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MANUAL 500-2

SECTION 02.1

TRANSACTION ANALYSIS PROCESS

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BUREAU OF MANAGEMENT ANALYSIS AND PROJECTS

1. Purpose

The purpose of this procedure is to outline the review and approval process for a proposed use or disposal of real property that is under the jurisdiction of the New York State Thruway Authority (Authority). The purpose of the review and approval process is to determine: (a) whether the property is needed for Authority purposes; (b) the most appropriate transaction for the use or disposal of the property (that is, permit, lease or sale); (c) the conditions that affect the proposed use or disposal; and (d) if a competitive process is required for the transaction.

2. Applicable Law and/or Guidance

New York State Public Authorities Law, Article 2, Title 9, and Article 9, Title 5-A

New York State Finance Law §139-j, §139-k

New York State Public Authorities Accountability Act of 2005

21 NYCRR §106 Leasing of Facilities

Thruway Real Property Management Policy (25-6-02)

Executive Instruction entitled Code Of Ethics

Executive Instruction entitled Inappropriate Lobbying Influence In Authority/Corporation Procurements

Executive Instruction entitled Issuing A Work Permit For Preliminary Planning Purposes In Advance Of A Contemplated Occupancy Permit Or Disposal Of Real Property

3. Introduction

The Authority is responsible for the financing, construction, reconstruction, improvement, development, maintenance and operation of the highway system known as the Thruway. In accordance with the provisions of Article 2, Title 9 of the Public Authorities Law, the Authority has the power to (a) acquire and hold real property necessary for its corporate purposes and (b) dispose of real property not necessary for its corporate purposes or whenever the Authority Board shall determine that it is in the interest of the Authority and thus, the interest of the State.

Prior to carrying out a transaction, an analysis shall be conducted to determine whether the property is needed for Authority purposes, the best type of transaction to allow use or dispose of the property, and if a competitive process is required. The THRUWAY TRANSACTION ANALYSIS/RECOMMENDATION (TTAR) (TA-N5116)⁺ will be used to document this analysis and approval process and will be included in the Transaction Record. The process will also determine if a survey map or plot plan and/or an appraisal is required.

Note: Work permits are issued by Divisions and do not require completion of the TTAR. However, a detailed analysis should be conducted to insure that a work permit is the appropriate transaction for the requested activity. For processing an inquiry for a work permit, see the WORK PERMITS (500-2-02.6).

Work permits shall not be issued in advance of a contemplated occupancy permit or disposal, unless approved by the Executive Director, except in those situations when preliminary planning work such as site inspections, surveys, environmental testings soil borings, etc. is necessary for preparation of materials to be submitted as part of the application package for an occupancy permit or disposal. In all other instances, when a work permit is requested in advance of a contemplated occupancy permit or disposal, the Division Permit Coordinator (DPC) should consult with the Office of Real Property Management (ORPM) prior to taking any action.

Work permits may be issued for requests from governmental entities to occupy Authority right-of-way on a short term basis, for transportation related projects. Such requests would include, but not be limited to, the use of Authority real property for storage, access and construction staging areas.

4. Procedure

4.1. Authority Initiated Disposals

The Authority may dispose of (e.g., by lease, sale, easement) certain real property for its corporate purposes. These are either properties (i) not presently required for Authority purposes but held for future use in carrying out its corporate purposes, (ii) not necessary for its corporate purposes, or (iii) which the Authority Board has determined that their disposal is in the interest of the Authority. The DPC/designee completes a TTAR to determine if the property is needed for Authority purposes and a review of the proposed use and a determination of the transaction will be completed as described in this procedure starting in Section 4.3.

4.2. Authority Real Property Inquiries

4.2.1. Any Division employee who receives an inquiry regarding the issuance of permits or the disposal of real property under the jurisdiction of the Authority shall provide the information to the DPC/designee for review. The DPC/designee reviews the information and, as necessary, discusses the inquiry with the employee and/or the inquirer.

4.2.2. Based upon the nature of the inquiry and the information provided, the DPC/designee, in consultation with the Division real estate staff or other appropriate personnel, sends the appropriate application package to the person/entity who has made the inquiry. In general, the following application forms will be sent:

· A WORK PERMIT APPLICATION (TA-W41338)¹ for inquiries regarding construction, maintenance, inspection, survey, or other type of work or short term activity on real property under the jurisdiction of the Authority.

