Bill Text: OR HB2586 | 2011 | Regular Session | Introduced
Bill Title: Relating to the application of prevailing wage rates to enterprise zones; declaring an emergency.
Sponsorship: Partisan Bill (Democrat 3)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2586 Detail]
Download: Oregon-2011-HB2586-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 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 322
House Bill 2586
Sponsored by Representative SCHAUFLER; Representative MATTHEWS
(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.
Classifies exemption from ad valorem property taxation as funds
of public agency for purpose of requiring payment of prevailing
rate of wage. Requires city, county or other sponsor of
enterprise zone to notify Commissioner of Bureau of Labor and
Industries of exemption from ad valorem property taxation
connected with public works project located in sponsor's
enterprise zone.
Requires sponsor of enterprise zone in which public works
project is located to pay specified fee. Creates procedures by
which multiple public agencies that award public works contract
or multiple sponsors that designate enterprise zone in which
public works project is located must apportion fees and apportion
receipt of certified statements from contractors and
subcontractors.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the application of prevailing wage rates to
enterprise zones; creating new provisions; amending ORS
279C.800, 279C.810, 279C.825, 279C.827, 279C.835 and 279C.845;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279C.800, as amended by section 1, chapter 45,
Oregon Laws 2010, 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 { + project + }, 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 - } { + a + } 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
an exemption from ad valorem property taxation under ORS 285C.170
or 285C.175; and
(iii) Has a projected cost of $2 million or more. + }
(b) 'Public works' does not include:
(A) { - The reconstruction or renovation of - } { +
Reconstructing or renovating + } privately owned property that a
public agency leases; or
(B) { - The renovation of - } { + Renovating + } publicly
owned real property that is more than 75 years old { - by a
private nonprofit entity - } if:
(i) The real property is leased { + for more than 25 years + }
to the private nonprofit entity { + that performs the
renovation + } { - 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 - } { + was not + } 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 public agency - } { + that the 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 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 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 { + pays + } 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 { + a public agency will occupy or use + } 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 - } { + 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:
(i) Affordable housing provided on real property { - owned
by - } { + that + } a public agency { + owns + } 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.
SECTION 3. ORS 279C.825 is amended to read:
279C.825. (1)(a) The Commissioner of the Bureau of Labor and
Industries, by order, shall establish a fee to be paid by the
public agency { + or public agencies + } that { - awards - }
{ + award + } a public works contract subject to ORS 279C.800
to 279C.870.
{ + (b) The sponsor or sponsors of an enterprise zone in
which a public works project is or will be located shall pay a
fee in the amount of $5,000.
(2)(a) If more than one public agency is involved in awarding a
public works contract subject to ORS 279C.800 to 279C.870, the
public agencies involved shall agree which public agencies shall
pay the fee required under subsection (1)(a) of this section and
in what amounts. If the public agencies do not agree, each public
agency shall pay a proportional share of the fee based on the
amount of public funds the public agency provides for the
contract or the amount of space the public agency occupies or
uses in the public works project.
(b) If more than one sponsor has participated in the
designation of an enterprise zone in which a public works project
subject to ORS 279C.800 to 279C.870 is located, the participating
sponsors shall agree which sponsors shall pay the fee required
under subsection (1)(b) of this section and in what amounts. If
the sponsors do not agree, the sponsors are jointly and severally
liable for paying the fee.
(3) + } The commissioner shall use the { + proceeds of the + }
fee to pay the costs of:
{ - (A) - } { + (a) + } Surveys to determine the prevailing
rates of wage;
{ - (B) - } { + (b) + } Administering and providing
investigations under and enforcement of ORS 279C.800 to 279C.870;
and
{ - (C) - } { + (c) + } Providing educational programs on
public contracting law under the Public Contracting Code.
{ - (b) - } { + (4) + } The commissioner shall establish
the fee { + described in subsection (1)(a) of this section + }
at 0.1 percent of the contract price. { - However, in no event
may a fee be charged and collected - } { + The commissioner may
not charge or collect a fee under this subsection + } that is
less than $250 or more than $7,500.
