N.Y. Comp. Codes R. & Regs. tit. 8 § 155.15

Current through Register Vol. 46, No. 45, November 2, 2024

Section 155.15 - Leases and contracts for the use of property by boards of cooperative educational services

Education Law, § 1950

(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.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 155.15