(d) Floodplain Management, Exec. Order No. 11988, 42 FR 26951 (May 25, 1977). (e) Protection of Wetlands, Exec. Order No. 11990, 42 FR 26961 (May 25, 1977). (f) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000(d)(1) et seq. (g) Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. (h) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 et seq. (i) Age Discrimination Act of 1975, 42 U.S.C. 1601 et seq. (j) Any other applicable Federal or State laws and Executive Orders. (Authority: 40 U.S.C. 484(k)) (Approved by the Office of Management and Budget under control number 18800524) § 12.12 What are the terms and conditions of transfers or leases of surplus Federal real property? (a) General terms and conditions for transfers and leases. The following general terms and conditions apply to transfers and leases of surplus Federal real property under this part: (1) For the period provided in the transfer or lease instrument, the transferee or lessee shall use all of the surplus Federal real property it receives solely and continuously for its approved program and plan of use, in accordance with the Act and these regulations, except that— (i) The transferee or lessee has twelve (12) months from the date of transfer to place this surplus Federal real property into use, if the Secretary did not, at the time of transfer, approve in writing construction of major new facilities or major renovation of the property; (ii) The transferee or lessee has thirty-six (36) months from the date of transfer to place the surplus Federal real property into use, if the transferee or lessee proposes construction of major new facilities or major renovation of the property and the Secretary approves it in writing at the time of transfer; and (iii) The Secretary may permit use of the surplus Federal real property at any time during the period of restriction by an entity other than the trans feree or lessee in accordance with § 12.13. (2) The transferee or lessee may not modify its approved program and plan of use without the prior written consent of the Secretary. (3) The transferee or lessee may not sell, lease or sublease, rent, mortgage, encumber, or otherwise dispose of all or a portion of the surplus Federal real property or any interest therein without the prior written consent of the Secretary. (4) A transferee or lessee shall pay all administrative costs incidental to the transfer or lease including, but not limited to (i) Transfer taxes; (iv) Inventory costs; (v) Legal fees; (vi) Title search; (vii) Certificate or abstract expenses; (x) Recordation expenses; (xii) Service charges, if any, provided for by an agreement between the Secretary and the applicable State agency for Federal Property Assistance. (5) The transferee or lessee shall protect the residual financial interest of the United States in the surplus Federal real property by insurance or such other means as the Secretary directs. (6) The transferee or lessee shall file with the Secretary reports on its maintenance and use of the surplus Federal real property and any other reports required by the Secretary in accordance with the transfer or lease instrument. (7) Any other term or condition that the Secretary determines appropriate or necessary. (b) Additional terms and conditions for on-site transfers. The terms and conditions in the transfer, including those in paragraph (a) of this section, apply for a period not to exceed thirty (30) years. (c) Additional terms and conditions for off-site transfers. (1) The terms and conditions in the transfer, including those in paragraph (a) of this section, apply for a period equivalent to the es timated economic life of the property conveyed for a transfer of off-site surplus Federal real property. (2) In addition to the terms and conditions contained in paragraph (c) of this section, the Secretary may also require the transferee of off-site surplus Federal real property (i) To post performance bonds; (ii) To post performance guarantee deposits; or (iii) To give such other assurances as may be required by the Secretary or the holding agency to ensure adequate site clearance. (d) Additional terms and conditions for leases. In addition to the terms and conditions contained in paragraph (a) of this section, the Secretary requires, for leases of surplus Federal real property, that all terms and conditions apply to the initial lease agreement, and any renewal periods, unless specifically excluded in writing by the Secretary. (Authority: 40 U.S.C. 484(k)(1)) (Approved by the Office of Management and Budget under control number 18800524) § 12.13 When is use of the transferred surplus Federal real property by entities other than the transferee or lessee permissible? (a) By eligible entities. A transferee or lessee may permit the use of all or a portion of the surplus Federal real property by another eligible entity as described in § 12.5, only upon those terms and conditions the Secretary determines appropriate if— (1) The Secretary determines that the proposed use would not substantially limit the program and plan of use by the transferee or lessee and that the use will not unduly burden the Department; (2) The Secretary's written consent is obtained by the transferee or lessee in advance; and (3) The Secretary approves the use instrument in advance and in writing. (b) By ineligible entities. A transferee or lessee may permit the use of a portion of the surplus Federal real property by an ineligible entity, one not described in 12.5, only upon those terms and conditions the Secretary determines appropriate if— (1) In accordance with paragraph (a) of this section, the Secretary makes the required determination and approves both the use and the use instrument; (2) The use is confined to a portion of the surplus Federal real property; (3) The use does not interfere with the approved program and plan of use for which the surplus Federal real property was conveyed; and (4) Any