{ - (2) - } { + (5) + } The commissioner shall pay moneys
received under this section into the State Treasury. The moneys
shall be credited to the Prevailing Wage Education and
Enforcement Account created by ORS 651.185.
{ - (3) - } { + (6)(a) + } { - The - } { + A + } public
agency shall pay the fee { + described in subsection (1)(a) of
this section + } at the time the public agency notifies the
commissioner under ORS 279C.835 { + that + } a contract subject
to the provisions of ORS 279C.800 to 279C.870 has been awarded.
{ + (b) A sponsor shall pay the fee described in subsection
(1)(b) of this section at the time the sponsor notifies the
commissioner under ORS 279C.835 that the sponsor approved, under
ORS 285C.140, an eligible business firm's application to have
qualified property that is a public works project and that is in
the sponsor's enterprise zone exempted from ad valorem property
taxation. + }
SECTION 4. 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 a
public works project + } 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 a public works project + } 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 - } { + a
determination + } under this subsection, the commissioner shall
consider:
(A) The physical separation of the { - project - }
structures { + of the public works project + };
(B) The timing of the work on { - project - } phases or
structures { + of the public works project + };
(C) The continuity of { - project - } contractors and
subcontractors working on { - project - } parts or phases { +
of the public works project + };
(D) The manner in which the public agency and the contractors
administer and implement the { - project - } { + public works
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. - }
{ + (2) If a public works project is 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 public works project, if appropriate,
to separate the parts of the public works project that use funds
of a public agency or that a public agency will occupy or use
from the parts of the public works project that do not use funds
of a public agency and that a public agency will not occupy or
use. If the commissioner divides the public works project, any
part of the public works project that does not use funds of a
public agency and that a public agency will not occupy or use is
not subject to ORS 279C.800 to 279C.870.
(3) If a public works project includes parts that a public
agency owns and parts that a private entity owns, the
commissioner, after applying the considerations set forth in
subsections (1)(c) and (2) of this section, shall divide the
public works project, if appropriate, to separate the parts of
the public works project that the public agency owns from the
parts of the public works project that the private entity owns.
If the commissioner divides the public works project, parts of
the public works project that the private entity owns are not
subject to ORS 279C.800 to 279C.870. + }
SECTION 5. ORS 279C.835 is amended to read:
279C.835. { + (1)(a) + } { - Public agencies - } { + A
public agency + } shall notify the Commissioner of the Bureau of
Labor and Industries in writing, on a form { - prescribed
by - } the commissioner { + prescribes + }, whenever a contract
subject to the provisions of ORS 279C.800 to 279C.870 has been
awarded.
{ + (b) A sponsor shall notify the commissioner in writing,
on a form the commissioner prescribes, whenever the sponsor
approves under ORS 285C.140 an eligible business firm's
application to have qualified property that is a public works
project and is in the sponsor's enterprise zone exempted from ad
valorem property taxation.
(2)(a) + } { - The - } { + A + } notification
{ - shall - } { + under subsection (1)(a) of this section
must + } be made within 30 days { - of - } { + after + } the
date
{ - that - } { + on which + } the contract is awarded.
{ + (b) A notification under subsection (1)(b) of this
section must be made within 30 days after the date on which the
sponsor approves under ORS 285C.140 an eligible business firm's
application to have qualified property exempted from ad valorem
property taxation.
(c) + } { - The - } { + A + } notification { - shall - }
{ + under subsection (1) of this section must + } include
payment of the fee required under ORS 279C.825 { + . A
notification under subsection (1)(a) of this section must also
include + } { - and - } a copy of the disclosure of first-tier
subcontractors that was submitted under ORS 279C.370.
