Senate Bill sb2722c1

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    Florida Senate - 2004                           CS for SB 2722

    By the Committee on Governmental Oversight and Productivity;
    and Senator Atwater




    302-2573-04

  1                      A bill to be entitled

  2         An act relating to the leasing and sale of real

  3         property by state agencies; amending s.

  4         255.248, F.S.; creating and revising

  5         definitions; providing exceptions; amending s.

  6         255.249, F.S.; removing a requirement;

  7         providing that the Department of Management

  8         Services, rather than agencies acting on their

  9         own behalf, can lease space for agencies;

10         providing that the department may retain a real

11         estate broker; providing requirements for real

12         estate broker services and for leases

13         negotiated by a broker; providing for review by

14         the Legislative Budget Commission; providing

15         exceptions; authorizing the department to

16         assign an agency to space vacated by another

17         agency; providing conditions under which an

18         agency may reject a proposed move; providing

19         for competitive solicitation of leases;

20         providing procedures; providing exceptions;

21         providing conditions for space allocation;

22         requiring adoption of a quality standard;

23         requiring an annual report for department's

24         enterprise plan; amending s. 255.25, F.S.;

25         removing a requirement that the department act

26         as a mediator; authorizing the department to

27         participate in large-scale leases; changing the

28         requirement for competitive bidding for leases

29         of real property for agencies to a requirement

30         for competitive solicitation; specifying

31         requirements for extension of a lease;

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    Florida Senate - 2004                           CS for SB 2722
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 1         increasing the bond requirement for protests of

 2         a lease solicitation; removing requirements for

 3         review by the State Fire Marshal; removing

 4         requirements for a flood plain analysis;

 5         removing an exception regarding specialized

 6         educational facilities; amending s. 255.25001,

 7         F.S.; changing competitive bidding to

 8         competitive solicitation; amending s. 255.2501,

 9         F.S.; providing criteria for leasing space

10         financed by local government obligations;

11         amending s. 255.45, F.S.; requiring the

12         department to submit building plans to the

13         State Fire Marshal for a fire safety review;

14         requiring the department to review building

15         plans for compliance with flood plain

16         management; reenacting s. 633.085(1)(b), F.S.,

17         relating to fire safety in state office

18         buildings, to incorporate the amendment to s.

19         255.45, F.S., in a reference thereto; repealing

20         s. 270.27, F.S., relating to the sale of unused

21         public lands; providing for the future repeal

22         of s. 255.249(2)(b), F.S., relating to

23         authorization for the department to contract

24         for certain real estate broker services;

25         providing an effective date.

26  

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

28  

29         Section 1.  Section 255.248, Florida Statutes, is

30  amended to read:

31  

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 1         255.248  Definitions, exceptions, and applications of;

 2  ss. 255.249 and 255.25.--

 3         (1)  The following definitions shall apply when used in

 4  ss. 255.249 and 255.25:

 5         (a)(1)  The term "state-owned office building" means

 6  any real property building title to which is vested in the

 7  state and which is used by one or more executive agencies

 8  predominantly for administrative direction and support

 9  functions.

10         (b)  The term "privately owned building" means any real

11  property, the title to which is not vested in the state, and

12  which is leased for use by one or more executive agencies

13  predominantly for administrative direction and support

14  functions.

15         (c)  The term "department" means the Department of

16  Management Services. This term excludes:

17         (2) Sections 255.249 and 255.25 do not apply to:

18         (a)  District or area offices established for field

19  operations where law enforcement, military, inspections, road

20  operations, or tourist welcoming functions are performed.

21         (b)  All educational facilities and institutions under

22  the supervision of the Department of Education or the Board of

23  Governors.

24         (c)  All custodial facilities and institutions used

25  primarily for the care, custody, or treatment of inmates or

26  wards of the state.

27         (d)  Buildings or spaces used by the Legislature or the

28  state courts for legislative activities.

29         (e)  Buildings purchased or constructed from

30  agricultural or citrus trust funds.

31  

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 1         (2)  The term "privately owned building" shall mean any

 2  building not owned by a governmental agency.

 3         Section 2.  Section 255.249, Florida Statutes, is

 4  amended to read:

 5         255.249  Department of Management Services;

 6  responsibility; department rules.--

 7         (1)  The department has of Management Services shall

 8  have responsibility and authority for the custodial and

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

10  buildings in the Florida Facilities Pool and the grounds

11  located adjacent thereto.

12         (2)(a)  The department has the responsibility and

13  authority to procure and manage all leases of privately owned

14  buildings on behalf of any executive agency, except as set

15  forth in s. 255.248(2).

