The Legislative Assembly finds that:
(1) The development, improvement, expansion and maintenance of an
efficient, safe and well-maintained system of roads, highways and other
transportation facilities is essential to the economic well-being and
high quality of life of the people of this state.
(2) Public sources of revenues, including federal funding, to
provide an efficient transportation system have not kept pace with the
state’s growing population and growing transportation needs, and all
available alternative sources of funding should be utilized to supplement
available public sources of revenues.
(3) Because public funding sources are not providing the state with
sufficient funds to meet all of its transportation needs, private funding
should be encouraged as an additional source of funding for
transportation projects and facilities.
(4) Various alternatives for utilizing the funds of private
entities in the acquisition, design, construction, reconstruction,
operation and maintenance of transportation facilities exist, including
arrangements whereby private entities obtain exclusive agreements to
design, build, own, lease or operate with private funds all or a portion
of transportation projects and facilities in exchange for the right to
receive certain revenues generated from the operation and utilization of
such transportation projects and facilities.
(5) Another important alternative for the funding of transportation
facilities is the use of federal funds pursuant to 23 U.S.C. 129(a), as
amended by section 112 of the Intermodal Surface Transportation
Efficiency Act of 1991, which established a program authorizing federal
participation in construction of publicly or privately owned toll
highways, bridges and tunnels.
(6) The federal legislation allows for a mix of federal funding and
private funding of transportation facilities, allowing the states to
leverage available federal funds as a means for attracting private
capital.
(7) Legislation for the utilization of private funding of
transportation facilities should be flexible enough to permit the
Department of Transportation to obtain the advantages of any available
alternative under which the acquisition, design, construction,
reconstruction, operation, maintenance and repair of transportation
facilities can be financed in whole or in part or in combination by any
available sources of private or public funding.
(8) The funding of transportation facilities through the imposition
of tolls on those who use such facilities is a fair and impartial means
of assessing the costs of improvements against those who most benefit
from such improvements, and is consistent with public policy.
(9) Joint endeavors of public and private entities do the following:
(a) Take advantage of private sector efficiencies in designing,
constructing and operating transportation projects.
(b) Allow for the rapid formation of capital necessary for funding
transportation projects.
(c) Require continued compliance with environmental requirements
and applicable state and federal laws that all publicly financed projects
must address. [1995 c.668 §1] As used in ORS
383.003 to 383.027:
(1) “Department” means the Department of Transportation.
(2) “Private entity” means any nongovernmental entity, including a
corporation, partnership, company or other legal entity, or any natural
person.
(3) “Related facility” means any real or personal property that:
(a) Will be used to operate, maintain, renovate or facilitate the
use of the tollway;
(b) Will provide goods or services to the users of the tollway; or
(c) Can be developed efficiently when tollways are developed and
will generate revenue that may be used to reduce tolls or will be
deposited in the State Tollway Account.
(4) “Toll” means any fee or charge for the use of a tollway.
(5) “Tollway” means any roadway, path, highway, bridge, tunnel,
railroad track, bicycle path or other paved surface or structure
specifically designed as a land vehicle transportation route, the
construction, operation or maintenance of which is wholly or partially
funded with toll revenues resulting from an agreement under ORS 383.005.
(6) “Tollway project” means any capital project involving the
acquisition of land for, or the construction, reconstruction,
improvement, installation, development or equipping of, a tollway,
related facilities or any portion thereof.
(7) “Unit of government” means any department or agency of the
federal government, any state, or any agency, office or department
thereof, and any city, county, district, port or other public corporation
organized and existing under statutory law or under a voter-approved
charter. [1995 c.668 §2] (1)
For purposes of the acquisition, design, construction, reconstruction,
operation or maintenance and repair of tollway projects, the Department
of Transportation may enter into any combination of contracts, agreements
and other arrangements with any one or more private entities or units of
government, or any combination thereof, including but not limited to the
following:
(a) Design-build contracts with private entities pursuant to which
a portion or all aspects of the design, construction and installation of
all or any portion of a tollway project are accomplished by the private
entity;
(b) Lease agreements, lease-purchase agreements and installment
sale arrangements for the lease, sale or purchase of real and personal
property for tollway projects by the state from private entities or units
of government or by private entities or units of government from the
state;
(c) Licenses, franchises or other agreements for the periodic or
long-term operation or maintenance of a tollway project;
(d) Financing agreements for a tollway project pursuant to which
the department makes any loan, grant, guaranty or other financing
arrangement with a private entity or unit of government; and
(e) Agreements for purchase or acquisition of fee ownership,
easements, rights of way or any other interests in land upon which a
tollway project is to be built.
