Citations Affected: IC 4-4; IC 4-22; IC 8-14; IC 8-15; IC 8-15.5;
IC 8-15.7; IC 8-23; IC 9-13; IC 9-21; IC 34-13; IC 36-7.6; noncode.
January 10, 2006, read first time and referred to Committee on Ways and Means.
January 25, 2006, amended, reported _ Do Pass; Roll Call 42: yeas 50, nays 46.
January 31, 2006, read second time, amended, ordered engrossed.
Provides that the public-private agreements may be for any combination of the planning, acquisition, construction, improvement, extension, operation, repair, maintenance, and financing of projects. Provides that a public-private agreement is subject to the approval of the governor after review by the budget committee. Establishes procedures for selection of operators by the authority. Permits the authority to establish user fees and tolls, including maximum tolls and user fees and criteria for the adjustment of those maximums. Provides that, with the approval of the budget director after review by the budget committee, a public-private agreement may include a moral obligation of the state to pay certain costs incurred under the agreement. Provides that a public-private agreement may include provisions concerning electronic toll collection systems and photo or video based toll collection enforcement systems. Authorizes the authority to adopt emergency rules concerning user fees under a public-private agreement and enforcement procedures and assessments for failure to pay required tolls, including electronic and photo or video based collection enforcement. Provides that certain payments required to be made to the northwest Indiana regional development authority (RDA) upon the sale or lease of the Indiana toll road may be made from the state general fund or the proceeds of a public-private agreement (current law provides for payment only from the state general fund). Provides that property leased or acquired by an operator for a public-private project is exempt from property taxes. Provides that an operator's income from a public-private agreement is subject to taxation in the same manner as income received by other private entities. Provides that revenues from a public-private agreement with respect to a toll road shall be deposited in the toll road fund and used to: (1) retire certain outstanding bonds and pay amounts owed by the authority with respect to a public-private agreement; (2) fund projects identified in the department of transportation (INDOT) long range comprehensive transportation plan; (3) fund roads, bridges, public transit facilities and equipment, airports, and other projects designed to facilitate the movement of people, goods, services, and information in the counties that are traversed by a toll road project and the cities and towns in those counties; and (4) fund distributions to the RDA or fund other projects authorized to be undertaken by RDA under existing law. Provides that money remaining in the toll road fund after all other required distributions shall be transferred to the major moves construction fund. Provides for the distribution of revenues from a public-private agreement with respect to a tollway to the major moves construction fund, to the state highway fund, to INDOT for use on other projects designated by INDOT, or to the operator, the authority, or INDOT for debt reduction. Prohibits the operator under a public-private agreement or a person having an interest in the operator from making political contributions to state, local, or legislative candidates or certain political committees. Makes technical corrections and conforming amendments. Validates any action taken with respect to public-private agreements entered into by the authority before the effective date of this bill that would have been valid under this bill. Requires the state board of accounts to audit the accounts and records concerning the operation of each toll road project by the authority for each state fiscal year beginning after June 30, 1996, and ending before July 1, 2006.
A BILL FOR AN ACT to amend the Indiana Code concerning
transportation and to make an appropriation.
under IC 34-55-10-2.5.
(30) A rule adopted by the Indiana finance authority:
(A) under IC 8-15.5-7 approving user fees (as defined in
IC 8-15.5-2-10) provided for in a public-private agreement
under IC 8-15.5;
(B) under IC 8-15-2-17.2(a)(10):
(i) establishing enforcement procedures; and
(ii) making assessments for failure to pay required tolls;
or
(C) to make other changes to existing rules related to a toll
road project to accommodate the provisions of a
public-private agreement under IC 8-15.5.
(b) The following do not apply to rules described in subsection (a):
(1) Sections 24 through 36 of this chapter.
(2) IC 13-14-9.
(c) After a rule described in subsection (a) has been adopted by the
agency, the agency shall submit the rule to the publisher for the
assignment of a document control number. The agency shall submit the
rule in the form required by section 20 of this chapter and with the
documents required by section 21 of this chapter. The publisher shall
determine the number of copies of the rule and other documents to be
submitted under this subsection.
(d) After the document control number has been assigned, the
agency shall submit the rule to the secretary of state for filing. The
agency shall submit the rule in the form required by section 20 of this
chapter and with the documents required by section 21 of this chapter.
The secretary of state shall determine the number of copies of the rule
and other documents to be submitted under this subsection.
(e) Subject to section 39 of this chapter, the secretary of state shall:
(1) accept the rule for filing; and
(2) file stamp and indicate the date and time that the rule is
accepted on every duplicate original copy submitted.
