These rule amendments are intended to modify the rules to meet the Joint Administrative Procedures Committee objections. No agency may lease a building or any part thereof unless prior approval of the lease conditions and of the need therefore is ...

DEPARTMENT OF MANAGEMENT SERVICES
Division of Facilities Management

RULE NO: RULE TITLE
60H-1.003: Standard Lease Agreement Form
60H-1.015: Leases of 5,000 Square Feet or More
60H-1.017: Turnkey (Lease) Construction Program
60H-1.022: Prior Approval of Space Need
PURPOSE AND EFFECT: These rule amendments are intended to modify the rules to meet the Joint Administrative Procedures Committee objections. No agency may lease a building or any part thereof unless prior approval of the lease conditions and of the need therefore is first obtained from the Department of Management Services. See, Section 255.25(2)(a), F.S. This rule amendment corrects subsections 60H-1.003(3), 60H-1.017(2), and 60H-1.022(2), F.A.C., which currently permit agencies to enter leases without receiving active approves by the Department of Management Services. Also this rule amendment corrects subparagraph 60H-1.015(1)(b)5., F.A.C., to ensure that extensions are approved by the Department of Management Services when in the best interest of the state. See, Section 255.25(3)(b), F.S.
SUMMARY: Subsections 60H-1.003(3), 60H-1.017(2), and 60H-1.022(2), F.A.C., are being amended to remove the 10 day passive approval provisions contained therein so as to require active approvals by the Department of Management Services prior to the leasing of space. Also subsection 60H-1.015(1), F.A.C., is being amended to provide for approval by the Department of Management Services of lease extensions for leases 5,000 square feet or more, if such extensions are determined to be in the best interest of the state.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 255.249(4) FS.
LAW IMPLEMENTED: 255.249, 255.25 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: May 14, 2007, 9:00 a.m.
PLACE: Department of Management Services, 4050 Esplanade Way, Room 360K, Tallahassee, Florida 32399-0950
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Spencer Kraemer, Department of Management Services, 4050 Esplanade Way, Suite 360, Tallahassee, Florida 32399-0950, [phone], [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

60H-1.003 Standard Lease Agreement Form.

(1) All agency leases shall be on the Department of Management Services’ Standard Lease Form (FM Form 4054, effective August 11, 1975, as revised May, 2001, incorporated by reference in this rule).

(2) No provision of the Standard Lease Agreement may be changed or additional covenants or conditions added thereto without the prior written approval of the Division’s director except for articles relating to lessor furnishing janitorial services, replacing light bulbs, and paying utility charges. Any agency request for changes or additions to the Standard Lease Agreement shall be submitted to the Bureau in writing and state with reasonable particularity why the change or addition is necessary and in the best interest of the State. Unless the Division director’s approval has been obtained in accordance with this rule, any such change or addition shall be null and void.

(3) Certificate of Compliance. Within 30 days after executing a lease of less than 5,000 square feet of space within a privately or publicly owned building, the agency head shall file with the Bureau on a form provided by the Bureau (FM 4113, effective May 1996, as revised January, 2003 and January, 2004, incorporated by reference in this rule) a certificate stating that the lease is in compliance with all leasing criteria provided by Chapter 255, Florida Statutes. The certificate shall further state that the agency has determined that the lease is in the best interest of the State. As used in this section the phrase “the best interest of the state” shall mean:

(a) The agency has filed a Request for Prior Approval of Space Need pursuant to Rule 60H-1.022, Florida Administrative Code, and either:

1. The Division has approved the Request or has not responded to the agency’s request within 10 working days of receipt of the request; and or

2. If state owned space is available in the same geographic region, the agency has enunciated reasons why such space would not enable the agency to fulfill its statutory duties;

(b) The rental rate for the space in the privately owned building is within the rental rate guidelines established by the Bureau;

(c) The space to be leased is the most cost effective space available to meet the agency’s needs.

(4) Exceptions. This rule shall not apply to:

(a) Any agency lease having a term of less than 120 consecutive days for the purpose of securing the one-time special use of the leased property.

(b) Any agency lease for nominal or no consideration. As used herein, “nominal consideration” means consideration for $1.00 or less. Nominal or no consideration leases shall be filed with the Bureau on a form provided by the Bureau (FM Form No. 4108, effective July 1995, as revised January, 2003, incorporated by reference in this rule).

