308. SATISFACTION OF BONA FIDE OFFER REQUIREMENT: |
|
VOLUNTARY MEETING. Notwithstanding any other provision of this |
|
subchapter, an entity satisfies the requirements of this subchapter |
|
for purposes of Section 21.0113(b)(2) with respect to a property |
|
owner if: |
|
(1) the entity voluntarily initiates an in-person |
|
meeting with the property owner or with a group of affected property |
|
owners; |
|
(2) provides notice of the meeting to the property |
|
owner at least 14 days before the meeting; and |
|
(3) the meeting is held before a final offer is made to |
|
the property owner. |
|
Sec. 21.0309. EFFECT OF IN-PERSON MEETING ON TIMING OF |
|
FINAL OFFER. Notwithstanding any other provision of this |
|
subchapter, an entity that participates in an in-person meeting |
|
with a property owner may not make a final offer to the property |
|
owner earlier than the third day after the date of the in-person |
|
meeting unless the property owner agrees to an earlier date. |
|
SECTION 3.08. (a) Sections 21.0112 and 21.0113, Property |
|
Code, as amended by this Act, and Section 21.0114 and Subchapter |
|
B-1, Chapter 21, Property Code, as added by this Act, apply only to |
|
the acquisition of real property in connection with an initial |
|
offer made on or after the effective date of this Act. An |
|
acquisition of real property in connection with an initial offer |
|
made before the effective date of this Act is governed by the law |
|
applicable to the acquisition immediately before that date, and |
|
that law is continued in effect for that purpose. |
|
(b) Sections 21.014, 21.015, and 21.016, Property Code, as |
|
amended by this Act, apply only to a condemnation proceeding |
|
commenced on or after the effective date of this Act. A condemnation |
|
proceeding commenced before the effective date of this Act is |
|
governed by the law applicable to the condemnation proceeding |
|
immediately before the effective date of this Act, and that law is |
|
continued in effect for that purpose. |
|
ARTICLE 4. EFFECTIVE DATE |
|
SECTION 4.01. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect January 1, 2022. |
|
(b) Sections 1.03 and 2.30 of this Act take effect September |
|
1, 2021. |