Senate Bill sb2722

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    Florida Senate - 2004                                  SB 2722

    By Senator Atwater





    25-1096-04

  1                      A bill to be entitled

  2         An act relating to public property and publicly

  3         owned buildings; amending s. 255.248, F.S.;

  4         defining terms; amending s. 255.249, F.S.;

  5         prescribing powers and duties of the Department

  6         of Management Services with respect to

  7         allocation of space and procuring and managing

  8         leases of space; amending s. 255.25, F.S.;

  9         requiring department approval of nonconforming

10         space allocations; requiring uniform leasing

11         procedures; providing for rules; amending s.

12         255.29, F.S.; deleting the department's

13         authority to adopt rules with respect to

14         prequalification of bidders on building

15         construction contracts; amending s. 255.31,

16         F.S.; revising terminology; amending s.

17         255.503, F.S.; providing for the department to

18         engage professional assistance in disposing of

19         or managing facilities and in its operations

20         and activities; providing an effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  Subsections (3) and (4) are added to

25  section 255.248, Florida Statutes, to read:

26         255.248  Definitions; ss. 255.249 and 255.25.--The

27  following definitions shall apply when used in ss. 255.249 and

28  255.25:

29         (3)  The term "privately owned office building" means

30  any building not owned by a governmental agency which is

31  

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 1  predominantly used for administrative direction and support

 2  functions.

 3         (4)  The term "private tenant representative" means a

 4  nongovernmental entity that is licensed as a real estate

 5  broker by this state and that is engaged by the Department of

 6  Management Services to assist the state in acquiring real

 7  estate through lease transactions.

 8         Section 2.  Section 255.249, Florida Statutes, is

 9  amended to read:

10         255.249  Department of Management Services;

11  responsibility; department rules.--

12         (1)  The Department of Management Services has shall

13  have responsibility and authority for the custodial and

14  preventive maintenance, repair, and allocation of space of all

15  buildings in the Florida Facilities Pool and the grounds

16  located adjacent thereto.

17         (2)  The department may not allocate space in

18  state-owned buildings or privately owned office buildings

19  that, to the extent possible without sacrificing critical

20  public or client services, exceeds an average of 180 usable

21  square feet for each agency full-time equivalent position

22  shall require any state agency planning to terminate a lease

23  for the purpose of occupying space in a new state-owned office

24  building, the funds for which are appropriated after June 30,

25  2000, to state why the proposed relocation is in the best

26  interest of the state.

27         (3)  The department has the responsibility and

28  authority for the procurement and management of all state

29  agency leases of privately owned buildings, including the

30  authority to retain and designate a private real estate

31  consultant to provide tenant representation services shall, to

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 1  the extent feasible, coordinate the vacation of privately

 2  owned leased space with the expiration of the lease on that

 3  space and, when a lease is terminated before expiration of its

 4  base term, will make a reasonable effort to place another

 5  state agency in the space vacated. Any state agency may lease

 6  the space in any building that was subject to a lease

 7  terminated by a state agency for a period of time equal to the

 8  remainder of the base term without the requirement of

 9  competitive bidding.

10         (4)  The department shall adopt promulgate rules

11  pursuant to chapter 120 providing:

12         (a)  Methods for accomplishing the duties outlined in

13  subsections subsection (1), (2), and (3).

14         (b)  Procedures for soliciting and accepting

15  competitive bids, proposals, or replies for leased space of

16  5,000 square feet or more in privately owned buildings, for

17  evaluating the bids, proposals, or replies received, for

18  exemption from competitive solicitation bidding requirements

19  of any lease the purpose of which is the provision of care and

20  living space for persons or emergency space needs as provided

21  in s. 255.25(10), and for the securing of at least three

22  documented quotes for a lease that is not required to be

23  competitively solicited bid.

24         (c)  A standard method for determining square footage

25  or any other measurement used as the basis for lease payments

26  or other charges.

27         (d)  Methods of allocating space in both state-owned

28  office buildings and privately owned buildings leased by the

29  state based on use, personnel, and office equipment.