· An OCCUPANCY PERMIT APPLICATION (TA-W41337)² for inquiries regarding the temporary use of real property under the jurisdiction of the Authority.

· A THRUWAY REAL PROPERTY APPLICATION (TA-4415)³ for inquiries regarding sale, lease, easements, or other transfers of interest in real property.

DPC/designee refers to the appropriate SOP for what is required in a complete application package, including supporting documentation, appraisal and survey deposits (disposals only), State Environmental Quality Review Act (SEQRA) requirements, etc., and processes the application in accordance with that SOP.

4.2.3. When the completed application, application fee, survey/appraisal deposit (disposals only) and supporting documentation are received, a Real Property Reference Number/Occupancy Permit Number is assigned as follows:

· For Occupancy Permits, the Occupancy Permit Number is generated by PERMITS Plus when the application is entered into that database.

· For Real Property Disposals, the DPC/designee assigns the Real Property Reference Number which is eight (8) characters, beginning with a letter for the Division (A-Albany, B-Buffalo, N-New York, S-Syracuse), followed by a T (for Thruway), then the 2 digit year (10 - for 2010) and finally a 4 digit sequential number (Example: The first number assigned in 2010 by the Albany Division would be AT100001).

4.2.3.1. The Real Property Reference Number/Occupancy Permit Number is recorded on the TTAR and should be included on all subsequent correspondence associated with the transaction.

4.2.4. A Transaction Record must be created for each transaction and must contain a complete record of all documentation associated with a transaction. Transaction Records for both disposals and occupancy permits are created and kept in ORPM.

4.2.5. The DPC/designee completes a TTAR to determine if the property is needed for Authority purposes.

4.3. Providing Real Property Information

The DPC/designee considers all factors listed in Section II (Real Property Information) of the TTAR (and any other salient factors) in relation to the property. The DPC/designee provides information/descriptive explanations/concerns regarding each factor considered. For guidance in completing Section II of the TTAR, please see TTAR SECTION II - CONSIDERATION FACTORS⁺.

4.4. Review of Proposed Use

The DPC/designee then determines, in consultation with the Division real estate staff, if the property is needed for Authority purposes and whether there are conditions that affect the proposed use by considering the factors in Section III (Analysis) of the TTAR.

4.4.1. The first threshold question (number 1 on the TTAR) is whether the real property is needed for existing or future Authority purposes or whether the proposed use will interfere with maintenance and operations.

4.4.1.1. If the real property is not needed for Authority purposes and does not interfere with the maintenance and operation of the Thruway, the DPC/designee checks the “No” box and continues with 4.4.2.

4.4.1.2. If the real property is needed for Authority purposes but a permit or transfer of a partial interest (e.g., lease) is an option, then the DPC/designee checks the “Yes” box on question 1, provides an explanation in the Comments/Rationale field and continues with 4.4.2.

4.4.1.3. If the real property is needed for Authority purposes and there are no alternative options for use, the DPC/designee checks the “Yes” box on question 1, provides an explanation in the Comments/Rationale field, completes Section IV of the TTAR, checking the “Application Rejected” box, then sends to the Division Director (DD) for review. The DD reviews, signs and dates the TTAR, sends the TTAR, along with the application and all supporting documentation (collectively the “TTAR Package”) to ORPM and keeps a copy for the Division file. ORPM then sends a REJECTION LETTER⁺ notifying the applicant that the real property is needed for Authority purposes, and if applicable, coordinates with Accounts Receivable the return of the survey/appraisal deposit.

· If the application was for a disposal, ORPM places the original TTAR Package and a copy of the letter in the Transaction Record and sends copies of the TTAR and letter to the DPC for the Division file. Procedure stops here.

· For an Authority initiated disposal, ORPM places the original TTAR Package and a note in the Transaction Record and sends copies of the TTAR and note to the DPC for the Division file. Procedure stops here.

· If the application was for an occupancy permit, ORPM places the original TTAR Package and a copy of the letter in the Transaction Record and sends copies of the TTAR and letter to the DPC for the Division file. DPC/designee updates the PERMITS Plus file status. Procedure stops here.

4.4.2. The DPC/designee then considers the remaining factors listed in Section III (Analysis) of the TTAR to determine if there are conditions that affect the proposed use of the property.

