Baez et al v. New York City Housing Authority

Filing 388

ORDER: It is hereby ORDERED that the Agreement is adopted by the Court. (Signed by Judge Loretta A. Preska on 12/28/2021) (va)

Case 1:13-cv-08916-LAP Document 387-2 Filed 12/28/21 Page 1 1 of 1
Case 1:13-cv-08916-LAP Document 388
Filed 12/23/21 Page of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARIBEL BAEZ, et al.,
Plaintiffs,

13 Civ. 8916 (LAP)

-againstNEW YORK CITY HOUSING
AUTHORITY,
Defendant.
[PROPOSED] ORDER
WHEREAS, on April 12, 2021, this Court entered an Opinion and Order denying
Plaintiffs’ motion to enforce the Revised Consent Decree (ECF No. 220) with respect to class
members residing in NYCHA housing funded through Section 8 and stating that its Opinion and
Order “unveils a latent defect in the Revised Consent Decree” in that such class members “are no
longer covered by the parties’ agreement to injunctive relief;”
WHEREAS, the Opinion and Order directed the parties to “propose either a further revised
consent decree that includes all class members or a proposed pre-trial schedule for litigating this
action;”
WHEREAS the parties have negotiated an agreement and accompanying exhibit (the
“Agreement”) that provides protections to class members who reside in NYCHA housing funded
through Section 8; it is hereby
ORDERED that the Agreement is adopted by the Court.

Dated: December 28, 2021
___________________

___________________________
Hon. Loretta A. Preska, U.S.D.J.

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 21of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

Baez v. New York City Housing Authority (NYCHA)
United States District Court for the Southern District of New York
Case No.: 13 Civ. 8916 (LAP)
Agreement Regarding Settlement of Section 8 Claims (the “Agreement”)
I.

Applicability.

1.

The Modified Amended Stipulation and Order of Settlement, dated November 29, 2018
(Dkt. No. 220) (“Revised Consent Decree”) will apply to all NYCHA-managed Section 9
units that are converted to Section 8 units and that continue to be managed by NYCHA,
including pursuant to the public trust to be created through state legislation as identified in
NYCHA’s “Blueprint for Change.” The applicability of the Revised Consent Decree to
units in the Blueprint for Change program will be subject to the “review period” described
below in Paragraphs 4 and 6.

2.

The below terms shall apply to NYCHA developments that are or have been converted to
Section 8 pursuant to Permanent Affordability Commitment Together (“PACT”) (each, a
“PACT Project” and the developer(s) leasing and operating that PACT Project, a “PACT
Partner”) and the residents therein (“PACT residents”), except as modified by Paragraph 5
below.

3.

The terms of this Agreement shall be incorporated by reference in NYCHA’s agreements
with PACT Partners.

4.

The date of the issuance of an Architect’s Certificate of Completion (AIA Document
G704), or equivalent documentation, for a particular PACT Project will commence an
eighteen (18) month “review period” for that particular PACT Project during which the
same data reporting and Ombudsperson Call Center (“OCC”) access that were in place as
of the date of the PACT conversion will continue.

5.

Only the terms in Paragraphs 6, 10, 11, 12, 16, 17, 20, 21, 22, 23, 24, and 25 shall apply to
PACT Projects converted to Section 8 prior to the effective date of this Agreement (“Prior
PACT Conversions”), in accordance with the following “review periods”:
a.

Prior PACT Conversions with an Architect’s Certification of Completion prior to
the date of this Agreement shall have a “review period” of fifteen (15) months from
the effective date of this Agreement.

b.

Prior PACT Conversions without an Architect’s Certification of Completion issued
prior to the effective date of this Agreement shall have a “review period” of twelve
(12) months after the issuance of an Architect’s Certificate of Completion.
1

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 32of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

6.