(5) Change of Ownership. If ownership of a leased facility changes during the term of the lease, the Bureau of Property Management must be furnished certain pertinent information; i.e., a copy of the deed or other legal document effecting transfer of facility and disclosure form (FM Form No. 4114, effective June 1995, as revised January, 2003, incorporated by reference in this rule) completed by the new owner.

(6) Trailer, Mobile Unit or Hangar Space. A lease of any square footage for any purpose in a “trailer” or mobile unit must have prior approval of the Division of Motor Pool, Department of Management Services. Prior to leasing privately owned hangar space, an agency must provide the Bureau with a statement from the Division of Motor Pool that no state owned hangar space is available.

Specific Authority 255.249(5), 255.25(2) FS. Law Implemented 255.249(2)(j), (k), (3), 255.25(2)(a), (b) FS. History–New 8-11-75, Amended 4-25-79, Formerly 13D-7.03, Amended 3-18-86, Formerly 13M-1.003, Amended 9-30-96, 5-13-03, 4-27-04,________.

 

60H-1.015 Leases of 5,000 Square Feet or More.

(1)(a) No agency shall enter into a lease for 5,000 square feet or more of space in a privately owned building except upon advertisement of competitive solicitations. No agency shall enter into, within any 12-month period, more than one lease for space of a total of 5,000 square feet or more in the same privately owned facility or complex except upon the solicitation of competitive responses.

(b) Exceptions:

1. This rule shall not apply to renewal of leases pursuant to Article XX of the Standard Lease Agreement.

2. This rule shall 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.

3. This rule shall not apply to any lease for nominal or no consideration. As used herein, “nominal consideration” means consideration for $1.00 or less per year.

4. This rule shall not apply to buildings or facilities of any size leased for the purpose of providing care and living space for persons, provided the agency has filed with the Bureau a certificate of exemption demonstrating that the lease is exempt from competitive solicitation under Section 255.249 or 255.25, Florida Statutes.

5. The Division will may approve extensions of an existing lease of 5,000 square feet or more space if such extensions are determined by the Division to be in the best interest of the state fit the needs of the agency, but in no case shall the total of such extensions exceed 11 months. If at the end of the period granted by the extension(s), the time of such extension(s) equal(s) 11 months, and the agency still needs space, the agency shall solicit competitive responses in accordance with this chapter. All agency requests for an extension under this clause shall be submitted in writing to the Bureau within a reasonable period of time before a lease is to end. The agency shall furnish a statement of justification for the extension. The Division Director shall review the request and issue a written decision.

6. An agency may enter into a modification of a lease for less than 5,000 square feet to increase the square footage if the modification is upon the same terms and conditions of the approved lease, provided the total additional square footage of the lease modification is less than 5,000 square feet. An agency may enter into, within any 12-month period, more than one modification of a lease for 5,000 square feet or more to increase the square footage, provided the total space acquired by modification within the 12-month period is less than 5,000 square feet.

7. Notwithstanding subparagraph 5. above, an agency may enter into a replacement lease or may renegotiate the terms and conditions of an existing lease for more than 5,000 square feet upon approval by the Division Director, if the replacement lease or modification is in the best interests of the state and complies with the requirements established in Section 255.25(3)(b), Florida Statutes.

(2) Solicitation.

(a) A public solicitation for responses will be widely publicized using newspapers (a minimum of twice, with a week between notices) and personal contact with owners, developers or licensed real estate brokers in the city or area in which space is desired.

(b) Solicitation shall set forth the following:

1. Approximate net square footage required.

2. General area in which space must be located.

3. Date space must be available.

4. Name and address where specifications may be obtained.

(3) Specifications.

(a) Specifications shall be drawn in general terms. They shall afford each prospective lessor interested in submitting a response, knowledge of the agency’s space requirements. They shall not be structured with the intent to favor any specific location or lessor.

(b) Specifications provided to each prospective lessor should set forth the following:

1. Approximate net square footage required, to be measured in compliance with the Department of Management Services’ Standard Method of Space measurement, pursuant to subsection 60H-2.003(2), Florida Administrative Code, and taking into consideration the Department of Management Services’ Space Allocation and Configuration Standards provided in Rule 60H-2.0022, Florida Administrative Code.

