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TITLE 43TRANSPORTATION
PART 1TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 21RIGHT OF WAY
SUBCHAPTER RLEASING OF RIGHT OF WAY TO SALTWATER PIPELINE OPERATORS
RULE §21.965Lease Agreement

(a) A lease under this subchapter must be in writing, be executed by the director, and contain the terms specified in this section.

(b) The department may not execute a lease that would impair or relinquish the state's right to use the property when needed to construct or improve the highway facility for which it was acquired.

(c) If the proposed saltwater pipeline facility operator does not obtain all required governmental approvals or permits throughout the term of lease, the department will terminate the lease.

(d) The lease must contain:

  (1) information necessary for the department to contact the lessee;

  (2) the amount of rent, any required deposits, the term of the lease and the method of payment of rental amounts;

  (3) a detailed description of the premises, including engineering plans of the proposed as-built saltwater pipeline facility;

  (4) a description of the authorized use of the premises;

  (5) a statement that any significant revision in the design of the saltwater pipeline facility is subject to prior written approval by the district administrator;

  (6) a statement that the department has the right to approve all construction and plans for construction on the premises;

  (7) permission for the employees and authorized representatives of the department to enter the premises for the inspection, maintenance, or reconstruction of highway facilities or for determining compliance with the terms of the lease;

  (8) a requirement that lessee maintain, at its sole expense, the saltwater pipeline facility located within the premises in good condition, both as to safety and appearance, and a representation that the required maintenance of the saltwater pipeline facility will not interfere with the highway facilities or the highway use;

  (9) a statement that if the district administrator determines that the lessee has failed in its maintenance obligation, the department has the right to enter the premises to perform, at the expense and liability of the lessee, the work required for compliance;

  (10) a statement that on breach of the lease by lessee, lessee:

    (A) forfeits any deposits under the lease;

    (B) shall pay the department for all expenses incurred by the department due to lessee's failure to comply with the terms of the lease, including all of its litigation costs;

  (11) a requirement that the lessee provide a security bond not to exceed six months rental under the lease, as provided under Transportation Code, §202.053;

  (12) a requirement that lessee provide a removal bond in an amount equal to the anticipated future cost of removing any saltwater pipeline facilities and appurtenances, as well as the restoration and mitigation of the right of way to a suitable and safe, pre-lease condition, based on a removal, restoration, and mitigation plan approved by the department;

  (13) a requirement that the lessee provide, and maintain at all times during the term of the lease, at lessee's sole expense, adequate public liability insurance for the premises, the conduct of lessee's business, and lessee's indemnification obligations to the department set forth in the lease, naming the department as an additional insured and including other endorsements as determined to be necessary by the department, in an amount and form acceptable to the department for the payment of any damage occurring to the right of way, the highway facilities and appurtenances and for the payment to the public for personal injury, loss of life, or property damage that may occur;

  (14) a statement that the lease may be terminated as provided by §21.967 of this subchapter (relating to Termination of Lease);

  (15) a statement that neither the lease nor the premises shall be transferred, assigned, or conveyed to another party without prior written approval of the district administrator;

  (16) a statement that the lessee shall keep the lease and any improvements on the premises free of all liens and may not use the lease or such an improvement as security for any loan, except that the department may allow the lessee to mortgage or otherwise pledge or grant a security interest in the leasehold interest to secure financing for the acquisition of the leasehold or for the construction and operation of the saltwater pipeline facility permitted under the lease, subject to the terms of the lease;

  (17) a statement that the lessee is responsible for compliance with all federal, state, and local environmental laws and regulations, including obtaining any required permits or approvals by third parties or governmental entities;

  (18) a statement that the lessee assumes all risks of loss resulting from the lease and indemnifies the department for any claims and losses related to the lease;

  (19) a description of applicable nondiscrimination requirements;

  (20) a requirement that the lessee promptly restore the highway facilities and any associated facilities in the right of way to their former condition of usefulness after the installation or maintenance of the saltwater pipeline facility is complete; and

  (21) any other provisions that the department considers desirable.


Source Note: The provisions of this §21.965 adopted to be effective October 12, 2014, 39 TexReg 7946

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