Upon the expiration of the “review period” for a given PACT Project, NYCHA and/or the
relevant PACT Partner(s) may submit to the Special Master evidence, including data
collected during the “review period,” demonstrating that the PACT Project is in substantial
compliance with its Mold and Excessive Moisture Obligations, as defined in Paragraph 13.
NYCHA and/or the PACT Partner’s filing shall also be provided to the Plaintiffs and the
Independent Data Analyst (the “IDA”), PACT Independent Mold Analyst (“PACT IMA”),
and Ombudsperson, who shall advise both the Special Master and Plaintiffs as to the
sufficiency of the PACT Project’s compliance. Plaintiffs shall have sixty (60) days after
the expiration of the “review period” to submit evidence to the Special Master in support
of or in opposition to the PACT Partners’ submission. That sixty (60) day period shall not
commence unless and until the reporting obligations described in Section IV of this
Agreement are up to date and the filing has been provided. Upon a finding that the data
indicate that the PACT Project is in substantial compliance with its obligations in this
Agreement, the Special Master shall certify that the particular development is no longer
subject to this Agreement. At that time, the parties will submit a stipulation to the Court
stating that the PACT Project is no longer subject to the Baez litigation and PACT residents
living in that PACT Project are no longer part of the Baez class while they reside there.
For clarity, a PACT resident who relocates to housing that is subject to this Agreement or
the Revised Consent Decree will again be deemed a member of the Baez class upon such
relocation.
II.

Practices and Procedures Relating Mold and Excessive Moisture Obligations.

7.

NYCHA will require PACT Partners to remediate open mold and excessive moisture work
orders within sixty (60) days of a closing, and to investigate and abate flooding conditions
for work orders with the Maximo Problem Code “Flooding” within forty-eight (48) hours
after the closing, with the understanding that follow-up repair work in these apartments
may be needed after the forty-eight (48) hour period, unless a longer timeframe is agreed
to by NYCHA in writing after approval from the Special Master in consult with the IDA,
PACT IMA (upon selection), and Ombudsperson.

8.

NYCHA will require PACT Partners to use a Mold and Leak Work Order Tracker
developed by NYCHA in consultation with, and reviewed by, the IDA to track any open
mold and excessive moisture work orders identified in Paragraph 7 above.

9.

Each PACT Project must have a PACT Mold Operations & Maintenance Plan (the “PACT
O&M Plan”) that is approved by NYCHA and, for PACT Projects closing after April 1,
2022, the PACT IMA, prior to closing that is incorporated into the documents signed by
PACT Partners at closing and that includes:
a.

Technical and procedural requirements for addressing mold and excessive moisture
including:
2

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 43of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

i.

ii.

Initial inspection process to identify root causes of mold and moisture
conditions and to determine steps to remediate mold and related conditions,
including excessive moisture conditions;

iii.

Quality assurance spot-check inspections by the PACT IMA within thirty
(30) days of repair or closure for mold and excessive moisture related
conditions;

iv.

Assessment of mold condition by a New York State Department of Labor
(“DOL”) licensed mold assessor whenever there is more than 10 square feet
of mold (a “Mold Project” as defined by Local Law 61);

v.

Preparation of a Mold Remediation Work Plan and notification to the NYC
Department of Environmental Protection (“DEP”) for Mold Projects;

vi.

Remediation of mold and excessive moisture related conditions at their root
source; and

vii.
b.

Standard methods and materials for mold and excessive moisture
assessment, remediation, and abatement comparable to the NYCHA Mold
Standard Procedures Appendix A;

Post-Remediation Assessments completed and submitted to DEP for Mold
Projects.

A Resident Communication Procedure that includes:
i.

Reaching out to tenants to schedule inspections and in-unit work within
forty-eight (48) hours of receiving the complaint;

ii.

A commitment to include information about residents’ right to call the OCC
as part of regular communication with tenants;

iii.

Language from the NYCHA Mold Busters and draft NYCHA Leak
Standard Procedures for “questions to ask” related to mold and excessive
moisture conditions, to help property management staff and licensed mold
assessors identify root causes of conditions;

iv.

Clear explanation to residents of inspection findings and work needed; and

v.

Results of quality assurance inspections.
3

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 54of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

10.

NYCHA will require PACT Partners to remediate resident mold and excessive moisture
complaints made after closing within thirty (30) days after receiving the complaint and to
investigate and abate flooding complaints made after closing within twenty-four (24) hours
of receiving the complaint, and to remove standing water within forty-eight (48) hours,
unless a longer remediation and/or repair schedule is warranted based upon the specific
circumstances of the complaint as provided in Paragraphs 10(a) and 10(b).
a.

b.

III.

NYCHA will require PACT Partners to submit monthly reports (see Paragraph 17
below). PACT Partners shall identify in their monthly reports all unresolved mold
or excessive moisture complaints that have been open for more than thirty (30) days
and all flooding condition complaints open for more than forty-eight (48) hours; a
brief description of the reason why the complaint has been open for more than thirty
(30) days or forty-eight (48) hours for flooding conditions; and a proposed date for
the complaint to be resolved (“Alternative Repair Schedule”). Such reports shall
also be provided to the OCC/Ombudsperson.
If NYCHA or the OCC/Ombudsperson determines that an Alternative Repair
Schedule is not warranted and/or not reasonable based on the facts and
circumstances provided by the PACT Partner, NYCHA or the OCC/Ombudsperson
may initiate the process set forth in Exhibit A.
Accountability and Enforcement

11.

