Senate Bill No. 479
(By Senators Bowman, McCabe, Stollings, Minard and Chafin)
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[Introduced February 4, 2010; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact §5A-10-1, §5A-10-2, §5A-10-3, §5A-10-4,
§5A-10-5, §5A-10-6 and §5A-10-9 of the Code of West Virginia,
1931, as amended; and to
amend said code by adding thereto two
new sections, designated §5A-10-12 and §5A-10-13,
all relating
to the functions of the purchasing director and the powers and
duties of acquiring real property;
contracting for third-party
real estate services and billing spending units for the actual
costs of such third-party services
; billing spending units for
the services rendered by the Real Estate Division; excepting
the deposit of revenues derived from wireless communication
tower leases on property subject to a pledge of its revenues
in connection with a bond issue into the General Revenue Fund;
and creating a special revenue fund for the acquisition of
real property and payment of associated costs.
Be it enacted by the Legislature of West Virginia:
That §5A-10-1, §5A-10-2, §5A-10-3, §5A-10-4, §5A-10-5,
§5A-10-6 and §5A-10-9 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by
adding thereto two new sections, designated §5A-10-12 and
§5A-10-13, all to read as follows:
ARTICLE 10. REAL ESTATE DIVISION.
§5A-10-1. Division created; purpose; director.
(a) There is
hereby created the Real Estate Division within
the Department of Administration for the purpose of establishing a
centralized office to provide
real property acquisition, leasing,
appraisal and other real estate services to the Secretary of the
Department of Administration.
(b) The division
shall be under the supervision and control of
an executive director, who shall be appointed by the Governor, by
and with the advice and consent of the Senate.
(c) Candidates for the position of executive director shall:
(1) Have at least a bachelor of arts or science degree from an
accredited four-year college or university; and
(2) (A) Be a licensed real estate broker, pursuant to the
provisions of article forty, chapter thirty of this code; or
(B) Be a licensed or certified real estate appraiser pursuant
to the provisions of article thirty-eight, chapter thirty of this code; or
(3) (A) Be considered based on their demonstrated education,
knowledge and a minimum of ten years
of experience in the areas of
commercial real estate leasing
or commercial real estate appraisal;
or
(B)
Be considered based on any relevant experience of a
minimum of ten years which demonstrates an ability to effectively
accomplish the purposes of this article.
(d) The Real Estate Division is authorized to employ such
employees, including, but not limited to, real estate appraisers
licensed in accordance with the provisions of article thirty-eight,
chapter thirty of this code, as may be necessary to discharge the
duties of the division.
§5A-10-2. Real property acquisitions; leases for space to be made
in accordance with article; exceptions.
(a) Notwithstanding any other provision of this code, no
department, agency or institution of state government may
acquire,
lease, or offer to lease, as lessee, any
real property, grounds,
buildings, office or other space except in accordance with the
provisions of this article and article three of this chapter.
(b) The provisions of the article, except as to office space,
do not apply to the Division of Highways of the Department of
Transportation.
(c) The provisions of this article do not apply to:
(1) Public lands, rivers and streams acquired, managed or
which title is vested in or transferred to the Division of Natural
Resources of the Department of Commerce, pursuant to section seven,
article one, chapter twenty of this code and section two, article
five of said chapter;
(2) The Higher Education Policy Commission;
(3) The West Virginia Council for Community and Technical
College Education;
(4) The institutional boards of Governors in accordance with
the provisions of subsection (v), section four, article five,
chapter eighteen-b of this code;
(5) The real property held by the Department of Agriculture,
including all institutional farms, easements, mineral rights,
appurtenances, farm equipment, agricultural products, inventories,
farm facilities and operating revenue funds for those operations;
or
(6) The real property held by the West Virginia State
Conservation Committee, including all easements, mineral rights,
appurtenances and operating revenue funds for those operations.
§5A-10-3. Powers and duties of Real Estate Division.
The Real Estate Division has the following powers and duties:
(1) To provide
real property acquisition, leasing, appraisal and other real estate services to
the Secretary of the Department
of Administration and state spending units;
(2) The Real Estate Division may contract for any necessary
third-party real estate services to effectuate this section,
including, but not limited to, appraisals, surveys, property legal
descriptions, title searches and opinions and space planning, and
may invoice spending units for the spending unit's actual costs and
expenses associated with such necessary third-party real estate
services.
