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(a) Rejection letters. The agency shall notify all unsuccessful applicants in writing. Such letter shall state the reasons for the rejection of such applicant's proposal or other submission.
(b) Conditional designation. The agency shall notify all successful applicants of their conditional designation as community groups. Such notification may be, but shall not be required to be, in writing and may be in any form which the agency deems to be appropriate, including, but not limited to, a conditional designation letter. Such letter, if any, shall be signed by the commissioner and shall constitute the selection and conditional designation of the applicant, subject to satisfaction of all conditions stated in the letter or in these rules or imposed by the agency or by applicable law. The letter may include, but shall not be limited to, the following matters:
(1) Acceptance deadline. The letter may require the applicant to unconditionally accept the designation within a time period for acceptance established therein.
(2) Program requirements. The letter may set forth program requirements and conditions upon which the designation was made and may state that any non-conformance or change in any of such requirements may be deemed by the agency to constitute a default.
(3) Schedule. The letter may contain a schedule of activities which must be completed as pre-conditions for the actions to be taken in connection with the disbursement of syndication funds.
(c) No liability. Conditional designation shall mean only that the agency intends to negotiate with the community group concerning a project and EDA until such conditional designation is terminated, a requirement of the agency or the city is not satisfied, or an EDA is executed. Conditional designation is not a contract or agreement and shall not create any rights on the community group's part, including, without limitation, rights of enforcement, equity, or reimbursement. No such contract or agreement shall exist, and no such rights shall be created, until the city and the community group enter into a written EDA approved as to form by the law department and duly executed by both parties.
(d) Termination of conditional designation.
(1) Causes for termination. After conditional designation of a community group, the agency may terminate such conditional designation at any time if the agency determines that the city should not enter into an EDA with the community group for any reason, including, but not limited to, the following:
(i) Failure to comply with terms of designation. The community group has failed to comply with any term or condition of the conditional designation letter.
(ii) Failure to meet city requirements. The community group has either (A) failed to clear one or more of the required city reviews, including, but not limited to, IG clearance and EO clearance, or (B) failed to satisfy other requirements established by the agency or the city.
(iii) Lack of resources. The community group lacks the necessary expertise, administrative or other resources, or legal capacity to perform the project.
(iv) Lack of funding. Adequate funding for the entire project, whether from syndication funds, other city funds, or any other public or private source, is not available or is not provided in a timely manner.
(v) Best interests of city. The agency or the city has not approved the required actions for any reason determined by the agency or the city to be in the best interests of the city.
(2) Notice of termination. If the agency elects to terminate the conditional designation of a community group, the agency shall notify the community group of such termination in writing.
(3) Right to comment. The agency shall give any terminated community group an opportunity to comment on the reasons for such termination, either in writing or by a conference with a responsible official of the agency. The agency shall give due consideration to any comments made by such community group, but shall retain the sole discretion whether to revoke the termination, set specific conditions for a revocation of the termination, or retain the termination. If the agency decides to revoke or conditionally revoke the termination, the agency shall notify the community group of its decision in writing. Nothing in this 28 RCNY § 28-04(d)(3) or this 28 RCNY § 28-04 shall be deemed to restrict the power and authority of the agency to negotiate with other parties, to enter into EDA's, or to take such other actions with respect to the syndication funds as the agency shall determine to be necessary or desirable, prior to receipt of comments from a terminated community group.
(a) EDA. The agency shall negotiate with each conditionally designated community group concerning the terms of the EDA pursuant to which such community group will perform one or more projects. Such negotiation shall continue until either the community group's conditional designation is terminated pursuant to these rules or an EDA is executed by the city and the community group. The city and the agency shall not disburse any syndication funds from the escrow account to the community group for any project until the city and the community group have executed an EDA in form approved by the law department and in form and substance acceptable to the agency. Each disbursement of syndication funds from the escrow account to a community group for a project shall be made in accordance with such EDA. The agency shall not be obligated to disburse any funds pursuant to an EDA beyond those syndication funds received from the developer of the applicable development.
(b) Scope of work. Each EDA shall include a scope of work describing the project in form and substance satisfactory to the agency. Such scope of work shall include, without limitation, a detailed description of the eligible activities to be performed with the syndication funds, and timetables for commencement, progress, and completion of the project.
