The Florida Senate

255.25  Approval required prior to construction or lease of buildings.--

(1)(a)  No state agency may lease space in a private building that is to be constructed for state use unless prior approval of the architectural design and preliminary construction plans is first obtained from the Department of Management Services.

(b)  During the term of existing leases, each agency shall monitor market conditions and shall initiate negotiations for each lease held in the private sector to effect the best overall lease terms reasonably available to that agency. Amendments to leases may be permitted to modify any lease provisions or any other terms or conditions, except to the extent specifically prohibited by this chapter. The Department of Management Services shall serve as a mediator in lease renegotiations if the agency and the lessor are unable to reach a compromise within 6 months of renegotiation and if either the agency or lessor requests the Department of Management Services' intervention.

(c)  When specifically authorized by the Appropriations Act and in accordance with s. 255.2501, if applicable, the Department of Management Services may approve a lease-purchase, sale-leaseback, or tax-exempt leveraged lease contract or other financing technique for the acquisition, renovation, or construction of a state fixed capital outlay project when it is in the best interest of the state.

(2)(a)  Except as provided in s. 255.2501, no state agency may lease a building or any part thereof unless prior approval of the lease conditions and of the need therefor is first obtained from the Department of Management Services. Any approved lease may include an option to purchase or an option to renew the lease, or both, upon such terms and conditions as are established by the department subject to final approval by the head of the Department of Management Services and s. 255.2502

(b)  The approval of the Department of Management Services, except for technical sufficiency, need not be obtained for the lease of less than 5,000 square feet of space within a privately owned building, provided the agency head or the agency head's designated representative has certified compliance with applicable leasing criteria as may be provided pursuant to s. 255.249(4)(k) and has determined such lease to be in the best interest of the state. Such a lease which is for a term extending beyond the end of a fiscal year is subject to the provisions of ss. 216.311, 255.2502, and 255.2503

(c)  The Department of Management Services shall adopt as a rule uniform leasing procedures for use by each state agency other than the Department of Transportation. Each state agency shall ensure that the leasing practices of that agency are in substantial compliance with the uniform leasing rules adopted under this section and ss. 255.249, 255.2502, and 255.2503

(3)(a)  Except as provided in subsection (10), no state agency shall enter into a lease as lessee for the use of 5,000 square feet or more of space in a privately owned building except upon advertisement for and receipt of competitive bids and award to the lowest and best bidder. The Department of Management Services shall have the authority to approve a lease for 5,000 square feet or more of space that covers more than 1 fiscal year, subject to the provisions of ss. 216.311, 255.2501, 255.2502, and 255.2503, if such lease is, in the judgment of the department, in the best interests of the state. This paragraph does not apply to buildings or facilities of any size leased for the purpose of providing care and living space for persons.

(b)  The Department of Management Services may approve extensions of an existing lease of 5,000 square feet or more of space if such extensions are determined to be in the best interests of the state, but in no case shall the total of such extensions exceed 11 months. If at the end of the 11th month an agency still needs that space, it shall be procured by competitive bid in accordance with s. 255.249(4)(b). However, an agency that determines that it is in its best interest to remain in the space it currently occupies may negotiate a replacement lease with the lessor if an independent comparative market analysis demonstrates that the rates offered are within market rates for the space and the cost of the new lease does not exceed the cost of a comparable lease plus documented moving costs. A present-value analysis and the consumer price index shall be used in the calculation of lease costs. The term of the replacement lease may not exceed the base term of the expiring lease.

(c)  Any person who files an action protesting a decision or intended decision pertaining to a competitive bid for space to be leased by the agency pursuant to s. 120.57(3)(b) shall post with the state agency at the time of filing the formal written protest a bond payable to the agency in an amount equal to 1 percent of the estimated total rental of the basic lease period or $5,000, whichever is greater, which bond shall be conditioned upon the payment of all costs which may be adjudged against him or her in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. If the agency prevails after completion of the administrative hearing process and any appellate court proceedings, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. Upon payment of such costs and charges by the person protesting the award, the bond shall be returned to him or her. If the person protesting the award prevails, the bond shall be returned to that person and he or she shall recover from the agency all costs and charges which shall be included in the final order of judgment, excluding attorney's fees.

(d)  The agency and the lessor, when entering into a lease for 5,000 or more square feet of a privately owned building, shall, before the effective date of the lease, agree upon and separately state the cost of tenant improvements which may qualify for reimbursement if the lease is terminated before the expiration of its base term. The department shall serve as mediator if the agency and the lessor are unable to agree. The amount agreed upon and stated shall, if appropriated, be amortized over the original base term of the lease on a straight-line basis.

(e)  The unamortized portion of tenant improvements, if appropriated, will be paid in equal monthly installments over the remaining term of the lease. If any portion of the original leased premises is occupied after termination but during the original term by a tenant that does not require material changes to the premises, the repayment of the cost of tenant improvements applicable to the occupied but unchanged portion shall be abated during occupancy. The portion of the repayment to be abated shall be based on the ratio of leased space to unleased space.