(2) The department may operate tollway projects and impose and
collect tolls on any tollway project the department operates. Any private
entity or unit of government that operates a tollway project pursuant to
an agreement with the department may impose and collect tolls on the
tollway project. [1995 c.668 §3; 2001 c.844 §7] (1) There is hereby
established the State Tollway Account as a separate account within the
State Highway Fund. The State Tollway Account shall consist of:
(a) All moneys and revenues received by the Department of
Transportation from or made available by the federal government to the
department for any tollway project or for the operation or maintenance of
any tollway;
(b) Any moneys received by the department from any other unit of
government or any private entity for a tollway project or from the
operation or maintenance of any tollway;
(c) All moneys and revenues received by the department from any
loan made by the department for a tollway project pursuant to ORS
383.005, and from any lease, agreement, franchise or license for the
right to the possession and use, operation or management of a tollway
project;
(d) All tolls and other revenues received by the department from
the users of any tollway project;
(e) The proceeds of any bonds authorized to be issued under ORS
383.023 for tollway projects;
(f) Any moneys that the department has legally transferred from the
State Highway Fund to the State Tollway Account for tollway projects;
(g) All moneys and revenues received by the department from all
other sources that by donation, grant, contract or law are allocated or
dedicated for tollway projects; and
(h) All interest earnings on investments made from any of the
moneys held in the State Tollway Account.
(2) Moneys in the State Tollway Account may be used by the
department for the following purposes:
(a) To finance preliminary studies and reports for any tollway
project;
(b) To acquire land to be owned by the state for tollways and any
related facilities therefor;
(c) To finance the construction, renovation, operation,
improvement, maintenance or repair of any tollway project;
(d) To make grants or loans to a unit of government for tollway
projects;
(e) To make loans to private entities for tollway projects;
(f) To pay the principal, interest and premium due with respect to,
and to pay the costs connected with the issuance or ongoing
administration of any bonds or other financial obligations authorized to
be issued by, or the proceeds of which are received by, the department
for any tollway project;
(g) To provide a guaranty or other security for any bonds or other
financial obligations, including but not limited to financial obligations
with respect to any bond insurance, surety or credit enhancement device
issued or incurred by the department, a unit of government or a private
entity, for the purpose of financing a single tollway project or any
related group or system of tollways or related facilities; and
(h) To pay the costs incurred by the department in connection with
its oversight, operation and administration of the State Tollway Account,
the proposals and projects submitted under ORS 383.015 and the tollway
projects financed under ORS 383.005.
(3) For purposes of securing bonds authorized by ORS 383.023 or
providing a guaranty, surety or other security authorized by subsection
(2)(g) of this section, the department may:
(a) Irrevocably pledge all or any portion of the amounts that are
credited to, or are required to be credited to, the State Tollway Account;
(b) Establish subaccounts in the State Tollway Account, and make
covenants regarding the credit to and use of amounts in those accounts
and subaccounts; and
(c) Establish separate trust funds or accounts and make covenants
to transfer to those separate trust funds or accounts all or any portion
of the amounts that are required to be deposited in the State Tollway
Account.
(4) Notwithstanding any other provision of ORS 383.001 to 383.027
and 383.315, the department shall not pledge any funds or amounts at any
time held in the State Tollway Account as security for the obligations of
a private entity unless the department has entered into a binding and
enforceable agreement that provides the department reasonable assurance
that the department will be repaid, with appropriate interest, any
amounts that the department is required to advance pursuant to that
pledge.
