CHAPTER 5. TERMS AND CONDITIONS OF PUBLIC-PRIVATE AGREEMENTS
IC 8-15.5-5
Chapter 5. Terms and Conditions of Public-Private Agreements
IC 8-15.5-5-1
Public-private agreement by operator; approval by governor
Sec. 1. (a) Before developing or operating a toll road project, a
private entity that has been selected as the operator of a toll road
project under this article shall enter into a public-private agreement
with the authority setting forth the rights and duties of the operator
under this article.
(b) A public-private agreement entered into under this article must
be approved by the governor before its execution.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-5-2
Required provisions of public-private agreement
Sec. 2. A public-private agreement entered into under this article
must provide for the following:
(1) The original term of the public-private agreement, which
may not exceed seventy-five (75) years.
(2) Provisions for a:
(A) lease, franchise, or license of the toll road project and
the real property owned by the authority upon which the toll
road project is located or is to be located; or
(B) management agreement or other contract to operate the
toll road project and the real property owned by the authority
upon which the toll road project is located or is to be
located;
for a predetermined period. The public-private agreement must
provide for ownership of all improvements and real property by
the authority in the name of the state.
(3) Monitoring of the operator's maintenance practices by the
authority and the taking of actions by the authority that it
considers appropriate to ensure that the toll road project is
properly maintained.
(4) The basis upon which user fees that may be collected by the
operator, as determined under this article, are established.
(5) Compliance with applicable state and federal laws and local
ordinances.
(6) Grounds for termination of the public-private agreement by
the authority or the operator.
(7) The date of termination of the operator's authority and duties
under this article.
(8) Procedures for amendment of the agreement.
(9) Provisions requiring the completion of all environmental
analyses of the toll road project required by state and federal
law in the manner and at the times required by the appropriate
state and federal agencies.
(10) An expedited method for resolving disputes between or
among the authority, the parties to the public-private agreement,
and units of local government that contain any part of the toll
road project, as required by IC 8-15.5-10-8.
As added by P.L.47-2006, SEC.39. Amended by P.L.85-2010, SEC.9.
IC 8-15.5-5-3
Other permitted provisions of public-private agreement
Sec. 3. In addition to the requirements of section 2 of this chapter,
a public-private agreement may include additional provisions
concerning the following:
(1) Review and approval by the authority of the operator's plans
for the development and operation of the toll road project.
(2) Inspection by the authority of construction of or
improvements to the toll road project.
(3) Maintenance by the operator of a policy or policies of public
liability insurance (copies of which shall be filed with the
authority, accompanied by proofs of coverage) or
self-insurance, each in a form and amount satisfactory to the
authority to insure coverage of tort liability to the public and
employees and to enable the continued operation of the toll road
project.
(4) Filing by the operator, on a periodic basis, of appropriate
financial statements in a form acceptable to the authority.
(5) Filing by the operator, on a periodic basis, of appropriate
traffic reports in a form acceptable to the authority.
(6) Payments to the operator. These payments may consist of
one (1) or more of the following:
(A) The retention by the operator of the revenues collected
by the operator in the operation and management of the toll
road project.
(B) Payments made to the operator by the authority.
(C) Other sources of payment or revenue to the operator, if
any.
(7) Financing obligations of the operator and the authority,
including entering into agreements for the benefit of the
financing parties.
(8) Apportionment of expenses between the operator and the
authority.
(9) The rights and duties of the operator, the authority, and
other state and local governmental entities with respect to use
of the toll road project, including the state police department
and other law enforcement and public safety agencies.
(10) Arbitration or other dispute resolution mechanisms or
remedies for the settlement of claims and other disputes arising
under the agreement.
(11) Payment of money to either party upon default or delay, or
upon termination of the public-private agreement, with the
payments to be used:
(A) in the form of liquidated damages to compensate the
operator for demonstrated unamortized costs, lost profits, or
other amounts as provided in the agreement;
(B) to retire or refinance indebtedness related to the toll road
project or the public-private agreement; or
(C) for any other purpose mutually agreeable to the operator
and the authority.
(12) Indemnification of the operator by the authority under
conditions specified in the agreement.
(13) Assignment, subcontracting, or other delegation of
responsibilities of the operator or the authority under the
agreement to third parties, including other private entities, the
department, and other state agencies.
(14) Sale or lease to the operator of personal property related to
the toll road project.
(15) Other lawful terms and conditions to which the operator
and the authority mutually agree.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-5-4
Financing of obligations by operator; no state or local debt or
pledge
Sec. 4. (a) The operator may finance its obligations with respect
to the toll road project and the public-private agreement in the
amounts and upon the terms and conditions determined by the
operator.
(b) The operator may:
(1) issue debt, equity, or other securities or obligations;
(2) enter into sale and leaseback transactions; and
(3) secure any financing with a pledge of, security interest in,
or lien on any user fees charged and collected for the use of the
toll road project and any property interest of the operator in the
toll road project.
However, any bonds, debt, other securities, or other financing issued
for the purposes of this article shall not be considered to constitute
a debt of the state or any political subdivision of the state or a pledge
of the faith and credit of the state or any political subdivision.
(c) The operator may deposit the user fees charged and collected
for the use of the toll road project in a separate account held by a
trustee or escrow agent for the benefit of the secured parties of the
operator.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-5-5
Public-private agreement with multiple entities
Sec. 5. Notwithstanding any contrary provision of this article, the
authority may enter into a public-private agreement with multiple
private entities if the authority determines in writing that it is in the
public interest to do so.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-5-6
Exercise of powers delegated or assigned by authority
Sec. 6. The department or any other state agency may perform any
duties and exercise any powers of the authority under this article or
the public-private agreement that have been assigned, subcontracted,
or delegated to it by the authority.
As added by P.L.47-2006, SEC.39.