Lease
rental rates shall be based on fair market value as determined by appraisals or
other means, except in limited circumstances.
The Authority shall use a competitive process open to the public for all
transactions, except in limited circumstances described in SOP-TRANSACTION
ANALYSIS PROCESS (500-2-02.1). Where a
competitive process is not required, the annual lease rental rate or fee will
be market based.
Where a lease is contemplated, as
determined by the completion and approval of the THRUWAY TRANSACTION AND ANALYSIS/RECOMMENDATION
(TTAR) form (TA-N5516), unless otherwise authorized by the Executive Director,
no permits will be issued in advance of completion of the lease. See SOP-OCCUPANCY PERMITS (500-2-02.5) and SOP-WORK
PERMITS (500-2-02.6).
The Board shall approve all leases under the Authority’s
jurisdiction, except as otherwise delegated.
Leases may need to be resubmitted to the Board in the following
circumstances:
● If the lease is not completed within one
year of Board authorization, the proposed lease will be resubmitted to the
Board.
● If the circumstances change following Board
action and the approved terms and conditions cannot be followed, the proposed lease
must be resubmitted to the Board for reconsideration.
● If the background information about the lease
presented to the Board changes in any material way, the Executive Director, in
consultation with the Contracting Officer, will determine whether the item
should be resubmitted to the Board.
● If a Board approved transaction cannot be
progressed, a report must be provided to the Board detailing the reasons that
the item is not being progressed. In
limited circumstances as determined by the Executive Director, in consultation
with the Contracting Officer, an item may be submitted to the Board withdrawing
the prior authorization.
4. Procedure
4.1. Processing the Proposed Lease from an
Applicant Inquiry
4.1.1. If the proposed lease is initiated by the Authority and there is
no applicant, go to Section 4.2.
Upon receipt of an
inquiry for the lease of real property under the jurisdiction of the Authority,
the Division Permit Coordinator (DPC) will follow SOP-TRANSACTION ANALYSIS
PROCESS (500-2-02.1) to record the inquiry and send out the application
package.
Upon receipt of the completed
application, the DPC will assign a Transaction Reference Number, forward the
application fee and appraisal and survey deposit to Finance for deposit, and
send a receipt to the applicant.
Note: Once a Transaction Reference
Number has been assigned, it should be indicated on all subsequent
correspondence associated with the proposed lease (e.g., transmittal forwarding
checks to Finance, receipt sent to applicant, etc.).
4.1.2. The DPC, in consultation with the Division
Real Estate Specialist, will complete the TTAR form and the review and approval
process will be done in accordance with SOP-TRANSACTION ANALYSIS PROCESS (500-2-02.1). If the proposed lease is rejected at any
point during the review and approval process, the Division Director (DD) will send
a REJECTION LETTER1 notifying the applicant and will coordinate with
Finance the refund of the appraisal and survey deposit. The DD will send a copy of the letter and the
original TTAR to the Bureau of Real Property Management (BRPM) for the
Transaction Record and copies of each will be placed in the Division file. The procedure stops here.
4.1.3. Following
approval by the Contracting Officer on the TTAR form, a LEASE REVIEW LETTER2
will be sent to the applicant from BRPM stating that the lease application will
be progressed through a negotiated process or that a competitive process is
required.
4.1.4. For
a lease where the estimated real property value is greater than $15,000, see
Executive Instruction entitled INAPPROPRIATE LOBBYING INFLUENCE IN AUTHORITY/CORPORATION
PROCUREMENTS for requirements.
4.1.4.1. For a negotiated lease, the LEASE REVIEW
LETTER shall identify the “official contacts” for the Authority and shall
indicate that the “restricted period” will commence upon the date the applicant
receives the LEASE REVIEW LETTER.
1
Exhibit 1
2
Exhibit 2
4.1.4.2. For a competitive process, the LEASE REVIEW
LETTER1 will indicate that the “restricted period” will begin with
the request for proposal (RFP) or auction advertisements, and that the “official
contacts” for the Authority during the disposal process will be identified in
the RFP or auction advertisement.
4.2. Processing
an Authority Initiated Lease
Where
the proposed lease is Authority initiated and there is no applicant, the DPC,
in consultation with the Division Real Estate Specialist, will complete the TTAR
form and the review and approval process will be done in accordance with
SOP-TRANSACTION ANALYSIS PROCESS (500-2-02.1).
If rejected, the DD will send BRPM the original TTAR and a note for the Transaction
Record and keep a copy of both in the Division file. The procedure stops here. If the proposal to dispose of the real
property via a lease is approved by the Contracting Officer on the TTAR form, BRPM
will coordinate the necessary processes for completing the transaction.
4.3. Review
of the Proposed Lease
4.3.1. Where a survey and/or
appraisal are required, BRPM will follow SOP-APPRAISALS AND SURVEYS (500-2-02.2). In most cases, the survey should be completed
prior to the appraisal.