(5) Moneys in the State Tollway Account are continuously
appropriated to the department for purposes authorized by this section.
[1995 c.668 §4; 2005 c.22 §264](1) Every contract,
agreement or other arrangement between the Department of Transportation
and any private entity pursuant to which a private entity owns, leases or
operates a tollway shall provide that, if an event occurs that seriously
jeopardizes or impairs the continued availability and operation of the
tollway, the department shall be entitled to enter into and take
possession of the tollway and to exercise all of the rights attendant to
such possession, including the right to receive all tolls and other
revenues of the tollway, subject to any obligations incurred for the
tollway, and the right to operate, maintain, repair and reconstruct the
tollway.
(2) The department may exercise the power of eminent domain to
acquire property for tollway projects, regardless of whether the property
will be owned in fee simple by the department. [1995 c.668 §5; 2001 c.844
§2] (1) The design of each tollway shall at
least meet the minimum design standards generally applicable, at the time
the Department of Transportation authorizes the tollway, to the state and
other units of government authorized to build and own roads, highways,
bridges, tunnels, railways and related facilities.
(2) In considering the design of a tollway, the department shall
solicit the recommendation of all units of government having jurisdiction
over any of the territory encompassing or adjacent to the proposed route
of the tollway. The department shall consider the present and future
needs of local transit authorities and whether the proposed tollway
project should be expanded to include the acquisition of land or rights
of way for future mass transit needs or for future expansion due to
projected population growth.
(3) In considering the design of a tollway, the department shall
solicit the recommendation of state and local parks departments to
consider whether parks or campsites for travelers or bicyclists should be
incorporated into the tollway design. The department may enter into
agreements for the use of state and local funding for the acquisition and
construction of such parks and campsites. The land on which such parks
and campsites shall be located may be owned or leased in any manner in
which any other tollway property may be owned or leased and shall be
managed by any entity chosen by the department for such purpose,
including the entity that operates or maintains the tollway. The
allocation of revenues derived from the ownership or operation of any
park or campsite shall be in accordance with any arrangement the
department deems desirable. [1995 c.668 §6; 2001 c.844 §3](1) Tollway projects may be initiated by the
Department of Transportation, by a unit of government having an interest
in the installation of a tollway, or by a private entity interested in
constructing or operating a tollway project. The department shall charge
an administrative fee for reviewing and considering any tollway project
proposed by a private entity, which the department shall establish by
rule. All such administrative fees shall be deposited into the State
Tollway Account.
(2) The department shall adopt rules pursuant to which it will
consider authorization of a tollway project. The rules shall require
consideration of:
(a) The opinions and interests of units of government encompassing
or adjacent to the path of the proposed tollway project in having the
tollway installed;
(b) The probable impact of the proposed tollway project on local
environmental, aesthetic and economic conditions and on the economy of
the state in general;
(c) The extent to which funding other than state funding is
available for the proposed tollway project;
(d) The likelihood that the estimated use of the tollway project
will provide sufficient revenues to independently finance the costs
related to the construction and future maintenance, repair and
reconstruction of the tollway project, including the repayment of any
loans to be made from moneys in the State Tollway Account;
(e) With respect to tollway projects, any portion of which will be
financed with state funds or department loans or grants:
(A) The relative importance of the proposed tollway project
compared to other proposed tollways; and
(B) Traffic congestion and economic conditions in the communities
that will be affected by competing tollway projects; and
(f) The effects of tollway implementation on community and local
street traffic.
(3) Notwithstanding any other provision of ORS 383.001 to 383.027
and 383.315, no tollway project shall be authorized unless the department
finds that either:
(a) Based on the department’s estimate of present and future
traffic patterns, the revenues generated by the tollway project will be
sufficient, after payment of all obligations incurred in connection with
the acquisition, construction and operation of such tollway project, to
ensure the continued maintenance, repair and reconstruction of the
tollway project without the contribution of additional public funds; or
(b) The revenues generated by the tollway project will be at least
sufficient to pay its operational expenses and a portion of the costs of
its construction, maintenance, repair and reconstruction, and the
importance of the tollway project to the welfare or economy of the state
is great enough to justify the use of public funding for a portion of its
construction, maintenance, repair and reconstruction.