(4)(a)  The Department of Management Services shall not authorize any state agency to enter into a lease agreement for space in a privately owned building when suitable space is available in a state-owned building located in the same geographic region, except upon presentation to the department of sufficient written justification, acceptable to the department, that a separate space is required in order to fulfill the statutory duties of the agency making such request. The term "state-owned building" as used in this subsection means any state-owned facility regardless of use or control.

(b)  State agencies shall cooperate with local governmental units by using suitable, existing publicly owned facilities, subject to the provisions of ss. 255.2501, 255.2502, and 255.2503 Agencies may utilize unexpended funds appropriated for lease payments to:

1.  Pay their proportion of operating costs.

2.  Renovate applicable spaces.

(5)  Before construction or renovation of any state-owned building or state-leased space is commenced, the Department of Management Services shall ascertain, by submission of proposed plans to the Division of State Fire Marshal for review, that the proposed construction or renovation plan complies with the uniform firesafety standards required by the Division of State Fire Marshal. The review of construction or renovation plans for state-leased space shall be completed within 10 calendar days of receipt of the plans by the Division of State Fire Marshal. The review of construction or renovation plans for a state-owned building shall be completed within 30 calendar days of receipt of the plans by the Division of State Fire Marshal. The responsibility for submission and retrieval of the plans called for in this subsection shall not be imposed on the design architect or engineer, but shall be the responsibility of the two agencies. Whenever the Division of State Fire Marshal determines that a construction or renovation plan is not in compliance with such uniform firesafety standards, the Division of State Fire Marshal may issue an order to cease all construction or renovation activities until compliance is obtained, except those activities required to achieve such compliance. The Department of Management Services shall withhold approval of any proposed lease until the construction or renovation plan complies with the uniform firesafety standards of the Division of State Fire Marshal. The cost of all modifications or renovations made for the purpose of bringing leased property into compliance with the uniform firesafety standards shall be borne by the lessor.

(6)  Before construction or substantial improvement of any state-owned building is commenced, the Department of Management Services must ascertain that the proposed construction or substantial improvement complies with the flood plain management criteria for mitigation of flood hazards, as prescribed in the October 1, 1986, rules and regulations of the Federal Emergency Management Agency, and the department shall monitor the project to assure compliance with the criteria. In accordance with chapter 120, the Department of Management Services shall adopt any necessary rules to ensure that all such proposed state construction and substantial improvement of state buildings in designated flood-prone areas complies with the flood plain management criteria. Whenever the department determines that a construction or substantial improvement project is not in compliance with the established flood plain management criteria, the department may issue an order to cease all construction or improvement activities until compliance is obtained, except those activities required to achieve such compliance.

(7)  This section does not apply to any lease having a term of less than 120 consecutive days for the purpose of securing the one-time special use of the leased property. This section does not apply to any lease for nominal or no consideration.

(8)  No agency shall enter into more than one lease for space in the same privately owned facility or complex within any 12-month period except upon the solicitation of competitive bids.

(9)  Specialized educational facilities, excluding classrooms, shall be exempt from the competitive bid requirements for leasing pursuant to this section if the executive head of any state agency certifies in writing that said facility is available from a single source and that the competitive bid requirements would be detrimental to the state. Such certification shall include documentation of evidence of steps taken to determine sole-source status.

(10)  The Department of Management Services may approve emergency acquisition of space without competitive bids if existing state-owned or state-leased space is destroyed or rendered uninhabitable by an act of God, fire, malicious destruction, or structural failure, or by legal action, if the chief administrator of the state agency or the chief administrator's designated representative certifies in writing that no other agency-controlled space is available to meet this emergency need, but in no case shall the lease for such space exceed 11 months. If the lessor elects not to replace or renovate the destroyed or uninhabitable facility, the agency shall procure the needed space by competitive bid in accordance with s. 255.249(4)(b). If the lessor elects to replace or renovate the destroyed or uninhabitable facility and the construction or renovations will not be complete at the end of the 11-month lease, the agency may modify the lease to extend it on a month-to-month basis for an additional 6 months to allow completion of such construction or renovations.

(11)  In any leasing of space that is accomplished without competition, the individuals taking part in the development or selection of criteria for evaluation, in the evaluation, and in the award processes shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

History.--s. 22, ch. 69-106; s. 5, ch. 75-70; s. 12, ch. 75-151; s. 1, ch. 77-174; s. 2, ch. 77-280; s. 3, ch. 78-166; s. 1, ch. 80-55; s. 1, ch. 80-294; s. 1, ch. 81-25; s. 1, ch. 82-191; s. 3, ch. 84-143; s. 9, ch. 84-321; s. 35, ch. 85-349; s. 2, ch. 88-202; s. 8, ch. 88-409; s. 3, ch. 90-224; s. 179, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 94-265; s. 3, ch. 94-333; s. 850, ch. 95-148; s. 44, ch. 96-399; s. 60, ch. 96-410; s. 22, ch. 97-94; s. 12, ch. 98-279; s. 22, ch. 99-399; s. 14, ch. 2000-141; s. 3, ch. 2000-172; s. 43, ch. 2001-61; s. 34, ch. 2001-186; s. 1, ch. 2001-267; s. 3, ch. 2001-372.