(3) Before July 30 of each year, the Real Estate Division may
charge each spending unit for the costs and services related to the
Real Estate Division providing acquisition, leasing, appraisal, and
other real estate services to the spending units, except those
spending units that are exempt under section two, article ten,
chapter five-a of the Code of West Virginia in accordance with
subsections 3(a) and 3(b) as set forth below:
(A) F
or the fiscal year immediately subsequent to the
reenactment of this article, the Real Estate Division shall be
primarily funded through general revenue in an amount up to, but
not to exceed, the amount requested by the Real Estate Division for
that fiscal year. For any additional budgetary needs, the Real
Estate Division may charge a flat fee on a per square foot basis
for each of the spending units' leases, whether for the occupancy of space from a private party or state-owned property.
(B) For every fiscal year thereafter, the Real Estate Division
shall be solely funded through special revenue and may charge a
flat fee on a per square foot basis for each of the spending units'
leases, whether for the occupancy of space from a private party or
state-owned property
. The Real Estate Division shall reevaluate
its budgetary needs, determine its flat fee charge, and submit its
new budgetary request to the state Budget Office by August 30 of
each calendar year for the applicable fiscal year.
(C) All moneys remaining in the Real Property Fund at the end
of each fiscal year shall be reappropriated for use by the Real
Estate Division: Provided, That the surplus moneys shall operate
to adjust or reduce the flat fee charge as set forth in paragraphs
(A) and (B) of this subdivision, as evaluated and requested by the
Real Estate Division
in its budgetary request for the applicable
fiscal year
.
(4) For those spending units that are exempt under section two
of this article and who request the assistance of the Real Estate
Division, the Real Estate Division shall charge and invoice such
spending units on a fee-for-service basis for all real estate
services and costs expended and incurred by the Real Estate
Division.
(5) The Real Estate Division's authority to bill or invoice spending units for real property costs, expenses and services under
subdivisions (2), (3) and (4) of this section shall be in
accordance with section twelve of this chapter.
(2) To ensure that the purchase of real estate and all
contracts for lease are based on established real estate standards
and fair market price;
(3) To develop and implement minimum lease space standards for
the lease of any grounds, buildings, office or other space required
by any spending unit of state government;
(4) To develop and implement minimum standards for the
selection and acquisition, by deed, contract or lease, of all
grounds, buildings, office space or other space by a spending unit
of state government except as otherwise provided in this article;
(5) To establish and maintain a comprehensive database of all
state real estate contracts and leases;
(6) To develop policies and procedures for statewide real
property management;
(7) To maintain a statewide real property management system
that has consolidated real property, building and lease information
for all departments, agencies and institutions of state government;
(8) To develop and maintain a centralized repository of
comprehensive space needs for all state departments, agencies and
institutions of state government, including up-to-date space and resource utilization, anticipated needs and recommended options;
(9) To provide statewide policy leadership and coordinate
master planning to guide and organize capital asset management; and
(10) To provide assistance to all state departments, agencies
or institutions in acquiring, leasing and disposing of real
property.
§5A-10-4. Leasing of space by executive director; delegation of
authority.
The executive director is authorized to lease, or offer to
lease as lessee, in the name of the state, any grounds, buildings,
office or other space required by any department, agency or
institution of state government: Provided, That the executive
director may expressly delegate, in writing, the authority granted
to him or her by this article to the appropriate department, agency
or institution of state government when the rental and other costs
to the state do not exceed the sum specified by regulation in any
one fiscal year or when necessary to meet bona fide emergencies
arising from unforeseen causes.
§5A-10-5. Selection of grounds, etc.; acquisition by contract or
lease; long-term leases.
(a) The executive director has sole authority to select and to
acquire by deed, contract or lease, in the name of the state, all
grounds, buildings, office space or other space, the rental of which is necessarily required by any spending unit, upon a certificate
from the chief executive officer or his or her designee of said
that spending unit that the grounds, buildings, office space or
other space requested is necessarily required for the proper
function of said spending unit, that the spending unit will be
responsible for all rent and other necessary payments in connection
with the contract or lease and that satisfactory grounds, buildings,
office space or other space is not available on grounds and in
buildings now owned or leased by the state.