4.4.2.1. If there are no conditions that affect the proposed use of the property, the process continues with 4.5.

4.4.2.2. If it is determined that the proposed use is not permissible based on site conditions and these cannot be mitigated, the DPC/designee completes Section IV of the TTAR, checking the “Application Rejected” box, then sends it to the DD for review. The DD reviews, signs and dates the TTAR, sends the TTAR Package to ORPM and keeps a copy for the Division file. ORPM sends a REJECTION LETTER⁺ notifying the applicant that the proposed use is not permissible and if applicable, coordinates with Accounts Receivable the return of the survey/appraisal deposit.

4.5. Determining the Best Real Property Transaction

4.5.1. Once all factors have been considered, the DPC/designee makes a recommendation for the best transaction to allow use or dispose of the property. Transactions may include an occupancy permit or disposals (e.g., leases, sales). To provide guidance in determining which transaction type should be recommended, please see CRITERIA FOR RECOMMENDING THE BEST TRANSACTION TYPE FOR THE PROPOSED USE OR DISPOSAL OF REAL PROPERTY⁺.

4.5.2. The DPC/designee then recommends the transaction to be used by checking the appropriate boxes in Section IV of the TTAR then sends it to the DD for review. The DD reviews, signs and dates Section IV of the TTAR, and distributes the TTAR Package based on the recommended action as follows:

4.5.2.1. For recommended occupancy permits - sends to ORPM for review and approval and keeps a copy for the Division file. The process continues with 4.6.

4.5.2.2. For recommended disposals - sends to the Chief Engineer (CE) for review and concurrence and keeps a copy for the Division file. The process continues with 4.7.

Note: TTAR Packages should include, but not be limited to, the following supporting documentation:

· A location map that includes: (a) an aerial photograph overlaid with the applicable tax map and identifies the requested parcel; (b) identification of any landmarks such bridges and labeled nearby roads; (c) identification of the adjacent owner(s).

4.6. Occupancy Permit Review/Approval

4.6.1. ORPM reviews the TTAR Package and contacts the DD with any questions/concerns regarding the recommended action. ORPM either approves or disapproves the issuance of the permit and signs/dates Section VI.B of the TTAR.

4.6.1.1. If disapproved, ORPM sends a REJECTION LETTER¹ notifying the applicant and places the original TTAR Package and copy of the letter in the Transaction Record and sends copies of the TTAR and letter to the DPC for the Division file. Procedure stops here.

4.6.1.2. If approved, ORPM refers to CRITERIA FOR DETERMINING SURVEY AND APPRAISAL PROCUREMENT² and indicates whether a survey map or plot plan and/or an appraisal is required.

4.6.2. ORPM places the original TTAR Package in the Transaction Record, sends a copy of the TTAR to the DPC for the Division file and sends a copy of the TTAR to the Contracting Officer (CO) for informational purposes only. CO approval is not required for permits. Upon receipt of the approved TTAR, the DPC/designee follows the OCCUPANCY PERMITS (500-2-02.5) to progress the transaction.

4.7. Disposal Review/Approval

4.7.1. The CE reviews the TTAR Package and ensures that the real property is not needed for Authority purposes. The CE either concurs with/or does not concur with the recommended disposal, checks the appropriate box, signs and dates Section V of the TTAR and sends the TTAR package to ORPM.

4.7.2. ORPM reviews the TTAR Package and contacts the DD with any questions/concerns regarding the recommended actions. ORPM either concurs with or does not concur with the recommended disposal or recommends an alternate disposal, and provides any comments regarding the recommended actions.

4.7.2.1. If not concurring, sends TTAR Package to the CO. The process continues with 4.7.6.

4.7.2.2. If concurring, ORPM refers to CRITERIA FOR DETERMINING SURVEY AND APPRAISAL PROCUREMENT¹ and indicates whether a survey map or plot plan and/or an appraisal is required.

4.7.3. ORPM indicates if disposal should be progressed via a competitive or non- competitive process. See DETERMINING WHEN A COMPETITIVE PROCESS MUST BE USED².

4.7.3.1. For a competitive process, also indicates the competitive process to be used (e.g., Invitation For Bid, auction, sealed bid, etc.). See DETERMINING COMPETITIVE OPTIONS³.