16         (b)1.  The department may competitively solicit, under

17  chapter 287, the services of a real estate broker or brokers

18  licensed under chapter 475 to assist the department in

19  negotiating leases for privately owned buildings on behalf of

20  executive agencies. Compensation for a broker's negotiation or

21  renegotiation of any lease executed or renewed by the

22  department or by an executive agency:

23         a.  May only be paid when the department demonstrates

24  in writing that the lease results in a cost savings to the

25  state or otherwise provides value to the state that could not

26  have been achieved without the broker's services; and

27         b.  May include a market-based commission that

28  constitutes a specified percentage of the lease price and that

29  is paid by the owners of privately owned buildings that are

30  leased by the department or other executive agencies. The

31  department must document in writing the basis for its

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 1  determination of the market-based commission percentage. The

 2  market-based commission must provide for a structured schedule

 3  wherein the commission percentage declines as the square

 4  footage leased increases.

 5         2.  Any contract for real estate broker services

 6  executed by the department under this paragraph must contain:

 7         a.  Methodologies for establishing baselines for

 8  performance measures and standards;

 9         b.  Performance measures and standards that must

10  include, but are not limited to, expectations for:

11         (I)  The net cost savings to be achieved by a broker

12  for the state;

13         (II)  A reduction in the average price per square foot

14  for full service and less than full service private space

15  leases negotiated by the broker compared to state-procured

16  private space leased by executive agencies;

17         (III)  A reduction in the square footage of private

18  space leased by executive agencies;

19         (IV)  Space per full-time equivalent employee for

20  leases negotiated by the broker compared to state-procured

21  private space leased by executive agencies;

22         (V)  The number of executive agency employees relocated

23  from leased private space to state-owned buildings; and

24         (VI)  Executive agency and private building owner

25  satisfaction with broker services and with the price, quality,

26  and location of leased private space negotiated by a broker;

27         c.  Department procedures for monitoring and evaluating

28  a broker's performance;

29         d.  Processes that require monthly reporting by a

30  broker on its achievement of the performance measures and

31  standards and on the amount and basis for any compensation

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 1  received or to be received by the broker under the contract;

 2  and

 3         e.  Methods for resolving situations in which a broker

 4  fails to achieve the performance measures and standards, which

 5  must include, but are not limited to, withholding compensation

 6  and contract termination.

 7         3.  All cost savings resulting from leases negotiated

 8  or renegotiated by a real estate broker under contract with

 9  the department shall be deposited in escrow for tenant

10  improvements to the leased space or deposited in the General

11  Revenue Fund.

12         4.  Information on the costs and benefits of any lease

13  that has been negotiated or renegotiated by a real estate

14  broker under contract with the department shall be provided to

15  the chair and vice chair of the Legislative Budget Commission

16  if the annualized cost of the new or renegotiated lease is in

17  excess of $1 million and if it represents a greater than 10

18  percent change in the annualized cost of the department's or

19  other executive agency's original lease. The head of the

20  department or an executive agency that provides information

21  under this subparagraph may be requested to make a

22  presentation at a future Legislative Budget Commission

23  meeting.

24         (c)  This subsection does not apply to the Department

25  of Legal Affairs, the Department of Financial Services, or the

26  Department of Agriculture and Consumer Services, unless the

27  cabinet officer requests that the department perform the

28  service, or part thereof, for the executive agency. The

29  department shall require any state agency planning to

30  terminate a lease for the purpose of occupying space in a new

31  state-owned office building, the funds for which are

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 1  appropriated after June 30, 2000, to state why the proposed

 2  relocation is in the best interest of the state.

 3         (3)  The department may assign one or more executive

 4  agencies to move into space vacated by another executive

 5  agency. The executive agency that requested space may reject

 6  the department's transfer of the executive agency into the

 7  space based on excessive cost, unfavorable lease terms or

 8  conditions, negative impact on employee productivity, security

 9  concerns, poor location, poor building quality, insufficient

10  parking, excessive moving costs, or difficult access for

11  persons served by the executive agency. In order to reject the

12  transfer, the head of the executive agency must state in

13  writing the specific reason or reasons for rejecting the

14  vacated space. The department shall, to the extent feasible,

15  coordinate the vacation of privately owned leased space with

16  the expiration of the lease on that space and, when a lease is

17  terminated before expiration of its base term, will make a

18  reasonable effort to place another state agency in the space

19  vacated. Any state agency may lease the space in any building

20  that was subject to a lease terminated by a state agency for a

21  period of time equal to the remainder of the base term without

22  the requirement of competitive bidding.

