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, aprivate entity that has been selected as the operator of a toll roadproject under this article shall enter into a public-private agreementwith the authority setting forth the rights and duties of the operatorunder this article.
(b) A public-private agreement entered into under this article mustbe 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 articlemust provide for the following:
(1) The original term of the public-private agreement, whichmay not exceed seventy-five (75) years.
(2) Provisions for a:
(A) lease, franchise, or license of the toll road project andthe real property owned by the authority upon which the tollroad project is located or is to be located; or
(B) management agreement or other contract to operate thetoll road project and the real property owned by the authorityupon which the toll road project is located or is to belocated;
for a predetermined period. The public-private agreement mustprovide for ownership of all improvements and real property bythe authority in the name of the state.
(3) Monitoring of the operator's maintenance practices by theauthority and the taking of actions by the authority that itconsiders appropriate to ensure that the toll road project isproperly maintained.
(4) The basis upon which user fees that may be collected by theoperator, as determined under this article, are established.
(5) Compliance with applicable state and federal laws and localordinances.
(6) Grounds for termination of the public-private agreement bythe authority or the operator.
(7) The date of termination of the operator's authority and dutiesunder this article.
(8) Procedures for amendment of the agreement.
(9) Provisions requiring the completion of all environmentalanalyses of the toll road project required by state and federallaw in the manner and at the times required by the appropriatestate and federal agencies.
(10) An expedited method for resolving disputes between oramong the authority, the parties to the public-private agreement,
and units of local government that contain any part of the tollroad 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 provisionsconcerning the following:
(1) Review and approval by the authority of the operator's plansfor the development and operation of the toll road project.
(2) Inspection by the authority of construction of orimprovements to the toll road project.
(3) Maintenance by the operator of a policy or policies of publicliability insurance (copies of which shall be filed with theauthority, accompanied by proofs of coverage) orself-insurance, each in a form and amount satisfactory to theauthority to insure coverage of tort liability to the public andemployees and to enable the continued operation of the toll roadproject.
(4) Filing by the operator, on a periodic basis, of appropriatefinancial statements in a form acceptable to the authority.
(5) Filing by the operator, on a periodic basis, of appropriatetraffic reports in a form acceptable to the authority.
(6) Payments to the operator. These payments may consist ofone (1) or more of the following:
(A) The retention by the operator of the revenues collectedby the operator in the operation and management of the tollroad project.
(B) Payments made to the operator by the authority.
(C) Other sources of payment or revenue to the operator, ifany.
(7) Financing obligations of the operator and the authority,including entering into agreements for the benefit of thefinancing parties.
(8) Apportionment of expenses between the operator and theauthority.
(9) The rights and duties of the operator, the authority, andother state and local governmental entities with respect to useof the toll road project, including the state police departmentand other law enforcement and public safety agencies.
(10) Arbitration or other dispute resolution mechanisms orremedies for the settlement of claims and other disputes arisingunder the agreement.
(11) Payment of money to either party upon default or delay, orupon termination of the public-private agreement, with thepayments to be used:
(A) in the form of liquidated damages to compensate theoperator for demonstrated unamortized costs, lost profits, orother amounts as provided in the agreement; (B) to retire or refinance indebtedness related to the toll roadproject or the public-private agreement; or
(C) for any other purpose mutually agreeable to the operatorand the authority.
(12) Indemnification of the operator by the authority underconditions specified in the agreement.
(13) Assignment, subcontracting, or other delegation ofresponsibilities of the operator or the authority under theagreement to third parties, including other private entities, thedepartment, and other state agencies.
(14) Sale or lease to the operator of personal property related tothe toll road project.
(15) Other lawful terms and conditions to which the operatorand 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 orpledge
Sec. 4. (a) The operator may finance its obligations with respectto the toll road project and the public-private agreement in theamounts and upon the terms and conditions determined by theoperator.
(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 thetoll road project and any property interest of the operator in thetoll road project.
However, any bonds, debt, other securities, or other financing issuedfor the purposes of this article shall not be considered to constitutea debt of the state or any political subdivision of the state or a pledgeof the faith and credit of the state or any political subdivision.
(c) The operator may deposit the user fees charged and collectedfor the use of the toll road project in a separate account held by atrustee or escrow agent for the benefit of the secured parties of theoperator.
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, theauthority may enter into a public-private agreement with multipleprivate entities if the authority determines in writing that it is in thepublic 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 anyduties and exercise any powers of the authority under this article orthe public-private agreement that have been assigned, subcontracted,or delegated to it by the authority.
As added by P.L.47-2006, SEC.39.