By: Estes S.B. No. 918
(In the Senate - Filed February 27, 2013; March 5, 2013,
read first time and referred to Committee on Agriculture, Rural
Affairs, and Homeland Security; March 13, 2013, reported
adversely, with favorable Committee Substitute by the following
vote: Yeas 5, Nays 0; March 13, 2013, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 918 By: Estes
A BILL TO BE ENTITLED
AN ACT
relating to the sale by the Brazos River Authority and regulation of
certain real property in the immediate vicinity of Possum Kingdom
Lake.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 8502, Special District Local Laws Code,
is amended by adding Section 8502.0133 to read as follows:
Sec. 8502.0133. SALE OF AUTHORITY PROPERTY ON AND
ASSOCIATED WITH COSTELLO ISLAND. (a) In this section:
(1) "Boat landing" means a 0.841 acre tract of land,
more or less, located above the 1000' contour line as defined in
Subdivision (8), described in authority records as Tract Costello
Island, situated in the A. J. Smith Survey, Abstract 393, Palo Pinto
County, Texas, and being a part of a tract of land purchased by the
Brazos River Conservation and Reclamation District from Mrs. Hugh
C. Thomas, as recorded in Volume 182, Page 142, Deed Records of Palo
Pinto County. The boat landing is located wholly within the FERC
Project Area.
(2) "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.
(3) "Costello Island" means a 260 acre tract of land,
more or less, located above the 1000' contour line as defined in
Subdivision (8), described in authority records as Tract Costello
Island, situated in the J.W. Bunton Survey, Abstract 52, Palo Pinto
County, Texas, and being a part of that parcel that is located
wholly within the boundary of the lake, and being a part of a tract
of land acquired by the Brazos River Conservation and Reclamation
District from E.P. Costello by Court Judgment dated July 21, 1943.
The portions of Costello Island owned by the authority are located
wholly within the FERC Project Area.
(4) "Costello Island Property" means Costello Island
and the boat landing, but does not include any portion of Costello
Island owned in fee simple by a person other than the authority.
(5) "Fair market value" means the price that the
Costello Island Property would bring in an arms-length transaction
when offered for sale by one who wishes, but is not obliged, to sell
and when bought by one who is under no necessity of buying it. This
value shall be determined as if the Costello Island Property were
not subject to the FERC License, were not located within the FERC
Project Area, were not subject to any lease agreement, were
available for immediate possession and use, and could be used for
any reasonable purpose, subject only to the restrictions in
Subsection (e).
(6) "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.
(7) "FERC Project Area" means that portion of
authority land that is subject to the FERC License before the date
of decommissioning, as the land is 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.
(8) "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.
(9) "Offeree" means the individuals or corporation,
other than the authority, owning a portion of Costello Island in fee
simple.
(b) After the date of decommissioning, the authority shall
offer for sale to the offeree the Costello Island Property. The
sale shall be:
(1) for not less than the fair market value as
determined under Subsection (c); and
(2) contingent upon the termination of any leases
encumbering all or any portion of the Costello Island Property at
the time of sale.
(c)(1) The fair market value of the Costello Island Property
shall be determined as described in this subsection.
(2) Not later than 45 days after the date the authority
receives the offeree's completed application of intent to purchase
and an acceptable survey as provided by Subsection (d)(1), the
authority shall provide the offeree with an appraisal of the fair
market value of the Costello Island Property. The authority may use
an existing appraisal if it is dated not more than one year before
the date the authority receives the application of intent to
purchase. The authority's appraiser must be certified under
Chapter 1103, Occupations Code. Not later than the 15th day after
the date the offeree receives the first appraisal, the offeree
shall notify the authority in writing as to whether the offeree
agrees with or disputes the fair market value provided in the first
appraisal. If the offeree does not dispute the fair market value as
determined by the first appraisal before the expiration of the
15-day period, the first appraisal is final and binding on all
parties and establishes the fair market value for the Costello
Island Property.