30         (e)  Acceptable terms and conditions for inclusion in

31  lease agreements.

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 1         (f)  Maximum rental rates, by geographic areas or by

 2  county, for leasing privately owned space.

 3         (g)  A standard method for the assessment of rent to

 4  state agencies and other authorized occupants of state-owned

 5  office space, notwithstanding the source of funds.

 6         (h)  For full disclosure of the names and the extent of

 7  interest of the owners holding a 4-percent or more interest in

 8  any privately owned property leased to the state or in the

 9  entity holding title to the property, for exemption from such

10  disclosure of any beneficial interest which is represented by

11  stock in any corporation registered with the Securities and

12  Exchange Commission or registered pursuant to chapter 517,

13  which stock is for sale to the general public, and for

14  exemption from such disclosure of any leasehold interest in

15  property located outside the territorial boundaries of the

16  United States.

17         (i)  For full disclosure of the names of all public

18  officials, agents, or employees holding any interest in any

19  privately owned property leased to the state or in the entity

20  holding title to the property, and the nature and extent of

21  their interest, for exemption from such disclosure of any

22  beneficial interest which is represented by stock in any

23  corporation registered with the Securities and Exchange

24  Commission or registered pursuant to chapter 517, which stock

25  is for sale to the general public, and for exemption from such

26  disclosure of any leasehold interest in property located

27  outside the territorial boundaries of the United States.

28         (j)  A method for reporting leases for nominal or no

29  consideration.

30         (k)  For a lease of less than 5,000 square feet, a

31  method for certification by the agency head or the agency

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 1  head's designated representative that all criteria for leasing

 2  have been fully complied with and for the filing of a copy of

 3  such lease and all supporting documents with the department

 4  for its review and approval as to technical sufficiency.

 5         (5)  The Department of Management Services shall

 6  prepare a form listing all conditions and requirements adopted

 7  pursuant to this chapter which must be met by any state agency

 8  leasing any building or part thereof. This form shall be

 9  certified by the agency head or the agency head's designated

10  representative. However, the form may be amended with written

11  approval from the agency head or the agency head's designated

12  representative.

13         Section 3.  Subsections (1), (2), (3), (4), (8), and

14  (10) of section 255.25, Florida Statutes, are amended to read:

15         255.25  Approval required prior to construction or

16  lease of buildings.--

17         (1)(a)  A No state agency may not lease space in a

18  private building that is to be constructed for state use

19  unless prior approval of the architectural design and

20  preliminary construction plans is first obtained from the

21  Department of Management Services. The department shall

22  require space allocation standards for leased space in a

23  privately owned building. An agency may not enter into a lease

24  that is not in accordance with the space allocation standard

25  listed in s. 255.249(2) without department approval.

26         (b)  During the term of existing leases for, each

27  agency, the Department of Management Services or its

28  designated representative shall monitor market conditions and

29  shall initiate negotiations for each lease held in the private

30  sector to effect the best overall lease terms reasonably

31  available to that agency. Amendments to leases may be

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 1  permitted to modify any lease provisions or any other terms or

 2  conditions, except to the extent specifically prohibited by

 3  this chapter. The Department of Management Services shall

 4  serve as a mediator in lease renegotiations if the agency and

 5  the lessor are unable to reach a compromise within 6 months of

 6  renegotiation and if either the agency or lessor requests the

 7  Department of Management Services' intervention.

 8         (c)  When specifically authorized by the Appropriations

 9  Act and in accordance with s. 255.2501, if applicable, the

10  Department of Management Services may conduct approve a

11  lease-purchase, sale-leaseback, or tax-exempt leveraged lease

12  contract or other financing technique for the acquisition,

13  renovation, or construction of a state fixed capital outlay

14  project when it is in the best interest of the state.

15         (2)(a)  Except as provided in s. 255.2501, no state

16  agency may lease a building or any part thereof unless prior

17  approval of the lease conditions and of the need therefor is

18  first obtained from the Department of Management Services. Any

19  approved lease may include an option to purchase or an option

20  to renew the lease, or both, upon such terms and conditions as

21  are established by the department subject to final approval by

22  the head of the Department of Management Services and s.