rental fees or other compensation for use are either remitted directly to the Secretary or are applied to purposes expressly approved in writing in advance by the Secretary. (Authority: 40 U.S.C. 484(k)(4)) Subpart D-Enforcement § 12.14 What are the sanctions for noncompliance with a term or condition of a transfer or lease of surplus Federal real property? (a) General sanctions for noncompliance. The Secretary imposes any or all of the following sanctions, as applicable, to all transfers or leases of surplus Federal real property: (1) If all or a portion of, or any interest in, the transferred or leased surplus Federal real property is not used or is sold, leased or subleased, encumbered, disposed of, or used for purposes other than those in the approved program and plan of use, without the prior written consent of the Secretary, the Secretary may require that (i) All revenues and the reasonable value of other benefits received by the transferee or lessee directly or indirectly from that use, as determined by the Secretary, be held in trust by the transferee or lessee for the United States subject to the direction and control of the Secretary; (ii) Title or possession to the transferred or leased surplus Federal real property and the right to immediate possession revert to the United States; (iii) The surplus Federal real property be transferred or leased to another eligible entity as the Secretary directs; (iv) The transferee or lessee abrogate the conditions and restrictions in the transfer or lease instrument in ac (v) The transferee or lessee place the surplus Federal real property into immediate use for an approved purpose and extend the period of restriction in the transfer or lease instrument for a term equivalent to the period during which the property was not fully and solely used for an approved use; or (vi) The transferee or lessee comply with any combination of the sanctions described in paragraph (a)(1) or (a)(3) of this section. (2) If title or possession reverts to the United States for noncompliance or is voluntarily reconveyed, the Secretary may require the transferee or lessee (i) To reimburse the United States for the decrease in value of the transferred or leased surplus Federal real property not due to— (A) Reasonable wear and tear; (B) Acts of God; or (C) Reasonable alterations made by the transferee or lessee to adapt the surplus Federal real property to the approved program and plan of use for which it was transferred or leased; (ii) To reimburse the United States for any costs incurred in reverting title or possession; (iii) To forfeit any cash payments made by the transferee or lessee against the purchase or lease price of surplus Federal real property transferred; (iv) To take any other action directed by the Secretary; or (v) To comply with any combination of the provisions of paragraph (a)(3) of this section. (3) If the transferee or lessee does not put the surplus Federal real property into use within the applicable time limitation in § 12.12(a), the Secretary may require the transferee or lessee to make cash payments to the Secretary equivalent to the current fair market rental value of the surplus Federal real property for each month during which the program and plan of use has not been implemented. (Authority: 40 U.S.C. 484(k)(4)) (4) If the Secretary determines that a lessee of a transferee or a sublessee of a lessee is not complying with a term or condition of the lease, or if the lessee voluntarily surrenders the premises, the Secretary may require termination of the lease. (Authority: 40 U.S.C. 484(k)(4)(A)) (b) Additional sanction for noncompliance with off-site transfer. In addition to the sanctions in paragraph (a) of this section, if the Secretary determines that a transferee is not complying with a term or condition of a transfer of off-site surplus Federal real property, the Secretary may require that the unearned PBA become immediately due and payable in cash to the United States. (Authority: 40 U.S.C. 484(k)(4)(A)) Subpart E-Abrogation § 12.15 What are the procedures for securing an abrogation of the conditions and restrictions contained in the conveyance instrument? (a) The Secretary may, in the Secretary's sole discretion, abrogate the conditions and restrictions in the transfer or lease instrument if— (1) The transferee or lessee submits to the Secretary a written request that the Secretary abrogate the conditions and restrictions in the conveyance instrument as to all or any portion of the surplus Federal real property; (2) The Secretary determines that the proposed abrogation is in the best interests of the United States; (3) The Secretary determines the terms and conditions under which the Secretary will consent to the proposed abrogation; and (4) The Secretary transmits the abrogation to the Administrator and there is no disapproval by the Administrator within thirty (30) days after notice to the Administrator. (b) The Secretary abrogates the conditions and restrictions in the transfer or lease instrument upon a cash payment to the Secretary based on the formula contained in the transfer or lease instrument and any other terms and conditions the Secretary deems appropriate to protect the interest of the United States. (Authority: 40 U.S.C. 484(k)(4)(A)(iii)) APPENDIX A TO PART 12.