| (a) An agreement under this subchapter must be in writing, must be executed by the executive director, and must contain the terms specified in this section. The agreement is subject to approval by the Federal Highway Administration. (b) The department may not execute an agreement that would impair or relinquish the state's right to use the property for a right of way purpose when the property is needed to construct or improve the roadway for which it was acquired. (c) If the proposed project does not obtain the required governmental approvals or permits, the department will cancel the lease. (d) The agreement must contain: (1) the term of the lease, the amount of rent and required deposits, if any, and the method of payment; (2) a detailed description of the right of way to be leased, including a three-dimensional description if needed; (3) the general design for the use of the leased right of way, including any improvements to be constructed, all maps, plans, or sketches necessary to set out the pertinent features in relation to any highway facility, and a description of any temporary improvements to be provided by the lessee; (4) a performance bond and payment bond, as provided under Transportation Code, §202.053; (5) a removal bond in an amount equal to the anticipated future cost of removing any improvements, as well as the restoration and mitigation of the right of way to a suitable and safe condition, based on a removal, restoration, and mitigation plan approved by the department; (6) appropriate terms relating to indemnity, liability, insurance, and risk of loss; and (7) any other provisions considered necessary or desirable by the department. (e) The agreement must provide that the selected proposer is responsible for: (1) preparation of any environmental review documents required under federal law or Chapter 2 of this title (relating to Environmental Policy); (2) preparation of applications and obtaining any environmental permits or other approvals by third parties or governmental entities; (3) funding all planning, design, testing, construction, operation, or maintenance of the lessee's proposed activities, with acknowledgement of the lessee's right to mortgage or otherwise pledge or grant a security interest in the leasehold to secure financing for the acquisition of the leasehold and for the construction and operation of an improvement permitted under the lease; (4) making any changes to existing highway facilities at its sole expense for the proper operation and maintenance of the facilities if the department determines that the proposed use of the leased right of way requires changes or additions; (5) acquiring additional real property rights located outside of the department's holdings that are necessary to conduct the proposed activities; and (6) all utility adjustments and relocations required for its proposed activities. |