23         (4)  The department shall adopt promulgate rules

24  pursuant to chapter 120 providing:

25         (a)  Methods for accomplishing the duties outlined in

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

27         (b)  Procedures requiring the competitive solicitation

28  of, and procedures for, evaluating and accepting responses to

29  competitive solicitations for soliciting and accepting

30  competitive proposals for, leased space of 5,000 square feet

31  or more in privately owned buildings., for evaluating the

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 1  proposals received, for exemption from competitive bidding

 2  requirements of any However, a lease the purpose of which is

 3  to provide the provision of care and living space for persons

 4  or a lease for emergency space needs as provided in s. 255.25

 5  are exempt from the competitive solicitation requirement s.

 6  255.25(10), and for the securing of at least three documented

 7  quotes for a lease that is not required to be competitively

 8  bid. The procedures:

 9         1.  May be simplified for a solicitation of less than

10  5,000 square feet;

11         2.  Shall provide evaluation criteria applicable to the

12  evaluation of a bid, proposal, or reply; and

13         3.  Shall provide that an executive agency that

14  requested space may reject the department's selection of space

15  for the executive agency based on excessive cost, unfavorable

16  lease terms or conditions, negative impact on employee

17  productivity, security concerns, poor location, poor building

18  quality, insufficient parking, excessive moving costs, or

19  difficult access for persons served by the executive agency,

20  if the head of the executive agency states in writing the

21  specific reason or reasons for the rejection. If the executive

22  agency rejects the space, the department is not required to

23  solicit new bids, proposals, or replies and may renegotiate

24  with prospective landlords who have previously replied to the

25  solicitation.

26         (c)  Adoption of a standard method for determining

27  square footage or any other measurement used as the basis for

28  lease payments or other charges or determining space

29  allocation.

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

31  office buildings and privately owned buildings leased by

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 1  executive agencies the state based on use, personnel, and

 2  office equipment. The space allocation method shall define

 3  specific uses and the appropriate space to be allocated to the

 4  uses. The space allocation method shall consider:

 5         1.  The need to accommodate persons with disabilities;

 6         2.  The security of the employees and the public;

 7         3.  The accommodation of public visitors of the

 8  executive agency;

 9         4.  The special needs of executive agencies regarding

10  laboratory, storage, computer, telecommunications, training,

11  and other special needs spaces;

12         5.  The investment in additional space when it can be

13  shown that gains in employee productivity will exceed the cost

14  of the additional space;

15         6.  The allocation of space for employee wellness

16  programs, child care, cafeterias, and break areas; and

17         7.  When applied to state-owned buildings, exceptions

18  to reasonably accommodate an inability to efficiently

19  reconfigure the space because of the design and age of the

20  building.

21         (e)  Acceptable terms and conditions for inclusion in

22  lease agreements.

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

24  county, for leasing privately owned space.

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

26  executive state agencies and other authorized occupants of

27  state-owned office space, notwithstanding the source of funds.

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

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

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

31  entity holding title to the property, for exemption from the

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 1  such disclosure of any beneficial interest which is

 2  represented by stock in any corporation registered with the

 3  Securities and Exchange Commission or registered under

 4  pursuant to chapter 517, which stock is for sale to the

 5  general public, and for exemption from the such disclosure of

 6  any leasehold interest in property located outside the

 7  territorial boundaries of the United States.

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

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

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

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

12  their interest, for exemption from the such disclosure of any

13  beneficial interest which is represented by stock in any

14  corporation registered with the Securities and Exchange

15  Commission or registered under pursuant to chapter 517, which

16  stock is for sale to the general public, and for exemption

17  from the such disclosure of any leasehold interest in property

18  located outside the territorial boundaries of the United

19  States.

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

21  consideration.

22         (k)  Adoption of the Building Owners and Managers

23  Association Metropolitan Base Building Classification, or

24  equivalent, as a standard method for rating the quality of

25  privately owned buildings. When practical, A or B class space

26  according to Building Owners and Managers Association

27  standards must be used. For a lease of less than 5,000 square

28  feet, a method for certification by the agency head or the

29  agency head's designated representative that all criteria for

30  leasing have been fully complied with and for the filing of a

31  copy of such lease and all supporting documents with the

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 1  department for its review and approval as to technical

 2  sufficiency.

 3         (5)  The department of Management Services shall

 4  prepare a form listing all conditions and requirements adopted

 5  under pursuant to this chapter which must be met by any

 6  executive state agency leasing any building or part thereof.

 7  This form shall be certified by the executive agency head or

 8  his or her the agency head's designated representative.