(b) The executive director shall, before executing any rental
contract or lease, determine the fair rental value for the rental
of the requested grounds, buildings, office space or other space,
in the condition in which they exist and shall contract for or lease
said premises at a price not to exceed the fair rental value
thereof.
(c) The executive director may enter into long-term agreements
for buildings, land and space for periods longer than one fiscal
year: Provided, That such long-term lease agreements are not for
periods in excess of forty years, except that the secretary may, in
the case of the Adjutant General's Department, enter into lease
agreements for a term of fifty years or a specific term of more than
fifty years so as to comply with federal regulatory requirements and
shall contain, in substance, all the following provisions:
(1) That the Department of Administration, as lessee, has the
right to cancel the lease without further obligation on the part of
the lessee upon giving thirty days' written notice to the lessor,
such notice being given at least thirty days prior to before the
last day of the succeeding month;
(2) That the lease shall be considered canceled without further
obligation on the part of the lessee if the State Legislature or the
federal government should fail to appropriate sufficient funds
therefor or should otherwise act to impair the lease or cause it to
be canceled; and
(3) That the lease shall be considered renewed for each ensuing
fiscal year during the term of the lease unless it is canceled by
the Department of Administration before the end of the then current
fiscal year.
§5A-10-6. Long-term leases of public lands for wireless
communication towers.
(a) Notwithstanding any provision of law to the contrary, the
executive director has sole authority to negotiate and enter into
long-term lease agreements for lease of public lands to be used for
placement of wireless communication towers: Provided, That such
long-term lease agreements may not be for periods in excess of
thirty years: Provided, however, That for the governmental units
named in subsection (d) of this section, any lease proposed by the executive director may only be entered into upon approval in writing
of the ranking administrator of the respective governmental unit
described in said subsection.
(b) All revenues derived from leases established upon the
enactment of this section shall be deposited into the General
Revenue Fund
unless the property is subject to a pledge of its
revenues in connection with a preexisting revenue bond issue and
except as provided in subsections (c) and (d) of this section.
(c) Revenues from leases initiated prior to before the
enactment of this section or subsequently renewed shall continue to
be treated as they were prior to before the enactment of this
section.
(d) Revenues derived from the lease of property under the
control of the Department of Transportation shall be deposited into
the State Road Fund. Revenues derived from the lease of property
under the control of the Division of Natural Resources shall be
retained by the Division of Natural Resources and deposited into the
appropriate fund. Revenues derived from the lease of property under
the control of the Department of Agriculture shall be deposited into
the Agriculture Fees Fund. Revenues derived from the lease of
property under the control of the Division of Forestry shall be
deposited into the Division of Forestry Fund. Revenues derived from
the lease of property under the control of institutions of higher education shall be deposited into the institution's education and
general capital fees fund. Revenues derived from the lease of
property under the control of the Higher Education Policy Commission
shall be deposited into the commission's State Gifts Grants and
Contracts Fund. Revenues derived from the lease of property under
the control of the West Virginia Council for Community and Technical
College Education shall be deposited into the council's Tuition and
Required Educational and General Fees Fund.
(e) Any long-term lease agreement entered into pursuant to this
section shall contain provisions allowing for the nonexclusive use
of the public lands and allowance for use of the same public space
for additional towers by competing persons or corporations.
(f) The executive director is further authorized to enter into
long-term lease agreements for additional wireless communication
towers by other persons or corporations upon the same public lands
in which there already exists a lease and tower provided for under
this section.
(g) Any long-term lease agreement entered into pursuant to this
section shall be recorded in the office of the county clerk where
public land which is the subject of the lease agreement is located.
§5A-10-9. Real property accounting and records.
(a) All real property owned or leased by the state shall be
accounted for by the state spending unit that owns, leases or is in the possession of the real property.
(b) Each state spending unit shall establish and maintain a
record of each item of real property it owns and/or and leases, or
both, and annually furnish its records to the Real Estate Division.
(c) The accounting and reporting requirements of this section,
except as to office space, do not apply to:
(1) Except as to office space, the Division of Highways of the
Department of Transportation;
(2) Public lands, rivers and streams acquired, managed or which
title is vested in or transferred to the Division of Natural
Resources of the Department of Commerce, pursuant to section seven,
article one, chapter twenty of this code and section two, article
five of said chapter;
(3) The Higher Education Policy Commission;
(4) The West Virginia Council for Community and Technical
College Education; or
(5) The institutional boards of Governors in accordance with
the provisions of subsection (v), section four, article five,
chapter eighteen-b of this code;
(6) The real property held by the Department of Agriculture,
including all institutional farms, easements, mineral rights,
appurtenances, farm equipment, agricultural products, inventories,
farm facilities and operating revenue funds for those operations; or
(7) The real property held by the West Virginia State
Conservation Committee, including all easements, mineral rights,
appurtenances and operating revenue funds for those operations.