4.7.3.2. When it is determined that the disposal will be through negotiation, indicates that an Explanatory Statement may likely be required. See CRITERIA FOR DETERMINING IF AN EXPLANATORY STATEMENT IS REQUIRED¹.

4.7.4. Real property shall not be disposed of for less than fair market value except in limited circumstances as defined in DISPOSALS FOR LESS THAN FAIR MARKET VALUE². If it is anticipated that the disposal may be for less than fair market value, ORPM checks the appropriate box on the TTAR and ensures the applicant provides the necessary information so the Board can be provided with the information described in paragraph B of Exhibit 12. Before approving the disposal, the Board must consider the information provided and make a written determination that there is reasonable alternative to the proposed below market transfer that would achieve the same purpose.

4.7.5. ORPM then signs, dates Section VI.C. of the TTAR and sends the TTAR Package to the CO with a copy of the TTAR to the Director of Maintenance and Operations for informational purposes only.

4.7.6. The CO reviews the TTAR Package and contacts ORPM and/or the DD with any questions/concerns.

4.7.6.1. Upon completion of the review, the CO either approves/disapproves the recommended disposal or may approve an alternate disposal.

4.7.6.2. The CO then signs, dates Section VII of the TTAR and returns the TTAR Package to ORPM.

4.7.7. Upon receipt of the TTAR Package from the CO, ORPM places the original TTAR Package in the Transaction Record and sends a copy of the TTAR to the DPC for the Division file.

4.7.7.1. If the disposal is disapproved, ORPM sends a REJECTION LETTER⁺ notifying the applicant, places a copy of the letter in the Transaction Record and sends a copy to the DPC for the Division file. For Authority initiated disposals, ORPM places a note in the Transaction Record and sends a copy to the DD for the Division file. ORPM coordinates with Accounts Receivable the return of the survey/appraisal deposit, if applicable. Procedure stops here.

4.7.7.2. If approved, ORPM notifies applicant that the transaction is being progressed and follows the appropriate SOP.

5. Complying with §139-j and §139-k of the State Finance Law (Lobbying Law)

Any contact (inquiry, etc.) made regarding real property subsequent to the first notice of a competitive process for disposal of such real property (solicitation, IFB, etc.) is subject to the Lobbying Law and must be recorded. See the Executive Instruction entitled INAPPROPRIATE LOBBYING INFLUENCE IN AUTHORITY/CORPORATION PROCUREMENTS. ORPM may be contacted with specific questions regarding the Executive Instruction and whether contacts need to be reported.

6. Conflicts of Interest

Authority employees may not have any interest or engage in any activity that would create or appear to create a conflict with the proper discharge of their public duties. If an employee feels they have an actual or potential conflict of interest relating to a real property transaction, the employee is required to contact the Legal Department or Commission on Public Integrity as soon as he/she is aware of the potential or actual conflict. See the Executive Instruction entitled CODE OF ETHICS.

7. Responsibilities

Accounts Receivable processes deposits and when requested by ORPM to do so, returns survey/appraisal deposit to applicant.

Chief Engineer receives the TTAR Package for all disposals and for a disposal to progress, must concur that the real property is not needed for Authority purposes and recommend its disposal.

Contracting Officer is responsible for the final review and approval/disapproval of all disposals of real property.

Division Director is responsible for reviewing the TTAR upon completion by the DPC, recommending an action and sending the completed TTAR to either the CE (for disposals) or ORPM (for occupancy permits).

Division Permit Coordinator is responsible for responding to initial inquiries regarding the use or the disposal of real property under the jurisdiction of the Authority and for sending the application package to the applicant. The DPC is also responsible for completing the TTAR form upon receipt of a completed application.

Employees receiving inquiries regarding the issuance of permits or the disposal of real property under the jurisdiction of the Authority are responsible for sending the inquiry information to the DPC.

Office Real Property Management is responsible for reviewing and approving the DD’s use and transaction recommendation and for disposals, obtaining the review/approval of the Contracting Officer. ORPM also determines: (i) whether a survey or plot plan and/or an appraisal is required; (ii) if a disposal should be progressed via a competitive or a non-competitive process; (iii) if competitive, the process to be used (e.g., IFB, auction, etc.); and (iv) if negotiated, whether an Explanatory Statement is likely required. ORPM is also responsible for responding to applicants regarding the approval or rejection of proposed transactions. ORPM is responsible for creating and maintaining the Transaction Record for disposals and occupancy permits and for preparing all required Explanatory Statements. ORPM coordinates with Accounts Receivable the return of the survey/appraisal deposit to the applicant, if applicable. ORPM is responsible for providing the Authority Board and the public with information, required by statute, regarding less than fair market value disposals.

