NY Priv Hous Fin L § 60 (2021)
2021 New York Laws PVH - Private Housing Finance Article 3 - New York State Housing Finance Agency 60 - Housing Project Repair Fund.

§ 60. Housing project repair fund. 1. As used in this section, (a) the term  "current  economic  rent"  shall mean the rent or carrying charges determined by the commissioner to be sufficient,  together  with  monies available  to the company from the state, the federal government, or any other source, to provide for the payment of  (i)  all  current  mortgage interest,  fees,  charges,  and  amortization,  (ii)  all  current  real property taxes and water and sewer charges, or payments in lieu thereof, (iii) all other current operating expenses of the project, and (iv)  all current  payments  into  reserve  funds  required  by  the commissioner; provided,  however,  that  any  payments  required  for   reserves   for replacements shall be in an amount which on an aggregate annual basis is not  less  than  six-tenths  of one percent of the cost for constructing such project as determined by the commissioner, except that in the  case of a project receiving payments pursuant to this section which otherwise would be made from such reserve for replacements, the commissioner shall take  such  payments into account in determining the necessary amount of payments to reserves for replacements; and  (b) the term "total economic rent" shall mean the sum of  the  current economic  rent, as defined in paragraph (a) of this subdivision, plus an amount  sufficient  to  amortize  all  mortgage  repayment   arrearages, including  fees  and  charges,  and  all  real  property tax arrearages, including applicable interest, if any, and all water  and  sewer  charge arrearages, including applicable interest, if any, of the company.   2.  The  agency shall create and establish a special fund, to be known as the housing project repair fund and shall  pay  into  such  fund  all monies  appropriated  and  made available to the agency by the state for the purposes of such fund  and  any  other  monies  which  may  be  made available  to  the  agency  for the purposes of such fund from any other source or sources.   3. Monies held in the housing project repair fund may be used  by  the agency to provide for the correction of construction-related problems in housing  projects  financed  by  the  agency  by  means of the necessary repair, reconstruction or replacement of any of the facilities  or  site conditions, the cost of which was included in the project cost and which form  an integral part of the project, and for such other purposes which may be necessary  to  effectuate  the  provisions  of  this  section.  A construction-related  problem shall mean any deficiency or defect in the design, construction or site preparation of a  project,  its  buildings, utilities  and  grounds;  provided,  however, a deficiency which results from conformance to design and construction standards in effect  at  the time  of  such  construction  shall  not  constitute such a construction related problem. The agency shall not expend monies  from  the  fund  as payment   to   any   housing   company   for   the   correction   of   a construction-related problem unless the following conditions  have  been met:   a.   The  agency  has  either  (1)  received  a  certification  by  an independent consultant with appropriate qualifications  engaged  by  the agency  certifying  (i)  the scope and total cost of the corrective work required to be performed at the project after taking into  consideration emergency conditions, if any, which may exist, and such other factors as may  be  appropriate; (ii) the cost effectiveness of alternative methods of performing the corrective work; and (iii) the  extent  to  which  the corrective  work  to  be  performed  results from a construction-related problem, or (2) equivalent findings have been  made  in  arbitration  or other fact finding procedures established by agreement between a housing company, the commissioner and the agency; and   b.  The  agency has found and determined that (i) the projected annual aggregate rent revenues for the project and any other  monies  available  to  the company from the state or federal government or any other source as certified by the commissioner constitute current  economic  rent,  or (ii)  a  mortgage  modification agreement has been entered into with the housing  company which operates the project, after consultation with the commissioner and in accordance  with  the  guidelines  approved  by  the director  of the budget. Such a mortgage modification agreement shall be entered into only in  the  event  that  the  agency  projects  that  the imposition  of  total  economic  rent  will  require the company to vary rental rates or carrying charges by an amount that  exceeds  the  rental rates  or  carrying  charges of a company in effect immediately prior to the date of such a modification by the greater of  twenty  percentum  or ten  dollars  per  room per month. A mortgage modification agreement may permit the variation of rental rates or carrying charges over  a  period agreed  upon  by  the  agency  and  