74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
SA to A-Eng. HB 2140
LC 1026/HB 2140-A2
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 2140
By COMMITTEE ON EDUCATION AND GENERAL GOVERNMENT
June 4
On page 1 of the printed A-engrossed bill, line 5, after '
279C.460,' insert '279C.800, 279C.810, 279C.815,'.
In line 6, delete the second 'and'.
In line 7, after '2003' insert '; and declaring an emergency'.
On page 5, after line 31, insert:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
(z) '
Housing'
ORS 279C.800'
.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
In line 32, restore '(aa)' and delete '(z)'.
In line 34, restore '(bb)' and delete '(aa)'.
In line 36, restore '(cc)' and delete '(bb)'.
In line 38, restore '(dd)' and delete '(cc)'.
In line 39, restore '(ee)' and delete '(dd)'.
In line 40, restore '(ff)' and delete '(ee)'.
In line 41, restore '(gg)' and delete '(ff)'.
In line 42, restore '(hh)' and delete '(gg)'.
In line 44, restore '(ii)' and delete '(hh)'.
In line 45, restore '(jj)' and delete '(ii)'.
On page 6, line 2, restore '(kk)' and delete '(jj)'.
In line 3, restore '(LL)' and delete '(kk)'.
In line 5, restore '(mm)' and delete '(LL)'.
In line 7, restore '(nn)' and delete '(mm)'.
In line 8, restore '(oo)' and delete '(nn)'.
In line 10, restore '(pp)' and delete '(oo)'.
In line 12, restore '(qq)' and delete '(pp)'.
In line 13, restore '(rr)' and delete '(qq)'.
In line 14, restore '(ss)' and delete '(rr)'.
In line 17, delete '(ss)' and insert '(tt)'.
In line 18, delete '(tt)' and insert '(uu)'.
In line 20, delete '(uu)' and insert '(vv)'.
In line 22, delete '(vv)' and insert '(ww)'.
In line 23, delete '(ww)' and insert '(xx)'.
In line 24, delete '(xx)' and insert '(yy)'.
In line 25, delete '(yy)' and insert '(zz)'.
In line 27, delete '(zz)' and insert '(aaa)'.
In line 28, delete '(aaa)' and insert '(bbb)'.
In line 29, delete '(bbb)' and insert '(ccc)'.
In line 30, delete '(ccc)' and insert '(ddd)'.
In line 31, delete '(ddd)' and insert '(eee)'.
In line 32, delete '(eee)' and insert '(fff)'.
In line 33, delete '(fff)' and insert '(ggg)'.
In line 34, delete '(ggg)' and insert '(hhh)'.
In line 36, delete '(hhh)' and insert '(iii)'.
In line 37, delete '(iii)' and insert '(jjj)'.
On page 35, after line 42, insert:
' { + SECTION 34. + } ORS 279C.800 is amended to read:
' 279C.800. As used in ORS 279C.800 to 279C.870, unless the
context requires otherwise:
' (1) 'Fringe benefits' means the amount of:
' (a) The rate of contribution irrevocably made by a contractor
or subcontractor to a trustee or to a third person under a plan,
fund or program; and
' (b) The rate of costs to the contractor or subcontractor that
may be reasonably anticipated in providing benefits to workers
pursuant to an enforceable commitment to carry out a financially
responsible plan or program that is committed in writing to the
workers affected, for medical or hospital care, pensions on
retirement or death, compensation for injuries or illness
resulting from occupational activity, or insurance to provide any
of the foregoing, for unemployment benefits, life insurance,
disability and sickness insurance or accident insurance, for
vacation and holiday pay, for defraying costs of apprenticeship
or other similar programs or for other bona fide fringe benefits,
but only when the contractor or subcontractor is not required by
other federal, state or local law to provide any of these
benefits.
