41 C.F.R. Subpart B—Occupancy Agreement
Title 41 - Public Contracts and Property Management
An Occupancy Agreement (OA) is required for each customer agency's space assignment. The OA must be agreed to by GSA and the customer agency prior to GSA's commitment of funds for occupancy and formal assignment of space. The customer agency must sign an OA prior to GSA's making any major contractual commitments associated with the space request. Typically, this should occur at the earliest possible opportunity-i.e., when funds become available. However, in no event shall certification occur later than just prior to the award of the contract to a design architect in the case of Federal construction or renovation in Federally owned space or prior to the award of a lease. This serves as a customer agency's funding commitment unless certification is provided on another document. The terms and conditions are modeled after commercial practice. They are intended to reflect a full mutual understanding of the financial terms and agreement of the parties. The OA describes the actual space and services to be provided and all associated actual costs to the customer during the term of occupancy. The OA does not include any general provisions or terms contained in this part. OAs typically describe the following, depending on whether the space is leased or Federally owned: (a) Assigned square footage; (b) Shell Rent and term of occupancy; (c) Amortized amount of customer allowance used; (d) Operating costs and escalations; (e) One time charges; e.g., lump sum payments by the customer; (f) Real estate tax and escalations; (g) Parking and escalations; (h) Additional/reduced services; (i) Security services and associated Rent; (j) Joint use space and associated Rent; (k) PBS fee; (l) Customer rights and provisions for occupancy after OA expiration; (m) Cancellation provisions if different from this part or the customer service guides; (n) Any special circumstances associated with the occupancy, such as environmental responsibilities, unusual use restrictions, or agreements with local authorities; (o) Emergency relocations; (p) Clauses specific to the agreement; (q) Other Rent, e.g., charges for antenna sites, land; (r) Agency standard clauses; and (s) General clauses defining the obligations of both parties. Authorized GSA and customer agency officials who can commit or obligate the funds of their respective agencies can execute an OA. Higher level signatories may be appropriate from both agencies for space assignments in owned or leased space, that are unusual in size, location, duration, public interest, or other factors. Each agency decides its appropriate signatory level. An OA obligates the executing customer agency to fund the current-year Rent obligation owed GSA, as well as to reimburse GSA for any other bona fide obligations that GSA may have incurred on behalf of the customer agency. Although the OA is an interagency agreement, memorializing the understanding of GSA and its customer agency, the OA may not be construed as obligating future year customer agency funds until they are legally available. A multi-year OA commitment assumes the customer agency will seek the necessary funding through budget and appropriations processes. Yes, most of the standard terms apply; however, the right to cancel upon a 4-month (120 day) notice is not available. See §102–85.35 for the definition of non-cancelable space. (a) Customer agencies can terminate any space assignments, except those designated as non-cancelable, with the following stipulations: (1) The agency must give GSA written notice at least four months prior to termination. (2) The agency is responsible for reimbursing GSA for the unpaid balance of the cost of tenant improvements, generally prior to GSA releasing the agency from the space assignment. In the event the customer agency received a rent concession (e.g., free rent) at the inception of the assignment as part of the consideration for the entire lease term, then the amount of the concession applicable to the remaining term must be repaid to GSA. (3) If the space to be vacated is ready for occupancy by another customer and marketable, GSA accepts the termination of assignment. (4) If the agency has vacated all of the space and removed all personal property and equipment from the space by the cancellation date in the written notice, the agency will be released effective that date from further Rent payments. (5) An agency may terminate a GSA space assignment with less than a four-month advance written notice to GSA, if: (i) Either GSA or the terminating agency has identified another agency customer for the assigned space and that substitute agency wants and is able to fully assume the Rent payments due from the terminating agency; and (ii) The terminating agency continues to pay Rent until the new agency starts paying Rent. (b) GSA can terminate space assignments according to GSA regulations for emergency or forced moves. (c) OAs terminate automatically at expiration. The customer agencies are financially responsible for expenses incurred by the Government as a result of any failure on their part to fulfill a commitment outlined in an OA or other written agreements in advance of, or in addition to, the OA. Customer agencies are also financially responsible for revised design costs and any additional costs resulting from changes to space requirements or space layouts made by the agency after a lease, alteration, design, or construction contract has been awarded by GSA. If an agency agrees to participate in a consolidation upon expiration of an OA, the relocation expenses will be addressed in the new OA negotiated by GSA and the customer agency. The customer agency generally pays such costs.
Title 41: Public Contracts and Property Management
PART 102–85—PRICING POLICY FOR OCCUPANCY IN GSA SPACE
Subpart B—Occupancy Agreement
§ 102-85.45 When is an Occupancy Agreement required?
§ 102-85.50 When does availability of funding have to be certified?
§ 102-85.55 What are the terms and conditions included in an OA?
§ 102-85.60 Who can execute an OA?
§ 102-85.65 How does an OA obligate the customer agency?
§ 102-85.70 Are the standard OA terms appropriate for non-cancelable space?
§ 102-85.75 When can space assignments be terminated?
§ 102-85.80 Who is financially responsible for expenses resulting from tenant non-performance?
§ 102-85.85 What if a customer agency participates in a consolidation?