(f) A rule described in subsection (a) takes effect on the latest of the
following dates:
(1) The effective date of the statute delegating authority to the
agency to adopt the rule.
(2) The date and time that the rule is accepted for filing under
subsection (e).
(3) The effective date stated by the adopting agency in the rule.
(4) The date of compliance with every requirement established by
law as a prerequisite to the adoption or effectiveness of the rule.
(g) Subject to subsection (h), IC 14-10-2-5, IC 14-22-2-6,
IC 22-8-1.1-16.1, and IC 22-13-2-8(c), and except as provided in
subsections (j), and (k), and (l), a rule adopted under this section
expires not later than ninety (90) days after the rule is accepted for
filing under subsection (e). Except for a rule adopted under subsection
(a)(13), (a)(24), (a)(25), or (a)(27), the rule may be extended by
adopting another rule under this section, but only for one (1) extension
period. The extension period for a rule adopted under subsection
(a)(28) may not exceed the period for which the original rule was in
effect. A rule adopted under subsection (a)(13) may be extended for
two (2) extension periods. Subject to subsection (j), a rule adopted
under subsection (a)(24), (a)(25), or (a)(27) may be extended for an
unlimited number of extension periods. Except for a rule adopted under
subsection (a)(13), for a rule adopted under this section to be effective
after one (1) extension period, the rule must be adopted under:
(1) sections 24 through 36 of this chapter; or
(2) IC 13-14-9;
as applicable.
(h) A rule described in subsection (a)(6), (a)(8), (a)(12), or (a)(29)
expires on the earlier of the following dates:
(1) The expiration date stated by the adopting agency in the rule.
(2) The date that the rule is amended or repealed by a later rule
adopted under sections 24 through 36 of this chapter or this
section.
(i) This section may not be used to readopt a rule under IC 4-22-2.5.
(j) A rule described in subsection (a)(24) or (a)(25) expires not later
than January 1, 2006.
(k) A rule described in subsection (a)(28) expires on the expiration
date stated by the board of the Indiana economic development
corporation in the rule.
(l) A rule described in subsection (a)(30) expires on the
expiration date stated by the Indiana finance authority in the rule.
meaning set forth in IC 8-23-1-41.
Sec. 5. (a) The major moves construction fund is established for
the purpose of:
(1) funding projects under IC 8-15.7 or IC 8-15-3;
(2) funding other projects in the department's transportation
plan; and
(3) funding other highway facilities and transportation
infrastructure considered appropriate by the department.
(b) The authority shall hold, administer, and manage the fund.
(c) Expenses of administering the fund shall be paid from money
in the fund or other sources considered appropriate by the
authority.
(d) The fund consists of the following:
(1) Distributions to the fund from the toll road fund under
IC 8-15.5-11.
(2) Payments made to the authority or the department from
operators under IC 8-15.7.
(3) Appropriations to the fund.
(4) Gifts, grants, loans, bond proceeds, and other money
received for deposit in the fund.
(5) Revenues arising from:
(A) a tollway under IC 8-15-3 or IC 8-23-7-22; or
(B) a toll road under IC 8-15-2 or IC 8-23-7-23;
that the department designates as part of, and deposits in, the
fund.
(6) Interest, premiums, or other earnings on the fund.
(e) Money in the fund shall be deposited, paid, and secured in
the manner provided by IC 4-4-11-32. Notwithstanding IC 5-13,
the authority shall invest the money in the fund that is not needed
to meet the obligations of the fund in the manner provided by an
investment policy established by resolution of the authority.
(f) The fund is not part of the state treasury and is considered
a trust fund for purposes of IC 4-9.1-1-7. Money may not be
transferred, assigned, or otherwise removed from the fund by the
state board of finance, the budget agency, or any other state
agency.
(g) Money in the fund at the end of a state fiscal year does not
revert to the state general fund.
Sec. 6. (a) The authority may distribute money from the fund
for any of the following purposes:
(1) The payment of any obligation incurred or amounts owed
by the authority, the department, or an operator under
IC 8-15-2, IC 8-15-3, IC 8-15.5, or IC 8-15.7 in connection
with the execution and performance of a public-private
agreement under IC 8-15.5 or IC 8-15.7, including
establishing reserves.
(2) Lease payments to the authority.
(3) To the treasurer of state for deposit in the state highway
fund, for the funding of any project in the department's
transportation plan.
(4) The funding of other highway facilities or transportation
infrastructure determined to be appropriate by the
department.