4.3.2. BRPM will provide the Thruway Real Property Management Committee (TRPMC)
with a complete lease application package that includes materials listed in the
TRPMC LEASE PACKAGE CHECKLIST2.
The TRPMC will review the proposed lease and make a recommendation, including
any modifications and/or conditions. BRPM
will review, and as appropriate, incorporate any modifications and/or
conditions recommended by the TRPMC.
4.3.3. If the TRPMC rejects the proposed lease, BRPM will send a letter notifying
the applicant and will coordinate with Finance, the refund of any deposit
and/or the appraisal and survey cost. BRPM
will place a copy of the letter in the Transaction Record and send a copy of
the letter to the DD for the Division file. The procedure stops here.
1
Exhibit 2
2
Exhibit 3
4.3.4. If the TRPMC recommends that the lease be progressed, the Contracting
Officer will keep the Board apprised of the proposed lease, including when an Explanatory
Statement is required. If an Explanatory
Statement is required for a negotiated lease, BRPM will coordinate the
preparation and distribution of the Explanatory Statement using the sample EXPLANATORY
STATEMENT+ form.
4.3.5. If a competitive process is required for the lease, the
procurement policies and procedures would be followed.
4.3.6. For a lease where the total rent amount over the contract period exceeds
$10,000, a determination of responsibility for the proposed awardee will be
required. BRPM will coordinate the responsibility
determination.
4.4. Authorizing the Lease
4.4.1. Once a proposed lessee has been identified via a competitive process,
or for a negotiated lease, 90 days after any required Explanatory Statement has
been distributed, and upon receipt of any required determination of
responsibility, the proposed lease can be presented to the Board for their
review and authorization to proceed with preparation of lease documents. The Contracting Officer, assisted by BRPM,
will prepare a Board Agenda Item to place the proposed lease on the agenda of
the Board.
4.4.2. The Contracting Officer will provide the Board
with a brief overview of the application and the process of review, including
any recommendations from Division, TRPMC, local, regional or State agencies,
comments received in response to an Explanatory Statement where applicable, the
result of any competition, and responsibility determinations when required.
4.4.3. The Board will approve or reject the proposed lease.
4.4.4. BRPM will notify the applicant or competitive process awardee, DD,
and applicable Authority personnel of the Board’s approval or rejection. If the Board rejects the lease, BRPM will
send a letter notifying the applicant/awardee and will coordinate with Finance
the refund of any deposit and/or the appraisal and survey cost. BRPM will place a copy of the letter in the
Transaction Record and send a copy of the letter to the DD for the Division
file.
+
Exhibit 4
4.4.5. If the Board approves the lease and the awardee is not the
applicant, BRPM will coordinate with Finance the refund of any deposits and/or
appraisal and survey cost to the applicant.
4.5. Executing the Lease
4.5.1. If
the Board approves the lease and authorizes preparation of lease documents, BRPM
will prepare the draft lease for review by the Legal Department as needed.
4.5.2. BRPM
shall forward the draft agreement to the applicant/awardee for review and comment
and with Legal approval, BRPM may make changes requested by the applicant.
4.5.3. Once the
lease is ready for execution, BRPM will send six (6) counterparts of the lease agreement
and the COVER LETTER WITH LEASE FOR SIGNATURE1 to the applicant/awardee.
For leases where the total rent amount
over the contract period is over $10,000, BRPM will inform the applicant/awardee
that the lease is not final until approved by the Office of the Attorney
General (OAG) and the Office of the State Comptroller (OSC). BRPM will also request any required bonds, the
certificate(s) of insurance and first rental payment.
4.5.4. Upon the
receipt of the six (6) counterparts of the lease agreement executed by the
proposed lessee and any required bonds, the certificate(s) of insurance and
first rental payment, BRPM will forward the counterparts to the Legal
Department, Contracting Officer and/or the Chief Financial Officer, and the
Executive Director for signatures. BRPM
sends bonds, certificates of insurance and first rental payment to Insurance
Compliance Unit (ICU).
4.5.5. ICU will
make sure proper insurance coverage is in effect and process bond and rental
payment. If a problem exists with
insurance coverage, the Insurance Compliance Unit will notify Finance, and
Finance will send an INSURANCE NOTIFICATION2 notifying the applicant
of the problem.
1 Exhibit 5
2 Exhibit 6
4.5.6. For
leases where the total contract rental payments are over $10,000, the Legal
Department will assist BRPM in preparing a package for submittal to the OAG and
the OSC following SOP - SUBMITTALS TO THE OFFICES OF THE ATTORNEY GENERAL AND
THE STATE COMPTROLLER (500-2-02.3). BRPM
will transmit the package to the OAG for approval as to form.
4.5.7. Upon approval
by the OAG, BRPM will forward the lease package to the OSC for approval.
4.5.8. If
rejected by the OAG or the OSC, BRPM will send a letter notifying the
applicant/awardee and will coordinate with Finance, the refund of any deposit
and/or the appraisal and survey cost.