the  housing  company  not to exceed seventy-five months from the effective date of the initial variation  in rental  rates or carrying charges so as to result in the imposition of a current economic rent level at a date no later than the beginning of the seventy-sixth month, and shall make provision for  the  payment  by  the housing  company  of all current real property taxes and water and sewer charges, or payments in lieu thereof, and for the payment by the housing company of (i) all real property tax  arrearages,  including  applicable interest,  if  any,  over  a period not to exceed fifteen years from the effective date of the initial variation  in  rental  rates  or  carrying charges,   (ii)   all  water  and  sewer  charge  arrearages,  including applicable interest, if any, over a period not to exceed  fifteen  years from  the  effective  date  of  the initial variation in rental rates or carrying charges, (iii) all  mortgage  repayment  arrearages,  including fees  and charges, over a period not to exceed the scheduled date of the expiration of the mortgage repayment period pursuant to  the  provisions of  the  original  mortgage and (iv) any mortgage repayment deficiencies accumulated during the term of the mortgage modification agreement  over a period not to exceed ten years from the expiration of such agreement.   4.  Monies shall not be available from the fund to reimburse a housing company for work performed  or  contracted  on  account  of  which  such housing  company  has received a credit against monies otherwise payable to the agency as mortgage repayments prior to the effective date of this section, nor for work required to maintain, or correct  deficiencies  or defects  in,  construction performed or contracted for by a municipality or public utility, nor for work for which federal monies  are  available as  determined  by  the  commissioner,  and  the agency shall not expend monies beyond those  required  to  meet  the  portion  of  the  cost  of correction  of  a  condition  which  constitutes  a construction-related problem, as determined by the agency;  provided,  however,  that  monies from  the  fund  may  be  used  to pay for the costs associated with the hiring of an independent consultant engaged by the agency to  effectuate the  purposes  of  this  section  and  for  otherwise  administering the provisions of this section.   5. Notwithstanding any other provision  of  this  section  the  agency shall allocate fifteen per centum of the monies from the fund as payment to  housing  companies  financed  by  the agency or the state for energy conservation improvements  or  tenant  health  and  safety  improvements provided that the following conditions are met:   a.  The agency has received a certification from the commissioner that energy saving or other modifications to  the  project  will  either  (i) result  in  savings  projected over a seven year term or (ii) rectify an imminent threat to tenant health and safety, and there is no alternative source of funding to make such modifications.    b. The agency has reviewed the findings of the commissioner and is  in agreement with such findings.   c.  The  agency has determined that the requirements of paragraph b of subdivision three of this section have been satisfied.   d. The agency  has  determined  that  a  plan  for  performing  energy conservation  or  tenant  health and safety improvements as submitted by the housing company is the most cost-effective alternative available  to the housing company.   The agency shall apportion such allocations among housing companies in an  equitable  manner  and shall not make any such allocation in a given year to a housing company which will, in such year, receive ten  percent or  more  of  the  monies  available  in  the fund for the correction of construction-related problems.   6. To assist in the administration of  this  section,  the  agency  is authorized  to request the assistance of and utilize the services of any state  department,  agency,  board,   commission   or   public   benefit corporation,  and  any  such  department,  agency,  board, commission or public benefit corporation is authorized to provide such assistance  and service.   7.  Nothing  contained  in  this  section  or in the administration or application hereof shall be construed as creating any private  right  of action on the part of any persons, firm or corporation against the state of  New York, the agency, the division of housing and community renewal, or any officer or employee thereof  based  upon  a  construction-related problem  and  neither the certification or finding of the existence of a construction-related  problem  as  provided  in  this  section  nor  the implementation  of  the  provisions of this section may be asserted as a defense by way of answer, counterclaim, or otherwise in  any  action  or proceeding  brought  to  enforce  the  provisions  of  a mortgage or any related agreement made by the agency  with  respect  to  a  project,  or brought by the commissioner with respect to a project, or brought by the commissioner  to  enforce  any  of the provisions of this chapter or any order made by him pursuant to this chapter. In  any  case  where  monies held  in  the  housing project repair fund have been expended to provide for the correction of any construction-related problem, the agency shall accede to any and all rights and remedies which the housing  company  on whose behalf such payment was made may have against any third party with respect  to  any such construction-related problem to the extent of such payment.   