Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Definitions.
As used in this section:
(1)
Property means land,
classrooms, offices, buildings and other specialized facilities.
(2)
Original lease means the
initial agreement between the board and a landlord for the use of real
property.
(3)
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.
(4)
Specialized facilities
means those facilities defined in section
1950(4)(p)(a)(4) of the
Education Law.
(5)
Contract means an agreement entered into by the board for the
use of personal property constructed, altered or improved for the educational
program of administrative purposes of the board.
(b) With the prior approval of the
commissioner, a board of cooperative educational services may enter into
either:
(1) annual or multi-year leases and
amendments or extensions thereto; or
(2) contracts for the use of personal
property and amendments or extensions thereto.
(c)
Leases.
In order to obtain the approval of the commissioner, any
original lease shall meet the following conditions:
(1) Any property leased for the educational
program purposes of the board shall be in compliance with the requirements of
section
155.4
of this Part.
(2) Any alterations
or improvements made under a lease shall satisfy the provisions of section
155.2
of this Part.
(3) Any property
leased for the special education program purposes of the board must first be
approved by the commissioner, on a form prescribed by the commissioner, that
ensures that the proposed lease is consistent with the approved special
education space requirements plan developed pursuant to section
200.2(g)
of this Title.
(4) The lease shall
contain the following information:
(i) the
complete legal names and addresses of all parties and of the leased
property;
(ii) the lease
term;
(iii) the amount, frequency
and due dates for lease payments;
(iv) the charge basis, whether for all or
part of the property and whether per room, per square foot or other
basis;
(v) a description of the
property and its intended use;
(vi)
a list of any services to be furnished by the landlord, including an agreement
as to which party will pay utility costs and assessments; and
(vii) signatures-all leases shall be
submitted in executed form, properly dated and signed by agents authorized to
act for the landlord, the board and any other party.
(5) Any appendices, exhibits, attachments or
other supporting documents shall be attached to the lease when submitted for
approval. The board shall submit such information as is necessary to enable the
commissioner to determine that the lease is in the best educational and
financial interests of the board.
(6) Under any multi-year lease, the board
shall furnish estimates as to its annual cost of operating the leased
property.
(7) Provided that
appropriate documentation accompanies the submission of the lease for
commissioner's approval, all of the following may be permitted in multi-year
leases of property:
(i) escalation
clauses;
(ii) renewal
options;
(iii) purchase
options;
(iv) assignment of rent to
third parties;
(v) subleasing to
others; and
(vi) using a leased
site as the location for relocatable facilities.
(8) The certification of an attorney-at-law
shall be required on all multi-year leases, all amendments or extensions
thereto, and all annual leases except those with boards of education for
portions of buildings to be used for classroom or administrative purposes. Such
certification shall accompany the lease when submitted for approval and shall
state that the lease and all relevant documents have been examined by the
attorney and that:
(i) the attorney is
attorney for the board or has been hired as attorney for the purpose of
reviewing the lease and any related legal documents and for preparing the
certification;
(ii) the board has
taken proper procedural steps to authorize the lease and any changes
thereto;
(iii) a determination has
been made as to whether the lease is subordinate to any existing or future
mortgages or the subject of any pending litigation;
(iv) all of the provisions of the lease
required or authorized by this section have been examined and conform with
Education Law and Regulations of the Commissioner of Education; and
(v) the lease is valid and legally binding
under general principles of the Real Property Law.
(d)
Contracts.
In order to obtain the approval of the commissioner, any
contract shall meet the following conditions:
(1) Any alterations or improvements involving
construction work under the contract shall satisfy the provisions of section
155.2
of this Part.
(2) Whenever a board
of cooperative educational services contracts to use personal property for the
educational program purposes of the board, such property shall be in compliance
with the requirements of section
155.4
of this Part.
(3) No contract shall
be approved which contains any provision that personal property, such as a
relocatable structure, constructed or situated on land owned or leased by the
board shall revert to the board if abandoned and not removed within a specified
time after the termination of the contract.
(4) The contract shall contain the following
information:
(i) the complete legal names and
addresses of all parties and of the personal property;
(ii) the term of the contract;
(iii) the amount, frequency and due dates of
contract payments;
(iv) the charge
basis, whether for all or part of the property and whether per room, per square
foot or other basis;
(v) a
description of the property and its intended use;
(vi) a list of any services to be furnished
by the owner of the personal property, including an agreement as to which party
will pay utility costs and assessments; and
(vii) signatures-all contracts shall be
submitted in executed form, properly dated and signed by agents authorized to
act for the contractor, the board and any other party.
(5) Provided appropriate documentation
accompanies the submission of the contract for the commissioner's approval, all
of the following may be permitted in multi-year contracts:
(i) escalation clauses;
(ii) renewal options;
(iii) purchase options; and
(iv) assignment of use payments to third
parties.
(6) Such
contracts when submitted for commissioner's approval shall be accompanied by
the certification of any attorney-at-law that:
(i) the attorney is attorney for the board or
has been hired as attorney for the purpose of reviewing the contract, any
related legal documents, and for preparing the certification;
(ii) the board has taken proper procedural
steps to authorize the contract;
(iii) if construction is to be done on leased
property, the board's lease permits same;
(iv) the terms of the construction contract
are consistent with those of any preexisting lease, amendment or extension
thereto covering said property; and
(v) in the opinion of the attorney, the
contract is valid and legally binding.
(e)
Submission of leases and
contracts.
(1) All annual leases with
boards of education for portions of buildings to be used for classroom or
administrative purposes shall be submitted for approval no less than 30 days in
advance of the effective date of the lease.
(2) Annual leases requiring certification of
an attorney, all multi-year leases and any amendments or extensions thereto,
and all contracts shall be submitted for approval no less than 60 days in
advance of the effective date of the lease or contract.
(f) In the approval process, the commissioner
may require additional supporting detail. Approval may be granted for a
variance from any of the specific requirements of this section upon a finding
by the commissioner that the requirements of this section have been
substantially met.