Florida Regulations 60H-9.005: Negotiation of Lease Agreement
Current as of: 2024 | Check for updates
|
Other versions
(1) After the Provider obtains written notification of Preliminary Determination from the Owner Agency and Managing Agency that the identified property is Available, the Provider shall submit to the Department a written request to initiate the review of the lease agreement and to initiate negotiations of the lease fee. Copies of the request shall be sent to the Owner Agency and the Managing Agency. Such request shall attach the proposed lease agreement for the identified State-owned Property including any additional language requested by the Managing Agency regarding security, access or other site-specific issues necessary to protect the Managing Agency’s interests and copies of the Preliminary Determination documents. The process of negotiating the terms and conditions of the lease agreement shall be done simultaneously with the preparation by the Provider of those materials required to be submitted to the Owner Agency and Managing Agency pursuant to subsection 60H-9.004(9), F.A.C.
(2) Upon receiving a proposed lease agreement with written notification(s) of Final Determination, the Department shall review for sufficiency, identify missing information required of the Provider and enter into negotiations with the Provider when the lease agreement is completed. Upon notification by the Department of incomplete documentation to negotiate a lease agreement, the Provider shall have 90 days to complete the remaining requirements as defined by the Department in accordance with Rule Fl. Admin. Code Chapter 60H-9 A completed proposed lease agreement shall address conditions and technical specifications, as described below. The date and time of receipt of the written request for Preliminary Determination of Availability by the Department will determine the order of review of each specific site for the lease agreement.
(3) When the proposed lease agreement request is found to be complete, copies of the completed request shall be provided to the Owner Agency and the Managing Agency. The Owner Agency and the Managing Agency shall provide to the Department any objections to the proposed lease agreement within thirty (30) days of receipt of such notice. Any objections by the Owner Agency or Managing Agency shall be considered in lease agreement negotiations by the Department. Objections shall be provided by registered mail to:
Department of Management Services
Facilities Program Director
Division of Facilities Management and Building Construction
4050 Esplanade Way
Suite 380
Tallahassee, Florida 32399-0950
(4) The Department shall negotiate each proposed lease agreement as follows:
(a) All leases or subleases for use of telecommunications facilities on State-owned Property not excluded as set forth in Fl. Admin. Code R. 60H-9.003, shall be approved by the Department. The Department’s approval must be obtained in accordance with this rule chapter for each lease agreement pursuant to Section 365.172(11)(e), F.S., for all State-owned Property not excluded as set forth in Fl. Admin. Code R. 60H-9.003
(b) Lease agreements shall take into account the specific site, the type of facility proposed, and the technical and leasing requirements of the proposing Provider, as well as any additional language required by the Managing Agency regarding security, access or other site-specific issues necessary to protect the Managing Agency’s interests. The lease agreement shall address terms and conditions and technical specifications, including the following subjects, as applicable under the facts pertaining to each proposed location:
1. Definition of the lease type as to land for a tower, building rooftop or collocation on existing vertical structure;
2. The parties to the agreement;
3. Description of the real property or structures being leased to the Provider;
4. Notice requirements, including addresses;
5. Description of easements for access rights and utilities for the Provider to the State-owned Property;
6. Defined time for terms and any extended terms of the Lease Agreement;
7. Termination provisions;
8. Defined requirements for any fees and payments under the lease agreement, including clearly defined rental terms, rent escalation amounts and other necessary fees;
9. Provider requirements for payment of all required taxes, obtaining all required permits, and providing a Project Manager to coordinate with all government entities;
10. Defined terms for assignment and subleasing under the Lease Agreement;
11. Defined terms and conditions for subleasing or licensing tower space for collocation of other Providers’ equipment;
12. Requirements for installation, maintenance and repairs of installed equipment by the Provider;
13. A statement regarding compliance with regulatory requirements of all regulatory agencies;
14. A statement defining ownership of real and personal property;
15. Requirements for notification for approval of all material modification of the facilities on leased property and the potential for additional rent;
16. Requirements for collocation of additional wireless communications equipment and services;
17. Requirements for equipment removal at termination of lease agreement or abandonment and restoration of property;
18. Requirements for entry by Sublessor to subleased property and fire and casualty damage responsibilities;
19. Requirements for security and subcontractor or subcontractor agent access;
20. Requirements regarding asbestos containment;
21. Requirements for tower removal performance bonds;
22. Requirements regarding compliance with Florida Statutes Chapter 119, the Florida Public Records Act;
23. Requirements for dispute resolution;
24. Requirements for the prevention of radio frequency interference by the parties;
25. Requirements for insurance, general liability, Workers’ Compensation, commercial auto liability and owner’s contractor coverage;
