CHAPTER 5. PUBLIC-PRIVATE AGREEMENTS
IC 8-15.7-5
Chapter 5. Public-Private Agreements
IC 8-15.7-5-1
Public-private agreement by operator; provisions of agreement
Sec. 1. (a) Before beginning:
(1) the development;
(2) the financing;
(3) the operation; or
(4) any combination of the development, financing, or
operation;
of a qualifying project, the operator must enter into a public-private
agreement with the department. Subject to the other provisions of
this article, the department and a private entity may enter into a
public-private agreement with respect to a project. Subject to the
requirements of this article, a public-private agreement may provide
that the private entity, acting on behalf of the department or the
authority, is partially or entirely responsible for any combination of
developing, financing, or operating the qualifying project.
(b) The public-private agreement may, as determined appropriate
by the department for the particular qualifying project, provide for all
or part of the following:
(1) Delivery of performance and payment bonds or other
performance security determined suitable by the department,
including letters of credit, United States bonds and notes, parent
guaranties, and cash collateral, in connection with the
development, financing, or operation of the qualifying project,
in the forms and amounts set forth in the public-private
agreement or otherwise determined as satisfactory by the
department to protect the department and payment bond
beneficiaries who have a direct contractual relationship with the
operator or a subcontractor of the operator to supply labor or
material. A payment or performance bond or alternative form of
performance security required under a public-private agreement
shall not be required for the part of a public-private agreement
that includes only design, planning, or financing services, the
performance of preliminary studies, or the acquisition of real
property.
(2) Review of plans for any development or operation, or both,
of the qualifying project by the department.
(3) Inspection of any construction of or improvements to the
qualifying project by the department or another entity
designated by the department or under the public-private
agreement to ensure that the construction or improvements
conform to the standards set forth in the public-private
agreement or are otherwise acceptable to the department.
(4) Maintenance of:
(A) one (1) or more policies of public liability insurance
(copies of which shall be filed with the department
accompanied by proofs of coverage); or
(B) self-insurance;
each in the form and amount required by the public-private
agreement or otherwise satisfactory to the department as
reasonably sufficient to insure coverage of tort liability to the
public and employees and to enable the continued operation of
the qualifying project.
(5) If operations are included within the operator's obligations
under the public-private agreement, monitoring of the
maintenance practices of the operator by the department or
another entity designated by the department or under the
public-private agreement, and the taking of the actions that the
department finds appropriate to ensure that the qualifying
project is properly maintained.
(6) Reimbursement to be paid to the department as set forth in
the public-private agreement for services provided by the
department.
(7) Filing of appropriate financial statements and reports as set
forth in the public-private agreement or as otherwise in a form
acceptable to the department on a periodic basis.
(8) Compensation or payments to the operator, attorneys,
bankers, financial advisors, or other professionals.
Compensation or payments may include one (1) or more of the
following:
(A) A development fee, payable on a lump sum basis,
progress payment basis, time and materials basis, or any
other basis considered appropriate by the department.
(B) An operations fee, payable on a lump sum basis, time
and material basis, periodic basis, or any other basis
considered appropriate by the department.
(C) All or part of the revenues, if any, arising out of
operation of the qualifying project.
(D) A maximum rate of return on investment or return on
equity or a combination of the two (2).
(E) In kind services, materials, property, equipment, or other
items.
(F) Compensation in the event of any termination.
(G) A cash payment to pay part of the project cost.
(H) Other compensation set forth in the public-private
agreement or otherwise considered appropriate by the
department.
(9) Compensation or payments to the department, if any.
Compensation or payments may include one (1) or more of the
following:
(A) A concession payment, lease payment, or other fee,
which may be payable in a lump sum, on a periodic basis, or
on any other basis considered appropriate by the department.
(B) Sharing of revenues, if any, from the operation of the
qualifying project.
(C) Payment for any services, materials, equipment,
personnel, or other items provided by the department to the
operator under the public-private agreement or in connection
with the qualifying project.
(D) Other compensation set forth in the public-private
agreement or otherwise considered appropriate by the
department.
