Senate Bill No. 465

(By Senators Bowman and Snyder)

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[Introduced March 5, 2009; referred to the Committee on Government Organization; then to the Committee on the Judiciary; 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 Real Estate Division of the Department of Administration and the powers and duties of acquiring and disposing of real property, contracting for third-party real estate services and billing spending units for the actual costs of such third-party services; 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' experience in the areas of commercial real estate leasing, commercial real estate appraisal; or
(B) 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. Leases for space to be made in accordance with article; real property acquisitions; and 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 an 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) The Real Estate Division may also charge each spending unit on a quarterly basis a percentage based on the square footage leased by 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 unites that are exempt under section two, article ten, chapter five-a of this code.
(4) The division's authority to bill or invoice spending units for real property costs, expenses and service under subsections (2) and (3) of this section are in accordance with section twelve, article ten, chapter five-a of this code.
(5) To sell, transfer, exchange or otherwise dispose of real property on behalf of the state and owned by the state by and through the Department of Administration, Real Estate Division, and the spending units, except those spending units that are exempt under section two, article ten, chapter five-a of this code. This section shall not apply to any real property titled to or vested in the Public Land Corporation. Prior to any sale, transfer, exchange, or other disposal of real property under this section, the executive director, or his or her designee, shall submit such documents for the sale, transfer, exchange or other disposal of real property whether to a private entity or public entity to the board of Public Works for approval. Any revenue generated or derived from the disposal of real property shall be deposited into the Real Property Fund and then transferred to the title spending unit or owner agency for which the Real Estate Division disposed of the real property, minus the Real Estate Division's actual costs and expenses associated with such disposal services.
(2) (6) 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) (7) 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) (8) 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) (9) To establish and maintain a comprehensive database of all state real estate contracts and leases;
(6) (10) To develop policies and procedures for statewide real property management;
(7) (11) 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) (12) 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) (13) To provide statewide policy leadership and coordinate master planning to guide and organize capital asset management; and
(10) (14) 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 designee of said 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 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 pre-existing revenue bond issue and except as provided in subsections (c) and (d) of this section.
(c) Revenues from leases initiated prior to the enactment of this section or subsequently renewed shall continue to be treated as they were prior to 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 leases 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 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.
For the operation of division, each spending unit served by the Real Estate Division is hereby authorized and directed to transmit to the Real Estate Division for deposit into the Real Property Fund the charges for costs and services for real estate services rendered by the Real Estate Division, such charges to be fixed in a schedule or schedules prepared by the executive director based upon a square footage leased by each spending unit, except those spending units that are exempt under section two, article ten, chapter five-a of this code, and for each spending unit's actual costs and expenses associated with third-party real estate services, and as approved by the Secretary of Administration and the Governor. The executive director shall maintain accurate records reflecting the costs of administering the provision of this article.
§5A-10-13. Creation of Real Property Fund.
There is hereby created in the State Treasury a special revenue fund to be known as the "Real Property Fund." The fund may be given appropriations as determined by the Governor and the Legislature but operates as a special revenue fund whereby all deposits and payments thereto do not expire to the General Revenue Fund, but remains in the fund and be available for expenditure in succeeding fiscal years. This fund shall consist of moneys deposited in the fund pursuant to the provisions of article ten, chapter five-a as well as interest earned on investments made from moneys deposited in the fund. Moneys from this fund shall be expanded 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 provided to the Secretary of Administration on behalf of the state, and other spending units, subject to the discretion of the Secretary of the Department of Administration and the discretion of the Governor.



NOTE: The purpose of this bill is to clarify that the Real Estate Division of the Department of Administration has the power and duty of acquiring and disposing of real property, contracting for third-party real estate services and billing spending units for the actual costs of such third-party services; 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.

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 §5-10-13 are new; therefore, strike-throughs and underscoring have been omitted.