8. Notwithstanding any other provisions of  this  section,  no  monies shall be expended from the housing project repair fund unless the agency has  submitted  a plan to the director of the budget and the comptroller describing the work required to repair the construction-related or other problem, or problems, which also describes the method to be used for the awarding of contracts for such work, and the director of the budget  and the  comptroller  have  approved the plan and all contracts let pursuant thereto as being in accordance with the provisions of this  section  and in  accordance with subdivision two of section one hundred twelve of the state finance law. In addition, no monies shall  be  expended  from  the housing  project  repair  fund  unless  the  director  of the budget has approved a plan detailing the scheduling of the work to be performed  to repair  any  such  construction-related or other problem or problems and the scheduling of the  payments  for  total  cost  of  the  work  to  be performed.  In  addition,  no  monies in excess of the total cost of any corrective work certified in accordance with paragraph a of  subdivision three  of  this  section  shall  be  expended from such fund without the approval of the director of the budget.    9. Notwithstanding any other law, no monies shall be provided pursuant to this section unless a company shall require the tenants and occupants residing in the housing project or projects to submit an  annual  income affidavit  as  prescribed by the commissioner or the supervising agency, as  the  case  may  be,  together  with  proper  documentation as and if prescribed by the commissioner or the supervising agency,  as  the  case may be. Upon submission of such affidavit and documentation, if any, the company  shall  assess  such tenant or occupant the rental surcharge, if applicable, prescribed pursuant to section thirty-one of this chapter on the basis of the verified income of such  tenant  or  occupant.  If  the tenant   or   occupant   shall   fail   to  submit  such  affidavit  and documentation, or if such verification shall result  in  a  disagreement caused  by  understatement of income and the tenant shall have failed to correct such original affidavit and documentation on forms specified  by the  commissioner within sixty days of notification by certified mail by the commissioner addressed to the  tenant,  the  commissioner  shall  so notify  the  company. Thereupon, the company shall assess such tenant or occupant the maximum rental  surcharge  permitted  pursuant  to  section thirty-one of this chapter, and provided further, that the company, with the  approval of the commissioner or the supervising agency, as the case may be, may proceed to remove said tenant or occupant from occupancy  on the  ground  that  said tenant or occupant has materially misrepresented income. The failure of the tenant to accurately verify such income shall be prima facie evidence that such material misrepresentation was made by the  tenant.  The  provisions  of  any  other  law   to   the   contrary notwithstanding,  solely  for the purpose of verification of income, the commissioner or the supervising agency, as the case may be, may contract with the department of taxation and finance for  services  performed  by such  department in verifying income information forwarded by a company, the commissioner, or the supervising agency to such department.  Nothing contained  herein  shall  be  construed to authorize the commissioner to contract  with  such  department  to  provide  any  income   information whatsoever   and   such   agreement  shall  be  limited  solely  to  the verification of income  information.  No  officer  or  employee  of  the division  of housing and community renewal, the supervising agency, or a company shall be subject to any civil or criminal liability by reason of his forwarding to the department of taxation and finance of  any  income information pursuant to this subdivision, unless (i) such information is knowingly  and  willfully  materially  misrepresented by such officer or employee or (ii) such information is knowingly and willfully divulged to any person, except in the discharge  of  such  officer's  or  employee's duties  solely for the purpose of verification of income, for any reason whatsoever. The commissioner or the supervising agency as the  case  may be,  shall  promulgate rules and regulations to effect the provisions of this subdivision. The provisions of the state freedom of information act shall not apply to any income information obtained  by  a  company,  the commissioner, or the supervising agency, as the case may be, pursuant to the provisions of this subdivision.