(a) Eligibility. A facility eligible for a TOD sign panel is a winery or other business or non-profit entity including a farm, ranch or other tourist activity that meets the following requirements:      
        (1) General criteria. An eligible facility must:                  (A) derive a major portion of its income or visitors during the normal business season from highway users not residing within 50 miles from the facility;                   (B) provide a tourist-oriented service or tourist-oriented product of significant interest to the traveling public;                   (C) comply with all state and federal laws relating to:                      (i) provision of public accommodation without regard to race, religion, color, age, sex, or national origin; and                       (ii) licensing and approval of service facilities; and                     (D) be located within five driving miles from the eligible highway;                   (E) provide modern restroom facilities and drinking water;                   (F) be clean and in good repair; and                   (G) be in compliance with provisions regarding illegal signs as defined in the Highway Beautification Act of 1965 (23 USC 131).         
        (2) Specific requirements. In addition to the general requirements, an eligible facility must meet the following specific requirements for at least one of the following categories of TOD sign panels.                  (A) Wineries. To be eligible for a TOD sign panel a winery must:                      (i) produce wine on the premises;                       (ii) conduct regularly scheduled public tours of the grounds or facilities or provide such tours upon walk-up request;                       (iii) market the product on the premises as a retail sale;                       (iv) have a wine tasting area on the premises; and                       (v) have a winery permit issued by the State of Texas.                     (B) Agritourism.                      (i) To be eligible for a TOD sign panel an agritourism applicant must:                          (I) sow, cultivate, or produce an agricultural product on site;                           (II) devote a minimum of five acres of land to the production of an agricultural product;                           (III) conduct regularly scheduled public tours of the grounds or facilities or provides such tours upon walk-up request;                           (IV) market the product on the premises as a retail sale; and                           (V)  be open twelve months a year or during the normal seasonal period.                         (ii) Examples of eligible agritourism businesses include, but are not limited to, farms, ranches, herb farms, wildflower farms, and farmers markets.                     (C) Other commercial tourist-oriented businesses or entities.                      (i) To be eligible for a TOD sign panel, an eligible commercial tourist-oriented applicant must:                          (I) provide a unique or unusual commercial or non-profit service or product of significant interest to the tourist community;                           (II) offer services of interest to tourists upon walk-up request, such as retail sales, tours, overnight accommodations, or use of on-site services or facilities;                           (III) be open for business at least five days a week, and one of the five days must be Saturday or Sunday; and                           (IV) be a tourist destination or an accommodation that is not part of a franchise or national chain.                         (ii) Examples of eligible commercial tourist-oriented businesses include, but are not limited to, art/craft centers, art galleries, auction houses, amphitheaters, amusement parks, antique businesses, aquariums, arboretums, arenas, auditoriums, bed and breakfasts, boat landings/marinas, civic centers, concert halls, equestrian centers, fairgrounds, golf courses, museums, natural attractions, pavilions, stadiums, water oriented businesses, and wildlife preserves.           
        (3) Ineligible facilities. Facilities excluded from participation in the TOD sign program include, but are not limited to, adult entertainment facilities, animal shelters, cemeteries, convenience stores, funeral homes, gas stations, industrial parks or plants, media facilities, local jails, local police or sheriffs' offices, movie theaters, office parks, radio stations, television stations, truck terminals, post offices, medical facilities, retirement homes, veterans facilities, veterinary facilities, mobile home parks, and residential or commercial subdivisions.       
        (4) Final determination of eligibility. The department will make all final determinations regarding an applicant's eligibility to participate in the TOD sign program.       
      (b) Application.      
        (1) Applications for eligible facilities desiring to participate in the TOD sign program are available upon request from the department.       
        (2) An eligible facility desiring to participate in the TOD sign program must submit an application to the contractor and verify that all eligibility requirements are met. Applications must be submitted to the location stated on the application form. The contractor will verify the eligibility of each applicant.       
        (3) Applications will be reviewed by the contractor and applicants will be notified in writing of the application being approved or disapproved according to the following schedule.                  (A) Within 30 days the contractor will notify the business that:                      (i) the application has been received; and                       (ii) that the application is complete, or that additional information is required to complete the application.                     (B) The contractor will approve or disapprove the application:                      (i) within 60 days after the business submits the application if no additional information is required; or                       (ii) within 30 days after the date the business submits all of the additional information requested by the contractor under subparagraph (A) of this paragraph.           
      (c) Specifications for TOD sign assemblies and sign panels.      
        (1) Sign assembly. A TOD sign assembly shall:                  (A) have a blue background with a white reflective border;                   (B) meet all applicable provisions of the MUTCD;                   (C) have background material which conforms with department specifications for reflective sheeting; and                   (D) be fabricated, erected, and maintained in conformance with department specifications and fabrication details.         
        (2) Order of priority. TOD sign panels will be assigned to eligible facilities in the following priority: wineries, agritourism, and other commercial tourist-oriented businesses.       
        (3) Content. A TOD sign panel will contain no more than the following items as space limitations will allow:                  (A) a maximum of two lines of text describing the name of the eligible facility;                   (B) a directional arrow indicating the direction of and distance to the eligible facility; or                   (C) a symbol or icon depicting the type of eligible facility as designed and approved by the department.         
        (4) Panel limitations. Each TOD sign assembly may have no more than three TOD sign panels.       