 9         (6)  On or before January 1, 2005, and annually

10  thereafter, the department shall submit a report to the

11  presiding officers of the Legislature which sets forth the

12  department's enterprise plan for the next 5 years for the use

13  of state-owned and state-leased space and for any acquisition,

14  financing, refinancing, or disposition of state real property

15  and improvements that the department is permitted by law to

16  execute. If the department intends to deviate from the

17  enterprise plan after submission of the annual report, the

18  department must provide notice to the presiding officers of

19  the Legislature at least 30 days prior to the execution of any

20  deviation.

21         Section 3.  Section 255.25, Florida Statutes, is

22  amended to read:

23         255.25  Leasing Approval required prior to construction

24  or lease of buildings.--

25         (1)(a)  No executive state agency may lease space in a

26  private building that is to be constructed for state use

27  unless prior approval of the architectural design and

28  preliminary construction plans is first obtained from the

29  department of Management Services.

30         (b)  During the term of existing leases, each executive

31  agency that has procured a lease in its name, and the

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 1  department for leases executed by the department, shall

 2  monitor market conditions and shall initiate negotiations for

 3  each lease of a privately owned building held in the private

 4  sector to effect the best overall lease terms reasonably

 5  available to the state that agency. Amendments to leases may

 6  be permitted to modify any lease provisions or any other terms

 7  or conditions, except to the extent specifically prohibited by

 8  this chapter. The Department of Management Services shall

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

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

11  renegotiation and if either the agency or lessor requests the

12  Department of Management Services' intervention.

13         (c)  When specifically authorized by the Appropriations

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

15  department of Management Services may enter into approve a

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

17  contract or other financing technique for the acquisition,

18  renovation, or construction of a state fixed capital outlay

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

20         (d)  The department, in order to seek economies of

21  scale and the opportunity to colocate executive agencies, may

22  competitively negotiate to procure new leases, renegotiate

23  existing leases, or otherwise consolidate existing leases into

24  a large scale lease or leases covering one or more privately

25  owned buildings. The department may adopt rules establishing

26  procedures to procure and manage large-scale leases and

27  provide a method for allocating lease costs among executive

28  agencies.

29         (2)(a)  Except as provided in s. 255.2501, an executive

30  no state agency may not lease or occupy a state-owned building

31  or privately owned a building or any part thereof unless prior

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

 2  first obtained from the department of Management Services. A

 3  Any approved lease may include an option to purchase or an

 4  option to renew the lease, or both, upon such terms and

 5  conditions acceptable to as are established by the department

 6  subject to final approval by the head of the Department of

 7  Management Services and in compliance with s. 255.2502.

 8         (b)  The department and an executive agency allowed to

 9  directly procure a The approval of the Department of

10  Management Services, except for technical sufficiency, need

11  not be obtained for the lease or an extension of a lease must

12  comply of less than 5,000 square feet of space within a

13  privately owned building, provided the agency head or the

14  agency head's designated representative has certified

15  compliance with applicable leasing criteria as may be provided

16  under this section and pursuant to s. 255.249(4)(k) and shall

17  determine that the has determined such lease is to be in the

18  best interest of the state. Such A lease that which is for a

19  term extending beyond the end of a fiscal year is subject to

20  the provisions of ss. 216.311, 255.2502, and 255.2503.

21         (c)  The department of Management Services shall adopt

22  by as a rule uniform leasing procedures for use by the

23  department and by executive agencies that may directly procure

24  space, which each state agency other than the Department of

25  Transportation. Each state agency shall ensure that the

26  leasing practices of that agency are in substantial compliance

27  with the uniform leasing rules adopted under this section and

28  ss. 255.249, 255.2502, and 255.2503.

29         (3)(a)  Except as provided in subsection (10), no state

30  agency shall enter into a lease as lessee for the use of 5,000

31  square feet or more of space in a privately owned building

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 1  except upon advertisement for and receipt of competitive bids

 2  and award to the lowest and best bidder.  The Department of

 3  Management Services shall have the authority to approve a

 4  lease for 5,000 square feet or more of space that covers more

 5  than 1 fiscal year, subject to the provisions of ss. 216.311,

 6  255.2501, 255.2502, and 255.2503, if such lease is, in the

 7  judgment of the department, in the best interests of the

 8  state. This paragraph does not apply to buildings or

 9  facilities of any size leased for the purpose of providing

10  care and living space for persons.

11         (b)  The department or an executive agency that may

12  procure its own space of Management Services may negotiate

13  with the owner of a privately owned building to enter into an

14  extension approve extensions of an existing lease of 5,000

15  square feet or more of space if the extension is such

16  extensions are determined to be in the best interests of the

17  state, but in no case shall the total of such extensions

18  exceed 11 months. When determining the best interests of the

19  state, the department or the executive agency must use an If

20  at the end of the 11th month an agency still needs that space,

21  it shall be procured by competitive bid in accordance with s.

