77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1314
House Bill 2675
Sponsored by Representative HOYLE (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies definition of 'public works.' Classifies exemption
from ad valorem property taxation as funds of public agency for
purpose of requiring payment of prevailing rate of wage.
Requires public agency that procured contract for public works
or sponsor of enterprise zone in which public works is located,
as appropriate, to receive certified statements.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the application of prevailing rates of wage; creating
new provisions; amending ORS 279C.800, 279C.810, 279C.827 and
279C.845; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279C.800 is amended to read:
279C.800. As used in ORS 279C.800 to 279C.870:
(1) 'Fringe benefits' means the amount of:
(a) The rate of contribution a contractor or subcontractor
makes irrevocably 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 the following items,
except for items that federal, state or local law requires the
contractor or subcontractor to provide:
(A) Benefits to workers pursuant to an enforceable written
commitment to the workers to carry out a financially responsible
plan or program for:
(i) Medical or hospital care;
(ii) Pensions on retirement or death; or
(iii) Compensation for injuries or illness that result from
occupational activity;
(B) Insurance to provide the benefits described in subparagraph
(A) of this paragraph;
(C) Unemployment benefits;
(D) Life insurance;
(E) Disability and sickness insurance or accident insurance;
(F) Vacation and holiday pay;
(G) Costs of apprenticeship or other similar programs; or
(H) Other bona fide fringe benefits.
(2) 'Housing' has the meaning given that term in ORS 456.055.
(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.
(4) 'Prevailing rate of wage' means the rate of hourly wage,
including all fringe benefits, that the Commissioner of the
Bureau of Labor and Industries determines is paid in the locality
to the majority of workers employed on projects of a similar
character in the same trade or occupation.
(5) 'Public agency' means the State of Oregon or a political
subdivision of the State of Oregon, or a county, city, district,
authority, public corporation or public entity organized and
existing under law or charter or an instrumentality of the
county, city, district, authority, public corporation or public
entity.
(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;
(B) A project that uses funds of a private entity and $750,000
or more of funds of a public agency for constructing,
reconstructing, painting or performing a major renovation on a
privately owned road, highway, building, structure or improvement
of any type;
(C) A project that uses funds of a private entity for
constructing a privately owned road, highway, building, structure
or improvement of any type in which a public agency will use or
occupy 25 percent or more of the square footage of the completed
project; { - or - }
(D) Notwithstanding the provisions of ORS 279C.810 (2)(a), (b)
and (c), a device, structure or mechanism, or a combination of
devices, structures or mechanisms, that:
(i) Uses solar radiation as a source for generating heat,
cooling or electrical energy; and
(ii) Is constructed or installed, with or without using funds
of a public agency, on land, premises, structures or buildings
that a public body, as defined in ORS 174.109, owns { - . - }
{ + ; or
(E) A project for constructing, reconstructing or performing a
major renovation of a privately owned road, highway, building,
structure or improvement of any type that:
(i) Is located in an enterprise zone, as defined in ORS
285C.050;
(ii) Consists of or is sited on real property for which a
qualified business firm, as defined in ORS 285C.050, has received
or will receive an exemption from ad valorem property taxation
under ORS 285C.170 or 285C.175 in connection with the project;
and
(iii) Has a total project cost that the contracting agency that
funds the project, or the lead contracting agency, if more than
one contracting agency participates in the project, reasonably
estimates will equal or exceed $5 million. + }
(b) 'Public works' does not include:
(A) The reconstruction or renovation of privately owned
property that a public agency leases; or
(B) { - The - } { + A private nonprofit entity's + }
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 July 13, 2007.
{ + (7) 'Sponsor' has the meaning given that term in ORS
285C.050. + }
SECTION 2. 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 - } { + that a + } public agency { + pays or
waives + };
(C) Tax credits or tax abatements { + , except for exemptions
from ad valorem property taxation allowed under ORS 285C.170 or
285C.175 + };
(D) Land that a public agency sells to a private entity at fair
market value;
(E) The difference between:
(i) The value of land that a public agency sells to a private
entity as determined at the time of the sale after taking into
account any plan, requirement, covenant, condition, restriction
or other limitation, exclusive of zoning or land use regulations,
that the public agency imposes on the development or use of the
land; and
(ii) The fair market value of the land if the land is not
subject to the limitations described in sub-subparagraph (i) of
this subparagraph;
(F) Staff resources { - of the - } { + a + } public agency
{ - used - } { + uses + } to { + :
(i) + } Manage a project or to provide a principal source of
supervision, coordination or oversight of a project; { + or + }
{ - (G) - } { + (ii) + } { - Staff resources of the
public agency used to - } Design or inspect one or more
components of a project;
{ - (H) - } { + (G) + } Moneys derived from the sale of
bonds that { - are loaned by - } a state agency { + loans + }
to a private entity, unless the moneys will be used for a public
improvement;
{ - (I) - } { + (H) + } Value added to land as a
consequence of a public agency's site preparation, demolition of
real property or remediation or removal of environmental
contamination, except for value added in excess of the expenses
the public agency incurred in the site preparation, demolition or
remediation or removal when the land is sold for use in a project
otherwise subject to ORS 279C.800 to 279C.870; or
{ - (J) - } { + (I) + } 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.