' { + (2) 'Housing' has the meaning given that term in ORS
456.055. + }
' { - (2) - } { + (3) + } 'Locality' means the following
district in which the public works, or the major portion thereof,
is to be performed:
' (a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
' (b) District 2, composed of Clackamas, Multnomah and
Washington Counties;
' (c) District 3, composed of Marion, Polk and Yamhill
Counties;
' (d) District 4, composed of Benton, Lincoln and Linn
Counties;
' (e) District 5, composed of Lane County;
' (f) District 6, composed of Douglas County;
' (g) District 7, composed of Coos and Curry Counties;
' (h) District 8, composed of Jackson and Josephine Counties;
' (i) District 9, composed of Hood River, Sherman and Wasco
Counties;
' (j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
' (k) District 11, composed of Klamath and Lake Counties;
' (L) District 12, composed of Gilliam, Grant, Morrow, Umatilla
and Wheeler Counties;
' (m) District 13, composed of Baker, Union and Wallowa
Counties; and
' (n) District 14, composed of Harney and Malheur Counties.
' { - (3) - } { + (4) + } 'Prevailing rate of wage' means
the rate of hourly wage, including all fringe benefits, paid in
the locality to the majority of workers employed on projects of
similar character in the same trade or occupation, as determined
by the Commissioner of the Bureau of Labor and Industries.
{ - In making such determinations, the commissioner shall rely
on an independent wage survey to be conducted once each year.
However, if it appears to the commissioner that the data derived
from the survey alone are insufficient to establish the rate, the
commissioner also shall consider additional information such as
collective bargaining agreements, other independent wage surveys
and the prevailing rates of wage determined by appropriate
federal agencies or agencies of adjoining states. If there is not
a majority in the same trade or occupation paid at the same rate,
the average rate of hourly wage, including all fringe benefits,
paid in the locality to workers in the same trade or occupation
shall be the prevailing rate. If the wage paid by any contractor
or subcontractor to workers on any public works is based on some
period of time other than an hour, the hourly wage shall be
mathematically determined by the number of hours worked in that
period of time. - }
' { - (4) - } { + (5) + } 'Public agency' means the State of
Oregon or any political subdivision thereof or any county, city,
district, authority, public corporation or entity and any
{ - of their instrumentalities - } { + instrumentality
thereof + } organized and existing under law or charter.
' { - (5) - } { + (6) + } { + (a) + } 'Public works'
includes, but is not limited to { - , - } { + : + }
' { + (A) + } Roads, highways, buildings, structures and
improvements of all types, the construction, reconstruction,
major renovation or painting of which is carried on or contracted
for by any public agency to serve the public interest { + ; + }
{ - but does not include the reconstruction or renovation of
privately owned property that is leased by a public agency. - }
' { + (B) A project for the construction, reconstruction,
major renovation or painting of a privately owned road, highway,
building, structure or improvement of any type that uses funds of
a private entity and $750,000 or more of funds of a public
agency; or
' (C) A project for the construction of a privately owned road,
highway, building, structure or improvement of any type that uses
funds of a private entity and in which 25 percent or more of the
square footage of the completed project will be occupied or used
by a public agency.
' (b) 'Public works' does not include:
' (A) The reconstruction or renovation of privately owned
property that is leased by a public agency; or
' (B) The renovation of publicly owned real property that is
more than 75 years old by a private nonprofit entity if:
' (i) The real property is leased to the private nonprofit
entity for more than 25 years;
' (ii) Funds of a public agency used in the renovation do not
exceed 15 percent of the total cost of the renovation; and
' (iii) Contracts for the renovation were advertised or, if not
advertised, were entered into before July 1, 2003, but the
renovation has not been completed on or before the effective date
of this 2007 Act. + }
' { + SECTION 35. + } ORS 279C.810 is amended to read:
' 279C.810. (1) As used in this section:
' (a) 'Funds of a public agency' does not include:
' (A) Funds provided in the form of a government grant to a
nonprofit organization, unless the government grant is issued for
the purpose of construction { + , reconstruction, major
renovation or painting + };
' (B) Building and development permit fees paid or waived by
the public agency;
' { + (C) Tax credits or tax abatements;
' (D) Land that a public body sells to a private entity at fair
market value; + }
' { - (C) - } { + (E) + } Staff resources of the public
agency used to manage a project or to provide a principal source
of supervision, coordination or oversight of a project;
{ - or - }
' { - (D) - } { + (F) + } Staff resources of the public
agency used to design or inspect one or more components of a
project { - . - } { + ; or
' (G) Bonds, or loans from the proceeds of bonds, issued in
accordance with ORS chapter 289 or ORS 441.525 to 441.595, unless
the bonds or loans will be used for a public improvement as
defined in ORS 279A.010. + }
' (b) 'Nonprofit organization' means an organization or group
of organizations described in section 501(c)(3) of the Internal
Revenue Code that is exempt from income tax under section 501(a)
of the Internal Revenue Code.