(4) If the department finds that a proposed tollway project
qualifies for authorization under this section, the department may
conduct or cause to be conducted any environmental, geological or other
studies required by law as a condition of construction of the tollway
project. The costs of completing the studies for any proposed tollway
project may be paid by moneys in the State Tollway Account, provided that
any such payment shall constitute a loan against the proposed tollway
project and shall be reimbursed to the State Tollway Account as a part of
the permanent financing for the project. [1995 c.668 §7; 1997 c.390 §2](1) The
Department of Transportation may award any contract, franchise, license
or agreement related to a tollway project, other than a concession for
the provision of goods or services at a rest area, under a competitive
process or by private negotiation with one or more entities, or by any
combination of competition and negotiation without regard to any other
laws concerning the procurement of goods or services for projects of the
state.
(2) When using a competitive process for the award of a tollway
project contract, the department shall consider the following factors in
addition to the proposer’s estimate of cost:
(a) The quality of the design, if applicable, submitted by a
proposer. In considering the quality of the design of a tollway project,
the department shall take into consideration:
(A) The structural integrity of the design, including the probable
effect of the design on the future costs of maintenance of the tollway;
(B) The aesthetic qualities of the design, including such factors
as the width of lane separators, landscaping and sound walls;
(C) The traffic capacity of the design;
(D) The aspects of the design that affect safety, such as the lane
width, the quality of lane markers and separators, the shape and
positioning of ramps and curves and the changes in elevation; and
(E) The ease with which traffic will be able to pass through the
toll collection facilities.
(b) The extent to which small businesses will be involved in the
tollway project. The department shall encourage participation by small
businesses to the maximum extent the department determines is
practicable. As used in this paragraph, “small business” means an
independent business with fewer than 20 employees and with average annual
gross receipts over the last three years not exceeding $1 million for
construction firms and $300,000 for nonconstruction firms. “Small
business” does not include a subsidiary or parent company belonging to a
group of firms that are owned and controlled by the same individuals and
that have average aggregate annual gross receipts in excess of $1 million
for construction firms or $300,000 for nonconstruction firms over the
last three years.
(c) The financial stability of the proposer and the ability of the
proposer to provide funding for the tollway project and surety for its
performance and financial obligations with respect to the tollway project.
(d) The experience of the proposer and its subcontractors in
building and operating projects such as the tollway project.
(e) The terms of the financial arrangement proposed or accepted by
the proposer with respect to franchise fees, license fees, lease payments
or operating expenses and the proposer’s required rate of return from its
operation or maintenance of the tollway.
(3)(a) The department may adopt rules and procedures for the award
of franchises, licenses, leases or other concessions for rest areas
without regard to any other laws concerning the procurement of goods or
services for projects of the state. All such franchises, licenses, leases
or other concessions shall require the franchisee, licensee, lessee or
concessionaire, as applicable, to maintain the subject premises in
accordance with all applicable state and federal health and safety
standards, to maintain one or more policies of casualty and property
insurance and adequate workers’ compensation insurance, and to pay and
discharge all taxes, utilities, fees and other charges or claims that are
levied, assessed or charged against the premises or concession or that
may become a lien upon the premises. The rules shall encourage
participation by small businesses to the maximum extent the department
determines is practicable. The department may grant any small business a
10 percent or greater bid advantage in any bidding process for a
concession.
(b) As used in this subsection, “small business” means an
independent business with fewer than 20 employees and with average annual
gross receipts over the last three years not exceeding $300,000. “Small
business” does not include a subsidiary or parent company belonging to a
group of firms that are owned and controlled by the same individuals and
that have average aggregate annual gross receipts in excess of $300,000
over the last three years. “Small business” also does not include a
franchise of any business that has average aggregate annual gross
receipts in excess of $300,000 over the last three years.