(b) In addition to the distributions permitted by subsection (a),
the authority shall distribute from the fund fifty million dollars
($50,000,000) per year during 2006, 2007, and 2008 to the treasurer
of state for deposit in the motor vehicle highway account
established by IC 8-14-1. Notwithstanding IC 8-14-1, the auditor
of state shall distribute the amounts deposited in the motor vehicle
highway account under this subsection to each of the counties,
cities, and towns eligible to receive a distribution from the motor
vehicle highway account under IC 8-14-1 and in the same
proportion among the counties, cities, and towns as funds are
distributed from the motor vehicle highway account under
IC 8-14-1. Money distributed under this subsection may be used
only for purposes that money distributed from the motor vehicle
highway account may be expended under IC 8-14-1.
Sec. 7. Money in the fund may be used for a purpose other than
a purpose that is specified in this chapter on the effective date of
this chapter only if the general assembly authorizes the purpose in
a statute approved by at least seventy-five percent (75%) of the
members of the house of representatives and by at least
seventy-five percent (75%) of the members of the senate.
bonds issued under this chapter and earnings thereon, or from all
three (3), for the purpose of paying all or any part of the cost of
any one (1) or more toll road projects or for the purpose of
refunding any other toll road revenue bonds.
(3) Establish reserves from the proceeds of the sale of bonds or
from other funds, or both, to secure the payment of the bonds.
(4) Fix and revise from time to time and charge and collect tolls
for transit over each toll road project constructed by it.
(5) Acquire in the name of the state by purchase or otherwise, on
such terms and conditions and in such manner as it may deem
proper, or by the exercise of the right of condemnation in the
manner as provided by this chapter, such public or private lands,
including public parks, playgrounds or reservations, or parts
thereof or rights therein, rights-of-way, property, rights,
easements, and interests, as it may deem necessary for carrying
out the provisions of this chapter. The authority may also:
(A) sell, transfer, and convey any such land or any interest
therein so acquired, or any portion thereof, whether by
purchase, condemnation, or otherwise, and whether such land
or interest therein had been public or private, when the same
shall no longer be needed for such purposes; and
(B) transfer and convey any such lands or interest therein as
may be necessary or convenient for the construction and
operation of any toll road project, or as otherwise required
under the provisions of this chapter.
(6) Designate the locations and establish, limit, and control such
points of ingress to and egress from each toll road project as may
be necessary or desirable in the judgment of the authority to
ensure the proper operation and maintenance of such projects, and
to prohibit entrance to such project from any point not so
designated. The authority shall not grant, for the operation of
transient lodging facilities, either ingress to or egress from any
project, including the service areas thereof on which are located
service stations and restaurants, and including toll plazas and
paved portions of the right-of-way. The authority shall cause to be
erected, at its cost, at all points of ingress and egress, large and
suitable signs facing traffic from each direction on the toll road.
Such signs shall designate the number and other designations, if
any, of all United States or state highways of ingress or egress, the
names of all Indiana municipalities with a population of five
thousand (5,000) or more within a distance of seventy-five (75)
miles on such roads of ingress or egress, and the distance in miles
to such designated municipalities.
(7) Make and enter into all contracts and agreements necessary or
incidental to the performance of its duties and the execution of its
powers under this chapter, or IC 8-9.5-8, or IC 8-15.5. When the
cost under any such contract or agreement, other than:
(A) a contract for compensation for personal services;
(B) a contract with the department under IC 8-9.5-8-7; or
(C) a lease with the department under IC 8-9.5-8-8; or
(D) a contract, lease, or other agreement under IC 8-15.5;
involves an expenditure of more than ten thousand dollars
($10,000), the authority shall make a written contract with the
lowest and best bidder after advertisement for not less than two
(2) consecutive weeks in a newspaper of general circulation in
Marion County, Indiana, and in such other publications as the
authority shall determine. Such notice shall state the general
character of the work and the general character of the materials to
be furnished, the place where plans and specifications therefor
may be examined, and the time and place of receiving bids. Each
bid shall contain the full name of every person or company
interested in it and shall be accompanied by a sufficient bond or
certified check on a solvent bank that if the bid is accepted a
contract will be entered into and the performance of its proposal
secured. The authority may reject any and all bids. A bond with
good and sufficient surety shall be required by the authority of all
contractors in an amount equal to at least fifty percent (50%) of
the contract price, conditioned upon the faithful performance of
the contract.
(8) Employ consulting engineers, superintendents, managers, and
such other engineers, construction and accounting experts, bond
counsel, other attorneys with the approval of the attorney general,
and other employees and agents as may be necessary in its
judgment to carry out the provisions of this chapter, and to fix
their compensation. However, all such expenses shall be payable
solely from the proceeds of toll road revenue bonds issued under
the provisions of this chapter or from revenues.
