36 CFR Part 18

36 CFR Part 18.htm

National Park Service Leasing Program -- 36 CFR 18

36 CFR Part 18

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WAIS Document Retrieval
[Code of Federal Regulations]
[Title 36, Volume 1]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR18]

[Page 246-252]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
      CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR
 
PART 18_LEASING OF PROPERTIES IN PARK AREAS--Table of Contents




Sec.
18.1 What is the authority and purpose for this part?
18.2 What definitions do you need to know to understand this part?
18.3 What property may be leased?
18.4 What determinations must the Director make before leasing property?
18.5 May property be leased without receiving fair market value rent?
18.6 Are there limitations on the use of property leased under this 
          part?
18.7 How are lease proposals solicited and selected if the Director 
          issues a Request for Bids?
18.8 How are lease proposals solicited and selected if the Director 
          issues a Request for Proposals?
18.9 When may the Director lease property without issuing a request for 
          bids or a request for proposals?
18.10 How long can the term of a lease be?
18.11 What general provisions must a lease contain?
18.12 What specific provisions must a lease contain?

    Authority: 16 U.S.C. 1 et seq., particularly 16 U.S.C. 1a-2(k), and, 
16 U.S.C. 470h-3.

    Source: 66 FR 66759, Dec. 27, 2001, unless otherwise noted.

Sec.  18.1  What is the authority and purpose for this part?

    16 U.S.C. 1 et seq., particularly 16 U.S.C. 1a-2(k), and, 16 U.S.C. 
470h-3 are the authorities for this part. These authorities allow the 
Director (or delegated officials) to lease certain federally owned or 
administered property located within the boundaries of park areas. All 
leases to be entered into by the Director under these authorities are 
subject to the requirements of this part, except that, proposed leases 
that were solicited pursuant to this part prior to January 28, 2002, may 
be executed in accordance with the terms of the solicitation.

Sec.  18.2  What definitions do you need to know to understand this 
          part?

    In addition to the definitions contained in 36 CFR Part 1, the 
following definitions apply to this part:
    (a) Associated property means land and/or structures (e.g., parking 
lots, retaining walls, walkways, infrastructure facilities, farm fields) 
related to a building or buildings and their functional use and 
occupancy.
    (b) Building means an enclosed structure located within the 
boundaries of a park area and constructed with walls and a roof to serve 
a residential, industrial, commercial, agricultural or other human use.
    (c) Commercial use authorization means a written authorization to 
provide services to park area visitors issued by the Director pursuant 
to Section 418 of Public Law 105-391 and implementing regulations.
    (d) Concession contract has the meaning stated in 36 CFR part 51.
    (e) Fair market value rent means the most probable rent, as of a 
specific date, in cash or in terms equivalent to cash, for which the 
property to be leased, under the terms and conditions of the lease, 
should rent for its highest and best permitted use after reasonable 
exposure in a competitive market under all conditions requisite to a 
fair leasing opportunity, with the lessor and the lessee each acting 
prudently, knowledgeably, and for self-interest, and assuming that 
neither is under undue duress. Determinations of fair market value rent 
under this part are to be made taking into account the considerations 
stated in Sec.  18.5.
    (f) Historic building means a building or buildings located within 
the boundaries of a park area if the building is part of a pre-historic 
or historic district or site included on, or eligible for inclusion on, 
the National Register of Historic Places.
    (g) Historic land means land located within the boundaries of an 
historic property.

[[Page 247]]

    (h) Historic property means building(s) and land located within the 
boundaries of a park area if the building(s) and land are part of a pre-
historic or historic district or site included on, or eligible for 
inclusion on, the National Register of Historic Places.
    (i) Land means unimproved real property.
    (j) Lease means a written contract entered into under the authority 
of this part through which use and possession of property is granted to 
a person for a specified period of time.
    (k) Non-historic building is a building (or buildings) and its 
associated property located within the boundaries of a park area but not 
part of a pre-historic or historic district or site included on, or 
eligible for inclusion on, the National Register of Historic Places.
    (l) Non-historic land means land located within the boundaries of a 
park area that is not associated property and is not part of a pre-
historic or historic district or site included on, or eligible for 
inclusion on, the National Register of Historic Places.
    (m) Non-historic property means building(s) and/or land that are 
located within the boundaries of a park area but are not part of a pre-
historic or historic district or site included on, or eligible for 
inclusion on, the National Register of Historic Places.
    (n) Park area means a unit of the national park system.
    (o) Property means both historic and non-historic property that is 
located within the boundaries of a park area and is federally owned or 
administered.
    (p) Request for bids refers to the lease bid process described in 
Sec.  18.7.
    (q) Request for proposals refers to the lease proposal process 
described in Sec.  18.8.
    (r) Responsive bid or proposal means a timely submitted bid or 
proposal that meets the material requirements of a request for bids or a 
request for proposals.