' (2) ORS 279C.800 to 279C.870 do not apply to:
' (a) Projects for which the contract price does not exceed
$50,000. In determining the price of a project, a public agency:
' (A) May not include the value of donated materials or work
performed on the project by individuals volunteering to the
public agency without pay; and
' (B) Shall include the value of work performed by every person
paid by a contractor or subcontractor in any manner for the
person's work on the project.
' (b) Projects for which no funds of a public agency are
directly or indirectly used. In accordance with ORS chapter 183,
the Commissioner { + of the Bureau of Labor and Industries + }
shall adopt rules to carry out the provisions of this paragraph.
' { + (c) Projects:
' (A) That are privately owned;
' (B) That use funds of a private entity;
' (C) In which less than 25 percent of the square footage of a
completed project will be occupied or used by a public agency;
and
' (D) For which less than $750,000 of funds of a public agency
are used.
' (d) Projects for residential construction that are privately
owned and that predominantly provide affordable housing. As used
in this paragraph:
' (A) 'Affordable housing' means housing that serves occupants
whose incomes are no greater than 60 percent of the area median
income or, if the occupants are owners, whose incomes are no
greater than 80 percent of the area median income.
' (B) 'Predominantly' means 60 percent or more.
' (C) 'Privately owned' includes:
' (i) Affordable housing provided on real property owned by a
public agency if the real property and related structures are
leased to a private entity for 50 or more years; and
' (ii) Affordable housing owned by a partnership, nonprofit
corporation or limited liability company in which a housing
authority, as defined in ORS 456.005, is a general partner,
director or managing member and the housing authority is not a
majority owner in the partnership, nonprofit corporation or
limited liability company.
' (D) 'Residential construction' includes the construction,
reconstruction, major renovation or painting of single-family
houses or apartment buildings not more than four stories in
height and all incidental items, such as site work, parking
areas, utilities, streets and sidewalks, pursuant to the United
States Department of Labor's 'All Agency Memorandum No. 130:
Application of the Standard of Comparison 'Projects of a
Character Similar ' Under Davis-Bacon and Related Acts,' dated
March 17, 1978. However, the commissioner may consider different
definitions of residential construction in determining whether a
project is a residential construction project for purposes of
this paragraph, including definitions that:
' (i) Exist in local ordinances or codes; or
' (ii) Differ, in the prevailing practice of a particular trade
or occupation, from the United States Department of Labor's
description of residential construction. + }
' { - (3)(a) A public agency may not divide a public works
project into more than one contract for the purpose of avoiding
compliance with ORS 279C.800 to 279C.870. - }
' { - (b) When the commissioner determines that a public
agency has divided a public works project for the purpose of
avoiding compliance with ORS 279C.800 to 279C.870, the
commissioner shall issue an order compelling compliance. - }
' { - (c) In making determinations under this subsection, the
commissioner shall consider: - }
' { - (A) The physical separation of the project
structures; - }
' { - (B) The timing of the work on project phases or
structures; - }
' { - (C) The continuity of project contractors and
subcontractors working on project parts or phases; and - }
' { - (D) The manner in which the public agency and the
contractors administer and implement the project. - }
' { + SECTION 36. + } ORS 279C.815 is amended to read:
' 279C.815. (1) As used in this section, 'person' includes any
employer, labor organization or any official representative of an
employee or employer association.