23  255.2502.

24         (b)  The approval of the Department of Management

25  Services, except for technical sufficiency, need not be

26  obtained for the lease of less than 5,000 square feet of space

27  within a privately owned building, provided the agency head or

28  the agency head's designated representative has certified

29  compliance with applicable leasing criteria as may be provided

30  pursuant to s. 255.249(4)(k) and has determined such lease to

31  be in the best interest of the state. Such a lease which is

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 1  for a term extending beyond the end of a fiscal year is

 2  subject to the provisions of ss. 216.311, 255.2502, and

 3  255.2503.

 4         (c)  The Department of Management Services shall adopt

 5  as a rule uniform leasing procedures for use by agencies and

 6  by the department or its designee in procuring and managing

 7  private-sector leases for each state agency other than the

 8  Department of Transportation. Each state agency shall ensure

 9  that the leasing practices of that agency are in substantial

10  compliance with the uniform leasing rules adopted under this

11  section and ss. 255.249, 255.2502, and 255.2503.

12         (3)(a)  Except as provided in subsection (10), the

13  Department of Management Services may not no state agency

14  shall enter into a lease as lessee for the use of 5,000 square

15  feet or more of space in a privately owned building except

16  upon advertisement for and receipt of competitive

17  solicitations bids and award to the lowest and best bidder.

18  The Department of Management Services has shall have the

19  authority to enter into approve a lease for 5,000 square feet

20  or more of space that covers more than 1 fiscal year, subject

21  to the provisions of ss. 216.311, 255.2501, 255.2502, and

22  255.2503, if such lease is, in the judgment of the department,

23  in the best interests of the state. This paragraph does not

24  apply to buildings or facilities of any size leased for the

25  purpose of providing care and living space for persons.

26         (b)  The Department of Management Services may enter

27  into approve extensions of an existing lease of 5,000 square

28  feet or more of space if such extensions are determined to be

29  in the best interests of the state, but in no case shall the

30  total of such extensions exceed 11 months. If the Department

31  of Management Services If at the end of the 11th month an

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 1  agency still needs that space, it shall be procured by

 2  competitive bid in accordance with s. 255.249(4)(b). However,

 3  an agency that determines that it is in the its best interest

 4  of the state that an agency to remain in the space it

 5  currently occupies, the department may negotiate a replacement

 6  lease with the lessor if an independent comparative market

 7  analysis demonstrates that the rates offered are within market

 8  rates for the space and the cost of the new lease does not

 9  exceed the cost of a comparable lease plus documented moving

10  costs. A present-value analysis and the consumer price index

11  shall be used in the calculation of lease costs. The term of

12  the replacement lease may not exceed the base term of the

13  expiring lease.

14         (c)  Any person who files an action protesting a

15  decision or intended decision pertaining to a competitive

16  solicitation bid for space to be leased by the agency pursuant

17  to s. 120.57(3)(b) shall post with the state agency at the

18  time of filing the formal written protest a bond payable to

19  the agency in an amount equal to 1 percent of the estimated

20  total rental of the basic lease period or $5,000, whichever is

21  greater, which bond shall be conditioned upon the payment of

22  all costs which may be adjudged against him or her in the

23  administrative hearing in which the action is brought and in

24  any subsequent appellate court proceeding. If the agency

25  prevails after completion of the administrative hearing

26  process and any appellate court proceedings, it shall recover

27  all costs and charges which shall be included in the final

28  order or judgment, excluding attorney's fees.  Upon payment of

29  such costs and charges by the person protesting the award, the

30  bond shall be returned to him or her.  If the person

31  protesting the award prevails, the bond shall be returned to

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 1  that person and he or she shall recover from the agency all

 2  costs and charges which shall be included in the final order

 3  of judgment, excluding attorney's fees.