(d) With regard to public lands that may be by law specifically
allocated to and used by any state agency, institution, division or
department, such agency, institution, division or department shall
provide an inventory of such public land(s) to the Public Land
Corporation in accordance with the provisions of article eleven of
this chapter.
(e) The records furnished to the Real Estate Division shall
include the following information, if applicable:
(1) A description of each item of real property including:
(A) A reference to a book, page and/or or image number from the
county records in a particular county; or
(B) A legal description;
(2) The date of purchase and the purchase price of the real
property;
(3) The date of lease and the rental costs of the real
property;
(4) The name of the state spending unit holding title to the
real property for the state;
(5) A description of the current uses of the real property and the projected future use of the real property; and
(6) A description of each building or other improvement located
on the real property.
(f) If the description of real property required under this
section is excessively voluminous, the Real Estate Division may
direct the spending unit in possession of the real property to
furnish the description only in summary form, as agreed to by the
division and the spending unit.
§5A-10-12. Authority to bill for services.
(a) For the operation of the Real Estate Division, each
spending unit served by the Real Estate Division is authorized and
directed to transmit to the Real Estate Division for deposit into
the Real Property Fund the charges, as invoiced by the Real Estate
Division,
for each spending unit's actual costs and expenses
associated with third-party real estate services, as approved by the
Secretary of Administration;
(b)
Each spending unit served by the Real Estate Division is
authorized and directed to transmit to the Real Estate Division,
upon receipt of an annual invoice from the Real Estate Division
and
for deposit into the Real Property Fund,
the flat fee on a per
square foot basis for each of the spending units' leases, whether
for the occupancy of space from a private party or state-owned
property
pursuant to paragraphs (A) and (B)
,
subdivision three, section three of this article except those spending units that are
exempt under section two, article ten, chapter five-a of this code
;
(c) Those spending units that are exempt under section two,
article ten, chapter five-a of this code, and who request the
assistance of the Real Estate Division are authorized and directed
to transmit to the Real Estate Division for deposit into the Real
Property Fund the charges, as invoiced by the Real Estate Division,
for
all real estate services and costs expended and incurred by the
Real Estate Division.
(d) The executive director shall maintain accurate records
reflecting the cost of administering the provisions of this article.
§5A-10-13. Creation of Real Property Fund.
There is created in the State Treasury a special revenue fund
to be known as the "Real Property Fund". The Real Property Fund may
be given appropriations as determined by the Governor and the
Legislature but shall operate as a special revenue fund whereby all
deposits and payments thereto do not expire to the General Revenue
Fund, but shall remain in the Real Property Fund and be available
for expenditure in succeeding fiscal years. This Real Property Fund
shall consist of moneys deposited in the Real Property Fund pursuant
to the provisions of this article as well as interest earned on
investments made from moneys deposited in the Real Property Fund.
Moneys from the Real Property Fund shall be expended by the executive director of the Real Estate Division of the Department of
Administration for the acquisition of real property and to pay for
costs, expenses, and services associated with acquisition, leasing,
appraisal and other real estate services provide to the Secretary
of Administration on behalf of the State of West Virginia and other
spending units subject to the discretion of both the Secretary of
the Department of Administration and the Governor.
NOTE: The purpose of this bill is to clarify that the
Department of Administration, Real Estate Division, has the
authority to acquire real property, and grants the authority to
contract for third-party real estate services and bill spending
units for the actual costs of such third-party services as well as
bill spending units for services of the Real Estate Division. This
bill also clarifies that revenues derived from wireless
communication tower leases on property subject to a pledge of its
revenues in connection with a bond issue will not be deposited into
the General Revenue Fund. This bill also creates a fund dedicated
to the acquisition of real property and costs associated with
acquisition and leasing of real property.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5A-10-12 and §5A-10-13 are new; therefore, strike-throughs and
underscoring have been omitted.