22  255.249(4)(b). However, an agency that determines that it is

23  in its best interest to remain in the space it currently

24  occupies may negotiate a replacement lease with the lessor if

25  an independent comparative market analysis to show

26  demonstrates that the negotiated lease rate for the extension

27  is rates offered are within market rates for comparable the

28  space, that and the cost of the extension new lease does not

29  exceed the cost of a comparable space lease plus documented

30  moving costs, and that the space will adequately serve the

31  public. A present-value analysis and the consumer price index

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

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

 3  expiring lease.

 4         (b)(c)  Any person who files an action under s.

 5  120.57(3)(b) protesting a decision or intended decision

 6  pertaining to a competitive solicitation bid for space to be

 7  leased by an executive the agency or the department under

 8  pursuant to s. 120.57(3)(b) shall post with the executive

 9  state agency or the department, as appropriate, at the time of

10  filing the formal written protest a bond payable to the

11  executive agency or the department in an amount equal to 1

12  percent of the estimated total rental of the basic lease

13  period or $7,500 $5,000, whichever is greater, which bond

14  shall be conditioned upon the payment of all costs which may

15  be adjudged against the protester him or her in the

16  administrative hearing in which the action is brought and in

17  any subsequent appellate court proceeding. If the executive

18  agency or the department prevails after completion of the

19  administrative hearing process and any appellate court

20  proceedings, it shall recover all costs and charges which

21  shall be included in the final order or judgment, excluding

22  attorney's fees.  Upon payment of the such costs and charges

23  by the person protesting the award, the bond shall be returned

24  to the person him or her.  If the person protesting the award

25  prevails, the bond shall be returned to that person and he or

26  she shall recover from the executive agency or the department

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

28  order of judgment, excluding attorney's fees.

29         (c)(d)  The executive agency or the department and the

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

31  feet of a privately owned building, shall, before the

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

 2  the cost of tenant improvements which may qualify for

 3  reimbursement if the lease is terminated before the expiration

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

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

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

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

 8  basis.

 9         (d)(e)  The unamortized portion of tenant improvements,

10  if appropriated, will be paid in equal monthly installments

11  over the remaining term of the lease. If any portion of the

12  original leased premises is occupied after termination but

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

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

15  tenant improvements applicable to the occupied but unchanged

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

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

18  space to unleased space.

19         (4)(a)  The department, or any executive agency

20  conducting its own leasing, may of Management Services shall

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

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

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

24  geographic region, unless except upon presentation to the

25  department or executive agency prepares a of sufficient

26  written justification of the need for, acceptable to the

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

28  fulfill the statutory duties of the executive agency making

29  such request. The term "state-owned building" as used in this

30  subsection means any state-owned facility regardless of use or

31  control.

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 1         (b)  The department State agencies shall cooperate with

 2  local governmental units by using suitable, existing publicly

 3  owned facilities, subject to the provisions of ss. 255.2501,

 4  255.2502, and 255.2503. Executive agencies may use utilize

 5  unexpended funds appropriated for lease payments to pay the

 6  local government a reasonable proportion of operating costs

 7  attributable to the space used and to renovate space assigned

 8  to the executive agency.:

 9         1.  Pay their proportion of operating costs.

10         2.  Renovate applicable spaces.

11         (5)  Before construction or renovation of any

12  state-owned building or state-leased space is commenced, the

13  Department of Management Services shall ascertain, by

14  submission of proposed plans to the Division of State Fire

15  Marshal for review, that the proposed construction or

16  renovation plan complies with the uniform firesafety standards

17  required by the Division of State Fire Marshal.  The review of

18  construction or renovation plans for state-leased space shall

19  be completed within 10 calendar days of receipt of the plans

20  by the Division of State Fire Marshal.  The review of

21  construction or renovation plans for a state-owned building

22  shall be completed within 30 calendar days of receipt of the

23  plans by the Division of State Fire Marshal. The

24  responsibility for submission and retrieval of the plans

25  called for in this subsection shall not be imposed on the

26  design architect or engineer, but shall be the responsibility

27  of the two agencies. Whenever the Division of State Fire

28  Marshal determines that a construction or renovation plan is

29  not in compliance with such uniform firesafety standards, the

30  Division of State Fire Marshal may issue an order to cease all

31  construction or renovation activities until compliance is

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 1  obtained, except those activities required to achieve such

 2  compliance.  The Department of Management Services shall

 3  withhold approval of any proposed lease until the construction

 4  or renovation plan complies with the uniform firesafety

 5  standards of the Division of State Fire Marshal.  The cost of

 6  all modifications or renovations made for the purpose of

 7  bringing leased property into compliance with the uniform

 8  firesafety standards shall be borne by the lessor.