 4         (d)  The Department of Management Services agency and

 5  the lessor, when entering into a lease for 5,000 or more

 6  square feet of a privately owned building, shall, before the

 7  effective date of the lease, agree upon and separately state

 8  the cost of tenant improvements which may qualify for

 9  reimbursement if the lease is terminated before the expiration

10  of its base term. The department shall serve as mediator if

11  the agency and the lessor are unable to agree. The amount

12  agreed upon and stated shall, if appropriated, be amortized

13  over the original base term of the lease on a straight-line

14  basis.

15         (e)  The unamortized portion of tenant improvements, if

16  appropriated, will be paid in equal monthly installments over

17  the remaining term of the lease. If any portion of the

18  original leased premises is occupied after termination but

19  during the original term by a tenant that does not require

20  material changes to the premises, the repayment of the cost of

21  tenant improvements applicable to the occupied but unchanged

22  portion shall be abated during occupancy. The portion of the

23  repayment to be abated shall be based on the ratio of leased

24  space to unleased space.

25         (4)(a)  The Department of Management Services may shall

26  not authorize any state agency to enter into a lease agreement

27  for space in a privately owned building when suitable space is

28  available in a state-owned building located in the same

29  geographic region, except upon presentation to the department

30  of sufficient written justification, acceptable to the

31  department, that a separate space is required in order to

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 1  fulfill the statutory duties of the agency making such

 2  request. Upon the availability of suitable space in a

 3  state-owned facility, the department may terminate a private

 4  lease and relocate into the state-owned facility. The term

 5  "state-owned building" as used in this subsection means any

 6  state-owned facility regardless of use or control.

 7         (b)  State agencies shall cooperate with local

 8  governmental units by using suitable, existing publicly owned

 9  facilities, subject to the provisions of ss. 255.2501,

10  255.2502, and 255.2503. Agencies may utilize unexpended funds

11  appropriated for lease payments to:

12         1.  Pay their proportion of operating costs.

13         2.  Renovate applicable spaces.

14         (8)  The Department of Management Services may not No

15  agency shall enter into more than one lease for space in the

16  same privately owned facility or complex within any 12-month

17  period except upon competitive the solicitation and award of

18  competitive bids.

19         (10)  The Department of Management Services may approve

20  emergency acquisition of space without competitive

21  solicitations bids if existing state-owned or state-leased

22  space is destroyed or rendered uninhabitable by an act of God,

23  fire, malicious destruction, or structural failure, or by

24  legal action, if the chief administrator of the state agency

25  or the chief administrator's designated representative

26  certifies in writing that no other agency-controlled space is

27  available to meet this emergency need, but in no case shall

28  the lease for such space exceed 11 months. If the lessor

29  elects not to replace or renovate the destroyed or

30  uninhabitable facility, the agency shall procure the needed

31  space by competitive bid in accordance with s. 255.249(4)(b).

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 1  If the lessor elects to replace or renovate the destroyed or

 2  uninhabitable facility and the construction or renovations

 3  will not be complete at the end of the 11-month lease, the

 4  department agency may modify the lease to extend it on a

 5  month-to-month basis for an additional 6 months to allow

 6  completion of such construction or renovations.

 7         Section 4.  Section 255.29, Florida Statutes, is

 8  amended to read:

 9         255.29  Construction contracts; department rules.--The

10  Department of Management Services shall establish, through the

11  adoption of administrative rules as provided in chapter 120:

12         (1)  Procedures for determining the qualifications and

13  responsibility of potential bidders prior to advertisement for

14  and receipt of bids for building construction contracts,

15  including procedures for the rejection of bidders who are

16  reasonably determined from prior experience to be unqualified

17  or irresponsible to perform the work required by a proposed

18  contract.

19         (1)(2)  Procedures for awarding each state agency

20  construction project to the lowest qualified bidder as well as

21  procedures to be followed in cases in which the Department of

22  Management Services declares a valid emergency to exist which

23  would necessitate the waiver of the rules governing the

24  awarding of state construction contracts to the lowest

25  qualified bidder.

