These rules address leasing procedures for state agencies.

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Facilities Management

RULE NOS.:RULE TITLES:

60H-1.001Definitions

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

PURPOSE AND EFFECT: These rules address leasing procedures for state agencies.

SUMMARY: These rules remove unused, duplicative or otherwise unnecessary definitions; clarify procurement procedures for soliciting, accepting and evaluating competitive solicitations for lease space of 5,000 feet or more, and develop a standardized format for agency reporting requirements as required by Section 255.249(8).

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The changes to these rules do not directly or indirectly impose any costs on regulated entities, small business or government and, to the contrary, will provide clarity and reduce regulatory burdents.

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.

RULEMAKING AUTHORITY: 255.249, 255.25, 255.503 FS.

LAW IMPLEMENTED: 255.21, 255.249, 255.25, 255.254, 255.257, 255.503 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 (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: March 18, 2015, 4:00 p.m. ‒ 4:30 p.m., EST

PLACE: 4050 Esplanade Way, Suite 315K, Tallahassee, Florida 32399

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Dottie Young, Department of Management Services, 4050 Esplanade Way, Suite 315K, Tallahassee, Florida 32399 or [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Dottie Young, Department of Management Services, 4050 Esplanade Way, Suite 315K, Tallahassee, Florida 32399 or [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

60H-1.001 Definitions.

The words and phrases in this chapter shall be construed according to their plain meaning, in light of the context and subject matter, unless expressly defined otherwise in this rule, this chapter or in Section 255.248, F.S. Terms are used herein as defined in the referenced law, Section 255.248, F.S. In addition, the following terms shall also apply:

(1) “Agency” shall means an official, officer, commission, authority, council, committee, department, division, bureau, board, section or other unit or entity of the Executive Branch of the government of the State of Florida.

(2) “Agency Lease” shall means an agreement to lease a building or any part thereof other than a Florida Facilities Pool property as identified in Section 255.505, F.S.

(2)(3) “Approval of Space Need” shall means the Department’s acknowledgement that an Agency has met the requirements of Rule 60H-1.002, F.A.C., and, therefore, may proceed to procure, but not execute, the associated lease.

(3)(4) “Best Interests of the State” shall means an efficient and economical use of state resources to achieve Best Leasing Value as determined by the Department.

(5) “Certificate of Compliance” shall mean the Department’s form with which an Agency confirms that a lease was executed in compliance with all leasing criteria as provided in Chapter 255, F.S.

(6) “Department” shall mean the Department of Management Services.

(4)(7) “Final Approval” shall means the Department’s acknowledgement that all applicable requirements have been met and, upon required Department signature, the associated lease is fully-executed.

(5)(8) “Lease Action” shall means the execution, modification, renewal, termination or cancellation of an agreement for the lease use of real property.

(6)(9) “Lease Agreement” shall means the approved standard lease form pursuant to as defined in Rule 60H-1.003, F.A.C.

(10) “Lease Clause” shall means a distinct article, stipulation or provision of a Lease Agreement.

(11) “Nominal Lease” shall mean any lease which results in a total of all payments made by lessee to lessor of less than $1.00.

(7)(12) “Prior Approval” shall means the Department’s acknowledgement that an Agency has met the requirements of Rule 60H-1.021, F.A.C., and, therefore, may proceed to execute the associated lease action.

(8)(13) “Pool Facility” shall means a facility under the care and direction of the Department pursuant to Sections subsection 255.5035, and 255.511, F.S.

(14) “Program Director” shall means the head of the Department or his or her designee.

(9)(15) “Turnkey Lease” shall means a lease in which a single entity is procured, through cCompetitive sSolicitation, to perform all primary activities including, but not limited to, the financing, design, development and post-construction management of real property.

(16) “Warehouse Space” shall means real property used primarily as storage.

Rulemaking Authority 255.249, 255.25, 255.503(11) F.S. Law Implemented 255.249, 255.25(2), 255.503 F.S. History–New 8-11-75, Amended 8-27-75, 4-25-79, Formerly 13D-7.01, Amended 3-18-86, Formerly 13M-1.001, Amended 4-27-04, 4-29-10, ___XX-XX-15.

 

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

(1) No Agency shall enter into a lease for 5,000 square feet or more of space in a privately owned building without procurement through Competitive Solicitation.

(2) Without regard to square footage, no agency shall enter into, within any 12-month period, more than one lease in the same privately owned facility or complex except upon procurement through Competitive Solicitation.

(1)(3) Procurement specifications for cCompetitive sSolicitation shall be drawn in general terms so as to promote allow for ample competition and to not favor any particular potential respondent responder.

(2)(4) Agency requirements detailed in a cCompetitive sSolicitations shall state:

(a) Approximate Net Usable Square Footage Feet required, consistent with per Rule 60H-2.003 60H-2.002, F.A.C.; and

(b) Preliminary floor plan for use of desired space; and

(b)(c) Areas where the potential lease could be located to meet the Agency’s location needs Geographic information sufficient determine whether a potential property is within the Agency’s desired boundaries; and

(c)(d) Requested occupancy date; and

(d)(e) Desired term of lease and potential for renewal options; and

(e)(f) Date by which responses must be received; and

(f)(g) Anticipated date for award of procurement; and

(g)(h) Services required, including parking, dining and transportation requirements; and.

(h) Agency criteria to be used in determining acceptablility of any response.