All PACT residents will have the ability to file complaints with the Ombudsperson through
the OCC. Such complaints will be routed to the PACT Partners to address, with a copy to
NYCHA.

12.

Within ninety (90) days of the execution of this Agreement, NYCHA will develop a
specific procedure for how OCC complaints from PACT residents are to be routed and
handled in conjunction with the Special Master, OCC, and Ombudsperson. This procedure
will incorporate the process contained in Exhibit A for the Ombudsperson to issue
directives to resolve open OCC complaints to this Agreement as well as the requirement
that PACT residents be notified of their right to contact the Ombudsperson and OCC.

13.

The Special Master, NYCHA, and Plaintiffs will jointly decide on who to appoint as the
PACT IMA, chosen from a list of available vendors provided by NYCHA, with the Special
Master having final decision-making authority in the event of a disagreement. Selection
of the PACT IMA cannot delay any scheduled PACT Project closings. The Special Master,
NYCHA, and Plaintiffs will jointly draft the Scope of Work for the PACT IMA and will
review the work conducted by the PACT IMA over a six (6) month period to determine if
the work is performed in an acceptable manner. If it is determined by the Special Master,
NYCHA, or the Plaintiffs that the PACT IMA’s work was deficient and is subsequently
determined by the Special Master to be deficient in the event of a dispute over the
4

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 65of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

sufficiency of the work, the Special Master, NYCHA, and Plaintiffs will jointly select
another party to serve as the PACT IMA. The Special Master shall have final decisionmaking authority on whether the PACT IMA’s work was deficient and who shall be
selected as the PACT IMA. The PACT IMA will provide oversight for all mold and
excessive moisture activities at PACT Projects and monitor PACT Partner compliance with
PACT O&M Plans and this Agreement (together, the “Mold and Excessive Moisture
Obligations”). Such Mold and Excessive Moisture Obligations also include relevant
obligations under applicable local, state, or federal law. NYCHA shall pay the reasonable
fees and expenses of the PACT IMA upon the Special Master’s approval of the PACT
IMA’s monthly invoices. In the event that NYCHA determines that a particular expense
is unreasonable, NYCHA may petition the Special Master for relief from payment
obligations for that expense.
14.

Each month, the PACT IMA will conduct a statistically significant number of inspections
and report on the results of such inspections (the “PACT IMA Report”). PACT IMA
Reports shall be shared with Plaintiffs and the Special Master as well as the relevant PACT
developments.

15.

NYCHA will take the steps referenced in Exhibit A to investigate and address a PACT
Partner’s alleged failure to comply with its Mold and Excessive Moisture Obligations.
IV.

Transparency/Data Reporting

16.

NYCHA will continue to pay the reasonable fees and expenses of the IDA, the OCC, and
Ombudsperson for work related to this Agreement pursuant to the existing contracts
between the Special Master and Stout Risius Ross, LLC and Cesar de Castro, respectively,
as provided for in the Revised Consent Decree.

17.

Within ninety (90) days of the execution of this Agreement, NYCHA will develop a
consistent reporting framework from PACT Partners to NYCHA in conjunction with the
IDA. NYCHA and the IDA will identify data to be included in the reporting framework
and in the quarterly reports that NYCHA provides pursuant to the Revised Consent Decree
(“Quarterly Reports”), and will begin including this data in the first Quarterly Report for
which three (3) full months of data can be reported or six (6) months after closing,
whichever is earlier. This data collection and reporting will continue throughout the
relevant “review period” following finalization of the Architect’s Certificate of
Completion, as discussed in Paragraphs 4 through 6.

18.

NYCHA agrees that PACT Partners will meet with Plaintiffs at Plaintiffs’ election on an
annual basis to discuss settlement compliance and mold and excessive moisture operation
and maintenance issues. The PACT Partners shall also meet with the Special Master, IDA,
PACT IMA, OCC, and Ombudsperson as reasonably requested by those entities.
5

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 76of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

V.

Miscellaneous

19.

The parties agree that any disputes arising out of the interpretation, application, or
enforcement of this Agreement will be raised in the first instance with the Special Master
appointed by the Court in this litigation, who will have arbitral powers to resolve such
disputes.