' (2)(a) The Commissioner of the Bureau of Labor and Industries
shall determine the prevailing rate of wage for workers in each
trade or occupation in each locality described in ORS 279C.800 at
least once each year by means of an independent wage survey and
make this information available at least twice each year. The
commissioner may amend the rate at any time.
' { + (b) If it appears to the commissioner that the data
derived only from the survey described in paragraph (a) of this
subsection are insufficient to determine the prevailing rate of
wage, the commissioner also shall consider additional information
such as collective bargaining agreements, other independent wage
surveys and the prevailing rates of wage determined by
appropriate federal agencies or agencies of adjoining states. If
there is not a majority in the same trade or occupation paid at
the same rate, the average rate of hourly wage, including all
fringe benefits, paid in the locality to workers in the same
trade or occupation shall be the prevailing rate. If the wage
paid by any contractor or subcontractor to workers on any public
works is based on some period of time other than an hour, the
hourly wage shall be mathematically determined by the number of
hours worked in that period of time. + }
' { - (b) - } { + (c) + } The commissioner shall compare the
prevailing rate of wage determined under paragraph (a) of this
subsection with the federal prevailing rate of wage required
under the Davis-Bacon Act (40 U.S.C. 276a) and determine which
rate is higher for workers in each trade or occupation in each
locality. The commissioner shall make this information, showing
which prevailing rate of wage is higher for workers in each trade
or occupation in each locality, available at the same time as the
commissioner makes information available under paragraph (a) of
this subsection.
' (3) A person shall make such reports and returns to the
Bureau of Labor and Industries as the commissioner may require to
determine the prevailing rates of wage. The reports and returns
shall be made upon forms furnished by the bureau and within the
time prescribed by the commissioner. The person or an authorized
representative of the person shall certify to the accuracy of the
reports and returns.
' (4) Notwithstanding ORS 192.410 to 192.505, all reports and
returns or other information provided to the commissioner under
this section are confidential and not available for inspection by
the public.
' (5) In order to assist the commissioner in making
determinations of the prevailing rates of wage, the commissioner
may enter into contracts with public or private parties to obtain
relevant data and information. Any such contract may include
provisions for the manner and extent of the market review of
affected trades and occupations and such other requirements
regarding timelines of reports, accuracy of data and information
and supervision and review as the commissioner may prescribe.'.
In line 43, delete '34' and insert '37'.
In line 44, after '(1)(a)' insert 'Except as provided in
paragraph (d) of this subsection,'.
On page 36, line 9, delete '(2)(b)' and insert '(2)(c)'.
After line 11, insert:
' (d) A public works project described in ORS 279C.800
(6)(a)(B) or (C) is subject to the existing state prevailing rate
of wage or, if applicable, the federal prevailing rate of wage
required under the Davis-Bacon Act that is in effect at the time
a public agency enters into an agreement with a private entity
for the project. After that time, the specifications for any
contract for the public works shall include the applicable
prevailing rate of wage.'.
In line 27, delete '35' and insert '38'.
On page 37, line 36, delete '36' and insert '39'.
On page 38, line 14, delete '37' and insert '40' and delete
'38' and insert '41'.
In line 16, delete '38' and insert '41'.
After line 33, insert:
' { + SECTION 42. + } { + Sections 43, 44 and 45 of this
2007 Act are added to and made a part of ORS 279C.800 to
279C.870. + }
' { + SECTION 43. + } { + (1) The Commissioner of the Bureau
of Labor and Industries shall, upon the request of a public
agency or other interested person, make a determination about
whether a project or proposed project is or would be a public
works on which payment of the prevailing rate of wage is or would
be required under ORS 279C.840.