SECTION 6. ORS 279C.845 is amended to read:
279C.845. { - (1) The 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: - }
{ + (1) A contractor or the contractor's surety and a
subcontractor or the subcontractor's surety shall submit
certified wage statements in writing to one of the following:
(a) The public agency with which the contractor or
subcontractor has a public works contract. If the public works
project is of a type defined in ORS 279C.800 (6)(a)(B) or (C),
the contractor shall submit the certified statements to the
public agency that provided funds for the public works project or
that will occupy 25 percent or more of the square footage of the
completed public works project. If more than one public agency
provided funds for the public works project or will occupy 25
percent or more of the square footage of the completed public
works 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 will receive the certified
statements.
(2) The certified wage statements must be on a form that the
Commissioner of the Bureau of Labor and Industries prescribes and
must: + }
(a) { + Specify + } the hourly rate of wage { + the
contractor or subcontractor + } paid each worker whom the
contractor or the subcontractor { - has - } employed upon the
public works { + project + }; and
(b) { + State + } that no worker employed upon the public
works { - has been - } { + project was + } paid less than the
prevailing rate of wage or less than the minimum hourly rate of
wage specified in the contract.
{ - (2) - } { + (3) + } The { + contractor or the
contractor's surety or the subcontractor or the subcontractor's
surety shall attest by oath in the + } certified statement
{ - shall be verified by the oath of the contractor or the
contractor's surety or subcontractor or the subcontractor's
surety - } that the contractor or subcontractor has read the
certified statement, that the contractor or subcontractor knows
the contents of the certified statement and that to the
{ - contractor - } { + contractor's + } or subcontractor's
knowledge the certified statement is true.
{ - (3) - } { + (4) + } The certified { - statements - }
{ + statement + } 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 { + project + } during each week identified in the
certified statement.
{ - (4) - } { + (5) + } The contractor or subcontractor
shall deliver or mail each certified statement 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 - } { + project 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 - } { + The + }
contractor or subcontractor shall preserve the certified
statements for a period of three years from the date { - of
completion of - } { + on which + } the contract { + is
completed + }.
{ - (6) - } { + (7) + } Certified statements received by a
public agency { + or a sponsor + } 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 file - } { +
must submit + } certified statements { + to 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 { + project + } until the contractor { - has
filed with the public agency - } { + submits + } certified
statements { + to the public agency + } 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 - } { + submits + } the certified
statements as required by this section, regardless of whether a
subcontractor
{ - has - } failed to { - file - } { + submit + }
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 { + project + } until the subcontractor { - has filed
with the public agency - } { + submits + } certified
statements { + to the public agency + } as required by this
section. The contractor shall verify that the first-tier
subcontractor { - has filed - } { + submitted + } the
certified statements before the contractor
{ - may pay - } { + pays + } the subcontractor any amount
retained under this subsection. The contractor shall pay the
first-tier subcontractor the amount retained under this
subsection within 14 days after the subcontractor { - files - }
{ + submits + } 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 a sponsor to verify the truth of the
contents of a contractor's certified statements; or
(b) A public agency, sponsor or contractor to verify the truth
of the contents of a subcontractor's certified statements. + }
SECTION 7. { + The amendments to ORS 279C.800, 279C.810,
279C.825, 279C.827, 279C.835 and 279C.845 by sections 1 to 6 of
this 2011 Act apply to contracts for public works first
advertised or otherwise solicited or, if not advertised or
solicited, first entered into on or after the operative date
specified in section 8 (1) of this 2011 Act. + }
SECTION 8. { + (1) The amendments to ORS 279C.800, 279C.810,
279C.825, 279C.827, 279C.835 and 279C.845 by sections 1 to 6 of
this 2011 Act become operative 90 days after the effective date
of this 2011 Act.
(2) 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 commissioner
to exercise, on and after the operative date specified in
subsection (1) of this section, all the duties, functions and
powers conferred on the commissioner by the amendments to ORS
279C.800, 279C.810, 279C.825, 279C.827, 279C.835 and 279C.845 by
sections 1 to 6 of this 2011 Act. + }
SECTION 9. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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