        (5) Placement. Subject to approval by the department, a TOD sign assembly shall be installed or placed:                  (A) only on TOD eligible highways as defined in this subchapter;                   (B) to take advantage of natural terrain;                   (C) to have the least impact on the scenic environment;                   (D) to avoid visual conflict with other signs within the highway right-of-way;                   (E) with a lateral offset equal to or greater than existing guide signs;                   (F)  in advance of the intersection or business entrance on the TOD eligible highway;                   (G) at least 200 feet from any other traffic control devices; and                   (H) so that it does not block motorists' visibility of existing traffic control and guide signs.         
        (6) Maximum number of TOD sign assemblies. The maximum number of TOD sign assemblies will be limited to three per intersection approach subject to the placement requirements contained in this subchapter.       
        (7) Existing signs. Existing regulatory, warning, destination, guide, recreation, and cultural interest signs will not be removed; provided, however, that subject to the written approval of the department, such existing signs may be relocated by special permission of the department at the sole expense and responsibility of the contractor and only to the extent necessary to accommodate TOD signs.       
      (d) TOD trailblazer signs.      
        (1) At each turn required to be made by the traveling public from a TOD sign to the participating facility, a TOD trailblazer sign shall be in place directing the turn.       
        (2) Any costs associated with installation and maintenance of trailblazer signs is the responsibility of the participating facility and is not part of the TOD contract between the department and contractor.       
        (3) No TOD sign will be installed until all necessary trailblazer signs have been installed by the participating facility.       
        (4) When trailblazer signs are required to be installed off the state highway system, it will be the participating facility's responsibility to contact the private property owner or appropriate local jurisdiction for approval to install these signs.       
        (5) If at any time the department determines that trailblazer signing off the state highway system is not adequate to direct the motorist, the participating facility shall be notified. If action is not taken by the participating facility to correct this problem within 60 days, the TOD sign panel on the state highway system shall be removed or covered at the discretion of the department.       
      (e) TOD sign panel order. Order of placement of TOD sign panels will be determined by the department so as to maximize the number of participating businesses.     
      (f) Removal of TOD sign panel.      
        (1) A TOD sign panel of an eligible facility shall be removed by the contractor if the facility:                  (A) ceases to exist;                   (B) fails to pay the annual rental fee or other fees within 30 calendar days of the due date as specified in the agreement;                   (C) does not meet the minimum requirements as stated in subsection (a) of this section, and all corrections are not made within 30 calendar days of written notification;                   (D) is sold, and the new eligible facility does not continue the original tourist-oriented activity or service, or does not meet the minimum requirements for a TODS eligible facility; or                   (E) relocates and is no longer eligible for participation in the program.         
        (2) If the TOD sign panel is removed due to the default of the eligible facility to perform within the terms of the participation agreement and this subchapter, the participation agreement is terminated between the eligible facility and the contractor. All funds paid to the contractor by the eligible facility are forfeited. Upon removal of a TOD sign panel, the vacated space becomes available pursuant to the procedures contained in this subchapter.       
        (3) If the TOD sign panel is removed permanently due to actions of the department, the participation agreement is terminated between the eligible facility and the contractor. Advance funds paid to the contractor by the eligible facility will be pro-rated as per the date of removal, and any remaining amounts refunded to the commercial establishment.       
      (g) Seasonal facilities. Seasonal facilities may participate in the TOD sign program provided they meet the general eligibility criteria for participation in the program.     
      (h) Existing winery signs prior to 2005. Notwithstanding the requirements of this subsection, a winery that had a sign maintained by the department prior to enactment of the TODS Program in 2005 is eligible to participate in the TOD sign program.     
      (i) Variances. Variances may not be requested for any eligibility requirements for TOD sign panels as described in this section.     
      (j) Allocation process for excess demand. The contractor will hold a public drawing to assign TOD sign panel spaces when there are more eligible facilities wishing to participate in the program than TOD panel spaces available at a given location.      
        (1) To be eligible for the selection process for the available TOD space(s), an eligible facility must have submitted a qualified application before the TOD sign program application deadline.       
        (2) The application deadline for the initial installation for a new or existing TOD sign assembly drawing will be set at a date specified by the contractor and approved by the department.       
        (3) Qualified applications received after the deadline will be placed on file and considered eligible for future drawings.       
        (4) Selection.                  (A) Available TOD sign panel space(s) on the specific TOD sign assembly will be awarded by drawing of the qualified applications received before the application deadline.                   (B) Spaces will be awarded based on the following priority: wineries, agritourism and other commercial tourist-oriented businesses.                   (C) The drawing will be held publicly by the contractor at a date specified by the contractor and approved by the department in the presence of two or more department employees. When additional TOD sign panel spaces become available, additional drawings will be held as needed at a date specified by the contractor and approved by the department.                   (D) The contractor shall notify applicants of the award of the TOD sign panel space within 10 calendar days of the date of the award. To accept the award, the applicant must execute a written participation agreement with the contractor within 30 calendar days of the date of the award. The participation agreement shall be in a form as prescribed by the department and shall, at a minimum, contain all applicable provisions prescribed in this subchapter.         
     Source Note:        The provisions of this §25.408 adopted to be effective November 17, 2005, 30 TexReg 7497; amended to be effective June 19, 2008, 33 TexReg 4685; amended to be effective January 7, 2015, 40 TexReg 102