' (2) The requester shall provide the commissioner with
information necessary to enable the commissioner to make the
determination.
' (3) The commissioner shall make the determination within 60
days after receiving the request or 60 days after the requester
has provided the commissioner with the information necessary to
enable the commissioner to make the determination, whichever is
later. The commissioner may take additional time to make the
determination if the commissioner and the requester mutually
agree that the commissioner may do so.
' (4) The commissioner shall afford the requester or a person
adversely affected or aggrieved by the commissioner's
determination a hearing in accordance with ORS 183.413 to
183.470. An order the commissioner issues under ORS 183.413 to
183.470 is subject to judicial review as provided in ORS 183.482.
' (5) The commissioner shall adopt rules establishing the
process for requesting and making the determinations described in
this section. + }
' { + SECTION 44. + } { + (1)(a) A public agency may not
divide a public works project into more than one contract for the
purpose of avoiding compliance with ORS 279C.800 to 279C.870.
' (b) When the Commissioner of the Bureau of Labor and
Industries determines that a public agency has divided a public
works project into more than one contract for the purpose of
avoiding compliance with ORS 279C.800 to 279C.870, the
commissioner shall issue an order compelling compliance.
' (c) In making determinations under this subsection, the
commissioner shall consider:
' (A) The physical separation of the project structures;
' (B) The timing of the work on project phases or structures;
' (C) The continuity of project contractors and subcontractors
working on project parts or phases;
' (D) The manner in which the public agency and the contractors
administer and implement the project;
' (E) Whether a single public works project includes several
types of improvements or structures; and
' (F) Whether the combined improvements or structures have an
overall purpose or function.
' (2) If a project is a public works of the type described in
ORS 279C.800 (6)(a)(B) or (C), the commissioner shall divide the
project, if appropriate, after applying the considerations set
forth in subsection (1)(c) of this section to separate the parts
of the project that include funds of a public agency or that will
be occupied or used by a public agency from the parts of the
project that do not include funds of a public agency and that
will not be occupied or used by a public agency. If the
commissioner divides the project, any part of the project that
does not include funds of a public agency and that will not be
occupied or used by a public agency is not subject to ORS
279C.800 to 279C.870.
' (3) If a project includes parts that are owned by a public
agency and parts that are owned by a private entity, the
commissioner shall divide the project, if appropriate, after
applying the considerations set forth in subsections (1)(c) and
(2) of this section to separate the parts of the project that are
public works from the parts of the project that are not public
works. If the commissioner divides the project, parts of the
project that are not public works are not subject to ORS 279C.800
to 279C.870. + }
' { + SECTION 45. In accordance with applicable provisions of
ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries shall adopt rules necessary to administer ORS 279C.800
to 279C.870. + } ' .
In line 34, delete '39' and insert '46'.
In line 35, delete '40.' and insert '47. (1)' and delete '
Section 38' and insert 'Sections 41, 43 and 44'.
In line 38, after '279C.460,' insert '279C.800, 279C.810,
279C.815,'.
In line 39, delete '36' and insert '39'.
In line 40, delete '39' and insert '46'.
After line 42, insert:
' (2) Sections 43 and 44 of this 2007 Act and the amendments to
ORS 279C.800, 279C.810, 279C.815 and 279C.830 by sections 34, 35,
36 and 37 of this 2007 Act do not apply to development and
disposition agreements signed by an urban renewal agency before
the effective date of this 2007 Act in connection with
public-private projects for which no contracts for construction
are advertised.
' (3) Sections 43 and 44 of this 2007 Act and the amendments to
ORS 279C.800, 279C.810, 279C.815 and 279C.830 by sections 34, 35,
36 and 37 of this 2007 Act do not apply to projects funded in
whole or in part by bonds issued by the State of Oregon if the
State Treasurer issues the bonds for the project before the
effective date of this 2007 Act.
' { + SECTION 48. + } { + This 2007 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2007 Act
takes effect July 1, 2007. + } ' .
----------