(10) The date and terms of termination of the operator's
authority and duties under this article, and circumstances under
which the operator's authority and duties may be terminated
before that date.
(11) Reversion of the qualifying project to the department at the
termination or expiration of the public-private agreement.
(12) Rights and remedies of the department if the operator
defaults or otherwise fails to comply with the terms of the
public-private agreement.
(c) A public-private agreement may not provide that the state or
the department is responsible for any debt incurred by an operator in
connection with the delivery of a project.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-1.5
Additional required provisions of agreement
Sec. 1.5. In addition to the other requirements of this article, a
public-private agreement entered into under this article must include
the following:
(1) A requirement for the completion of all environmental
analyses of the project required by state and federal law in the
manner and at the times required by the appropriate state and
federal agencies.
(2) A requirement for ownership by the department in the name
of the state of Indiana of:
(A) all the real property on which the project is located; and
(B) all of the improvements on that real property.
(3) An expedited method for resolving disputes between or
among the department, the parties to the public-private
agreement, and affected jurisdictions, as required by
IC 8-15.7-12-2.
As added by P.L.85-2010, SEC.18.
IC 8-15.7-5-2
User fees
Sec. 2. (a) The department may fix and revise the amounts of user
fees that an operator may charge and collect for the use of any part
of a qualifying project in accordance with the public-private
agreement. In fixing these amounts, the department may:
(1) establish maximum amounts for the user fees; and
(2) provide for increases or decreases of the maximum amounts
based upon the indices, methodologies, or other factors that the
department considers appropriate.
(b) User fees established by the department for the use of a
qualifying project must be nondiscriminatory and may:
(1) include different user fees based on categories such as
vehicle class, vehicle size, vehicle axles, vehicle weight,
volume, location, traffic congestion, or other means or
classification that the department determines to be appropriate;
(2) vary by time of day or year; and
(3) be based on one (1) or more factors considered relevant by
the department, which may include any combination of:
(A) lease payments;
(B) financing costs and charges;
(C) debt repayment, including principal and interest;
(D) costs of development;
(E) costs of operation;
(F) working capital;
(G) reserves;
(H) depreciation;
(I) compensation to the operator;
(J) compensation to the department; and
(K) other costs, expenses, and factors set forth in the
public-private agreement or otherwise considered
appropriate by the department.
(c) A public-private agreement may:
(1) authorize the operator to adjust the user fees for the use of
the qualifying project, so long as the amounts charged and
collected by the operator do not exceed the maximum amounts
established by the department under this chapter;
(2) provide that any adjustment by the operator permitted under
subdivision (1) may be based on indices, methodologies, or
other factors described in the public-private agreement or
approved by the department;
(3) authorize the operator to charge and collect user fees
through manual and nonmanual methods, including, but not
limited to, automatic vehicle identification systems, electronic
toll collection systems, and, to the extent permitted by law,
including rules adopted by the department, global positioning
systems and photo or video based toll collection enforcement
systems; and
(4) authorize the collection of user fees by a third party.
(d) A schedule of the current user fees shall be made available by
the operator to any member of the public on request. User fees and
the setting of user fee rates are not subject to supervision or
regulation by any other commission, board, bureau, or agency of the
state or any municipality, except to the extent set forth in the
public-private agreement.
(e) Any action to contest the validity of user fees fixed under this
chapter may not be brought after the fifteenth day following the
effective date of a rule fixing the user fees.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-3
Grants or loans for qualifying project
Sec. 3. In the public-private agreement, the department may agree
to make grants or loans for the development or operation, or both, of
the qualifying project from amounts received from the federal
government, any agency or instrumentality of the federal
government, or any state or local agency.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-4
Additional provisions of public-private agreement
Sec. 4. The public-private agreement must incorporate the duties
of the operator under this article and may contain the other terms and
conditions that the department determines serve the public purpose
of this article. The public-private agreement may contain provisions
under which the department or the authority agrees to provide notice
of default and cure rights for the benefit of the operator and the
persons or entities described in the public-private agreement that are
providing financing for the qualifying project. The public-private
agreement may contain any other lawful term or condition to which
the operator and the department mutually agree, including provisions
regarding change orders, dispute resolution, required upgrades to the
qualifying project, tolling policies, changes and modifications to the
qualifying project, unavoidable delays, or provisions for a loan or
grant of public funds for the development or operation, or both, of
one (1) or more qualifying projects.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-5
Distribution of payments received by department under
public-private agreement
Sec. 5. To the extent that the department receives any payment or
compensation under the public-private agreement other than
repayment of a loan or grant or reimbursement for services provided
by the department to the operator, the payment or compensation shall
be distributed at the direction of the department to the:
(1) major moves construction fund established under
IC 8-14-14;
(2) department for deposit in the state highway fund established
by IC 8-23-9-54;
(3) alternative transportation construction fund established
under IC 8-14-17; or
(4) operator or the authority for debt reduction.