 9         (6)  Before construction or substantial improvement of

10  any state-owned building is commenced, the Department of

11  Management Services must ascertain that the proposed

12  construction or substantial improvement complies with the

13  flood plain management criteria for mitigation of flood

14  hazards, as prescribed in the October 1, 1986, rules and

15  regulations of the Federal Emergency Management Agency, and

16  the department shall monitor the project to assure compliance

17  with the criteria.  In accordance with chapter 120, the

18  Department of Management Services shall adopt any necessary

19  rules to ensure that all such proposed state construction and

20  substantial improvement of state buildings in designated

21  flood-prone areas complies with the flood plain management

22  criteria.  Whenever the department determines that a

23  construction or substantial improvement project is not in

24  compliance with the established flood plain management

25  criteria, the department may issue an order to cease all

26  construction or improvement activities until compliance is

27  obtained, except those activities required to achieve such

28  compliance.

29         (5)(7)  This section does not apply to a any lease

30  having a term of less than 120 consecutive days for the

31  purpose of securing the one-time special use of the leased

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 1  property or.  This section does not apply to any lease for

 2  nominal or no consideration.

 3         (8)  No agency shall enter into more than one lease for

 4  space in the same privately owned facility or complex within

 5  any 12-month period except upon the solicitation of

 6  competitive bids.

 7         (9)  Specialized educational facilities, excluding

 8  classrooms, shall be exempt from the competitive bid

 9  requirements for leasing pursuant to this section if the

10  executive head of any state agency certifies in writing that

11  said facility is available from a single source and that the

12  competitive bid requirements would be detrimental to the

13  state.  Such certification shall include documentation of

14  evidence of steps taken to determine sole-source status.

15         (6)(10)  The department of Management Services may

16  approve emergency acquisition of space without competitive

17  solicitation bids if existing state-owned or state-leased

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

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

20  legal action, if the chief administrator of the executive

21  state agency or the chief administrator's designated

22  representative certifies in writing that no other

23  agency-controlled space is available to meet this emergency

24  need, but in no case shall the lease for such space exceed 11

25  months. If the lessor elects not to replace or renovate the

26  destroyed or uninhabitable facility, the executive agency or

27  department, as applicable, shall procure the needed space by

28  competitive solicitation bid in accordance with s.

29  255.249(4)(b).  If the lessor elects to replace or renovate

30  the destroyed or uninhabitable facility and the construction

31  or renovations will not be complete at the end of the 11-month

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 1  lease, the executive agency or department may modify the lease

 2  to extend the temporary lease it on a month-to-month basis for

 3  up to an additional 6 months to allow completion of such

 4  construction or renovations.

 5         (7)(11)  In any leasing of space that is accomplished

 6  without competition, the individuals taking part in the

 7  development or selection of criteria for evaluation, in the

 8  evaluation, and in the award processes shall attest in writing

 9  that they are independent of, and have no conflict of interest

10  in, the entities evaluated and selected.

11         Section 4.  Section 255.25001, Florida Statutes, is

12  amended to read:

13         255.25001  Suspension or delay of specified functions,

14  programs, and requirements relating to governmental

15  operations.--Notwithstanding the provisions of:

16         (1)  Section 946.504(3), as amended by chapter 92-279,

17  Laws of Florida, the Department of Management Services is

18  shall not be required to participate with the Department of

19  Corrections in the correctional work program (PRIDE) leasing

20  process.

21         (2)  Sections 253.025 and 255.25, the Department of

22  Management Services may adopt has the authority to promulgate

23  rules under pursuant to chapter 120 to use when be used in

24  determining whether a lease-purchase of a state-owned office

25  building is in the best interests of the state, which rules

26  provide:

27         (a)  Procedures executive state agencies will follow to

28  certify the need for a lease-purchase acquisition for a

29  state-owned office building to the Department of Management

30  Services and a notification procedure of the department's

31  decision regarding executive state agencies' requests for a

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 1  lease-purchase agreement. The certification process shall

 2  include but not be limited to the following:

 3         1.  Current programmatic space requirements of the

 4  state agency.

 5         2.  Future programmatic space requirements of the

 6  executive state agency.

 7         3.  Time considerations in providing state-owned office

 8  building space.

 9         4.  An analysis of existing leases affected by the

10  lease-purchase agreement.