Sec.  18.3  What property may be leased?

    (a) In general. The Director may lease any property (except non-
historic land) under this part if the Director makes the determinations 
required by Sec.  18.4.
    (b) Non-historic land. Non-historic land may not be leased under 
this part. Certain non-historic land is eligible for leasing under 36 
CFR part 17.

Sec.  18.4  What determinations must the Director make before leasing 
          property?

    Before leasing property in a park area under this part, the Director 
must determine that:
    (a) The lease will not result in degradation of the purposes and 
values of the park area;
    (b) The lease will not deprive the park area of property necessary 
for appropriate park protection, interpretation, visitor enjoyment, or 
administration of the park area;
    (c) The lease contains such terms and conditions as will assure the 
leased property will be used for activity and in a manner that are 
consistent with the purposes established by law for the park area in 
which the property is located;
    (d) The lease is compatible with the programs of the National Park 
Service;
    (e) The lease is for rent at least equal to the fair market value 
rent of the leased property as described in Sec.  18.5;
    (f) The proposed activities under the lease are not subject to 
authorization through a concession contract, commercial use 
authorization or similar instrument; and
    (g) If the lease is to include historic property, the lease will 
adequately insure the preservation of the historic property.

Sec.  18.5  May property be leased without receiving fair market value 
          rent?

    Property may be leased under this part only if the lease requires 
payment of rent to the government equal to or higher than the property's 
fair market value rent. The determination of fair market value rent 
shall take into account:
    (a) Any restrictions on the use of the property or terms of the 
lease that limit the value and/or the highest and best use of the 
property; and
    (b) Any requirements under the lease for the lessee to restore, 
rehabilitate or otherwise improve the leased property.

[[Page 248]]

Sec.  18.6  Are there limitations on the use of property leased under 
          this part?

    (a) A lease issued under this part may authorize the use of the 
leased property for any lawful purpose, subject to the determinations 
required by Sec.  18.4 and the limitations on activities set forth in 
paragraph (b) of this section.
    (b) Unless otherwise authorized by law, a lease issued under this 
part may not authorize the lessee to engage in activities that are 
subject to authorization through a concession contract, commercial use 
authorization or similar instrument. Proposed lease activities are 
subject to authorization under a concession contract if the Director 
determines in accordance with 36 CFR part 51 and park area planning 
documents and related guidelines and policies that the proposed 
activities meet applicable requirements for issuance of a concession 
contract. Proposed activities are subject to authorization under a 
commercial use authorization if the Director determines in accordance 
with park area planning documents and related guidelines and policies 
that the proposed activities meet applicable requirements for issuance 
of a commercial use authorization.

Sec.  18.7  How are lease proposals solicited and selected if the 
          Director issues a Request for Bids?

