Section 3: Inclusion of Pass Privileges in Instruments of Conveyance (for State)
Anchor: #i1000235Procedure
Pass privileges may be included in the deed through insertion of the following provision:
"Grantors, their heirs, or assigns shall have the privilege of passage between their remaining lands on either side of the highway facility through a pass provided in the highway construction. It is agreed and understood that the use and maintenance of the pass shall be subject to such regulations as are determined by the Texas Department of Transportation to be necessary in the interest of public safety and in compliance with approved engineering principles and practice. Said passageway across the highway right of way is more particularly described as follows: (Metes and bounds description. This description must be signed and sealed by an RPLS).”
Where pass privileges are included in the deed, use a Memorandum of Agreement (MOA) outlining the transaction terms. Include the following clause in the Agreement:
"Grantors, their heirs, or assigns shall have the privilege of passage between their remaining lands on either side of the highway facility, such passage being delineated in the attached Exhibit "B. " It is agreed and understood that the use and maintenance of the pass shall be subject to such regulations as are determined by the Texas Department of Transportation to be necessary in the interest of public safety and in compliance with approved engineering principles and practice."
Exhibit "B" will consist of a signed and sealed plat showing the pass and necessary fencing with dimensions sufficiently shown to locate the pass with respect to the grantor's property. Show all dimensions, including the height of the pass structure. When the exact size of the structure has not been determined, it may be necessary to specify minimum dimensions so the agreement will show the intentions of both parties. The structure width may have to be indicated by an approximate distance to provide for refinements to preliminary design requirements.
Show the actual cash consideration paid the property owner in the deed. The consideration shown in the MOA will be in accordance with usual procedures.
If a property owner is required to make cash payment to the state, show the phrase "10 dollars and other good and valuable consideration" in the deed, and make the consideration clause in the MOA generally as follows:
"Total Consideration: The state will construct, or cause to be constructed under its supervision, a structure to provide a pass as delineated in attached Exhibit "B" which shall constitute the full consideration for Grantors conveyance of the above property. Since the cost of construction of such structure exceeds the value of said property, it is agreed and understood that Grantors shall deliver simultaneously with their execution of this agreement a cashier's check payable to the Texas Department of Transportation in the amount of $__ , all with the understanding and upon the condition that the state will construct, or cause to be constructed under its supervision, the aforementioned structure.”