(3) All competitive solicitations issued by agencies, pursuant to Section 255.25(3)(a), F.S., must be advertised by electronic posting for no less than 10 calendar days prior to the date for receipt of responses, unless the Department or Agency determines in writing that a shorter period of time is in the Best Interests of the State. All Agency decisions or intended decisions (as defined in Rule 28-110.002, F.A.C.), must be electronically posted on the myflorida.com website.

(4)(5) A response to a Respondent requirements detailed in a cCompetitive sSolicitation shall bind the responder for a minimum of ninety days following the public response due date, and shall comply with Ssection 633.206, F.S. For out-of state leases, the response shall comply with that state’s equivalent of Section 633.206, F.S. All responses shall include the following state that lessor shall:

(a) Indicate whether proposed leased space is in an Energy Star Rated Building, as determined by the United States Department of Energy; and

(a)(b) Secure A a life-cycle cost analysis pursuant to Section 255.254(1), F.S., and Rule 60D-4.0067, F.A.C.; and

(c) Provide monthly energy use data to the Department, pursuant to Section 255.254(1), F.S.; and

(b)(d) The respondent’s agreement to enter Enter into a lease Lease approved by the Department; and

(c)(e) Provide Aa scaled floor plan showing present configurations and measurements that equate to Net Usable Square Footage offered per Rule 60H-2.003, F.A.C.; and

(f) Comply with the requirements of Chapter 60D-1, F.A.C., Design Standards for Special Facilities for the Physically Disabled, if awarded lease; and

(g) Maintain offer, as set forth in response to cCompetitive sSolicitation, for a minimum of thirty (30) days following the public response due date; and

(h) Comply with the Uniform Fire Safety Standards if awarded lease; and

(d)(i) Propose A a rental rate per square foot per year for all years of the lease, including renewals, that will include all renovations and other special requirements necessary to accommodate the Agency program at the time of initial occupancy; and

(j) Provide per square foot rental rates for all years of the proposed lease including renewals, if any; and

(e)(k) Provide A a general description of the space such as a room number, building name, and physical address; and

(f)(l) Specifically address The respondent’s agreement to each Agency’s renovation and other special requirements necessary to accommodate the Agency at the time of initial occupancy requirement and specification; and

(g)(m) Contain The the signature of the owner(s), corporate officer(s) or legal representative(s). If signed by a legal representative, authority to transact business has been granted by the owner or officer, appropriate documentation written evidence of the signatory’s this authority must be provided accompany the response; and

(h)(n) Contain The the corporate, trade or partnership name either stamped, written or typewritten beside the actual signature(s); and

(i)(o) If the ownership is a foreign corporation otherwise prohibited from transacting business in this state pursuant to Section 607.1501, F.S. considered foreign to the State of Florida, a certificate of authority pursuant to Section 607.15021, F.S. must accompany the response. The respondent Lessor must include proof of the respondent’s lessor’s authority to offer the facility, i.e., copy of the respondent’s lessor’s option to purchase (if the respondent lessor is not the owner or owner’s representative). This option must be valid for at least 90 days following the public response due date through the time period stated in the solicitation for which responses may not be withdrawn.

(5)(6) Replacement Lease.

(a) The Department will determine if it is in the Best Interests of the State to approve an Agency replacement lease request. When making this determination, the Department will consider the availability of state-owned space, and analyses of build opportunities, and the availability of acquisition opportunities. Upon Department request, the Agency must supply the following information:

1. An independent comparative market analysis;

2. The number of available properties that have the potential to meet the Agency’s needs;

3. Areas where the potential lease could be located to meet the Agency’s location needs if the Agency were directed to re-procure;

4. Demographic data showing the location of those that benefit from the services of the Agency, if accessibility is an issue; and

5. A cost benefit analysis comparing the rent and operating costs of the present location(s) with the rent and operating costs for proposed replacement lease(s).

(b) If the Department Agency determines that it is in its the Best Interests best interest of the State state for an Agency to remain in its present location, a replacement lease may be negotiated 18 12 to 36 18 months prior to lease expiration if:

(a)1. The An independent comparative market analysis supplied in subparagraph (5)(a)1, demonstrates that the rental rates of the replacement lease will be at or below the total of the market rates for a comparable lease plus moving costs; and

(b)2. The term of the replacement lease does not exceed the base term of the lease being replaced, excluding any renewal options; and

(c)3. All other leasing requirements are met.

(6)(7) This rule shall not apply to:

(a) Department approved emergency acquisition of space under the requirements of Section 255.25(10), F.S.; or

(b) Leases leases for the purpose of providing care and living space for persons. provided the Agency has filed with the Department a certificate of exemption demonstrating that the lease is exempt from Competitive Solicitation under Section 255.249(4)(b) or 255.25(3)(b), F.S.; or

(c) Leases having a term of less than 120 consecutive days for the purpose of securing a one-time special use of the leased property; or

(d) Replacement leases, as defined in Section 255.25(3)(c), F.S.

Rulemaking Authority: 255.249(4) F.S. Law Implemented 255.21, 255.249(2)(b), (4), 255.21, 255.25(3), (5), (7), 255.254, 255.257(4) F.S. 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, 7-12-07, 4-29-10, _____XX-XX-15.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Tom Berger, Division Director, Real Estate and Development and Management

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Secretary Craig Nichols

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 4, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 29, 2014