2. An approximate floor plan of space needed showing partitioning and other physical requirements.

3. General location of required space.

4. Date space must be available.

5. Term of lease with option to renew, if desired.

6. Services required to include parking, dining and transportation requirements.

7. Acceptable Energy Performance Index as defined in Section 255.253, Florida Statutes.

(c) Specifications shall also set forth that the prospective lessor will agree to:

1. Enter into a contract on a Department of Management Services’ Standard Lease Agreement form.

2. Provide a scaled floor plan showing present configurations and measurements that equate to net rentable square footage offered.

3. Comply with the requirements of Chapter 60D-1, Florida Administrative Code, Design Standards for Special Facilities for the Physically Disabled, if awarded lease.

4. Be an Equal Opportunity Employer and certify same.

5. Provide Full Disclosure Statements of Ownership if awarded lease (Rules 60H-1.025 and 60H-1.026, Florida Administrative Code).

6. Validate the response for a minimum of thirty (30) days following the public response due date.

7. Provide a Life Cycle Analysis with the response if space is for 20,000 or more square feet in any one structure, with the understanding that the analysis shall be acceptable before an award can be made (Section 255.254, Florida Statutes).

8. Ensure that the facility will comply with the minimum stated level of acceptable energy performance index.

9. Comply with the uniform fire safety standards of the Division of the State Fire Marshal if awarded lease.

10. Ensure that any renovations required will comply with the uniform fire safety standards of the Division of the State Fire Marshal before renovations are commenced (Section 255.25(5), Florida Statutes).

11. Propose a rental rate per square foot per year that will include all renovations and other special requirements necessary to accommodate the program at the time of initial occupancy.

12. Provide the legal description (metes and bounds; plat; Government Survey System) of property being offered (subject to award) as well as the general description (that type of description, room number, building name, street address, currently being provided on the Lease Agreement) of the facility.

(d) Specifications shall provide a date and time in which responses are to be submitted to a designated individual. An announcement of award shall be posted following negotiations with respondents.

(e) Suggested formats and guidelines for specifications may be obtained from Bureau of Property Management, Department of Management Services.

(4) Responses.

(a) Responses shall specifically respond to each item included in the specifications.

(b) Each response shall be signed by the owner(s), or corporate officers, or legal representative(s). The corporate, trade, or partnership name must be either stamped, written or typewritten, beside the actual signature(s). If the response is signed by an agent, written evidence of his authority must accompany the response. If a corporation foreign to the State of Florida is the owner, written evidence of authority to conduct business in Florida must accompany the response. Lessor must include proof of the lessor’s authority to offer the facility, i.e., copy of lessor’s option to purchase (if the lessor is not the owner or owner’s representative). This option must be valid through the time period stated in the solicitation for which responses may not be withdrawn.

(5) Evaluation.

(a) The user agency, in conjunction with its designated representative, shall reserve the right to accept or reject any or all responses submitted and if necessary reinitiate procedures for soliciting competitive responses. The user agency, in conjunction with its designated representative, shall reserve the right to negotiate with competing lessors.

(b) The user agency, in conjunction with its designated representative, in preparing specifications, shall develop evaluation criteria which shall be included in the competitive solicitation. Rental, using total present value methodology for basic term of lease and applying the present value discount rate pursuant to Rule 60H-1.029, Florida Administrative Code; the cost of relocation, if any; consolidation of activities, if desirable; and any other factor deemed necessary should be considered.

(c) The evaluation shall be made by the user agency in conjunction with its designated representative.

(d) Selection shall be made by the user agency, in conjunction with its designated representative.

(e) Documentation to support the selection shall be maintained by the user agency, in conjunction with its designated representative, and shall include the following:

1. A copy of all advertisements and solicitations.

2. A copy of the proposed specifications.

3. A copy of all proposals received.

4. A synopsis of the user agency’s findings for each response.

(f) Selection shall be publicly announced by the user agency, in conjunction with its designated representative at the time and manner designated in the solicitation.

(6) Lease preparation and approval.

(a) After the selection has been announced, a lease shall be properly executed by the lessor and the user agency and submitted to the Bureau for approval.