11         (b)  Procedures and document formats for the

12  advertisement, competitive solicitation bid process, including

13  format of submissions, and evaluation of lease-purchase

14  acquisition proposals for state-owned office buildings. The

15  evaluation process shall include but not be limited to the

16  following:

17         1.  A consideration of the cost of comparable operating

18  leases.

19         2.  The appraised value of the facility as required by

20  s. 253.025.

21         3.  A present value analysis of the proposed payment

22  stream.

23         4.  The cost of financing the facility to be acquired.

24         5.  The cost to repair identified physical defects.

25         6.  The cost to remove identified hazardous substances.

26         7.  An energy analysis.

27         8.  A determination of who is responsible for

28  management and maintenance activities.

29  

30  In order to minimize the cost of the evaluation process, the

31  Department of Management Services may develop a multistage

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 1  evaluation process to identify the most cost-efficient

 2  proposals for extensive evaluation. The studies developed as a

 3  result of this evaluation process shall be considered

 4  confidential and exempt from the provisions of s. 119.07(1) to

 5  the same extent that appraisal reports are considered

 6  confidential and exempt from the provisions of s. 119.07(1) as

 7  provided in s. 253.025(6)(d).

 8         (c)  Acceptable terms and conditions for inclusion in

 9  lease-purchase agreements, which shall include but not be

10  limited to:

11         1.  The assignment of the lease-purchase agreement to

12  other governmental entities, including accumulated equity.

13         2.  The ability of the acquiring executive state agency

14  to sublease a portion of the facility, not to exceed 25

15  percent, to other governmental entities. These subleases shall

16  provide for the recovery of the agencies' cost of operations

17  and maintenance.

18  

19  The execution of a lease-purchase is conditioned upon a

20  finding by the Department of Management Services that it would

21  be in the best interests of the state.  The language in this

22  subsection shall be considered specific authorization for a

23  lease-purchase pursuant to s. 255.25(1)(b) upon the Department

24  of Management Services' certification that the lease-purchase

25  is in the best interests of the state.  Thereafter, the

26  executive agency is authorized to enter into a lease-purchase

27  agreement and to expend operating funds for lease-purchase

28  payments.  Any facility which is acquired under pursuant to

29  the processes authorized by this subsection shall be

30  considered to be a "state-owned office building" and a

31  

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 1  "state-owned building" as those terms are applied in ss.

 2  255.248-255.25.

 3         (d)  That any costs resulting from the processes

 4  authorized by this subsection, including but not limited to

 5  appraisals, environmental analyses, and any other studies

 6  which may be required under these provisions, shall be borne

 7  by the owner of the property which is the subject of the

 8  proposed lease-purchase.

 9         (3)  Chapters 253 and 287, the Department of

10  Agriculture and Consumer Services may shall be authorized to

11  sell any tangible personal property, real property, or

12  structures on leased or department-owned real property without

13  complying with other provisions of law or Florida Statutes,

14  with the proceeds being deposited into the Property Trust

15  Account in the General Inspection Trust Fund.  Before Prior to

16  finalizing any such sale, the department's proposed action

17  shall be subject to the notice and review procedures set forth

18  in s. 216.177, as amended by chapter 92-142, Laws of Florida.

19         Section 5.  Subsection (2) of section 255.2501, Florida

20  Statutes, is amended to read:

21         255.2501  Lease of space financed with local government

22  obligations.--

23         (2)  No lease, lease-purchase, sale-leaseback,

24  purchase, or rental of any office space, building, real

25  property and improvements thereto, or any other fixed capital

26  outlay project that is or is to be financed with local

27  government obligations of any type shall be requested for

28  approval in the Appropriations Act unless:

29         (a)  The construction for the such project is to be or

30  has been competitively solicited bid unless the certificate of

31  

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 1  occupancy for the such project was issued more than 3 years

 2  before prior to the time the such request is made;

 3         (b)  The executive branch agency or department making

 4  the request has competitively solicited bid its space needs

 5  before prior to making the such request and the project for

 6  which approval is sought was the lowest and best bidder for

 7  such needs; and

 8         (c)  The rent, lease payment, lease-purchase payment,

 9  or other payment for the such project is not greater than an

10  amount equal to the same proportion of the debt service on the

11  local government obligations to be issued to finance or which

12  are outstanding that financed, as the case may be, the

13  facility or project for which approval is sought that the

14  executive agency or department seeking the such approval will

15  use utilize under the lease, lease-purchase, sale-leaseback,

16  purchase, or rental of the project in the facility or project

17  as compared to the entire facility or project that is to be or

18  was financed. This paragraph does shall not apply when the

19  certificate of occupancy for a facility or project was issued

20  more than 3 years before prior to the time the such request is

21  made.

