Section 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.