26         (2)(3)  Procedures to govern negotiations for

27  construction contracts and modifications to contract documents

28  when such negotiations are determined by the secretary of the

29  Department of Management Services to be in the best interest

30  of the state.

31  

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 1         (3)(4)  Procedures for entering into performance-based

 2  contracts for the development of public facilities when the

 3  Department of Management Services determines the use of such

 4  contracts to be in the best interest of the state. The

 5  procedures shall include, but are not limited to:

 6         (a)  Prequalification of bidders;

 7         (a)(b)  Criteria to be used in developing requests for

 8  proposals which may provide for singular responsibility for

 9  design and construction, developer flexibility in material

10  selection, construction techniques, and application of

11  state-of-the-art improvements;

12         (b)(c)  Accelerated scheduling, including the

13  development of plans, designs, and construction

14  simultaneously; and

15         (c)(d)  Evaluation of proposals and award of contracts

16  considering such factors as price, quality, and concept of the

17  proposal.

18         Section 5.  Section 255.31, Florida Statutes, is

19  amended to read:

20         255.31  Authority to the Department of Management

21  Services to provide fixed capital outlay appropriations

22  management and project management services manage construction

23  projects for state agencies and local governments.--

24         (1)  The design, construction, erection, alteration,

25  modification, repair, and demolition of all public and private

26  buildings are governed by the Florida Building Code and the

27  Florida Fire Prevention Code, which are to be enforced by

28  local jurisdictions or local enforcement districts unless

29  specifically exempted as provided in s. 553.80. However, the

30  Department of Management Services shall provide the project

31  management and administration services for the construction,

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 1  renovation, repair, modification, or demolition of buildings,

 2  utilities, parks, parking lots, or other facilities or

 3  improvements for projects for which the funds are appropriated

 4  to the department; provided that, with the exception of

 5  facilities constructed under the authority of chapters 944,

 6  945, and 985; the Governor's mansion and grounds thereof, as

 7  described in s. 272.18; and the Capitol Building and environs,

 8  being that part of the City of Tallahassee bounded on the

 9  north by Pensacola and Jefferson Streets, on the east by

10  Monroe Street, on the south by Madison Street, and on the west

11  by Duval Street, the department may not conduct plans reviews

12  or inspection services for consistency with the Florida

13  Building Code. The department's fees for such services shall

14  be paid from such appropriations.

15         (2)  The Department of Management Services may, upon

16  request, enter into contracts with other state agencies under

17  which the department may provide the project management,

18  administration services, or assistance for the construction,

19  renovation, repair, modification, or demolition of buildings,

20  utilities, parks, parking lots, or other facilities or

21  improvements for projects for which the funds are appropriated

22  to other state agencies, provided that the department does not

23  conduct plans reviews or inspection services for consistency

24  with the Florida Building Code. The contracts shall provide

25  for payment of fees to the department.

26         (3)  This section shall not be construed to be in

27  derogation of any authority conferred on the department by

28  other provisions of law.

29         Section 6.  Subsection (9) of section 255.503, Florida

30  Statutes, is amended to read:

31  

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 1         255.503  Powers of the Department of Management

 2  Services.--The Department of Management Services shall have

 3  all the authority necessary to carry out and effectuate the

 4  purposes and provisions of this act, including, but not

 5  limited to, the authority to:

 6         (9)  Engage the services of consultants for rendering

 7  professional and technical assistance and advice and to engage

 8  services of professionals in connection with the acquisition,

 9  disposition, management, or financing of any facility or the

10  operation and activities of the Department of Management

11  Services, including attorneys, auditors, consultants, and

12  accountants.

13         Section 7.  This act shall take effect July 1, 2004.

14  

15            *****************************************

16                          SENATE SUMMARY

17    Revises varied statutory provisions relating to the
      powers and duties of the Department of Management
18    Services with respect to leasing private property for
      state agency use, guidelines for acquiring such property,
19    standards for allocating space, and determining
      qualification of potential bidders. (See bill for
20    details.)

21  

22  

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