(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 - } { + A project + } 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 - } { + that + } individuals
{ - volunteering - } { + who volunteer + } to the public
agency { + perform on the project + } without pay; and
(B) Shall include the value of work { - performed by every
person paid by - } { + for which + } a contractor or
subcontractor { + pays a person + } in any manner for the
person's work on the project.
(b) Projects for which { - no - } funds of a public agency
are { + not + } 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 project + }:
(A) That { - are - } { + is + } privately owned;
(B) That { - use - } { + uses + } funds of a private
entity;
(C) In which { + a public agency will occupy or use + } less
than 25 percent of the square footage of { - a - } { +
the + } 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 - } { + A project + } for residential
construction that
{ - are - } { + is + } privately owned and that predominantly
{ - provide - } { + provides + } affordable housing. As used
in this paragraph:
(A) 'Affordable housing' means housing that serves occupants
whose incomes are { - no - } { + not + } greater than 60
percent of the area median income or, if the occupants are
owners, whose incomes are { - no - } { + not + } greater than
80 percent of the area median income.
(B) 'Predominantly' means 60 percent or more.
(C) 'Privately owned' { - includes - } { + means + }:
(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 - } { +
means + } 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.
SECTION 3. ORS 279C.827 is amended to read:
279C.827. (1)(a) A public agency { + or a person that under
ORS 279C.800 to 279C.870 must pay a prevailing rate of wage on
public works + } 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 - } { + If + } the Commissioner of the Bureau
of Labor and Industries determines that a public agency { + or a
person that under ORS 279C.800 to 279C.870 must pay a prevailing
rate of wage on public works + } 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 - } { + to compel + }
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 { + or person that
under ORS 279C.800 to 279C.870 must pay a prevailing rate of wage
on public works + } 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 { + , after applying
the considerations set forth in subsection (1)(c) of this
section, + } 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 - } { + use + } funds of a public agency or
that { + a public agency + } will { - be occupied or used by a
public agency - } { + occupy or use + } from the parts of the
project that do not { - include - } { + use + } funds of a
public agency and that { + a public agency + } will not { - be
occupied or used by a public agency - } { + occupy or use + }.
If the commissioner divides the project, any part of the project
that does not { - include - } { + use + } funds of a public
agency and that { + a public agency + } will not { - be
occupied or used by a public agency - } { + occupy or use + }
is not subject to ORS 279C.800 to 279C.870.
(3) If a project includes parts that { - are owned by - } a
public agency { + owns + } and parts that { - are owned by - }
a private entity { + owns + }, the commissioner { + , after
applying the considerations set forth in subsections (1)(c) and
(2) of this section, + } 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 4. ORS 279C.845 is amended to read:
279C.845. (1) { - The - } { + A + } contractor or the
contractor's surety and every subcontractor or the
subcontractor's surety shall file certified statements { - with
the public agency - } in writing, on a form { - prescribed
by - } the Commissioner of the Bureau of Labor and Industries
{ - , certifying: - } { + prescribes, with one of the
following, as appropriate:
(a) The public agency that awarded the contract for public
works to which the contractor is a party. If the project is a
public works as defined in ORS 279C.800 (6)(a)(B) or (C), the
contractor shall submit the certified statements to the public
agency that provided public funds for the project or that will
use or occupy 25 percent or more of the square footage of the
completed project. If more than one public agency provided public
funds for the project or will use or occupy 25 percent or more of
the square footage of the completed project, the public agencies
involved shall agree upon which public agency will receive the
certified statements.
(b) The sponsor of the enterprise zone in which the public
works project is located. If more than one sponsor participated
in designating the enterprise zone, the participating sponsors
shall agree upon which sponsor shall receive the certified
statements.
(2) The certified statements must certify: + }
(a) The hourly rate of wage paid each worker whom the
contractor or the subcontractor has employed upon the public
works; and
(b) That no worker employed upon the public works has been paid
less than the prevailing rate of wage or less than the minimum
hourly rate of wage specified in the contract.