    (a) If the amount of the rent is the only criterion for award of a 
lease, the Director may solicit bids through issuance of a request for 
bids as described in this section. If historic property is to be leased 
under the authority of this section, the Director must comply with 36 
CFR part 800 (commenting procedures of the Advisory Council on Historic 
Preservation) at an appropriate time during the leasing process.
    (b) A request for bids under this section shall be advertised by 
public notice published at least twice in local and/or national 
newspapers of general circulation. The notice shall provide at least a 
thirty (30) day period from the last date of publication for the 
submission of sealed bids. The notice will provide necessary information 
to prospective bidders. It may specify a minimum rent and/or require 
submission of a rent deposit or advance rent payment. Bids will be 
considered only if timely received at the place designated in the 
request. Bids must be in the form specified by the Director, or, if no 
form is specified, a bid must be in writing, signed by the bidder or 
authorized representative, state the amount of the bid, and refer to the 
applicable public notice. If the notice requires submission of a rent 
deposit or advance rent payment, the bids must include the required 
funds in the form of a certified check, post office money order, bank 
drafts, or cashier's checks made out to the United States of America. 
The bid (and payment where applicable) must be enclosed in a sealed 
envelope upon which the bidder shall write: ``Bid on lease of property 
of the National Park Service'' and shall note the date the bids are to 
be opened.
    (c) Bids will be opened publicly by the Director at a time and place 
specified in the public notice. Bidders or their representatives may 
attend the bid opening. The bidder submitting a responsive bid offering 
the highest rent will be selected for award of the lease (subject to a 
determination of financial capability by the Director). A responsive bid 
is a bid that meets the material terms and conditions of the request for 
bids. The Director shall accept no bid in an amount less than the fair 
market rental value as determined by the Director. If two or more bids 
are equal, a drawing shall make the lease award by lot limited to the 
equal responsive bids received.
    (d) When a property is to be leased through a request for bids, the 
bidder that is declared by the Director to be the high bidder shall be 
bound by his bid and this part to execute the offered lease, unless the 
bid is rejected. If the declared high bidder fails to enter into the 
lease for any reason, the Director may choose to enter into the lease 
with the next highest bidder (if that bidder offered to pay at least the 
fair market rent value). The Director may reject any and all bids in his 
discretion and resolicit or cancel a lease solicitation under this part 
at any time without liability to any person.

[[Page 249]]

Sec.  18.8  How are lease proposals solicited and selected if the 
          Director issues a Request for Proposals?

    (a) When the award of a lease is to be based on selection criteria 
in addition to or other than the amount of the rent, the Director must, 
subject to Sec.  18.9, solicit proposals for the lease through issuance 
of a public Request for Proposals (RFP).
    (b) An RFP may be preceded by issuance of a public Request for 
Qualifications (RFQ). The purpose of an RFQ is to select a ``short 
list'' of potential offerors that meet minimum management, financial and 
other qualifications necessary for submission of a proposal in response 
to an RFP. If the Director issues an RFQ, only persons determined as 
qualified by the Director under the terms of the RFQ shall be eligible 
to submit a proposal under the related RFP.
    (c) The Director must provide public notice of the leasing 
opportunity by publication at least twice in local and/or national 
newspapers of general circulation and/or through publication in the 
Commerce Business Daily. The public notice shall contain general 
information about the leasing opportunity and advise interested persons 
how to obtain a copy of the RFP (or RFQ where applicable). The RFP (and 
RFQ where applicable) shall contain appropriate information about the 
property proposed for lease, including limitations on the uses of the 
property to be leased, information concerning the leasing process, 
information and materials that must be contained in a proposal, the time 
and place for submission of proposals, terms and conditions of the 
lease, and the criteria under which the Director will evaluate 
proposals. The RFP may state the fair market value rent as the minimum 
acceptable rent if determined by the Director at that time. The RFP (and 
RFQ where applicable) must allow at least sixty (60) days for submission 
of proposals (or qualifications under an RFQ) unless a shorter period of 
time is determined to be sufficient in the circumstances of a particular 
solicitation.
    (d) The Director may determine that a proposal is non-responsive and 
not consider it further. A non-responsive proposal is a proposal that 
was not timely submitted or fails to meet the material terms and 
conditions of the RFP. After the submission of offers and prior to the 
selection of the best overall proposal, the Director may request from 
any offeror additional information or written clarification of a 
proposal, provided that proposals may not be amended after the 
submission date unless all offerors that submitted responsive proposals 
are given an opportunity to amend their proposals. The Director may 
choose to reject all proposals received at any time and resolicit or 
cancel a solicitation under this part without liability to any person.
    (e) (1) The criteria to be used in selection of the best proposal 
are:
    (i) The compatibility of the proposal's intended use of the leased 
property with respect to preservation, protection, and visitor enjoyment 
of the park;
    (ii) The financial capability of the offeror to carry out the terms 
of the lease;
    (iii) The experience of the offeror demonstrating the managerial 
capability to carry out the terms of the lease;
    (iv) The ability and commitment of the offeror to conduct its 
activities in the park area in an environmentally enhancing manner 
through, among other programs and actions, energy conservation, waste 
reduction, and recycling; and
    (v) Any other criteria the RFP may specify.
    (2) If the property to be leased is an historic property, the 
compatibility of the proposal with the historic qualities of the 
property shall be an additional selection criterion. If the RFP requires 
proposals to include the amount of rent offered, the amount of rent 
offered also shall be an additional selection criterion.
    (f) The Director will evaluate all responsive proposals received. 
The responsive proposal determined by the Director to best meet on an 
overall basis the evaluation criteria will be selected for negotiation 
of the lease. If two or more responsive proposals are determined by the 
Director to be substantially equal under the evaluation criteria, the 
Director shall provide an