(b) Documentation to be submitted for lease approval shall include:

1. A copy of the competitive solicitation and a copy of the response made by successful lessor.

2. A synopsis of the user agency’s findings made in conjunction with its designated representative for all responses received.

3. Present value calculations for all responses.

Specific Authority 255.249(4) FS. Law Implemented 255.249(2)(b), (4), 255.21, 255.25(3), (5), 255.254 FS. History–New 4-25-79, Amended 4-19-83, Formerly 13D-7.092, Amended 3-18-86, Formerly 13M-1.015, Amended 2-21-96, 5-13-03, 4-27-04,________.

 

60H-1.017 Turnkey (Lease) Construction Program.

(1) Concept. The turnkey system is a concept whereby the builder is usually a commercial developer and the procedure should provide for design of the building by the developer’s architect on the basis of performance specifications, concurrent design review, use of a developer-owned site and private financing.

The turnkey system may include several features which can be expected to motivate effective performance. Under this system, the entire design and construction effort is usually carried out by a developer. A major motivation is the requirement that he finance the project until the building is accepted. This provides an incentive to expedite construction in order to minimize the cost of financing. A further motivation is the fact that the State will not accept the building if it does not meet the requirements of the performance specifications. It is recommended that the turnkey (lease) construction system be used whenever and wherever State User Agency need arises and a determination has been made that existing space is not available. To implement use of this system, the Department of Management Services requires the User Agency or its designated representative to set forth its program construction requirements in a competitive solicitation, which will then be used by the User Agency or its designated representative in the solicitation of responses from Developers. A public solicitation of responses from Developers will be made by the User Agency or its designated representative. This solicitation will be widely publicized using newspapers, trade papers, and personal contact with leading Developers in the project city or area. In carrying out the public solicitation, all parties should be clearly informed that the User Agency, in conjunction with its designated representative, may conduct extensive negotiations with each Developer submitting a response within a competitive range, prior to the selection of Approved Developer.

(2) Criteria. The State User Agency in conjunction with its designated representative will perform the program in accordance with the Department of Management Services’ guidelines, as presented herein.

User Agency Responsibilities:

(a)1. Agency shall determine and then establish the functional and staff need for a given facility;

2. Agency shall certify that it has filed a Request for Prior Approval of Space Need pursuant to Rule 60H-1.022, Florida Administrative Code, and either;

a. The Division has approved the request or has not responded to the agency’s request within 10 working days of receipt of the request; and or

b. If state owned space is available in the same geographic region the agency has enunciated reasons such space does not satisfy the need.

3. Agency notifies the Department of Management Services, in a letter of transmittal, of their intent to seek lease-build proposal(s), based on subparagraphs 1. and 2. above.

(b) Agency prepares performance specifications, optimum site and building requirements, unique planning information, Standard Lease Agreement form (FM Form No. 4054), and the intended User’s program to be submitted (distributed) to all Developers.

(c) Agency advertises, setting forth pertinent means by which Developers may obtain building specifications. (The following two (2) paragraphs exemplify a suggested advertisement.) Responses are requested from responsible Developers interested in developing a site and building, containing ___ net usable square feet, for the purpose of leasing the building and its site to the State of Florida, the site of the building which is to be located in the ___ (Delineated Area), ___ (City), ___ (State). All program requirements and instructions shall be furnished to all interested Developers at ___ (Location or Street Address), ___ (City), ___ (State). The building is to be used as: ___ (User Agency/Function).

(d) Agency will advise Developers that responses submitted should be based on private financing and that no State payments for use of space being developed will be made to the Developer prior to final acceptance and approval of the completed building and its site, in accordance with the terms and conditions set forth in the Department of Management Services’ Standard Lease Agreement form.

(e) Agency will advise that if a Developer is interested in developing a structure for the purpose indicated and in leasing the building and its site to the State of Florida, the Developer should submit his best response or responses by ___ (Time), ___ (Date), to the ___ (Department), ___ (Location or Street Address), ___ (City), ___ (State).

(f) The User Agency will set the response period depending upon the complexity of the needed facility. The Developer’s requirements as requested by the User Agency and the Department of Management Services:

1. Agreement to enter into a lease-build contract on the Department of Management Services’ Standard Lease Agreement form setting forth the terms and conditions therein.

