(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]