(c) Eligible activities. The eligible activities to be included in the scope of work of any EDA may include, but shall not be limited to, the following:
(1) Project activities:
(i) Acquisition, rehabilitation (including all costs of maintenance and operation of occupied residential buildings during rehabilitation), and/or construction of housing accommodations and/or community facilities.
(ii) Rehabilitation or repair of city-owned occupied residential buildings.
(iii) Community improvements, including, but not limited to,
(A) demolition or resealing and securing of buildings in accordance with an area improvement plan or housing strategy,
(B) development and/or maintenance of permanent site improvement projects,
(C) facade and street improvements, and
(D) development, enhancement or maintenance of new or existing community facilities or open spaces.
(iv) Landlord/tenant activities, including, but not limited to,
(A) tenant organizing, education and counseling,
(B) negotiations and mediations of landlord-tenant disputes,
(C) landlord-tenant referral services.
(2) Related administrative costs. Not more than twenty percent (20%) of the syndication funds disbursed to a community group shall be used for administrative expenses incurred by the community group in connection with the project, including, but not limited to,
(i) salaries for staff who provide services which are particular to the project,
(ii) consultant fees,
(iii) office supplies,
(iv) rent,
(v) insurance,
(vi) other costs directly related to the performance of the project.
(3) Other approved use. The agency may approve any other use of syndication funds which is consistent with these rules, even though such use is not listed in 28 RCNY § 28-05(c)(1) or (c)(2).
(a) General. The agency may disburse syndication funds from the escrow account pursuant to these rules and applicable laws.
(b) Written comment.
(1) Notice to public. At such time as the agency proposes to execute an EDA with a community group, the agency shall place an advertisement in The City Record and such other publication as the agency shall deem appropriate, which advertisement shall include, at a minimum:
(i) a description of the program,
(ii) a description of the proposed project,
(iii) the designated community group(s) or other proposed recipient of the syndication funds,
(iv) where and when the public may inspect the proposed EDA, and
(v) where and when members of the public may comment in writing on any action described in the advertisement and/or EDA.
(2) Notice to borough president. Prior to or simultaneously with publication of the advertisement required pursuant to 28 RCNY § 28-06(b)(1), the agency shall mail copies of the advertisement and proposed EDA to the following officials or their designees:
(i) the borough president in the borough in which the project is located,
(ii) the community board in the community district in which the project is located, and
(iii) such other public officials or agencies as the agency shall deem appropriate.
(3) Submission of written comments. The agency shall impose a deadline for submission of written comments, which shall be a reasonable time after the advertisement first appears, but in no event less than fourteen (14) calendar days.
(4) Review of written comments. After the deadline for submission of written comments, the agency shall review the written comments received by it and shall determine whether such comments raise substantive issues which require further consideration. If the agency concludes that further consideration is required, the agency shall convene a public hearing in accordance with 28 RCNY § 28-06(c). If the agency concludes that further consideration is not required, the agency shall either (i) approve the proposed EDA, (ii) approve the proposed EDA with modifications, or (iii) disapprove the proposed EDA. If the agency approves the proposed EDA, the agency may, but shall not be required to, proceed with the execution of the EDA. If the agency approves the proposed EDA with modifications, the agency may, but shall not be required to, proceed with the execution of the modified EDA, and no additional public comment procedure shall be required concerning such modifications. If the agency disapproves the proposed EDA, the agency shall thereafter either (i) resume negotiations with the community group on a new or modified EDA, or (ii) terminate the conditional designation of the community group.
(c) Public hearing. If the agency determines, based upon the written comments received by it, that further consideration of the proposed action(s) is required, the agency shall convene a public hearing in accordance with this 28 RCNY § 28-06(c).
(1) Notice to public. The agency shall place an advertisement in The City Record and such other publications as the agency shall deem appropriate, which advertisement shall include, at a minimum, (i) a description of the program, (ii) a description of the proposed project, (iii) the designated community group(s) or other proposed recipient of the syndication funds, (iv) where and when the public may inspect the proposed EDA, and (v) the date, time, and location at which members of the public may comment in person on any action described in the advertisement and/or EDA. The agency shall endeavor to mail copies of such advertisement to (i) the borough president in the borough in which the project is located, (ii) the community board in the community district in which the project is located, (iii) such other public officials or agencies as the agency shall deem appropriate, and (iv) if feasible, all parties who submitted written comments pursuant to 28 RCNY § 28-06(b).