8. Flowchart

When making a use or disposal recommendation, the DPC must consider a number of factors regarding the proposed transaction and provide information to assist in making the final transaction determination. The following items correspond to consideration factors 1 – 9 listed in Section II of the TTAR. They provide a brief narrative explanation of what information should be provided when describing each factor.

1. Proposed length of use: Indicate how long the applicant proposes to use the Authority property. Indicate specifically if proposed use is greater than 3 years.

2. Area: Describe the size of the Authority real property (e.g., acreage, square footage) involved in the proposed transaction.

4. Access: Describe what access is available to the real property (e.g., public access to a road, property landlocked, through adjoining owner, legal access, etc.).

5. Proposed use: Describe the primary use proposed (e.g., residential, commercial, industrial, municipal) and other factors related to property’s use (e.g., assemblage with adjacent property, including property under the jurisdiction of the Authority, generation of revenue, etc.).

6. Proposed improvements: Describe any proposed improvements to be made to or placed on the property (e.g., storage tanks, structures, pavements, ground disturbances, including but not limited to, footings, foundations, slabs, etc.).

7. Current use: Describe the current use of the property (e.g., vacant, active permit/lease, easement(s), existing improvements, encroachment, etc.). If property is currently permitted/leased, provide any available details pertaining to existing agreement (term, annual fee/rent, etc.).

8. Use of adjacent property: Describe how adjacent property is used (e.g., residential, commercial, industrial, municipal) and other factors related to adjacent property’s use that may impact recommendation (e.g., assemblage with proposed property and other property under the jurisdiction of the Authority, generation of revenue, etc.).

9. Other factors: Describe and provide details of other factors pertinent to the proposed use (e.g., known legal issues or disputes, title claims, etc.).

ORPM sends letter when the application is rejected during the TTAR review process.

CRITERIA FOR RECOMMENDING THE BEST TRANSACTION TYPE FOR THE PROPOSED USE OR DISPOSAL OF REAL PROPERTY

Once it has been determined that a proposed transaction can be progressed, and all factors that may affect the real property have been considered and described in Sections II and III of the TTAR, the DPC must make a recommendation for the proposed use or disposal of the real property in Section IV of the TTAR.

The first threshold question is whether the land is needed for current or future Authority purposes (e.g., is the land surplus?).

Surplus Authority real property is that real property, which in the opinion of the Authority, is or may become unnecessary for transportation, maintenance, reconstruction and/or development of the Thruway system.

In general, real property may not be deemed surplus if it includes the existing Highway, interchanges, maintenance facilities, tandem lots, or the highway clear zone or if they are needed for needed for any purpose related to fulfilling the Authority’s obligations, either present or future, pursuant to Title 9 of the Public Authorities Law. This includes, but is not limited to, areas with any potential to be needed for use in future widening or realignment, reconstruction of interchanges, expansion of tandem lots, or the expansion or upgrade of the Thruway or Statewide communications infrastructure. In assessing these needs, consideration will be given to issues such as the need for constructing embankments, berms or barriers, flattening slopes, constructing stormwater detention basins, and installation of appropriate safety and security measures. When reviewing potential properties for surplusing, consideration must be given to staging areas for future construction projects. Properties adjacent or in the vicinity of rock cuts should be evaluated for future use as disposal areas for future rock remediation work.

CRITERIA FOR RECOMMENDING THE BEST TRANSACTION TYPE FOR THE PROPOSED USE OR DISPOSAL OF REAL PROPERTY

The following information provides guidance regarding the appropriate transaction type to be recommended for proposed use/disposal:

Occupancy Permits should be the transaction type recommended for allowing use of any/all real property needed by the Authority (i.e., not surplus to the needs of the Authority).