(4) Notwithstanding any other provision of this section, the
department may use any method for the award of any contract, franchise,
license or agreement that is necessary to comply with the requirements of
any grant or other funding source.
(5) If public funds are involved in the project, construction of a
tollway project shall be subject to the prevailing wage requirements of
ORS 279C.800 to 279C.870.
(6) For purposes of complying with applicable state and local land
use laws, including statewide planning goals, comprehensive plans, land
use regulations, ORS chapters 195, 196, 197, 198, 199, 215, 221, 222 and
227, and any requirement imposed by the Land Conservation and Development
Commission, a tollway project shall be treated as a project of the
department and not as a project of any other person or entity.
(7) Tollways, and any related facilities that would normally be
purchased, constructed or installed by the department if the tollway were
a conventional highway that was constructed and operated by the
department, shall be exempt from ad valorem property taxation.
(8) Tollways are considered state highways for purposes of law
enforcement and application of the Oregon Vehicle Code. [1995 c.668 §8;
2003 c.794 §269](1) Every agreement between the
Department of Transportation and a private entity pursuant to which the
private entity owns or operates a tollway and is entitled to collect the
revenues therefrom shall require that the tollway be maintained in a safe
condition and be returned to the state in a safe and serviceable
condition without need of any repair or reconstruction.
(2) Every agreement between the department and a private entity
pursuant to which the private entity owns or operates a tollway and is
entitled to collect the revenues therefrom shall provide for the
establishment and funding of a maintenance, repair and reconstruction
trust fund that is designed to ensure that adequate funds will be
available to maintain and repair the tollway, so that the tollway will be
surrendered to the department in good condition without need of repair or
reconstruction. [1995 c.668 §9] (1) In accordance with
the applicable provisions of ORS 286.010, 286.020, 286.105 to 286.135 and
ORS chapter 288, the State Treasurer, at the request of the Department of
Transportation, may issue revenue bonds for the purpose of financing a
tollway project, provided that such bonds shall never constitute a debt
or general obligation of the department or of this state or any of its
political subdivisions, but shall be payable solely from the revenues,
amounts, funds and accounts described in ORS 383.009 (3).
(2) The proceeds of revenue bonds issued under this section may be
used by the department or loaned to a private entity or a unit of
government for the purpose of financing any portion of the capital costs
related to the construction of a tollway project, including costs of the
acquisition of interests in land upon which the tollway project will be
constructed, to provide a financial reserve required under any federal
funding agreement and for the payment of the costs of issuing the bonds
and funding bond reserves.
(3) The bonds authorized by this section may be issued by the
department as taxable bonds or as tax-exempt bonds under the income tax
laws of the United States.
(4) Notwithstanding the status of the bonds for federal income tax
purposes, interest paid to the owners of the bonds shall be exempt from
personal income taxes imposed by this state.
(5) When issuing bonds authorized by this section, the department
and the State Treasurer may make covenants with bondholders regarding the
imposition and regulation of tolls, the making of loans and grants funded
from the State Tollway Account, the use of amounts required to be
deposited in the State Tollway Account and the issuance of additional
bonds. [1995 c.668 §11]Sensitive business, commercial or
financial information presented to the Department of Transportation by a
private entity for the purpose of determining the feasibility of the
entity’s participation in a tollway project is exempt from disclosure
under ORS 192.410 to 192.505. [2001 c.844 §5](1) In accordance with the provisions of ORS 288.805 to 288.945,
a municipality, as defined in ORS 288.805, may issue revenue bonds for
the purpose of financing a tollway project.