(2) Conduct of public hearing. A representative of the agency shall commence the public hearing by describing the action proposed by the agency. The agency shall then afford all persons attending who desire to comment upon such action a reasonable opportunity to speak; provided, however, that the agency may establish and enforce a uniform time limit upon the comments of all speakers; provided further, however, that such time limit shall in no event be less than two (2) minutes per speaker. An audio tape or transcript shall be made of the proceedings and a record shall be made of persons in attendance at the hearing.
(3) Review of public comments. After the public hearing, the agency shall review the comments of the speakers and shall determine whether to (i) approve the proposed EDA, (ii) approve the proposed EDA with modifications, or (iii) disapprove the proposed EDA. If the agency approves the proposed EDA, the agency may, but shall not be required to, proceed with the execution of the EDA. If the agency approves the proposed EDA with modifications, the agency may, but shall not be required to, proceed with the execution of the modified EDA, and no additional public comment procedure shall be required concerning such modifications. If the agency disapproves the proposed EDA, the agency shall thereafter either (i) resume negotiations with the community group on a new or modified EDA, or (ii) terminate the conditional designation of the community group.
(d) Unencumbered funds. The agency may disburse unencumbered funds in any manner permitted by law and these rules, including, without limitation, the following methods:
(1) New community group. The agency may select a new community group and make disbursements to it in accordance with these rules;
(2) Agency project. The agency may prepare a scope of work and EDA for a project and/or disburse unencumbered funds for the performance of such project to the agency rather than to a community group;
(3) Tax levy. The agency may apply unencumbered funds toward the cost of providing city services in the borough of the development which generated such syndication funds; and
(4) Best interests of the city. The agency may utilize unencumbered funds in any other manner deemed by the agency to be in the best interests of the city, including, but not limited to, disbursement of such unencumbered funds into the general fund of the city.
(e) Non-escrowed syndication funds. Where developers and community groups entered into agreements which provided for the payment of syndication funds directly from the developers to the community groups, the agency shall seek to enforce these rules to the extent practicable. Where the respective agreements provide the agency with sufficient authority to do so, the agency may (1) order developers to thereafter make all payments of syndication funds to the city rather than directly to community groups, and (2) order community groups to surrender all syndication funds in their possession to the city. Any syndication funds so obtained or recovered shall be deposited into the escrow account and made subject to the requirements of these rules.
(a) Accounts established by community groups. The community group shall establish a separate checking or savings account and shall submit a banking resolution to the agency which shall provide that (1) the commissioner shall be authorized to stop all disbursements from each such account or seize all funds therein, in the event of any failure to comply with the applicable EDA or agreement, or for any other reason deemed necessary or desirable by the agency to protect the best interests of the city consistent with these rules and applicable laws, and (2) checks or drafts shall be signed by at least two officers or designated, authorized signatories of the community group before a check or draft may be negotiated or funds withdrawn. Any syndication funds received by a community group, whether from the escrow account pursuant to an EDA or directly from a developer pursuant to an agreement, or monies repaid to the community group from any project activities, shall be deposited into such account and shall be held and utilized strictly in accordance with these rules. No syndication funds shall be disbursed to the community group and no funds shall be disbursed by the community group from such account until and unless the agency shall approve such banking resolution in writing.
(b) Reporting requirements and audits.
(1) Reports. At the end of the first six-month period after a community group receives its first disbursement, and every six months thereafter for as long as syndication funds remain in use by the community group, it shall provide the agency with a report and interim financial statement summarizing the use of the syndication funds received by it, together with copies of all bank statements and cancelled checks, and with a reconciliation of the checking and/or savings account.
(2) Audits. Starting with the end of the first full calendar year in which syndication funds were available to the community group for six months or longer, (i) the community group shall provide yearly audited financial statements to the agency, and (ii) all of the books and records of the community group shall be subject to review and audit by the agency or the comptroller. The community group shall maintain such books and records and shall make them available for audit for a period of six (6) years after the expiration of its EDA. Any agreements between a community group and its contractors shall contain substantially the same language as contained in this 28 RCNY § 28-07(b)(2). The community group shall require the certified public accountant retained by it to prepare its audited financial statement to (i) make its "work papers" available upon demand to the agency or the comptroller, and (ii) register with the comptroller upon demand by the city.
