812-004-1600 Payment From Surety Bond, Letter of Credit or Cash Deposit (1) The agency must notify the surety company or financial institution the agency’s determination. The determination is the amount of the judgment that is subject to payment by the surety or financial institution. (2) A complaint is ready for payment when there is a court judgment and 30 days have elapsed or there is a BOLI final order and 60 days have elapsed and: (a) The respondent has not paid the judgment or BOLI order; (b) A court has not granted a stay of judgment or BOLI has not granted a stay of its final order; and (c) All other complaints filed against the respondent within the same 90-day filing period under ORS 701.150 are resolved, closed or have reached the same state of processing as the subject complaint. (3) For purposes of section (2), a BOLI final order is final except that the 60-day period for judicial review has not expired. (4) Complaints related to a job that are satisfied from a surety bond, letter of credit or cash deposit must be paid as follows: (a) If a surety bond, letter of credit or cash deposit was in effect when the work period began and that bond, letter of credit or cash deposit was not cancelled more than 14 months before the agency received the complaint, payment must be made from that surety bond, letter of credit or cash deposit. (b) If no surety bond, letter of credit or cash deposit was in effect when the work period began and that bond, letter of credit or cash deposit was not cancelled more than 14 months before the agency received the complaint, but a surety bond, letter of credit or cash deposit subsequently became effective during the work period of the contract, payment must be made from the first surety bond, letter of credit or cash deposit to become effective after the beginning of the work period. (c) A surety bond, letter of credit or cash deposit that is liable for a complaint under subsection (4)(a) or (b) of this rule is liable for all complaints related to the job and subsequent surety bonds, letters of credit or cash deposits have no liability for any complaint related to the job. (5) If during a work period the amount of a surety bond, letter of credit or cash deposit is changed and a complaint is filed relating to work performed during that work period, the complainant may recover from the surety bond, letter of credit or cash deposit up to the amount in effect at the time the contract was entered into. (6) If the contractor holds a residential surety bond, that bond is available only for payments ordered by the agency involving residential or small commercial structures or for the development of property zoned or intended for use compatible with residential or small commercial structures. (7) If the contractor holds a commercial surety bond, that bond is available only for payments ordered by the agency involving small or large commercial structures or for development of property zoned or intended for use compatible with small or large commercial structures. (8) If more than one complaint must be paid from a surety bond, letter of credit or cash deposit under section (4) of this rule and the total amount due to be paid exceeds the total amount available from the surety bond, letter of credit or cash deposit, payment on a complaint must be made in the same proportion that the amount due on that complaint bears to the total due on all complaints that must be paid. (9) The full penal sum of a bond is available to pay complaints under this rule, notwithstanding that the penal sum may exceed the bond amount required under OAR 812-003-0170 or 812-003-0171. (10) If two or more respondents are jointly and severally liable for an amount due to a complainant and payment is due from the surety bonds, letter of credit or cash deposit of the respondents, payment must be made in equal amounts from each bond, letter of credit or cash deposit subject to payment. If one or more of the bonds, letters of credit or cash deposits is or becomes exhausted, payment must be made from the remaining bond, letter of credit or cash deposit or in equal amounts from the remaining bonds, letters of credit or cash deposits. If one of the respondents liable on the complaint makes payment on the complaint, that payment shall reduce the payments required from that respondent’s bond, letter of credit or cash deposit under this section by an amount equal to the payment made by the respondent. (11) A surety company or financial institution may not condition payment of a complaint on the execution of a release by the complainant. (12) Inactive status of the license of the respondent does not excuse payment by a surety company or financial institution required under this rule. Statutory/Other Authority: ORS 670.310 & 701.235 Statutes/Other Implemented: ORS 701.081, 701.084, 701.088 & 701.150 History: CCB 6-2012, f. 4-25-12, cert. ef. 5-1-12 CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11 CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12