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a. An Applicant found to have violated the Prevailing Wage Requirement shall be liable for any underpayment of the Prevailing Wage for work performed by Building Service Employees for no more than two years from the earlier of (a) the date that the related complaint was filed with the Comptroller, or (b) the date of the commencement of the Comptroller's independent investigation into the Applicant's compliance with the Prevailing Wage Requirement.
b. An Applicant found to have violated the Prevailing Wage Requirement shall be liable for interest on the underpayment of the Prevailing Wage at a rate of not less than six percent per year and not more than the rate of interest then in effect as prescribed by the superintendent of banks pursuant to Section 14-a of the Banking Law per annum from the time such Prevailing Wage should have been paid. The rate of interest on such underpayment shall be calculated with due consideration to the number of persons employed by the Applicant, the good faith of the Applicant, the gravity of the Prevailing Wage violation, the history of the Applicant's previous Prevailing Wage violations and the Applicant's failure to comply with recordkeeping or other non-wage requirements.
c. An Applicant found to have violated the Prevailing Wage Requirement shall be subject to a civil penalty in an amount not exceeding twenty-five percent (25%) of the underpayment of the Prevailing Wage and the interest found to be due. In assessing the amount of the civil penalty, due consideration shall be given to the size of the Applicant, the good faith of the Applicant, the gravity of the violation, the history of previous violations of the Applicant, and the failure to comply with recordkeeping or other non-wage requirements. The civil penalty shall be paid to the Comptroller for deposit in the city treasury.
d. An Owner shall be jointly liable for any violation of the Act, the New 421-a Act or the Extended Affordability Act, as applicable, at the property receiving Benefits without regard to whether the Building Service Employees were directly employed by such Owner.
(Added City Record 9/23/2016, eff. 10/23/2016; amended City Record 9/26/2017, eff. 10/26/2017; amended City Record 2/11/2019, eff. 3/13/2019; amended City Record 1/24/2020, eff. 2/23/2020)
a. After receiving from the Comptroller a Report and Recommendation with a summary of the underpayment setting forth the respective amounts of Prevailing Wage underpayment and interest due to each Building Service Employee, the proposed civil penalty and the complete hearing record, the Agency shall issue an Order, which shall include instructions for payment of any such respective amounts of Prevailing Wage underpayment, interest and civil penalty to the Comptroller.
b. If the Agency approves a Stipulation of Settlement, it shall have the full force and effect of an Order of the Agency.
c. The Agency shall mail an Order to all parties named in such Order. The Order shall be deemed to have been received by the third business day after such Order has been deposited in the United States mail.
(Added City Record 9/23/2016, eff. 10/23/2016; amended City Record 1/24/2020, eff. 2/23/2020)
The Agency shall commence benefit revocation proceedings pursuant to 28 RCNY Chapter 39 if: (a) an Applicant fails to make the payments to the Comptroller required by an Order within 120 calendar days of receiving the Order, in which the sole cause for such revocation shall be the failure to make such payments on or before the prescribed deadline, (b) two Orders determining a willful failure to pay the Prevailing Wage for the same multiple dwelling have been issued within a six-year period, or (c) an Order determines a willful failure to pay the Prevailing Wage that involves a falsification of payroll records or the kickback of wages or supplements.
(Added City Record 9/23/2016, eff. 10/23/2016; amended City Record 2/11/2019, eff. 3/13/2019)
1. An Applicant who requests a determination of exemption from the Prevailing Wage Requirement, pursuant to the Act, the New 421-a Act, or the Extended Affordability Act, as applicable, must submit all of the documentation necessary to prove that:
(a) with respect to a multiple dwelling that is not receiving benefits, pursuant to subdivisions sixteen or seventeen of Real Property Tax Law § 421-a, at least fifty percent of the dwelling units in such Applicant's building are 125% Units, including, but not limited to, (i) with respect to a multiple dwelling owned and operated as a rental, the initial rents for such 125% Units, the income certifications for the initial occupants of such 125% Units, and proof that the building is required to maintain such 125% Units during the entire period of Post-Construction Benefits, and, (ii) with respect to 125% Units in a multiple dwelling owned and operated as a condominium or cooperative development by individual condominium unit owners or shareholders, the initial unit sale prices and the income certifications for all of the initial purchasers of such 125% Units;
(b) with respect to an Eligible Multiple Dwelling that is receiving benefits, pursuant to subdivision sixteen of Real Property Tax Law § 421-a, all of the dwelling units in such Eligible Multiple Dwelling are Affordable Housing Units, and at least fifty percent of the Affordable Housing Units, upon initial rental and upon each subsequent rental after a vacancy during the Restriction Period or the Extended Restriction Period, are 125% Units, including, but not limited to, the initial rents for such Affordable Housing Units and 125% Units, the income certifications for the initial occupants of such Affordable Housing Units and 125% Units, and proof that the Eligible Multiple Dwelling is required to maintain such Affordable Housing Units and 125% Units during the entire Restriction Period or Extended Restriction Period, as applicable; or
(c) with respect to an Extended Affordability Property that is receiving benefits, pursuant to subdivision seventeen of Real Property Tax Law § 421-a, all of the dwelling units in such Extended Affordability Property are Affordable Housing Units, and at least fifty percent of the Affordable Housing Units, upon initial rental and upon each subsequent rental after a vacancy during the Extended Affordability Period, are 125% Units, including, but not limited to, the initial rents for such Affordable Housing Units and 125% Units, the income certifications for the initial occupants of such Affordable Housing Units and 125% Units, and proof that the Extended Affordability Property is required to maintain such Affordable Housing Units and 125% Units during the entire Extended Affordability Period.