Occupancy Permits, which are revocable upon demand, provide the Authority with the greatest flexibility for managing property under its jurisdiction. Therefore, in most cases, Occupancy Permits should be recommended whenever real property is needed for Authority purposes, or may be needed for Authority purposes in the future. Specifically, Occupancy Permits should be the recommended transaction for use of Authority real property when all or a portion of the real property applied for:

• has not been declared surplus to the Authority’s needs, but can be used on a revocable basis;

The existence of an encroachment or the ownership of a structure on real property needed for Authority purposes, while salient information and a consideration factor to be described, does not warrant a disposal or the granting of a real property interest via an alternate transaction (e.g., sale or lease).

CRITERIA FOR RECOMMENDING THE BEST TRANSACTION TYPE FOR THE PROPOSED USE OR DISPOSAL OF REAL PROPERTY

Unless otherwise authorized by the Executive Director, where a disposal of real property surplus to the needs of the Authority is contemplated, an Occupancy Permit will not be issued in advance of completion of the Disposal.

The Authority may decide that certain categories of land are surplus to the Authority’s needs (i.e., not needed for present or future Authority purposes) and may be disposed of. These are properties that are not necessary for Authority purposes and the disposition is in the best interest of the Authority. Disposals may be by sales, leases, easements, or other transfers of interest in the real property based on the nature of the proposed use.

When it is determined that real property under the jurisdiction of the Authority is not needed for Authority purposes, the preferred transaction to be used for disposal is a sale.

Disposals may be performed by the Commissioner of General Services on behalf of the Authority when the Authority has entered into an agreement with the Commissioner of General Services pursuant to the Public Authorities Accountability Act of 2005 and Public Authorities Law.

A sale is the preferred transaction type to be recommended when the real property in not needed for present or future Authority purposes.

• the real property is needed for Authority purposes, but will be used for revenue generation;

the proposed use is for a longer term (e.g., over 3 years), but the applicant does not want to acquire the real property;

the property will be used by the applicant for revenue generation, but applicant does not want to acquire the real property.

CRITERIA FOR RECOMMENDING THE BEST TRANSACTION TYPE FOR THE PROPOSED USE OR DISPOSAL OF REAL PROPERTY

The Authority may acquire or dispose of permanent or temporary easements, exchange easements or release an easement. Acquisitions of easements would follow the same procedure as for acquisitions. Disposals of easements would follow the same procedure as for sales. Although the release of easements is not considered subject to the Public Authorities Accountability Act of 2005 (PAAA), these are always negotiated and follow the same process as a sale.

Transfers of jurisdiction may be recommended when another State agency, authority or other State governmental interest requests real property under the jurisdiction of the Authority under the following circumstances:

If the request for real property by another State agency, authority or State governmental interest is not for public health, safety or welfare reasons, the preferred transaction type is a sale.

• Acquisition of real property, except for real property associated with certain office-space leases where a non-surveyed description of the leased premises is deemed to be adequate by ORPM

A plot plan shall be required to be submitted by an applicant for an occupancy permit and may be required for a work permit.

Authorized staff may conduct or coordinate procurement of appraisals for occupancy permits for which an appraisal is deemed by ORPM to be necessary.

The Authority shall utilize independent appraisers to conduct appraisals for the following transactions:

• Real property transactions, generally, regardless of value of the real property, when it is deemed to be in the best interest of the Authority as determined by the Contracting Officer

Except for permits, two independent appraisals shall be conducted if: (i) the appraised value of the real property is anticipated to be greater than $300,000; or (ii) it is deemed to be in the best interest of the Authority as determined by the Contracting Officer.

For transfers of jurisdiction, the Contracting Officer shall determine whether an appraisal is necessary. Such determination may be based upon the appraised value of the real property and/or the complexity of the appraisal assignment.

• Where the transaction involves an exchange of property and the value of each property is anticipated to be $300,000 or less, one survey map and one independent appraisal shall be required for each property.

• Where the transaction involves an exchange of property and the value of either property is anticipated to be greater than $300,000, one survey map and two independent appraisals shall be required for the property with a value anticipated to be greater than $300,000.

• In order to proceed with an exchange of property, the appraisals must demonstrate that the property to be acquired is of at least equal value to the property to be disposed of.

Based on the TTAR information, ORPM will determine whether a competitive process or non-competitive process is appropriate for the particular real property transaction.