22         Section 6.  Section 255.45, Florida Statutes, is

23  amended to read:

24         255.45  Safety in Correction of firesafety violations

25  in certain state-owned and state-leased property.--

26         (1)  The Department of Management Services is

27  responsible for ensuring that firesafety violations that are

28  noted by the State Fire Marshal pursuant to s. 633.085 are

29  corrected as soon as practicable for all state-owned property

30  which is leased from the Department of Management Services.

31  

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 1         (2)  Before construction or renovation of any

 2  state-owned building, or privately owned building to be

 3  occupied by the state, is begun, the Department of Management

 4  Services shall ascertain, by submission of proposed plans to

 5  the Division of State Fire Marshal for review, that the

 6  proposed construction or renovation plan complies with the

 7  uniform fire safety standards required by the Division of

 8  State Fire Marshal. The review of construction or renovation

 9  plans for a privately owned building must be completed within

10  10 calendar days of receipt of the plans by the Division of

11  State Fire Marshal. The review of construction or renovation

12  plans for a state-owned building must be completed within 30

13  calendar days of receipt of the plans by the Division of State

14  Fire Marshal. The responsibility for submitting and retrieving

15  the plans called for in this subsection shall not be imposed

16  on the design architect or engineer, but is the responsibility

17  of the Department of Management Services. When the Division of

18  State Fire Marshal determines that a construction or

19  renovation plan is not in compliance with the uniform fire

20  safety standards, the Division of State Fire Marshal may issue

21  an order to cease all construction or renovation activities

22  until compliance is obtained, except those activities required

23  to achieve compliance. The Department of Management Services

24  shall withhold approval of any proposed lease until the

25  construction or renovation plans comply with the uniform fire

26  safety standards of the Division of State Fire Marshal. The

27  cost of all modifications or renovations made for the purpose

28  of bringing leased property into compliance with the uniform

29  fire safety standards shall be borne by the lessor.

30         (3)  Before construction or substantial improvement of

31  any state-owned building is begun, the Department of

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 1  Management Services must ascertain that the proposed

 2  construction or substantial improvement complies with the

 3  flood plain management criteria for the mitigation of flood

 4  hazards, as prescribed in the rules and regulations of the

 5  Federal Emergency Management Agency issued October 1, 1986.

 6  The department shall monitor the project to assure compliance

 7  with the criteria. The Department of Management Services shall

 8  adopt rules to ensure that all proposed state construction and

 9  substantial improvements of state-owned buildings in

10  designated flood-prone areas comply with the flood plain

11  management criteria. If the department determines that a

12  construction or substantial improvement project is not in

13  compliance with the established flood plain management

14  criteria, the department may issue an order to cease all

15  construction or improvement activities until compliance is

16  obtained, except those activities required to achieve such

17  compliance.

18         Section 7.  For the purpose of incorporating the

19  amendment made by this act to section 255.45, Florida

20  Statutes, in a reference thereto, paragraph (b) of subsection

21  (1) of section 633.085, Florida Statutes, is reenacted to

22  read:

23         633.085  Inspections of state buildings and premises;

24  tests of firesafety equipment; building plans to be

25  approved.--

26         (1)

27         (b)  Except as provided in s. 255.45, the department

28  head is responsible for ensuring that deficiencies noted in

29  the inspection are corrected as soon as practicable.

30         Section 8.  Section 270.27, Florida Statutes, is

31  repealed.

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 1         Section 9.  Effective October 15, 2005, paragraph

 2  (2)(b) of section 255.249, Florida Statutes, as created by

 3  this act, is repealed.

 4         Section 10.  This act shall take effect July 1, 2004.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 2722

 8                                 

 9  Revises bill's definitions for "state-owned building" and
    "privately owned building." Specifies requirements for real
10  estate broker contract and for payment of broker. Requires
    deposit of cost savings due to broker in specified accounts.
11  Requires the Department of Management Services to submit
    annual report to Legislature. Requires the department to adopt
12  a standard method for space allocation and for rating building
    quality. Increases protest bond amount in s. 255.25, F.S.
13  Transfers s. 255.25(5) and (6), F.S., to s. 255.45, F.S. Makes
    conforming changes in ss. 255.25001 and 255.2501, F.S.
14  Reenacts s. 633,085, F.S., to incorporate a reference. Repeals
    s. 270.27, F.S., relating to the department's authority to
15  sell unused public lands. Provides for the future repeal of s.
    255.249(2)(b), F.S.
16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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