{ - (2) - } { + (3) + } { - The certified statement shall
be verified by the oath of - } The contractor or the
contractor's surety or subcontractor or the subcontractor's
surety { + shall verify certified statements by oath,
attesting + } that the contractor or subcontractor has read the
certified { - statement - } { + statements + }, that the
contractor or subcontractor knows the contents of the certified
{ - statement - } { + statements + } and that to the
contractor or subcontractor's knowledge the certified
{ - statement is - } { + statements are + } true.
{ - (3) - } { + (4) + } The certified statements shall set
out accurately and completely the contractor's or subcontractor's
payroll records, including the name and address of each worker,
the worker's correct classification, rate of pay, daily and
weekly number of hours worked and the gross wages the worker
earned upon the public works during each week identified in the
certified statement.
{ - (4) - } { + (5) + } The contractor or subcontractor
shall deliver or mail { - each - } { + the + } certified
{ - statement - } { + statements + } required by subsection
(1) of this section to the public agency { + or to the
sponsor + }. Certified statements for each week during which the
contractor or subcontractor employs a worker upon the public
works
{ - shall - } { + must + } be submitted once a month, by the
fifth business day of the following month. Information submitted
on certified statements may be used only to ensure compliance
with the provisions of ORS 279C.800 to 279C.870.
{ - (5) - } { + (6) + } Each contractor or subcontractor
shall preserve the certified statements for a period of three
years from the date of completion of the contract.
{ - (6) - } { + (7) + } Certified statements { - received
by - } { + that + } a public agency { + or a sponsor
receives + } are public records subject to the provisions of ORS
192.410 to 192.505.
{ - (7) - } { + (8) + } Notwithstanding ORS 279C.555 or
279C.570 (7), if a contractor { - is required to - } { +
must + } file certified statements { + with a public agency + }
under this section, the public agency shall retain 25 percent of
any amount { - earned by - } the contractor { + earns + } on
the public works until the contractor has filed with the public
agency certified statements as required by this section. The
public agency shall pay the contractor the amount retained under
this subsection within 14 days after the contractor files the
certified statements as required by this section, regardless of
whether a subcontractor has failed to file certified statements
as required by this section. { - The public agency is not
required to verify the truth of the contents of certified
statements filed by the contractor under this section. - }
{ - (8) - } { + (9) + } Notwithstanding ORS 279C.555, the
contractor shall retain 25 percent of any amount { - earned
by - } a first-tier subcontractor { + earns + } on a public
works until the subcontractor has filed with the public agency
certified statements as required by this section. The contractor
shall verify that the first-tier subcontractor has filed the
certified statements before the contractor may pay the
subcontractor { - any - } { + an + } amount { + the
contractor + } retained under this subsection. The contractor
shall pay the first-tier subcontractor the amount { + the
contractor + } retained under this subsection within 14 days
after the subcontractor files the certified statements as
required by this section. { - Neither the public agency nor the
contractor is required to verify the truth of the contents of
certified statements filed by a first-tier subcontractor under
this section. - }
{ + (10) This section does not require:
(a) A public agency or sponsor to verify the truth of the
contents of a contractor's certified statements; or
(b) A public agency, a sponsor or a contractor to verify the
truth of the contents of a subcontractor's certified
statements. + }
SECTION 5. { + The amendments to ORS 279C.800, 279C.810,
279C.827 and 279C.845 by sections 1 to 4 of this 2013 Act apply
to contracts for public works that are first advertised or
otherwise solicited or, if the contract for public works is not
advertised or solicited, to a contract for public works that is
first entered into on or after the operative date specified in
section 6 of this 2013 Act. + }
SECTION 6. { + (1) The amendments to ORS 279C.800, 279C.810,
279C.827 and 279C.845 by sections 1 to 4 of this 2013 Act become
operative 91 days after the effective date of this 2013 Act.
(2) A sponsor, as defined in ORS 285C.050, a public agency that
adopts rules under ORS 279A.065 or the Commissioner of the Bureau
of Labor and Industries may take any action before the operative
date specified in subsection (1) of this section that is
necessary to enable the sponsor, the public agency or the
commissioner to exercise, on and after the operative date
specified in subsection (1) of this section, all of the duties,
functions and powers conferred on the sponsor, the public agency
or the commissioner by the amendments to ORS 279C.800, 279C.810,
279C.827 and 279C.845 by sections 1 to 4 of this 2013 Act. + }
SECTION 7. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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