(c) EDA defaults. In the event that a community group defaults on its obligations pursuant to an EDA, the agency may terminate such EDA and/or invoke any other remedy available to the city pursuant to the EDA, these rules, or applicable laws.
(a) Adverse findings. Notwithstanding any provision to the contrary in these rules or in any document concerning any selection process, any project, or the program, the agency may reject any applicant or terminate any conditional designation of a community group if the agency determines at any time that good and sufficient reasons exist why the city should not do business with such party or should not allow such party to act as community group for the particular project in question. Such reasons shall include, but shall not be limited to, evidence with respect to the applicant or any member of its development team or any contractor retained by such applicant or any of its principals of:
(1) Arson conviction or pending cases,
(2) Harassment conviction or pending cases,
(3) Arrears or default upon any debt, lease, contract, tax, lien, fee, charge, or obligation to the city,
(4) City mortgage or tax foreclosure proceedings or arrears,
(5) Unsuccessful record with comparable projects, including, but not limited to, poor workmanship, failure to complete a project expeditiously, building violations or litigation history against other properties, or unsuccessful record of managing residential real property,
(6) Inability, due to lack of organizational capacity, competing demands from other projects, or any other factor to perform all work required to successfully complete the project,
(7) Bankruptcy or insolvency,
(8) Violation of the conflict of interest provisions of the Charter or any other applicable laws, or
(9) Failure to obtain IG clearance and/or EO clearance.
(b) Agency discretion. All determinations to be made by the agency and/or the commissioner in accordance with these rules shall be in the sole discretion of the agency and/or the commissioner; provided, however, that the agency and/or the commissioner shall comply in all respects with applicable laws.
(c) Statutory authority not limited. Nothing in these rules shall be deemed to prevent the agency from exercising such greater or additional rights, remedies, privileges, powers, and authority as shall be provided by law.
(d) Rights not conferred. These rules are not intended to confer rights or benefits upon the general public or upon any individual, entity, or actual or potential community group. Nothing in these rules shall be deemed to confer any rights or benefits whatsoever upon any party which are in addition to any rights deriving from applicable laws or written contracts with the agency.
(e) No legal obligation. At any time prior to the execution of a legally binding written EDA by the agency and the community group, the agency may withdraw its approval of all or any portion of a project, change the contemplated actions and project, change the community group selection process for a project, terminate the designation of a community group, select a new community group, or take any other action deemed by the agency to be necessary or appropriate. A selection process shall not represent any obligation or agreement whatsoever on the part of the city or the agency, which may only be incurred or entered into by written EDA approved as to form by the law department and duly executed by both parties. The city and the agency shall not be obligated to pay, nor shall they in fact pay, any costs or losses incurred by any applicant at any time, including, but not limited to, the cost of applying for selection as a community group. Conditional designation of a community group shall mean only that the agency intends to negotiate with such community group concerning one or more potential projects until either an EDA is executed or such conditional designation is terminated. Conditional designation of an applicant is not a contract or agreement and shall not create any rights on the applicant's part, including, without limitation, rights of enforcement, equity or reimbursement. No such contract or agreement shall exist, and no such rights shall be created, until the city and the community group enter into an EDA approved as to form by the law department and duly executed by both parties. Approval of a project and/or EDA by any party pursuant to these rules shall not obligate the agency to proceed with the project or with the execution of such EDA.
(f) Technical violations. Technical violations of these rules shall not invalidate the selection of any community group, any EDA, or any other action taken pursuant to these rules, nor shall such technical violations give rise to any rights, claims, or causes of action in favor of members of the general public or potential community groups.
(g) Compliance with laws. All actions by the agency pursuant to these rules shall be made in accordance with applicable laws. Each community group selected and project undertaken pursuant to these rules shall meet the eligibility criteria of the laws which authorize the agency to undertake the actions necessary or incident to the performance of such project.
(h) Amendments. These rules may be amended pursuant only to the procedures and requirements contained in CAPA.
(i) Waivers. The commissioner may at any time waive in writing one or more of the provisions of these rules with respect to any community group or project. Such writing shall state the reasons for such waiver.
(j) Singular and plural. With respect to any of the terms used in these rules, the singular shall be deemed to include the plural and the plural shall be deemed to include the singular, unless the context requires otherwise.