A lease for highway right-of-way as authorized by the commission must be by written agreement executed by the lessee and the deputy director. The lease shall be in the form prescribed by the deputy director and shall include, as a minimum but not necessarily be limited to, the following provisions as determined by the deputy director to be applicable:

1. (1) information necessary to contact the party responsible for developing and operating the leased right-of-way;
2. (2) the amount of the lease rent, any required deposits, the time period of the lease, and the method of payment of the rental amounts or deposits;
3. (3) a statement of the authorized use of the leased right-of-way;
4. (4) a statement that any change in the authorized usage of the leased right-of-way is subject to prior written approval by the department;
5. (5) a detailed description of the right-of-way to be leased which may be three-dimensional where vertical limits are needed;
6. (6) the general design for the usage of the leased right-of-way, including any improvements to be constructed, and such maps, plans, or sketches as are necessary to set out the pertinent features in relation to the highway right-of-way and a description of any temporary improvements to be provided by the lessee;
7. (7) a statement than any significant revision in the design of the improvements described in paragraph (4) of §21.605 of this title (relating to General Requirements) is subject to prior written approval by the department;
8. (8) a statement that the department shall have the right to approve all construction and plans for construction on the leased right-of-way;
9. (9) permitting the employees of and any representative authorized by the department to enter the leased right-of-way for the purpose of inspection, maintenance, or reconstruction of highway facilities when and as necessary, or to determine compliance with the terms and conditions of the lease;
10. (10) a statement that any improvements to occupy the leased right-of-way will be maintained so as to assure that any structures in the area within the highway right-of-way will be kept in good condition, both as to safety and appearance, and that such maintenance will be accomplished in a manner so as to cause no unreasonable interference with highway use;
11. (11) a statement that in the event that the deputy director determines that the responsible party has failed in its maintenance obligation, the department may have the right to enter the right-of-way to perform such work, all at the expense and liability of the lessee;
12. (12) forfeiture of deposits, payment to the department of litigation costs, or any other expense incurred by the department due to nonperformance of the terms of the lease agreements;
13. (13) performance bond when considered necessary by the department;
14. (14) adequate insurance naming the department as a coinsured by the lessee or responsible party in an amount and form acceptable to the department for the payment of any damages which may occur during the time period of the lease and to save the state harmless, except that the deputy director may waive such requirement when the lease is with a county, city, state agency, or the federal government and when such entity is assigned the specific responsibility for payment of any related damages occurring to the highway facility and to the public for personal injury, loss of life, or property damage;
15. (15) a statement that the lease may be terminated when, in the sole opinion of the commission, the leased area and facilities cease to be used or are abandoned;
16. (16) the lease to be terminated by the commission when, in the sole opinion of the commission, there is noncompliance with the terms of the lease or the conditions are violated and such noncompliance or violation is not corrected within a reasonable length of time determined by the deputy director after written notice of noncompliance or violation has been given. In the event the lease is terminated and the commission deems it necessary to request the removal of temporary improvements occupying the premises, the removal shall be accomplished by the responsible party in a manner prescribed by the deputy director and at no cost to the department;
17. (17) a statement that the lease and leased premises shall not be transferred, assigned, or conveyed to another party without prior written approval by the department;
18. (18) requiring the lease or any improvements on the leased right-of-way to be kept free of all liens or not to be used as security for any loan;
19. (19) a statement that the lessee assumes all risks of losses resulting from the lease;
20. (20) description of nondiscrimination requirements;
21. (21) any other provisions which are deemed necessary by the deputy director.

Source Note:The provisions of this §21.604 adopted to be effective October 19, 1988, 13 TexReg 5005.