(3) If the offeree disputes the fair market value
determined by the first appraisal, the offeree may withdraw its
application to purchase the Costello Island Property or may employ
a disinterested appraiser certified under Chapter 1103,
Occupations Code, to conduct a second appraisal of the fair market
value of the Costello Island Property. The second appraisal must be
completed and sent to the authority not later than the 45th day
after the date the offeree notifies the authority that the offeree
disputes the first appraisal. If the authority does not receive the
second appraisal before the expiration of the 45-day period, the
offeree's application of intent to purchase will be deemed
withdrawn.
(4) Not later than the 15th day after the date of
receiving the second appraisal, the authority shall notify the
offeree in writing as to whether the authority agrees with or
disputes the fair market value determined by the second appraisal.
If the authority does not dispute the fair market value as
determined by the second appraisal before the expiration of the
15-day period, the second appraisal is final and binding on all
parties and establishes the purchase price for the Costello Island
Property. If the authority timely disputes the fair market value
determined by the second appraisal, the two appraisers, or their
designated agents, shall meet and attempt to reach an agreement on
the fair market value of the Costello Island Property. The meeting
shall occur not later than the 30th day after the date the authority
notifies the offeree that the authority disputes the second
appraisal.
(5) If the two appraisers reach an agreement on the
fair market value, they shall issue a report, not later than the
20th day after the date of their meeting, relating the agreed fair
market value to the authority and to the offeree, and this agreed
fair market value shall be final and binding on all parties and
establishes the purchase price. If the two appraisers fail to reach
an agreement on or before the 20th day after the date of the
meeting, then, not later than the 30th day after the date of the
meeting, the two appraisers shall appoint a disinterested third
appraiser certified under Chapter 1103, Occupations Code, to
reconcile the two previous appraisals in a third appraisal. The
third appraisal must be completed on or before the 30th day after
the date of the third appraiser's appointment, and the fair market
value determined by the third appraisal is final and binding on all
parties and establishes the purchase price; provided, however, that
the final purchase price may not be more than the fair market value
determined by the first appraisal or less than the fair market value
determined by the second appraisal.
(6) The appraisal costs shall be paid by the person who
requests the appraisal, except that the offeree and the authority
shall each pay one-half of the cost of the third appraisal if a
third appraisal is necessary. If the offeree fails to pay its share
of the third appraisal, the offeree's application of intent to
purchase will be deemed withdrawn.
(7) The timelines for the appraisal process under this
subsection may be extended upon joint agreement of the authority
and the offeree.
(d) To purchase the Costello Island Property, the offeree
must:
(1) provide to the authority a survey of the Costello
Island Property that is:
(A) prepared by a licensed state land surveyor or
a registered professional land surveyor;
(B) dated not earlier than one year before the
effective date of the Act enacting this section; and
(C) acceptable to the authority and any title
company providing title insurance for the offeree; and
(2) pay all closing costs associated with the sale of
the property.
(e) For any property sold under this section:
(1) the authority shall provide a special warranty
deed that encompasses and includes all interests in the Costello
Island Property held by the authority, subject only to:
(A) the restrictions, covenants, and
prohibitions contained in the deed of conveyance under which the
authority originally acquired title to the property, including
without limitation any releases of the authority for the
inundation, overflowing, or flooding of the lake;
(B) the restrictions, covenants, and
prohibitions described in Section 8502.020(d);
(C) all encumbrances and other matters filed of
record in the public records of the county in which the property is
located;
(D) any other matters or conditions that are
apparent on the ground or that would be reasonably disclosed or
discovered by an inspection of the property; and
(E) any other rules, regulations, or policies of
the authority in effect as of January 1, 2013, prohibiting or
limiting commercial, private, or other on-water facilities for new
development, and as such rules, regulations, or policies may be
amended, modified, or discontinued from time to time; and
(2) the offeree shall release and agree to hold the
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 2. 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 3. If the provisions of Section 8502.0133, Special
District Local Laws Code, as added by this Act, or Section 8502.020,
Special District Local Laws Code, as amended by this Act, conflict
with any other provision of Chapter 8502 of that code, then the
provisions of Section 8502.0133 or 8502.020, as applicable,
prevail, notwithstanding all such conflicting provisions.
SECTION 4. 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.
* * * * *