20.

Nothing about this Agreement shall be read to obviate any of NYCHA’s responsibilities
under its agreements with PACT Partners. Nor shall anything about this Agreement be
read to obviate any of the PACT Partners’ responsibilities under their respective
agreements with NYCHA.

21.

The parties agree to issue a joint statement in support of this Agreement shortly following
its execution.

22.

This Agreement may be executed in counterparts. This Agreement may be signed by hand
or by way of an electronic signature.

23.

The effective date of this Agreement shall be deemed to be the date that the Agreement is
signed by the last party.

24.

All prior discussions, promises, representations, and negotiations between Plaintiffs and
NYCHA pertaining to this Agreement are merged and integrated into, and superseded by,
this Agreement.

25.

Notices to Plaintiffs under this Agreement should be provided to David Picon on behalf of
Proskauer Rose LLP, Vivian Wang on behalf of Natural Resources Defense Council, and
Gregory Bass on behalf of National Center for Law and Economic Justice. Notices to
NYCHA under this Agreement should be provided to Gregory Laufer on behalf of Paul,
Weiss, Rifkind, Wharton, and Garrison LLP.

As agreed:

David A. Picon
Jennifer E. Tarr
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Tel: [phone]
[e-mail]
[e-mail]

Lisa Bova-Hiatt
New York City Housing Authority
90 Church Street
New York, NY 10007
Tel: [phone]
[e-mail]
General Counsel for NYCHA
6

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 87of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10

Dated: December 20, 2021

Vivian Wang
Sara Imperiale
Natural Resources Defense Counsel
40 West 20th Street
New York, NY 10011
Tel: [phone]
[e-mail]
[e-mail]
Gregory Bass
National Center For Law & Economic
Justice, Inc.
275 Seventh Avenue, Suite 1506
New York, NY 10001
Tel: [phone]
[e-mail]
Counsel for Plaintiffs
Dated: December 17, 2021

7

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 98of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page of 10
EXHIBIT A
Below is a summary of the steps that NYCHA, the Ombudsperson Call Center/Ombudsperson, and Special Master will take to address a PACT
Partner’s failure to substantially comply with and observe its obligations with respect to mold and excessive moisture under the PACT transaction
documents and the Agreement.
Steps
I.
Mold or
Excessive
Moisture
Complaint

1.

2.

3.

4.

Source of Complaint
NYCHA Compliance Investigation
Ombudsperson Call Center (OCC) / Ombudsperson
NYCHA will review PACT Partner data reporting,
1. PACT residents can call the OCC with complaints
PACT IMA Reports, and third-party mold and leak
regarding mold or excessive moisture in their units.
2. The OCC will conduct intake and, pursuant to a procedure
complaints (i.e. from residents, elected officials, and
to be developed in conjunction with the OCC and
others) on a monthly basis and shall flag failures to
Ombudsperson, those complaints will be sent to the PACT
comply with the Agreement within two weeks of a
Partner to address the complaint, with a copy to NYCHA
given review.
Within two weeks, NYCHA’s Compliance,
REDD Asset Management and the NYCHA Compliance
Environmental Health and Safety Departments, in
Department. Additionally, NYCHA’s Leased Housing
coordination with the NYCHA Real Estate
Department will undertake an inspection of the complaint
Development Division (“REDD”), will investigate any
for HQS violations.
(i) material discrepancies between PACT Partner data
3. If the Ombudsperson determines that the complaint has not
and the PACT IMA Reports, (ii) data indicating PACT
been adequately addressed by the PACT Partner within a
Partner substantial non-compliance with its mold and
reasonable timeframe (or, if a timeframe cannot reasonably
leak obligations, and (iii) third-party complaints to
be set forth, setting forth the steps the PACT Partner must
verify the alleged non-compliance.
take to correct the issue), the Ombudsperson will issue a
If verified, NYCHA will issue a Notice of Nonnotice to NYCHA, with a copy to the PACT Partner,
Compliance to the PACT Partner within one week of
instructing NYCHA to issue a Directive to the PACT
the verification. Additionally, NYCHA’s Leased
Partner.
Housing Department will undertake an inspection of
4. If NYCHA does not plan to object to an Alternative Repair
the issue for HUD Housing Quality Standards (“HQS”)
Schedule, the Ombudsperson can object to complaints that
violations.
are open for more than thirty (30) days following a meet
Upon receiving a PACT Partner’s monthly data reports,
and confer with NYCHA. If, after conferring with
NYCHA will review work orders that have been open
NYCHA, the OCC determines that a PACT Partner is in
for more than thirty (30) days and any Alternative
substantial non-compliance with Paragraph 10 of the
Repair Schedules provided by the PACT Partner. Each
Agreement and that NYCHA is not adequately addressing
month, NYCHA shall inform the OCC whether it
the non-compliance, the Ombudsperson will issue a notice
intends to object to any of the Alternative Repair
to NYCHA, with a copy to the PACT Partner, instructing
Schedules and issue a Notice of Non-Compliance to the
NYCHA to issue a Directive to the PACT Partner.
PACT Partner. A PACT Partner’s failure to propose a
1

