§ 224-a. Prevailing wage requirements applicable to construction
projects performed under private contract. 1. Subject to the provisions
of this section, each "covered project" as defined in this section shall
be subject to prevailing wage requirements in accordance with section
two hundred twenty and two hundred twenty-b of this article. A "covered
project" shall mean construction work done under contract which is paid
for in whole or in part out of public funds as such term is defined in
this section where the amount of all such public funds, when aggregated,
is at least thirty percent of the total construction project costs and
where such project costs are over five million dollars except as
provided for by section two hundred twenty-four-c of this article.

2. For purposes of this section, "paid for in whole or in part out of
public funds" shall mean any of the following:

a. The payment of money, by a public entity, or a third party acting
on behalf of and for the benefit of a public entity, directly to or on
behalf of the contractor, subcontractor, developer or owner that is not
subject to repayment;

b. The savings achieved from fees, rents, interest rates, or other
loan costs, or insurance costs that are lower than market rate costs;
savings from reduced taxes as a result of tax credits, tax abatements,
tax exemptions or tax increment financing; savings from payments in lieu
of taxes; and any other savings from reduced, waived, or forgiven costs
that would have otherwise been at a higher or market rate but for the
involvement of the public entity;

c. Money loaned by the public entity that is to be repaid on a
contingent basis;

d. Credits that are applied by the public entity against repayment of
obligations to the public entity; or

e. Benefits under section four hundred sixty-seven-m of the real
property tax law.

3. For purposes of this section, "paid for in whole or in part out of
public funds" shall not include:

a. Benefits under section four hundred twenty-one-a of the real
property tax law;

b. Funds that are not provided primarily to promote, incentivize, or
ensure that construction work is performed, which would otherwise be
captured in subdivision two of this section;

c. Funds used to incentivize or ensure the development of a
comprehensive sewage system, including connection to existing sewer
lines or creation of new sewage lines or sewer capacity, provided,
however, that such work shall be deemed to be a public work covered
under the provisions of this article;

d. tax benefits provided for projects the length or value of which are
not able to be calculated at the time the work is to be performed;

e. tax benefits related to brownfield remediation or brownfield
redevelopment pursuant to section twenty-one, twenty-two, one hundred
eighty-seven-g or one hundred eighty-seven-h of the tax law, subdivision
seventeen or eighteen of section two hundred ten-B of the tax law,
subsection (dd) or (ee) of section six hundred six of the tax law, or
subdivision (u) or (v) of section fifteen hundred eleven of the tax law;

f. funds provided pursuant to subdivision three of section
twenty-eight hundred fifty-three of the education law;

g. any other public monies, credits, savings or loans, determined by
the public subsidy board created in section two hundred twenty-four-c of
this article as exempt from this definition; and

h. benefits under section four hundred eighty-five-x of the real
property tax law.

4. For purposes of this section "covered project" shall not include
any of the following:

a. Construction work on one or two family dwellings where the property
is the owner's primary residence, or construction work performed on
property where the owner of the property owns no more than four dwelling
units;

b. Construction work performed under a contract with a not-for-profit
corporation as defined in section one hundred two of the not-for-profit
corporation law, other than a not-for-profit corporation formed
exclusively for the purpose of holding title to property and collecting
income thereof or any public entity as defined in this section, where
the not-for-profit corporation has gross annual revenue and support less
than five million dollars;

c. Construction work performed on a multiple residence and/or
ancillary amenities or installations that is wholly privately owned in
any of the following circumstances except as provided for by section two
hundred twenty-four-c of this article:

(i) where no less than twenty-five percent of the residential units
are affordable and shall be retained subject to an anticipated
regulatory agreement with a local, state, or federal governmental
entity, or a not-for-profit entity with an anticipated formal agreement
with a local, state, or federal governmental entity for purposes of
providing affordable housing in a given locality or region provided that
the period of affordability for a residential unit deemed affordable
under the provisions of this paragraph shall be for no less than fifteen
years from the date of construction; or

(ii) where no less than thirty-five percent of the residential units
involves the provision of supportive housing services for vulnerable
populations provided that such units are subject to an anticipated
regulatory agreement with a local, state, or federal governmental
entity; or

(iii) any newly created programs for affordable or subsidized housing
as determined by the public subsidy board established by section two
hundred twenty-four-c of this article.

d. Construction work performed on a manufactured home park as defined
in paragraph three of subdivision a of section two hundred thirty-three
of the real property law where the manufactured home park is subject to
a regulatory agreement with a local, state, or federal governmental
entity for no less than fifteen years;

e. Construction work performed under a pre-hire collective bargaining
agreement between an owner or contractor and a bona fide building and
construction trade labor organization which has established itself as
the collective bargaining representative for all persons who will
perform work on such a project, and which provides that only contractors
and subcontractors who sign a pre-negotiated agreement with the labor
organization can perform work on such a project, or construction work
performed under a labor peace agreement, project labor agreement, or any
other construction work performed under an enforceable agreement between
an owner or contractor and a bona fide building and construction trade
labor organization;

f. Construction work performed on projects funded by section sixteen-n
of the urban development corporation act or the downtown revitalization
initiative;

g. Construction work and engineering and consulting services performed
in connection with the installation of a renewable energy system,
renewable heating or cooling system, or energy storage system, with a
capacity equal to or under five megawatts alternating current;

h. Construction work performed on supermarket retail space built or
renovated with tax incentives provided under the food retail expansion
to support health (FRESH) program through the New York city industrial
development agency;

i. Construction work performed for interior fit-outs and improvements
under ten thousand square feet through small business incubation
programs operated by the New York city economic development corporation;

j. Construction work on space to be used as a school under sixty
thousand square feet, pursuant to a lease from a private owner to the
New York city department of education and the school construction
authority; or

k. Construction work performed on projects that received tax benefits
related to historic rehabilitation pursuant to subdivision twenty-six of
section two hundred ten-B of the tax law, subsection (oo) or (pp) of
section six hundred six of the tax law, or subdivision (y) of section
fifteen hundred eleven of the tax law.