(2) A nonprofit corporation organized under Oregon law may issue
revenue bonds for the purpose of financing a tollway project. [2001 c.844
§6]TOLL BRIDGES(Generally) It is lawful to
construct, maintain and operate toll bridges upon state highways in the
manner set forth in and pursuant to ORS 382.105 to 382.115 and 383.315 to
383.380, and not otherwise. Notwithstanding any provision of
law to the contrary, nothing in ORS 382.105 to 382.115 and 383.315 to
383.380 applies to toll bridges constructed, maintained or operated under
the provisions of ORS 383.003 to 383.027. [1995 c.668 §13]Before any toll bridge is constructed or construction commenced
over any stream, river, bay, arm of the ocean or other body of water upon
any state highway, federal aid highway, any highway constituting a direct
or immediate extension thereof, connection between two state highways or
federal aid highways or any highway over which travel might be diverted
from a state or federal highway, application shall first be made to the
Department of Transportation for a permit to construct, operate and
maintain the bridge. If, in the judgment of the department, the interest
of the public will be served by the construction of the toll bridge, the
Department of Transportation may, in its judgment and discretion, grant a
permit for the construction, maintenance and operation of the toll bridge
upon such terms and conditions and under such regulations as the
department deems proper, not inconsistent with ORS 382.105 to 382.115 and
383.310 to 383.380.
The permit issued by the Department of Transportation for the
construction of the toll bridge shall, among other things, contain a
clause and provision to the effect that the state, through the
department, may, at any time after three years from date of the
construction and operation of the bridge, acquire the bridge, all right,
title or interest therein and the approaches thereto, by paying to the
owners the reasonable cash value of the bridge and approaches, not to
exceed in any event the original construction cost, less reasonable
depreciation. In determining the price to be paid for the bridge there
shall be taken into account:
(1) The amounts expended in constructing and keeping in repair the
bridge.
(2) Other necessary expenses incurred in and about the bridge.
(3) As an offset, the amount or sum of money received by the owners
of the bridge as profits or tolls.
If, in the judgment of the Department of Transportation, such permit
should be granted, the department shall, before issuing a permit and
before the construction of the bridge has been commenced, require the
applicant to submit to the department the location, design, plans and
specifications for the construction of the bridge, together with such
drawings and maps as may be required for a full understanding of the
subject. The construction of the bridge shall not be commenced until such
location, design, plans, specifications, drawings and maps have been
approved by the department. Whenever
the Department of Transportation grants a permit for the construction of
a toll bridge as provided in ORS 383.320, the department shall maintain
on the bridge during construction an inspector, who shall have authority
to require the construction of the bridge in harmony with the plans,
specifications and design approved by the department. The compensation or
wages to be paid the inspector shall be fixed by the Department of
Transportation, but such compensation, together with the subsistence of
the inspector, shall be paid by the applicant to whom the permit for
construction of the bridge has been issued. The
Department of Transportation shall fix and determine the rates of toll
that may be charged, collected or received for transit over such bridge,
and may change such rates at any time circumstances and conditions
warrant.
(1) The owners of the toll bridge shall keep an accurate statement or
account of the moneys expended in the construction of any such toll
bridge and keeping it in repair, including any sums paid for lands
appropriated as necessary in connection with the construction of the
bridge. Such statement or account shall be verified and a copy filed
annually with the Department of Transportation.
(2) The owner of such bridge shall likewise keep an accurate
account of the tolls received for transit over the toll bridge or of
other profits accruing to the owner. Such owner shall file semiannually
with the Department of Transportation a verified copy of such account. When completed and opened for public
travel such toll bridge is a part of the state highway system and shall
be under the jurisdiction and control of the Department of Transportation.(Port of St. Helens) (1) Except as otherwise
provided in this section, the tollway project described in ORS 383.385
for a toll bridge in Columbia County shall be carried out in the manner
set forth in ORS 383.003 to 383.027.
(2) For purposes of the acquisition, design, construction,
reconstruction and operation of a toll bridge in Columbia County, the
Department of Transportation, in partnership with the Washington State
Department of Transportation, may enter into any combination of
contracts, agreements and other arrangements with the Port of St. Helens
and the Port of Longview, including but not limited to the contracts and
agreements described in ORS 383.005 (1).
(3) The title to all legal interests in the bridge constructed and
operated under agreements authorized by this section may remain
permanently in the Port of St. Helens and the Port of Longview. [1997
c.671 §2; 2001 c.844 §8]
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