As added by P.L.47-2006, SEC.40. Amended by P.L.203-2007,
SEC.7.
IC 8-15.7-5-6
Takeover of qualifying project upon termination of public-private
agreement
Sec. 6. (a) Upon the termination or expiration of the
public-private agreement, including a termination for default, the
department may take over the qualifying project and succeed to all
of the right, title, and interest in the qualifying project. The
department may agree to accept the qualifying project subject to any
liens on revenues previously granted by the operator to any person
providing financing for the qualifying project.
(b) If the department elects to take over a qualifying project, the
department may do all or part of the following:
(1) Develop, finance, or operate the project.
(2) Impose, collect, retain, and use user fees, if any, for the
project.
(c) The department may use any revenues collected under this
section for any of the following purposes or any other authorized use
under this article:
(1) Making payments to individuals or entities in connection
with the financing of the qualifying project.
(2) Paying development costs of the project.
(3) Paying current operation costs of the project or facilities,
including compensation to the department for the services of the
department in operating the qualifying project.
(4) Paying the operator for any compensation or payment owing
upon termination.
(d) The full faith and credit of the state or any political
subdivision or the authority is not pledged to secure any financing of
the operator by the election to take over the qualifying project.
Assumption of development or operation, or both, of the qualifying
project does not obligate the state or any political subdivision or the
authority to pay any obligation of the operator.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-7
Amendment of public-private agreement
Sec. 7. Any changes in the terms of the public-private agreement
agreed to by the parties shall be added to the public-private
agreement by written amendment.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-8
Public-private agreement with multiple entities
Sec. 8. Notwithstanding any other provision of this article, the
department may enter into a public-private agreement with multiple
private entities if the department determines in writing that it is in the
public interest to do so.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-9
Public-private agreement for phases or segments of project
Sec. 9. The public-private agreement may provide for all or part
of the development, financing, or operation of phases or segments of
the qualifying project.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-5-10
Memoranda of understanding for implementation of public-private
agreement
Sec. 10. The department may enter into one (1) or more
memoranda of understanding with respect to the implementation and
administration of a public-private agreement. The memoranda may
provide that the department has responsibility for, and shall
administer and oversee certain aspects of the implementation of, the
public-private agreement under this article, including:
(1) undertaking any oversight and monitoring of the operator as
provided under the public-private agreement;
(2) reviewing plans for development and operation, as
applicable, as provided under the public-private agreement;
(3) granting or denying all consents and approvals as provided
under the public-private agreement, except for consents and
approvals relating to financial matters that the department is not
permitted to grant or deny under applicable law, in which case
the authority shall execute the consents and approvals prepared
by the department;
(4) receiving all development, operations, and financial reports
prepared by the operator or others, as provided under the
public-private agreement;
(5) preparing, negotiating, and executing any change orders and
amendments to the public-private agreement;
(6) issuing other written correspondence and communications
on behalf of the authority as provided under the public-private
agreement;
(7) preparing and issuing noncompliance letters and reports,
warning notices, and default letters to the operator as provided
under the public-private agreement; and
(8) exercising rights and remedies for a breach or default by the
operator as provided under the public-private agreement, except
for rights and remedies relating to financial matters that the
department is not permitted to exercise under applicable law, in
which case the authority shall exercise the rights and remedies.
As added by P.L.47-2006, SEC.40.