[[Page 250]]

opportunity for those proposals to be amended by their offerors as 
necessary for the Director to select the best amended proposal. In such 
circumstances, the Director will provide each offeror that submitted a 
substantially equal proposal appropriate information as to how their 
proposals may be amended in order to enhance the possibility of 
selection as the best amended proposal. If two or more proposals remain 
as substantially equal after amendment, the Director will select for 
negotiation of the lease from among these proposals the proposal that 
the Director determines on an overall basis will be most beneficial to 
effective management of the park area.
    (g) The Director will provide the offeror that submitted the best 
overall responsive proposal as determined by the Director a specified 
period of time to negotiate the final terms of the lease (and may enter 
into a letter of intent to negotiate in this connection). The final 
terms of the lease must be consistent with the requirements of the RFP. 
If the negotiations do not result in an executed lease within the 
specified time period, the Director, in his discretion, may extend the 
negotiation period, terminate negotiations and negotiate with the 
offeror that submitted the next best responsive proposal, or, cancel the 
solicitation.
    (h) RFPs may state that the amount of rent to be paid will be 
negotiated subsequently with the offeror that submitted the best 
proposal, initially or as amended. The Director may execute a lease only 
if the Director determines that it requires the lessee to pay at least 
the fair market value rent of the leased property.
    (i) The Director may execute a lease that includes historic property 
only after complying with 36 CFR part 800 (commenting procedures of the 
Advisory Council on Historic Preservation).

Sec.  18.9  When may the Director lease property without issuing a 
          request for bids or a request for proposals?

    The Director, except as provided in this section, may not lease 
property without issuing a request for bids or a request for proposals 
in compliance with Sec.  18.7 or Sec.  18.8. The Director under this 
part may enter into leases with non-profit organizations (recognized as 
such by the Internal Revenue Service) or units of government without 
complying with Sec.  Sec.  18.7 or 18.8 if the Director determines that 
the non-profit or governmental use of the property will contribute to 
the purposes and programs of the park area. All other requirements of 
this part are applicable to leases entered into or to be entered into 
under authority of this section. The Director may enter into leases 
under this part with a term of sixty (60) days or less without complying 
with Sec.  Sec.  18.7 or 18.8 if the Director determines that to do so 
is in the best interests of the administration of the park area. If 
historic land is to be leased under the authority of this section, the 
Director must comply with 36 CFR part 800 (commenting procedures of the 
Advisory Council on Historic Preservation) before entering into the 
lease.

Sec.  18.10  How long can the term of a lease be?

    All leases entered into under this part shall have as short a term 
as possible, taking into account the financial obligations of the lessee 
and other factors related to determining an appropriate lease term. No 
lease shall have a term of more than 60 years. Leases entered under the 
authority of this part may not be extended, except that, leases with an 
initial term of one (1) year or more may be extended once for a period 
not to exceed one (1) additional year if the Director determines that an 
extension is necessary because of circumstances beyond the Director's 
control.

Sec.  18.11  What general provisions must a lease contain?

    All leases entered into under this part must contain terms and 
conditions that are determined necessary by the Director to assure use 
of the leased property in a manner consistent with the purposes of the 
applicable park area as established by law, and where applicable, to 
assure the preservation of historic property.

Sec.  18.12  What specific provisions must a lease contain?

    All leases entered into under this part must contain:

[[Page 251]]