BRPM will place a copy of the letter in the Transaction Record and send
a copy of the letter to the DD for the Division file.
4.5.9. Upon
approval by the OSC, BRPM sends an EXECUTED LEASE COVER LETTER+ with
a fully executed counterpart of the lease agreement to the lessee, along with
instructions on recording such counterpart in the county clerk's office of the
county in which the leased premises is located, and on advising the Authority
on the data once recorded. BRPM will
maintain one such counterpart in the Transaction Record, will forward one
counterpart to the Legal Department, and will forward copies to the DD, ERPU,
Finance, and ICU. Upon receipt from the
lessee, BRPM will maintain the recording data in the Transaction Record, and
will provide same to the Legal Department and ERPU.
5. Complying with §139-j and §139-k of the State
Finance Law (Lobbying Law)
Any contact (inquiry, etc.) made regarding a real property
transaction following the TTAR form approval for negotiated sales and
subsequent to the first notice of a competitive process for disposal of such
real property (solicitation, RFP, etc.) is subject to the Lobbying Law and must
be recorded. See the Executive
Instruction entitled INAPPROPRIATE LOBBYING INFLUENCE IN AUTHORITY/CORPORATION PROCUREMENTS.
+ Exhibit 7
6. Responsibilities
BRPM will coordinate the lease application approval process
including preparation and distribution of any required Explanatory Statements
and draft leases, and submittals to the OSC.
BRPM will coordinate collection of any required bonds, the initial proof
of insurance and first rental payment at time of lease execution by the
lessee. BRPM will coordinate reviews by
the OAG and OSC. BRPM will coordinate
the lessee's recordation of the executed and approved lease agreement.
The Board will authorize all lease transactions, unless
otherwise designated.
The Contracting Officer is responsible for compliance with and
enforcement of the Thruway Real Property Management Policy as it applies to
disposals, including leases. The
Contracting Officer will present the proposed lease transaction to the Board
for authorization or rejection and keep the Board apprised of the progress of
the lease.
The DPC will coordinate lease inquiries and the completion of
the TTAR form.
The DD will coordinate the TTAR review and contacts with the
applicant if the proposed lease is rejected during the review process.
The Executive Director, the Contracting Officer and /or the Chief
Financial Officer, and Legal Department will sign leases on behalf of the
Authority.
Finance will coordinate the deposit of fees and monies received
from applicants and any required refunds.
Finance will also coordinate setting up the lease account, obtaining
rental payments and required insurance from the lessee.
The Insurance Compliance Unit will determine the insurance
required based on the Authority’s Rules and Regulations and will also determine
if the applicant’s proof of insurance is adequate.
The Legal Department will review proposed leases.
The TRPMC will review proposed leases and make recommendations
to approve or reject the transaction.
7. Flowchart
EXHIBIT 1
REJECTION LETTER
This
letter will be used to notify the applicant that the proposed lease has been
rejected.
EXHIBIT
2
LEASE
REVIEW LETTER
Page
1 of 5
Sent
to an applicant following approval of the proposed lease by the Contracting
Officer on the TTAR form. This letter is
for leases in excess of $15,000 that will result in a public auction.
LEASE
REVIEW LETTER
Page
2 of 5
Sent
to an applicant following approval of the proposed lease by the Contracting
Officer on the TTAR form. This letter is
for leases in excess of $15,000 that will result in a Request For Proposal
(RFP).
LEASE
REVIEW LETTER
Page
3 of 5
Sent
to an applicant following approval of the proposed lease by the Contracting
Officer on the TTAR form. This letter is
for leases in excess of $15,000 that will result in a negotiated lease.
LEASE
REVIEW LETTER
Page
4 of 5
Sent
to an applicant following approval of the proposed lease by the Contracting
Officer on the TTAR form. This letter is
for leases of $15,000 or less that will result in a public auction without
bids.
LEASE
REVIEW LETTER
Page
5 of 5
Sent
to an applicant following approval of the proposed lease by the Contracting
Officer on the TTAR form. This letter is
for leases of $15,000 or less that will result in a negotiated lease.
EXHIBIT 3
TRPMC
LEASE PACKAGE CHECKLIST
This checklist
contains the list of information that shall be in a package submitted to the TRPMC
for review.
Content under development
EXHIBIT 4
SAMPLE
EXPLANATORY STATEMENT
The form gives the
information that should be contained in any required Explanatory Statement.
Content
under development
EXHIBIT 5
COVER LETTER WITH LEASE FOR SIGNATURE
The cover letter sent to the lessee with the lease agreement
for signature.
Content under
development
EXHIBIT 6
INSURANCE NOTIFICATION
This notice would be sent to the applicant in the event
there were any issues regarding insurance.
Content under
development
EXHIBIT 7
EXECUTED LEASE COVER LETTER
The cover letter to the lessee sent with the fully executed
lease.
Content under
development