N.Y. Comp. Codes R. & Regs. tit. 14 § 621.14

Current through Register Vol. 46, No. 50, December 11, 2024

Section 621.14 - Assurances from the applicant

In addition to any other requirements imposed by law, each State aid grant, HFA mortgage loan and FDC mortgage loan shall be subject to the condition that the applicant will furnish and comply with the following assurances and conditions.

(a) That the commissioner's approval of the final working drawings and specifications which conform to the general standards of construction and equipment, as prescribed in the commissioner's regulations will be obtained before the project is advertised or placed on the market for bidding.

(b) That the following conditions and provisions will be included in all construction contracts:

(1) A provision that the contractor has complied with statutory requirements relating to noncollusion in bids and proposals.

(2) When deemed necessary by the commissioner, the contractor shall furnish performance and payment bonds, each of which shall be in the full amount of the contract price. The contractor shall maintain, during the life of the contract, adequate fire, workers' compensation, liability and property damage insurance.

(3) A provision that representatives of the commissioner will have access at all reasonable times to work whenever it is in preparation or progress and the contractor shall provide proper facilities for each access and inspection.

(c) An applicant which has received State aid, an HFA mortgage loan, or an FDC mortgage loan for capital construction of a facility or other eligible costs shall:

(1) Operate the community program described in the application, in the facility constructed, acquired, reconstructed, rehabilitated, improved, financed, or refinanced with State aid for a period of 20 years from the date of completion of construction or until any mortgage obtained by the applicant from the New York State Housing Finance Agency or any FDC mortgage loan has been satisfied, whichever occurs later, and will make no change in the nature of the program or the status or ownership of the facility within the aforesaid period without the prior written approval of the commissioner and, where an HFA mortgage loan has been obtained, the written approval of the New York State Housing Finance Agency. In the event the applicant fails to operate the community program for the aforesaid period, OPWDD in addition to any other legal remedies it may have and subject to any rights of the New York State Housing Finance Agency or the Facilities Development Corporation pursuant to any mortgage it may hold on the facility, shall have the right to possession and occupancy, without any charge or fee therefore, of the facility constructed with State aid or for which an FDC mortgage loan was obtained for its financing, refinancing, construction, acquisition, reconstruction, rehabilitation, or improvement, for the unexpired term during which the applicant has agreed to operate said facility. If OPWDD exercises the foregoing right, its possession and occupancy shall be under the following terms and conditions:

(i) If OPWDD is obligated to make any payment on any mortgage, lien, judgment or other encumbrance on the facility, then the amount of such payments shall be an obligation of the applicant due and owing to OPWDD.

(ii) OPWDD shall be responsible for all maintenance except for repairs to the physical structure of the facility. If OPWDD is obliged to make such structural repairs then the amounts so expended shall become and be a obligation of the applicant due and owing to OPWDD.

(iii) Notwithstanding any of the provisions contained herein, OPWDD shall be entitled to recover an amount equal to five percent of any State aid granted for capital costs for the construction of the facility for each year of the unexpired first 20 years of the term during which the applicant has agreed to operate said facility; and cause to be recovered on a monthly or other periodic basis, a portion of the FDC mortgage loan until the loan has been satisfied, in such manner and in such amounts as shall be set forth in agreements between the applicant and OPWDD to be made in the format prescribed by the commissioner; and the total amount thereof shall become and be an obligation of the applicant due and owing to OPWDD.

(iv) Any obligation of the applicant as set forth in the foregoing paragraphs of this subdivision shall become and be a lien on the facility in favor of OPWDD as soon as said obligation is incurred; provided, however, that where there is an unsatisfied mortgage held by the New York State Housing Finance Agency on the facility, the said obligation shall become and be a lien on the facility when said mortgage is satisfied. OPWDD may file proof of such lien with the clerk of the county wherein such facility is located. Such lien may be filed prior to the satisfaction of any HFA mortgage.

(v) That the applicant will obtain from any agency which operates a program in the facility, as a condition of such operation written agreement to perform and operate in accordance with the provisions of this section.

(2) Make no change in the general nature of the program conducted at the facility or any change in the status or ownership of the facility for a period of 20 years from the date of completion of the facility or until the mortgage obtained by the applicant from the New York State Housing Finance Agency or the FDC mortgage loan has been satisfied, and in the case of a HFA mortgage loan, the prior written approval of the New York State Housing Finance Agency. In the event the applicant fails to operate the community program for a period of 20 years from the date of completion of construction or until the mortgage obtained by the applicant from the New York State Housing Finance Agency or the FDC mortgage loan has been satisfied, whichever occurs later, OPWDD, subject to any rights of the New York State Housing Finance Agency or the Facilities Development Corporation pursuant to any mortgage it may hold on the facility, shall have the right to possession and occupancy, without any charge or fee therefor, of the facility constructed with State aid or for which an FDC mortgage loan was obtained for its financing, refinancing, construction, acquisition, reconstruction, rehabilitation, or improvement for the unexpired term during which the applicant has agreed to operate said facility. OPWDD shall further be entitled to recover an amount equal to five percent of the State aid grant for capital costs for the construction of the facility for each year of the unexpired first 20 years of the term during which the applicant has agreed to operate said facility, or to cause to be recovered on a monthly or other periodic basis, a portion of the FDC mortgage loan for the unexpired term during which the applicant has agreed to operate the facility, until the loan is satisfied.

(3) No applicant receiving State aid or an HFA mortgage loan for capital construction of a facility shall rent or lease such facility or any part thereof without having first received the prior written approval of the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.14

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016