    (a) A termination for cause or default provision;
    (b) Appropriate provisions requiring the lessee to maintain the 
leased property in good condition throughout the term of the lease;
    (c) Appropriate provisions stating that subletting of a portion of 
the leased property and assignment of a lease, if permissible under the 
terms of the lease, must be subject to the Director's written approval. 
Such subleases and assignments shall be approved only of the Director 
determines, among other relevant matters, that the proposed sub-lessee 
or assignee is financially and managerially capable of carrying out the 
terms of the lease. Assignment of a lease for the purpose of 
effectuating an encumbrance to the lease or the leased property is 
subject to approval pursuant to the requirements of paragraph (l) of 
this section;
    (d) Appropriate provisions requiring the lessee to secure and 
maintain from responsible companies liability insurance sufficient to 
cover losses connected with or occasioned by the use and activities 
authorized by the lease. Types and amounts of insurance coverage will be 
specified in writing and periodically reviewed by the Director;
    (e) Appropriate provisions, unless the Director determines otherwise 
in the circumstances of a particular lease, requiring the lessee to 
obtain from responsible companies casualty insurance (including flood 
insurance if applicable) in an amount sufficient to protect the 
interests of the lessee and the government. In the event of casualty, 
the lessee shall be required to repair or replace damaged or destroyed 
property unless otherwise determined by the Director;
    (f) Appropriate provisions requiring the lessee to save, hold 
harmless, and indemnify the United States of America and its agents and 
employees for all losses, damages, or judgments and expenses resulting 
from personal injury, death or property damage of any nature arising out 
of the lessee's activities under the lease, and/or the activities of the 
lessee's employees, subcontractors, sub-lessees, or agents. No lease 
entered into this part may contain provisions intended to provide 
indemnification or other assurances to the lessee regarding the conduct 
or activities of the Director concerning the lease or the administration 
of the applicable park area. Leases may contain appropriate provisions 
that commit the Director to accept responsibility for tortious actions 
of government officials to the extent authorized by the Federal Torts 
Claim Act or as otherwise expressly authorized by law;
    (g) Appropriate provisions requiring the lessee to pay for use of 
all utilities used by the lessee and to pay all taxes and assessments 
imposed by federal, state, or local agencies applicable to the leased 
property or to lessee activities;
    (h) Appropriate provisions stating that the lessee has no rights of 
renewal of the lease or to the award of a new lease upon lease 
termination or expiration and that the lease is subject to cancellation 
by the Director in the exercise of the sovereign authority of the United 
States to the extent provided by applicable law;
    (i) Appropriate provisions stating that the lessee may not construct 
new buildings or structures on leased property, provided that, a lease 
may contain appropriate provisions that authorize the lessee to 
construct, subject to the prior written approval of the Director, minor 
additions, buildings and/or structures determined by the Director to be 
necessary for support of the authorized activities of the lessee and 
otherwise to be consistent with the protection and purposes of the park 
area. Approval by the Director of new construction may only be granted 
if the Director makes the determinations required by Sec.  18.4;
    (j) Appropriate provisions requiring that:
    (1) Any improvements to or demolition of leased property to be made 
by the lessee may be undertaken only with written approval from the 
Director;
    (2) That any improvements to or demolition of historic property may 
only be approved if the Director determines that the improvements or 
demolition complies with the Secretary of the Interior's Standards for 
the Treatment of Historic Properties (36 CFR part 68); and

[[Page 252]]

    (3) Any improvements made by a lessee shall be the property of the 
United States;
    (k) Appropriate provisions that describe and limit the type of 
activities that may be conducted by the lessee on the leased property. 
The types of activities described in a lease may be modified from time 
to time with the approval of the Director through an amendment to the 
lease. The Director may approve modified activities only if the 
determinations required by Sec.  18.4 remain valid under the proposed 
modified activities and the proposed activities are otherwise determined 
appropriate by the Director;
    (l) Appropriate provisions, unless the Director determines not to 
permit pledges or encumbrances in the circumstances of a particular 
lease, authorizing the lessee to pledge or encumber the lease as 
security, provided that any pledge or encumbrance of the lease and the 
proposed holder of the pledge or encumbrance must be approved in writing 
in advance by the Director and that a pledge or encumbrance may only 
grant the holder the right, in the event of a foreclosure, to assume the 
responsibilities of the lessee under the lease or to select a new lessee 
subject to the approval of the Director. Pledges or encumbrances may not 
grant the holder the right to alter or amend in any manner the terms of 
the lease;
    (m) Appropriate provisions stating that fulfillment of any 
obligations of the government under the lease is subject to the 
availability of appropriated funds. No lease issued under authority of 
this part shall entitle the lessee to claim benefits under the Uniform 
Relocation Assistance Act of 1970 (Public Law 91-646) and all leases 
entered into under the authority of this part shall require the lessee 
to waive any such benefits; and
    (n) Appropriate provisions granting the Director and the Comptroller 
General access to the records of the lessee as necessary for lease 
administration purposes and/or as provided by applicable law.



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