The competitive processes for real property transactions involve publicly advertising for bids, such as IFB, or the auction process. Non-competitive processes include negotiations or an auction where there is no public advertising for bids.

The Authority shall use a competitive process open to the public for all real property transactions, except in limited circumstances. Disposals and contracts for disposal may be negotiated or made by public auction without publicly advertising for bids only when one of the following conditions is met:

• Bid prices after advertising are not reasonable, either as to all or some part of the property, or have not been independently arrived at in open competition;

• The Disposal will be to a state or any political subdivision and the estimated fair market value of the property and other satisfactory terms of Disposal are obtained by negotiation;

• Under those permitted circumstances set forth in Exhibit 12, DISPOSALS FOR LESS THAN FAIR MARKET VALUE; or

When deciding whether a competitive process is appropriate, ORPM will consider the following factors:

• What is the estimated fair market value of the property? Fair market value may be determined through appraisals, the bid or auction process, or other means.

• What is the nature of the proposed project and what is the interest to be conveyed?

• Who is the disposal to (e.g., State, political subdivision, private party, etc.)?

• Would the project promote economic development (e.g., jobs, revenues, etc.)?

• What are the site specific factors (e.g., character or condition of the property such as critical environmental area, presence of contamination restricting use, land locked, neighboring use, etc.)?

Once ORPM has determined that a competitive process is required, the method to use must be decided and documented on the TTAR by ORPM.

Practical factors for consideration when determining the most appropriate solicitation method include:

• What is the proposed timetable? Is it realistic and, if not, can it be modified? How time sensitive is it?

• Is there likely to be competition (i.e., multiple parties that are likely to respond)?

• What are the benefits and disadvantages of the options for that transaction?

An IFB is most typically used where requirements can be stated and an award made to the highest responsive and responsible bidder(s).

When it is determined that there will be no public advertising for bids and the disposal will be through negotiation, the following transactions require the submittal of an Explanatory Statement:

• Any real property that has an estimated fair market value in excess of $100,000 except leases or exchanges described below;

• Any real property disposed of by lease, if the estimated annual rent over the term of the lease is in excess of $15,000;

• Any real property or real and related personal property disposed of by exchange, regardless of value, or any property any part of the consideration for which is real property.

No asset owned, leased or otherwise in the control of the Authority may be sold, leased, or otherwise alienated for less than its fair market value except if:

1. The transferee is a government or other public entity, and the terms and conditions of the transfer require that the ownership and use of the asset will remain with the government or any other public entity;

2. The purpose of the transfer is within the purpose, mission or governing statute of the Authority; or

3. In the event the Authority seeks to transfer an asset for less than its fair market value to other than a governmental entity, which disposal would not be consistent with the Authority’s mission, purpose or governing statutes, the Authority shall provide written notification thereof to the governor, the speaker of the assembly, and the temporary president of the senate, and such proposed transfer shall be subject to denial by the governor, the senate, or the assembly. Denial by the governor shall take the form of a signed certification by the governor. Denial by either house of the legislature shall take the form of a resolution by such house. The governor and each house of the legislature shall take any such action within sixty days of receiving notification of such proposed transfer during the months of January through June, provided that if the legislature receives notification of a proposed transfer during the months of July through December, the legislature may take any such action within sixty days of January first of the following year. If no such resolution or certification is performed within sixty days of such notification of the proposed transfer to the governor, senate, and assembly, the Authority may effectuate such transfer.

In the event a below fair market value asset transfer is proposed, the following information must be provided to the Authority Board and the public:

2. An appraisal of the fair market value of the asset and any other information establishing the fair market value sought by the Board;

3. A description of the purpose of the transfer, and a reasonable statement of the kind and amount of the benefit to the public resulting from the transfer, including but not limited to the kind, number, location, wages or salaries of jobs created or preserved as required by the transfer, the benefits, if any, to the communities in which the asset is situated as are required by the transfer;*

5. The names of any private parties participating in the transfer, and if different than the statement required by subparagraph (4) of this paragraph, a statement of the value to the private party;* and

6. The names of any other private parties who have made an offer for such asset, the value offered, and the purpose for which the asset was sought to be used.

Before approving the disposal of any property for less than fair market value, the Authority Board shall consider the information described in paragraph B above and make a written determination that there is no reasonable alternative to the proposed below market transfer that would achieve the same purpose of such transfer.