2. Intent to furnish 100% Performance Bond if response is accepted.

3.a. Complete and satisfactory evidence of ownership;

b. Local tax assessor’s appraisal of the site;

c. A site survey; and

d. The Developer’s estimated valuation cost of construction $___ per square foot, for ___ gross square feet, and provide a statement of rental rate per square foot, including necessary maintenance and operations costs.

4. Completion date (the date that the building will be offered to the State for acceptance), contingent upon Developer’s Authorization to Proceed.

5. Developers shall indicate the period of time that a response will remain open; such period shall be a minimum of 60 days.

6. Site improvement information shall include the following:

a. Grading outside buildings;

b. Sanitary and storm sewers;

c. Landscaping;

d. Paving and retaining walls;

e. Water;

f. Gas and electric distribution systems; and

g. Extraordinary excavation and/or foundations.

7. Building information which will enable the Division of Facilities Management to review both the functional and aesthetic aspects of the building including:

a. Floor plans showing proposed utility core, office space, public space, corridors and parking areas (scale 1'' equals 8').

b. Elevations and cross sections of buildings indicating exterior material and colors (scale 1'' equals 8').

8. A response submitted by a Developer shall be signed by the Developer or his duly authorized representative. Corporate, trade, or partnership titles may be stamped, written or type-written, but the actual signature of the authorized representative must appear on the response. If the response is signed by an agent, evidence of authority of the agent to sign must accompany the response. Evaluation of responses will be made by the User Agency in conjunction with its designated representative on the basis of price, design, characteristics of construction, completion date, location (including environment or characteristics of surrounding neighborhood), public transportation availability, availability of parking facilities, and availability of satisfactory dining facilities, and conformance to the User Agency program, performance specifications, and floor layout plan, and any other subjective criteria. The User Agency or its designated representative then presents the entire “project review package” to the Division of Facilities Management.

The project review package shall contain:

a. A letter of transmittal setting forth:

(i) The fact that “this is a lease-build response,” and

(ii) Functional and staff justification as to the facility’s necessity.

b. Proof of Advertisement.

c. A list of the responses to the advertisements.

d. Set of the User Agency’s program, any unique planning information, performance specifications (building and site). Site description and/or delineated area, floor layout plan, and property appraisal.

9. All responses submitted to the User Agency must be in accordance to guidelines developed.

10. User Agency’s recommendation with justification. The Division of Facilities Management will review the project. If it concurs with the User Agency’s recommendation, it will give approval and return to the User Agency for execution. The User Agency and the Department of Management Services must be in joint agreement on the response before approval is granted.

A physical inspection of completed buildings and sites will be made by the various User Agencies who will, in turn, supply the Division of Facilities Management with a Certificate of Acceptance, and a certificate citing the date of occupancy.

Specific Authority 255.249, 255.25 FS. Law Implemented 255.25(1), (2)(a) FS. History–New 8-11-75, Formerly 13D-7.10, Amended 3-18-86, Formerly 13M-1.017, Amended 2-21-96, 4-27-04,________.

 

60H-1.022 Prior Approval of Space Need.

The Division shall not authorize any agency to enter into a lease agreement  in a privately owned building when suitable space is available in a state owned or other publicly owned building located in the same geographic region, unless the agency files with the Bureau a statement explaining why the public space does not fit the needs of the agency. If the Division director approves the request, or does not respond to the agency’s request within 10 working days of receipt of the request, the agency may then proceed to:

(1) Negotiate a lease for space in a state owned or other publicly owned building.

(2) Negotiate a lease for private sector space of less than 5,000 square feet.

(3) Issue competitive solicitations in accordance with Chapter 255, Florida Statutes, and this chapter, in a privately owned building. The term “state owned or other publicly owned building” as used in this section means any state owned or other publicly owned facility regardless of use or control.

(4) Negotiate a lease of any size for the purpose of providing care and living space for persons.

Specific Authority 255.249, 255.25 FS. Law Implemented 255.25(2)(b), (3), (4) FS. History–New 3-18-86, Formerly 13M-1.022, Amended 2-21-96, 5-13-03, 4-27-04,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Spencer Kraemer
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Linda H. South, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 23, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: March 2, 2007