Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Definitions. As used in this section:
(1)
Annual lease means a lease of real property, the term of which is no greater
than one school year, which terminates no later than June 30th.
(2) Multi-year lease means a lease of real
property, the term of which is greater than one school year, which terminates
no later than June 30th of any school year.
(b) Approval of leases outside of New York
City. To obtain prior approval of a lease pursuant to sections 403-b(1)(c),
2503(8) and/or 2554(6) of the Education Law, the board of education of a union
free, central, central high school or city school district other than the city
school district of the City of New York shall submit the following to the
commissioner:
(1) the proposed lease, which
shall be an annual lease, multi-year lease or an amendment or extension
thereof, shall include the following information:
(i) the complete legal names and addresses of
all parties and the address of the leased property;
(ii) the lease term; and
(iii) the amount, frequency and due dates for
lease payments, including the total of payments for the duration of the lease
term;
(2) to show need,
a copy of the district's updated long-range facilities plan required pursuant
to section
155.1 of
this Part which includes the proposed leased space as well as all other planned
acquisitions, disposals and leasing of buildings for school purposes during the
period of the plan; and
(3) to show
that the proposed leased facility meets all applicable standards for the
health, safety and comfort of the occupants, is educationally adequate and
where the facility is located on its site:
(i) a request for approval of use on the form
prescribed by the commissioner;
(ii) concerning State Uniform Fire Prevention
and Building Code conformance (9 NYCRR Parts 600-1250);
(a) a copy of the current certificate of
occupancy issued by the local code enforcement agency; or
(b) certification by a licensed
architect/engineer that the whole building, as well as the space being used,
complies with applicable provisions of Chapter C of the Uniform Fire Prevention
and Building Code (9 NYCRR Parts 600-1250);
(iii) the fire safety report required by
section
155.4
of this Part:
(a) with no nonconformances;
or
(b) in the case of
nonconformances, certification that correction of the nonconformances are part
of a capital project submitted with the lease approval request;
(iv) a site plan; and
(v) floor plan(s); and
(4) to indicate the location of the leased
facility, certification by the superintendent of schools that:
(i) the leased school/facility is located
within the district but not on district-owned property; or
(ii) the leased school/facility is owned by
and is located in a neighboring union free or central school district. The
distance between the two districts in miles shall be provided by the
superintendent;
(5)
certification by an attorney representing the board of education that:
(i) the board has taken proper procedural
steps to authorize the lease;
(ii)
the initial term of the lease, not including any renewals thereof, does not
exceed the period of probable usefulness that would be prescribed for such
building or facilities by the Local Finance Law if the building or facility
were owned by a school district;
(iii) voter approval has been obtained where
required by law:
(a) for a lease longer than
five years;
(b) in the case of
renewals; and
(c) for any capital
project to be undertaken in a leased building or facility;
(iv) the lease does not include an option to
buy;
(v) the lease includes a
provision that the lease shall be void and unenforceable if entered into in
violation of section
801 of the General Municipal Law or section
410 of the Education Law; and
(vi) the lease payments or other annual
payment under the lease does not include the costs of heat, electricity, water
or other utilities or the costs of operation or maintenance of the leased
facility;
(6) for a
district seeking aid for lease expense pursuant to subdivision 6 of section
3602 of the Education Law, a certification
by the superintendent of schools that:
(i)
the leased school or facility meets requirements for access by individuals with
disabilities to both facilities and programs by complying with section
200.2
of this Title; and
(ii) the leased
space will be used to house programs for pupils in grades preK-12, who are
enrolled in any prekindergarten or nursery school program offered by the school
district pursuant to section
1712,
2514 or
2555 of the Education Law or who are over
five and under 21 years of age and who have not received a high school diploma,
with minimal associated administrative and support service space.
(c) Approval of capital
projects outside of New York City. To obtain prior approval of a capital
project in a leased building or leased facility during the term of the lease,
pursuant to sections 403-b(1)(b), 2503(8) and/or 2554(6) of the Education Law,
a board of education of a union free, central, central high school, or city
school district other than the city school district of the City of New York
shall submit the following to the commissioner:
(1) an explanation of the need for the
capital project in light of the district's long-range facilities plan,
submitted pursuant to paragraph (b)(2) of this section and updated to reflect
the need for the proposed capital project; and
(2) certification:
(i) that the lease is for a term of at least
10 years subsequent to the general contract for such construction,
reconstruction, rehabilitation or improvement; and
(ii) that where required by law, approval of
the voters of the school district which will become the lessee has been
obtained;
(3) for
capital projects proposed in a school building leased from another school
district, plans and specifications in accordance with section
155.2
of this Part;
(4) for capital
projects proposed in a school building leased from a person, partnership or
corporation other than another school district, submit for review for
educational adequacy and conformance with the requirements of this Part, plans
and specifications proposed to be submitted to the local building authority for
a building permit.