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 10 of 11
Case 1:13-cv-08916-LAP Document 388
Filed 12/23/21 Page 9 of 10
EXHIBIT A

5.

6.

7.

8.

reasonable revised timeframe or to substantially meet
an approved revised timeframe will result in a Notice
of Non-Compliance.
The Notice of Non-Compliance will set forth a
reasonable timeframe for the PACT Partner to correct
the issue (or, if a timeframe cannot reasonably be set
forth, setting forth the steps the PACT Partner must
take to correct the issue).
If the PACT Partner does not correct the issue during
the set timeframe or pursuant to the steps set forth in
the Notice of Non-Compliance, NYCHA will promptly
issue a Directive to the PACT Partner.
For those complaints that will be best addressed by an
upcoming capital repair, NYCHA will take this into
account when determining the appropriate steps to
address the complaint in the immediate term. The need
for a capital repair may not be used to avoid providing
interim solutions for residents.
NYCHA shall include information regarding the
number of investigations, verifications, notices, and
Directives that it undertakes and/or issues each quarter
in the Quarterly Reports.

5. In the event that NYCHA does not promptly issue a
Directive to the PACT Partner in accordance with Section
II below or does not issue a Directive that is sufficient to
address the complaint, the Ombudsperson may refer the
issue to the Special Master for review. The Ombudsperson
must consult with NYCHA to try and resolve the issue
before referring it to the Special Master for review.
6. For those complaints that will be best addressed by an
upcoming capital repair, the Ombudsperson will take this
into account when determining the appropriate steps to
address the complaint in the immediate term.
7. NYCHA shall include information regarding the number of
investigations, verifications, notices, and Directives that the
Ombudsperson undertakes and/or issues each quarter in the
Quarterly Reports.

II.
NYCHA
Directive

1. NYCHA will issue a formal Directive that will include a Corrective Action Plan (“CAP”) specifying requirements for the
PACT Partner, as well as the timeframe within which the CAP needs to be addressed, to ensure prompt compliance.
2. The Directive shall include measures that NYCHA will take if the PACT Partner fails to comply with the CAP, including
but not limited to NYCHA undertaking the work itself, if appropriate, and NYCHA referral of the issue of noncompliance to the Special Master for a determination (see below).

III.
Suspension of
HAP
IV.

If the PACT Partner does not correct the HQS violations within the required timeframe, NYCHA Leased Housing will
suspend Section 8 Housing Assistance payments for the unit in accordance with its HQS policies and procedures.
1. Failure to materially comply with any Directive mentioned above as determined by NYCHA or the Ombudsperson will
result in an appearance before the Special Master, at which NYCHA/the Ombudsperson and the PACT Partner will have
an opportunity to submit evidence in support of each party’s position.
2

Case 1:13-cv-08916-LAP Document 387-1 Filed 12/28/21 Page 11 of 11
Case 1:13-cv-08916-LAP Document 388 Filed 12/23/21 Page 10 of 10
EXHIBIT A
Referral to
Special
Master

2. PACT Partners will be required to consent to the Special Master’s limited jurisdiction to determine the outcome of the
NYCHA Directive.
3. Upon a finding that the PACT Partner has failed to comply with the NYCHA Directive, the Special Master will have the
authority to issue an order against the PACT Partner to correct the non-compliance that has the force of a court order or, if
appropriate, issue other penalties and fines.
4. Upon a finding that a Prior PACT Conversion is in substantial non-compliance with applicable Agreement provisions, or
a finding that NYCHA has not promptly issued a Directive or issued a Directive insufficient to address a complaint, as
discussed in Section I, Paragraph 5 (OCC side of the section) above, the Special Master will have the authority to issue an
order against NYCHA to ensure that the non-compliance is addressed that has the force of a court order or, if appropriate,
issue other penalties and fines.

3