2. An Agency determination of ineligibility for an exemption from the Prevailing Wage Requirement is deemed a final determination when the Agency issues either an Order or a Benefits Ineligibility Letter, after which the only review available to the Applicant is, pursuant to Article 78 of the Civil Practice Law and Rules.
(Added City Record 9/23/2016, eff. 10/23/2016; amended City Record 9/26/2017, eff. 10/26/2017; amended City Record 2/6/2018, eff. 3/8/2018; amended City Record 2/11/2019, eff. 3/13/2019)
a. Eligible Multiple Dwellings that are required to submit a Contractor Certified Payroll Report pursuant to paragraph (vi) of the Minimum Average Hourly Wage Act shall use the form provided on the Comptroller's website at www.comptroller.nyc.gov/prevailingwage, and shall identify all Construction Workers employed by the contractor or subcontractor and set forth the dates for all hours worked, the hourly wage and benefit rates, and the weekly gross and net pay amounts for each such Construction Worker. The Contractor Certified Payroll Report shall be accompanied by employee daily sign-in logs in the form provided on the Comptroller's website at www.comptroller.nyc.gov/prevailingwage, and shall identify all Construction Workers employed by the contractor or subcontractor, set forth the daily start and end times of work for each such Construction Worker, and include each such Construction Worker's original signature.
b. Notwithstanding anything to the contrary contained in subdivision a of this section, the requirement for employee daily sign-in logs shall be waived for any Construction Work that took place on any days prior to the effective date of this subdivision.
(Added City Record 9/26/2017, eff. 10/26/2017; amended City Record 2/11/2019, eff. 3/13/2019)
a. The Comptroller shall only approve a plan submitted by the Third Party Fund Administrator pursuant to paragraph (vii) of the Minimum Average Hourly Wage Act if distribution of the deficiency is limited to all Construction Workers whose wages equal less than the minimum average hourly wage applicable to such Eligible Site.
b. In the event that the Third Party Fund Administrator cannot distribute funds to any Construction Workers within one year of receiving the Comptroller's approval of such Third Party Fund Administrator's plan, the Third Party Fund Administrator shall pay the unclaimed funds to the Comptroller and the Comptroller shall hold such funds for such Construction Workers until they claim their awards.
c. In the event that any contractor or subcontractor does not submit the Contractor Certified Payroll Report, or if it appears to the Comptroller that any Contractor Certified Payroll Report is inaccurate, the Comptroller shall conduct an investigation to determine: (i) the actual wages paid to all Construction Workers employed by the contractor or subcontractor that did not submit the Contractor Certified Payroll Report or that submitted an inaccurate Contractor Certified Payroll Report, and, if relevant, (ii) the difference between the actual wages paid and the wages set forth in the inaccurate Contractor Certified Payroll Report.
d. The Comptroller shall provide the Independent Monitor with a statement of actual wages paid to all Construction Workers employed by a contractor or subcontractor that did not submit the Contractor Certified Payroll Report, and the Independent Monitor shall use such statement to complete the Project-Wide Certified Payroll Report.
e. A contractor or subcontractor who submits an inaccurate Contractor Certified Payroll Report shall be (i) liable for the difference between the wages set forth in such Contractor Certified Payroll Report and the actual wages paid, with interest at the rate of interest then in effect as prescribed by the superintendent of financial services pursuant to Section 14-a of the Banking Law per annum from the date of the underpayment to the date of the payment of such difference (collectively, "Differential") and (ii) subject to a civil penalty in an amount not exceeding twenty-five percent (25%) of the Differential. In assessing the amount of the civil penalty, due consideration shall be given to the size of the contractor or subcontractor, the good faith of the contractor or subcontractor, the gravity of the violation, the history of previous violations of the contractor or subcontractor, and the failure to comply with recordkeeping or other nonwage requirements. The civil penalty shall be paid to the Comptroller for deposit in the city treasury.
(Added City Record 9/26/2017, eff. 10/26/2017; amended City Record 2/11/2019, eff. 3/13/2019; amended City Record 1/24/2020, eff. 2/23/2020)