(d)
Approval of leases in the City of New York. To obtain prior approval of a lease
pursuant to section
2554(6) of the Education
Law, the board of education of the city school district of the City of New York
shall submit the following to the commissioner:
(1) the proposed lease, which shall be an
annual lease, multi-year lease or an amendment or extension thereof, and shall
include the following information:
(i) the
complete legal names and addresses of all parties and the address of the leased
property;
(ii) the lease term;
and
(iii) the amount, frequency and
due dates for lease payments, including the total of payments for the duration
of the lease term;
(2)
to show need, a copy of the district's current five year facilities plan, or
other long- range facilities plan as applicable, that is consistent with
section
155.1 of
this Part, and includes the proposed lease as well as all other planned
acquisitions, disposals and leasing of buildings or school purposes during the
period of the plan;
(3) to show
that the proposed leased facility meets all applicable standards for the
health, safety and comfort of the occupants, is educationally adequate and
where the facility is located on its site, submit:
(i) a request for approval of use on the form
prescribed by the commissioner;
(ii) a copy of current certificate of
occupancy issued by the local code enforcement agency;
(iii) a site plan; and
(iv) floor plan(s);
(4) certification by an attorney representing
the board of education that:
(i) the board
has taken proper procedural steps to authorize the lease;
(ii) the initial term of the lease, not
including any renewals thereof, does not exceed the period of probable
usefulness that would be prescribed for such building or facilities by the
Local Finance Law if the building or facility were owned by a school
district;
(iii) voter approval has
been obtained where required by law:
(a) for
a lease longer than five years;
(b)
in the case of renewals; and
(c)
for any capital project to be undertaken in a leased building or
facility;
(iv) the lease
does not include an option to buy;
(v) the lease includes a provision that the
lease shall be void and unenforceable if entered into in violation of section
801 of the General Municipal Law or section
410 of the Education Law; and
(vi) the lease payments or other annual
payment under the lease do not include the costs of heat, electricity, water or
other utilities or the costs of operation or maintenance of the leased
facility;
(5) for the
district seeking aid for lease expense pursuant to subdivision 6 of section
3602 of the Education Law, a certification
by the superintendent of schools that:
(i)
the leased school or facility meets requirements for access by individuals with
disabilities to both facilities and programs by complying with section
200.2
of this Title and, when the purpose of the leased space includes special
education programs and services, the leased space is consistent with the
district's comprehensive long-range plan for the allocation of instructional
space to meet the current and future special education program and service
needs and to serve students with disabilities in settings with nondisabled
peers; and
(ii) leased space will
be used to house programs for pupils in grades preK-12, who are enrolled in any
prekindergarten or nursery school program offered by the school district
pursuant to section
1712,
2514 or
2555 of the Education Law or who are over
five and under 21 years of age and who have not received a high school diploma,
with minimal associated administrative and support service space.
(e) Approval of capital
projects in New York City. To obtain prior approval of a capital project in a
leased building or facility during the term of the lease pursuant to sections
403-b(1)(b) and
2554(6) of the Education
Law, the board of education of the City of New York shall submit the following
to the commissioner:
(1) an explanation of
the need for the capital project in light of the district's long-range
facilities plan, submitted pursuant to paragraph (d)(2) of this section and
updated to reflect the need for the proposed capital project;
(2) provide certification:
(i) that the lease is for a term of at least
10 years subsequent to the general contract for such construction,
reconstruction, rehabilitation or improvement;
(3) for capital projects proposed in a school
building leased from another school district, submit plans and specifications
in accordance with section
155.2
of this Part; or
(4) for capital
projects proposed in a school building leased from a person, partnership or
corporation other than another school district, submit for review for
educational adequacy and conformance with the requirements of this Part, plans
and specifications proposed to be submitted to the local building authority for
a building permit.
(f)
Following the completion of a capital project, submitted to the commissioner
pursuant to subdivision (c) or (e) of this section, a new certificate of
occupancy issued by the local building authority shall be submitted together
with school district certification that the work was done in accordance with
submitted plans and specifications. Where the work deviates from the submitted
plans and specifications, as-built drawings shall be submitted for
review.
(g) Apportionment of
building aid under subdivision 6 of section
3602 of the Education Law for leases
approved by the commissioner pursuant to section 403- b, subdivision 8 of
section 2503, or subdivision 6 of section
2554 of the Education Law shall be
apportioned pursuant to provisions of this subdivision.
(1) Any apportionment for an approved lease
with a term of 15 years or more shall be based on the maximum cost allowance
determined in accordance with the provisions of subdivision 6 of section
3602 of the Education Law. Such
apportionment shall be paid on each annual lease payment until the total of
such annual lease payments equals the maximum cost allowance. No apportionment
shall be paid for annual lease payments made after the sum of such annual lease
payments exceeds the maximum cost allowance.
(2) Any apportionment for an approved lease
with a term of less than 15 years shall be based on the product of the maximum
cost allowance determined in accordance with the provisions of subdivision 6 of
section
3602 of the Education Law and the quotient
of the number of years in the term of the lease divided by 15. Such
apportionment shall be paid on each annual lease payment until the total of
such annual lease payments equals such product. No apportionment shall be paid
for annual lease payments after the sum of such annual payments exceeds such
product.
(3) The lease payment
schedule shall be structured so that no annual payment is less than 50 percent
of any prior annual payment.