26. Requirements for indemnification by the Provider arising out of the lease or sublease, and assistance of investigation;
27. Requirements regarding default under the lease agreement, cure provisions, remedies upon default, and termination of the lease agreement;
28. General requirements covering authority of the parties, permitting, governing law, severability, commencement and effective dates;
29. Requirements for maintenance and repairs of the facilities of the Provider;
30. Requirements for tower lighting, marking, and signage;
31. Requirements for inspection of the property and buildings and other necessary due diligence activities by the Provider;
32. Requirements for utility service to service Provider’s facilities;
33. Conditions precedent and subsequent for all required governmental approvals by Provider, and continued technical compatibility, and termination rights associated therewith;
34. Rights of the parties upon sale of the underlying property;
35. A description of environmental conditions of the underlying property or building and responsibilities for remediation of environmental conditions;
36. Condemnation provisions;
37. Casualty provisions;
38. Waiver of liens and rights of Provider to finance or collateralize its facilities;
39. Covenant of quiet enjoyment in favor of Provider;
40. Recording provision;
41. Successors in interest;
42. Force majeure;
43. Proper exhibits, including a site plan of the leased property, diagrams of proposed tower or antenna installation, survey of the leased property and technical specifications of the proposal;
44. A copy of any lease agreement on the property currently in place, including leases with the Board of Trustees of the Internal Improvement Trust Fund; and
45. Signatures of the parties required to execute the lease agreement.
(c) The Department shall negotiate reasonable fees for leasing State-owned property that reflect the market rate for the type of facility or geographic location of the property. Rental rate will be derived from use of set rate schedules, and other reasonable means of determining fair market value for the specific location and placement in question and as described in subsection (5) below. Distribution of Lease Agreement proceeds between the Owner Agency and Managing Agency shall be defined in and pursuant to the Lease Agreement. In cases of a Lease Agreement between a Provider and an Owner Agency, the Owner Agency shall receive 100% of the proceeds.
(d) If agreement is reached, the Department will circulate the negotiated Lease Agreement among the Owner Agency, Managing Agency and Provider for final signature and execution.
(5) If the Department and the Provider are unable to negotiate a satisfactory lease or sublease rental rate, the parties may mutually agree on the selection of a licensed appraiser to assist in minimizing differences between the parties. The appraisal shall be non-binding and the expense of said appraiser shall be borne solely by the Provider. The Appraiser shall conduct an appraisal study to establish the fair market rate for use of the Property based upon the geographic area and type of Wireless Communications Facility, which is the subject of the lease or sublease. If the parties are unable to negotiate a satisfactory lease or sublease, whether an appraisal is conducted or not, negotiations shall be terminated. DMS will then undertake negotiations based on a first-come, first-served basis with the next Provider, who has filed a written request for Preliminary Determination of Availability and thereafter, if necessary, with the next Providers.
Rulemaking Authority 365.172(13)(f) FS. Law Implemented 365.172(3) FS. History-New 4-24-05.
Terms Used In Florida Regulations 60H-9.005
- Appraisal: A determination of property value.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Indemnification: In general, a collateral contract or assurance under which one person agrees to secure another person against either anticipated financial losses or potential adverse legal consequences. Source: FDIC
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Personal property: All property that is not real property.
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
(3) When the proposed lease agreement request is found to be complete, copies of the completed request shall be provided to the Owner Agency and the Managing Agency. The Owner Agency and the Managing Agency shall provide to the Department any objections to the proposed lease agreement within thirty (30) days of receipt of such notice. Any objections by the Owner Agency or Managing Agency shall be considered in lease agreement negotiations by the Department. Objections shall be provided by registered mail to:
Department of Management Services
Facilities Program Director
Division of Facilities Management and Building Construction
4050 Esplanade Way
Suite 380
Tallahassee, Florida 32399-0950
(4) The Department shall negotiate each proposed lease agreement as follows:
(a) All leases or subleases for use of telecommunications facilities on State-owned Property not excluded as set forth in Fl. Admin. Code R. 60H-9.003, shall be approved by the Department. The Department’s approval must be obtained in accordance with this rule chapter for each lease agreement pursuant to Section 365.172(11)(e), F.S., for all State-owned Property not excluded as set forth in Fl. Admin. Code R. 60H-9.003
(b) Lease agreements shall take into account the specific site, the type of facility proposed, and the technical and leasing requirements of the proposing Provider, as well as any additional language required by the Managing Agency regarding security, access or other site-specific issues necessary to protect the Managing Agency’s interests. The lease agreement shall address terms and conditions and technical specifications, including the following subjects, as applicable under the facts pertaining to each proposed location:
1. Definition of the lease type as to land for a tower, building rooftop or collocation on existing vertical structure;
2. The parties to the agreement;
3. Description of the real property or structures being leased to the Provider;
4. Notice requirements, including addresses;
5. Description of easements for access rights and utilities for the Provider to the State-owned Property;
6. Defined time for terms and any extended terms of the Lease Agreement;
7. Termination provisions;
8. Defined requirements for any fees and payments under the lease agreement, including clearly defined rental terms, rent escalation amounts and other necessary fees;
9. Provider requirements for payment of all required taxes, obtaining all required permits, and providing a Project Manager to coordinate with all government entities;
10. Defined terms for assignment and subleasing under the Lease Agreement;
11. Defined terms and conditions for subleasing or licensing tower space for collocation of other Providers’ equipment;
12. Requirements for installation, maintenance and repairs of installed equipment by the Provider;
13. A statement regarding compliance with regulatory requirements of all regulatory agencies;
14. A statement defining ownership of real and personal property;
15. Requirements for notification for approval of all material modification of the facilities on leased property and the potential for additional rent;
16. Requirements for collocation of additional wireless communications equipment and services;
17. Requirements for equipment removal at termination of lease agreement or abandonment and restoration of property;
18. Requirements for entry by Sublessor to subleased property and fire and casualty damage responsibilities;
19. Requirements for security and subcontractor or subcontractor agent access;
20. Requirements regarding asbestos containment;
21. Requirements for tower removal performance bonds;
22. Requirements regarding compliance with Florida Statutes Chapter 119, the Florida Public Records Act;
23. Requirements for dispute resolution;
24. Requirements for the prevention of radio frequency interference by the parties;
25. Requirements for insurance, general liability, Workers’ Compensation, commercial auto liability and owner’s contractor coverage;
26. Requirements for indemnification by the Provider arising out of the lease or sublease, and assistance of investigation;
27. Requirements regarding default under the lease agreement, cure provisions, remedies upon default, and termination of the lease agreement;
28. General requirements covering authority of the parties, permitting, governing law, severability, commencement and effective dates;
29. Requirements for maintenance and repairs of the facilities of the Provider;
30. Requirements for tower lighting, marking, and signage;
31. Requirements for inspection of the property and buildings and other necessary due diligence activities by the Provider;
32. Requirements for utility service to service Provider’s facilities;
33. Conditions precedent and subsequent for all required governmental approvals by Provider, and continued technical compatibility, and termination rights associated therewith;
34. Rights of the parties upon sale of the underlying property;
35. A description of environmental conditions of the underlying property or building and responsibilities for remediation of environmental conditions;
36. Condemnation provisions;
37. Casualty provisions;
38. Waiver of liens and rights of Provider to finance or collateralize its facilities;
39. Covenant of quiet enjoyment in favor of Provider;
40. Recording provision;
41. Successors in interest;
42. Force majeure;
43. Proper exhibits, including a site plan of the leased property, diagrams of proposed tower or antenna installation, survey of the leased property and technical specifications of the proposal;
44. A copy of any lease agreement on the property currently in place, including leases with the Board of Trustees of the Internal Improvement Trust Fund; and
45. Signatures of the parties required to execute the lease agreement.
(c) The Department shall negotiate reasonable fees for leasing State-owned property that reflect the market rate for the type of facility or geographic location of the property. Rental rate will be derived from use of set rate schedules, and other reasonable means of determining fair market value for the specific location and placement in question and as described in subsection (5) below. Distribution of Lease Agreement proceeds between the Owner Agency and Managing Agency shall be defined in and pursuant to the Lease Agreement. In cases of a Lease Agreement between a Provider and an Owner Agency, the Owner Agency shall receive 100% of the proceeds.
(d) If agreement is reached, the Department will circulate the negotiated Lease Agreement among the Owner Agency, Managing Agency and Provider for final signature and execution.
(5) If the Department and the Provider are unable to negotiate a satisfactory lease or sublease rental rate, the parties may mutually agree on the selection of a licensed appraiser to assist in minimizing differences between the parties. The appraisal shall be non-binding and the expense of said appraiser shall be borne solely by the Provider. The Appraiser shall conduct an appraisal study to establish the fair market rate for use of the Property based upon the geographic area and type of Wireless Communications Facility, which is the subject of the lease or sublease. If the parties are unable to negotiate a satisfactory lease or sublease, whether an appraisal is conducted or not, negotiations shall be terminated. DMS will then undertake negotiations based on a first-come, first-served basis with the next Provider, who has filed a written request for Preliminary Determination of Availability and thereafter, if necessary, with the next Providers.
Rulemaking Authority 365.172(13)(f) FS. Law Implemented 365.172(3) FS. History-New 4-24-05.