5. For purposes of this section, "public entity" shall include, but
shall not be limited to, the state, a local development corporation as
defined in subdivision eight of section eighteen hundred one of the
public authorities law or section fourteen hundred eleven of the
not-for-profit corporation law, a municipal corporation as defined in
section one hundred nineteen-n of the general municipal law, an
industrial development agency formed pursuant to article eighteen-A of
the general municipal law or industrial development authorities formed
pursuant to article eight of the public authorities law, and any state,
local or interstate or international authorities as defined in section
two of the public authorities law; and shall include any trust created
by any such entities.

6. For purposes of this section, "construction" means work which shall
be as defined by the public subsidy board to require payment of
prevailing wage, and which may involve the employment of laborers,
workers, or mechanics.

7. For purposes of this section and section two hundred twenty-four-b
of this article, the "fiscal officer" shall be deemed to be the
commissioner.

8. The enforcement of any construction work deemed to be a covered
project pursuant to this section, and any additional requirements, shall
be subject, in addition to this section, only to the requirements of
sections two hundred twenty, two hundred twenty-four-b, two hundred
twenty-four-c, and two hundred twenty-b of this article and within the
jurisdiction of the fiscal officer; provided, however, nothing contained
in this section shall be deemed to construe any covered project as
otherwise being considered public work pursuant to this article; and
further provided:

a. The owner or developer of such covered project shall certify under
penalty of perjury within five days of commencement of construction work
whether the project at issue is subject to the provisions of this
section through the use of a standard form developed by the fiscal
officer.

b. The owners or developers of a property who are undertaking a
project under private contract, may seek guidance from the public
subsidy board contained in section two hundred twenty-four-c of this
article, and such board may render an opinion as to whether or not the
project is a covered project within the meaning of this article. Any
such determination shall not be reviewable by the fiscal officer, nor
shall it be reviewable by the department pursuant to section two hundred
twenty of this article.

c. The owner or developer of a covered project shall be responsible
for retaining original payroll records in accordance with section two
hundred twenty of this article for a period of six years from the
conclusion of such work. All payroll records maintained by an owner or
developer pursuant to this section shall be subject to inspection on
request of the fiscal officer. Such owner or developer may authorize the
prime contractor of the construction project to take responsibility for
retaining and maintaining payroll records, but will be held jointly and
severally liable for any violations of such contractor. All records
obtained by the fiscal officer shall be subject to the Freedom of
Information Law.

d. Each public entity providing any of the public funds listed in
subdivision two of this section to an owner, developer, contractor or
subcontractor of a project shall identify the nature and dollar value of
such funds and whether any such funds are excluded under subdivision
three of this section and shall so notify the recipient of such funds of
such determination and of their obligations under paragraph a of this
subdivision.

e. The fiscal officer may issue rules and regulations governing the
provisions of this section. Violations of this section shall be grounds
for determinations and orders pursuant to section two hundred twenty-b
of this article.

9. Each owner and developer subject to the requirements of this
section shall comply with the objectives and goals of minority and
women-owned business enterprises pursuant to article fifteen-A of the
executive law and service-disabled veteran-owned businesses pursuant to
article seventeen-B of the executive law. The department in consultation
with the directors of the division of minority and women's business
development and of the division of service-disabled veterans' business
development shall make training and resources available to assist
minority and women-owned business enterprises and service-disabled
veteran-owned business enterprises on covered projects achieve and
maintain compliance with prevailing wage requirements. The department
shall make such training and resources available online and shall afford
minority and women-owned business enterprises and service-disabled
veteran-owned business enterprises an opportunity to submit comments on
such training.

10. a. The fiscal officer shall report to the governor, the temporary
president of the senate, and the speaker of the assembly by July first,
two thousand twenty-two, and annually thereafter, on the participation
of minority and women-owned business enterprises in relation to covered
projects and contracts for public work subject to the provisions of this
section and section two hundred twenty of this article respectively as
well as the diversity practices of contractors and subcontractors
employing laborers, workers, and mechanics on such projects.

b. Such reports shall include aggregated data on the utilization and
participation of minority and women-owned business enterprises, the
employment of minorities and women in construction-related jobs on such
projects, and the commitment of contractors and subcontractors on such
projects to adopting practices and policies that promote diversity
within the workforce. The reports shall also examine the compliance of
contractors and subcontractors with other equal employment opportunity
requirements and anti-discrimination laws, in addition to any other
employment practices deemed pertinent by the commissioner.

c. The fiscal officer may require any owner or developer to disclose
information on the participation of minority and women-owned business
enterprises and the diversity practices of contractors and
subcontractors involved in the performance of any covered project. It
shall be the duty of the fiscal officer to consult and to share such
information in order to effectuate the requirements of this section.

11. If construction work is not deemed to be a covered project,
whether by virtue of an exclusion of such project under subdivision four
of this section, or by virtue or not receiving sufficient public money
to be deemed "paid for in whole or in part out of public funds", such
project shall not be subject to the requirements of sections two hundred
twenty and two hundred twenty-b of this article.