-PUBLIC BENEFIT ALLOWANCE FOR TRANSFER OF SURPLUS FEDERAL REAL PROPERTY FOR EDUCATIONAL PURPOSES 1 1 This Appendix applies to transfers of both on-site and off-site surplus property. Applicable when this is the primary use to be made of the property. The public benefit allowance for the overall program is applicable when such facilities are conveyed as a minor component of other facilities. This 10% may include an approvable recreation program which will be accessible to the public and entirely compatible with, but subordinate to, the educational program. This column establishes the maximum discount from the fair market value for payment due from the transferee at the time of the transfer. This column does not apply for purposes of ranking applicants to determine to which applicant the property will be transferred. Competitive rankings are based on the absolute total of public benefit allowance points and are not limited to the 100% ceiling. DESCRIPTION OF TERMS USED IN THIS "Elementary or High School" means an elementary school (including a kindergarten), high school, junior high school, juniorsenior high school or elementary or secondary school system, that provides elementary or secondary education as determined under State law. However, it does not include a nursery school even though it may operate as part of a school system. "College or University" means a nonprofit or public university or college, including a junior college, that provides postsecondary education. "Specialized School" means a vocational school, area trade school, school for the blind, or similar school. "Public Library" means a public library or public library service system, not a school library or library operated by non-profit, private organizations or institutions that may be open to the general public. School librar ies receive the public benefit allowance in the appropriate school classification. "Educational Museum" means a museum that conducts courses on a continuing, not ad hoc, basis for students who receive credits from accredited postsecondary education institutions or school systems. "School Outdoor Education" means a separate facility for outdoor education as distinguished from components of a basic school. Components of a school such as playgrounds and athletic fields receive the basic allowance applicable for that type of school. The outdoor education must be located reasonably near the school system and may be open to and used by the general public, but only if the educational program for which the property is conveyed is given priority of use. This category does not inIclude components of the school such as playgrounds and athletic fields, that are utilized during the normal school year, and are available to all students. "Central Administrative and/or Service Center" means administrative office space, equipment storage areas, and similar facilities. DESCRIPTION OF ALLOWANCES Basic Public Benefit Allowance means an allowance that is earned by an applicant that satisfies the requirements of § 12.10 of this part. ORGANIZATION ALLOWANCE Accreditation means an allowance that is earned by any postsecondary educational institution, including a vocational or trade school, that is accredited by an accrediting agency recognized by the Secretary under 34 CFR part 602. Federal Impact means an allowance that is earned by any local educational agency (LEA) qualifying for Federal financial assistance as the result of the impact of certain Federal activities upon a community, such as the following under Public Law 81874 and Public Law 81-815: to any LEA charged by law with responsibility for education of children who reside on, or whose parents are employed on, Federal property, or both; to any LEA to which the Federal Government has caused a substantial and continuing financial burden as the result of the acquisition of a certain amount of Federal property since 1938; or to any LEA that urgently needs minimum school facilities due to a substantial increase in school membership as the result of new or increased Federal activities. Public Services Training means an allowance that is earned if the applicant has cadet or ROTC units or other personnel training contracts for the Federal or State governments. This is given to a school system only if the particular school receiving the property furnishes that training. Hardship means an allowance earned by an applicant that has suffered a significant facility loss because of fire, storm, flood, other disaster, or condemnation. This allowance is also earned if unusual conditions exist such as isolation or economic factors that require special consideration. Inadequacies of Existing Facilities means an allowance that is earned on a percentage basis depending on the degree of inadequacy considering both public and nonpublic facilities. Overall plant requirements are determined based on the relationship between the maximum enrollment accommodated in the present facilities, excluding double and night sessions and the anticipated enrollment if the facilities are transferred. Inadequacies may be computed for a component school unit such as a school farm, athletic field, facility for home economics, round-out school site, cafeteria, auditorium, teacherages, faculty housing, etc., only if the com ponent is required to meet State standards. In that event, the State Department of Education will be required to provide a certification of the need. Component school unit inadequacies may only be related to a particular school and not to the entire school system. UTILIZATION ALLOWANCES Introduction of New Instructional Programs means an allowance that is earned if the proposed use of the property indicates that new programs will be added at a particular school. Examples of these new programs include those for vocational education, physical education, libraries, and similar programs. Student Health and Welfare means an allowance that is earned if the proposed program and plan of use of the property provides for cafeteria, clinic, infirmary, bus loading shelters, or other uses providing for the well-being and health of students and eliminating safety and health hazards. Research means an allowance that is earned if the proposed use of the property will be predominantly for research by faculty or graduate students under school auspices, or other primary educational research. Service to Handicapped means an allowance that is earned if the proposed program and plan of use for the property will be for special education for the physically or mentally handicapped. |