Agreements Relating to Use/Access of Highway Airspace
The purpose of this position statement is to summarize MnDOT policy and procedures associated with airspace lease agreements for Minnesota's National Highway System (NHS). Airspace refers to that area above or below the plane of the transportation facility and located within the right-of-way boundaries.
The Commissioner may grant the right to use airspace by public entities or private parties for interim non-highway uses as long as such uses will not interfere with the safety, construction, operation or maintenance of the facility or anticipated future transportation needs. Private or public uses of airspace may occur, but the preservation of the nation's transportation system is essential. Any airspace use cannot interfere with the original purpose of any of its associated structures. An airspace lease may range from a short term use with few or no tenant improvements to a longer-term use with substantial structures and complexity, but in no case may the lease exceed 99 years. The Commissioner shall determine the amount paid for use of airspace based on the fair rental rate.
Reason for policy
An airspace lease agreement must reflect legal, planning, environmental, design, construction, maintenance, financial, insurance, and safety and security requirements. This Position Statement is consistent with the FHWA/MnDOT Letter of Agreement and Stewardship Plan, dated October 1, 2002. The FHWA has final review and approval authority on all airspace leases on the National Highway System in Minnesota.
Phase I: Receiving Airspace Lease Proposals
A. If the public notice to entertain bids is used, the Request for Proposals (RFP) procedure set forth by Real Estate Management at the Department of Administration may be used (complicated), or MnDOT may advertise the property for lease (uncomplicated). In both processes a lease form is part and parcel of the bid package. The RFP package contains information needed by a proposer to submit a bid where the proposals received may be critically and fairly reviewed. The process may take six weeks (uncomplicated) to up to 18 months (complicated).
B. If the Agency receives an Unsolicited Request for Lease (Request):
- All submitted documents are public information unless otherwise protected as private or trade secret information under the Minnesota Data Practices Act.
- The Request is forwarded to the applicable District Engineer and the District Engineer forwards to the District Right of Way Engineer. District Right of Way staff will send a letter to the proposer acknowledging receipt of the Request. Staff may meet with the proposers as necessary to clarify the Request and/or may issue requests for clarification and additional information (ie. term of lease, square footage to be leased, a general statement of the business use of the proposed premises, proposer's ownership interest.)
- Right of Way Staff reviews the Request and determines whether MnDOT may not lease (Denial Letter), or continues to evaluate the Request. Such review may include Finding of No Significant Impact (FONSI) criteria, property ownership and any existing ownership rights (i.e., if MnDOT has only an easement right - MnDOT may only lease airspace if it has ownership in fee). In addition, if the Request continues in the evaluation process, MnDOT identifies if the Request requires structural review.
- If Right of Way Staff determines to continue an evaluation it may elect:
a. a more detailed review of the Request if the request is submitted by a public entity; or
b. a formal solicitation for competing proposals from a public and all private entities.
C. If it is determined a formal solicitation is needed the Request For Proposal process is set forth by Real Estate Management at the Department of Administration (See A above).
Phase 2: Continued Evaluation of Request (Structure/Non-Structure)
A. District Right of Way staff prepares and assembles a review package consisting of maps, parcels and plats. That package is forwarded to District Engineering Sections, local Governmental Agencies and FHWA to determine if the airspace may be leased. The review may include:
1. The proposer's legal and organization structure and qualifications,
2. Extent the Request is compatible with existing and planned transportation systems,
3. Extent the project furthers state and local transportation plans, programs, priorities, policies and goals.
B. In addition to A above, a review package is forwarded to a Facilities Management Section (office to be determined - an office having the expertise to review architectural, and engineering plans or the capability of contracting the same) to provide an estimate of the costs to review the plans (the costs and expenses of the same are to be borne by the requester).
C. District Right of Way staff notifies requestor of the outcome of Request review process - if the request is denied or acceptable to lease.
Phase 3: Lease Information Finalized
A. Non-Structure. Notify Requestor of information gathered from respective MnDOT Engineering Sections and indicate if the airspace can be leased or not. If leasable, a non-refundable fee of $1000.00 to cover the administration costs of processing the lease is required.
B. Structure. Notify Requester of information gathered from respective MnDOT offices and if the airspace is approved, Requester must submit in accordance with the Building Services Section the costs and expenses of plan review (internal or by consultant). Structure detailed plans of the Request include but are not limited to:
1. Identifying vertical transportation of patrons, and goods and services.
2. Identifying security issues (including alcohol related) and handling of the same.
3. Architectural details, structural impacts, construction plans, impacts to of the structure operations and all maintenance impacts.
4. Costs in reconfiguring the structure for the proposed facility.
5. Identify specific areas the proposed facility desires to utilize as follows:
a. Loading/unloading areas including the use of elevators, escalators, and lobbies/skyways, if any.
b. Loading/unloading areas for deliveries/construction.
c. Time restrictions for operation and deliveries - deliveries cannot be made during peak traffic hours.
d. Location and scope of signage, if any, related to the proposed facility.
6. Address any damages to the structure caused by the proposed lease.
7. A detailed structural/vibration/wind loading analysis.
8. An air quality analysis.
C. Contemporaneously with the Building Services Section Review, District Right of Way staff may work with other MnDOT offices to identify:
1. All direct costs associated with the operation and maintenance of the proposed facility and a prorated share of costs, charges and expenses directly attributable to the operation, repair and maintenance of the structure (including skyways), and all indirect costs that are reasonably attributable to the operation, repair and maintenance of the structure and skyways thereto, including without limitation, accounting, administrative and legal costs).
2. The estimated cost, timeline and process to remove/demolish the proposed structure at the expiration or earlier termination of the term at the Proposer's sole cost and expense.
3. Other deal specific items.
D. Recommendations on the Request from Building Services and District Right of Way are submitted to the District Engineer and the Federal Highway Administration (FHWA).
E. After receipt of the administration fee, costs and expenses of plan review, MnDOT performs a valuation of the proposed lease site, completes a land survey, and prepares a legal description. Requestor is sent the Lease document, including terms, and conditions for their approval.
Phase 4: Lease Execution
After the requestor returns the signed Lease and supplemental agreements, if any, MnDOT' s District Office executes the Lease and forwards to the Office of Contract Administration for signature. The Lease is now fully executed.
- FHWA Airspace Guidelines to 23 CFR 710.405-710.407 December 21, 1999, as modified 9-29-04
- Minnesota Statutes, Section 161.433
- The National Highway System
October 10th, 2006
Please go to the MnDOT Org Chart to find specific contact information: Org Chart.
Responsible Senior Officer
Deputy Commissioner/Chief Engineer
Office of Aeronautics
Aviation Safety & Enforcement