(9) Receive and accept from any federal agency, subject to
IC 8-23-3, grants for or in aid of the construction of any toll road
project, and receive and accept aid or contributions from any
source of either money, property, labor, or other things of value,
to be held, used, and applied only for the purposes for which such
grants and contributions may be made, and repay any grant to the
authority or to the department from a federal agency if such
repayment is necessary to free the authority from restrictions
which the authority determines to be in the public interest to
remove.
(10) Establish fees, charges, terms, or conditions for any
expenditures, loans, or other form of financial participation in
projects authorized as public improvements on arterial streets and
roads under section 1 of this chapter.
(11) Accept gifts, devises, bequests, grants, loans, appropriations,
revenue sharing, other financing and assistance, and any other aid
from any source and agree to and comply with conditions attached
to the aid.
(12) Accept transfer of a state highway to the authority under
IC 8-23-7-23 and pay the cost of conversion of the state highway
to a toll road project.
(13) Enter into contracts or leases with the department under
IC 8-9.5-8-7 or IC 8-9.5-8-8 and in connection with the contracts
or leases agree with the department for coordination of the
operation and the repair and maintenance of toll road projects and
tollways which are contiguous parts of the same public road,
including joint toll collection facilities and equitable division of
tolls.
(14) Enter into public-private agreements under IC 8-15.5 and
do all acts and things necessary or proper to carry out the
purposes set forth in IC 8-15.5.
(14) (15) Do all acts and things necessary or proper to carry out
this chapter.
adopted by the authority under IC 8-15-2-17.2(a)(10), global
positioning systems and photo or video based toll collection or
toll collection enforcement systems.
(b) Notwithstanding subsection (a), no toll or charge shall be made
by the authority for:
(1) the operation of temporary lodging facilities located upon or
adjacent to any project, nor may the authority itself operate or
gratuitously permit the operation of such temporary lodging
facilities by other persons without any toll or charge; or
(2) placing in, on, along, over, or under such project, such
telephone, telegraph, electric light or power lines, equipment, or
facilities as may be necessary to serve establishments located on
the project or as may be necessary to interconnect any public
utility facilities on one (1) side of the toll road project with those
on the other side.
(c) All contracts executed by the authority shall be preserved in the
principal office of the authority.
(d) In the case of a toll road project that is not leased to the
department under IC 8-9.5-8-7, the tolls shall be fixed and adjusted for
each toll road project so that the aggregate of the tolls from the project,
together with other revenues that are available to the authority without
prior restriction or encumbrance, will at least be adequate to pay:
(1) the cost of operating, maintaining, and repairing the toll road
project, including major repairs, replacements, and
improvements;
(2) the principal of and the interest on bonds issued in connection
with the toll road project, as the principal and interest becomes
due and payable, including any reserve or sinking fund required
for the project; and
(3) the payment of principal of and interest on toll road bonds
issued by the authority in connection with any other toll road
project, including any reserve or sinking fund required for the
project, but only to the extent that the authority provides by
resolution and subject to the provisions of any trust agreement
relating to the project.
(e) Not less than one (1) year before the date that final payment of
all such bonds, interest, and reimbursement is expected by the
chairman of the authority to be completed, the chairman shall notify the
state budget committee in writing of the expected date of final
payment.
(f) Such tolls shall not be subject to supervision or regulation by any
other commission, board, bureau, or agency of the state.
does not require the purchaser or lessee to continue making the
distributions required by subsection (b), the treasurer of state shall pay:
(1) for the calendar years 2006 and 2007, an amount equal to
the greater of zero (0) or the result of:
(1) (A) twenty million dollars ($20,000,000); minus
(2) (B) any amounts transferred to the development authority
under this subsection section before the sale or lease;
from the state general fund to the development authority fund
established under IC 36-7.5-4-1 from the state general fund or from
the toll road fund in accordance with IC 8-15.5-11; and
(2) for each of the calendar years 2008 through 2015, an
amount equal to ten million dollars ($10,000,000) to the
development authority fund established under IC 36-7.5-4-1
from the toll road fund in accordance with IC 8-15.5-11.
(g) Amounts distributed or paid to the development authority under
this section may be used for any purpose of the development authorized
under IC 36-7.5.
(h) The amounts necessary to make any distributions or payments
required or authorized by this section are appropriated.
subsection shall be distributed in equal quarterly amounts before
the last business day of January, April, July, and October of the
year. Any amounts distributed under this subsection shall be
deposited in the development authority fund established under
IC 36-7.6-4-1.
(d) A distribution may be made by the authority to the
development authority under subsection (c) only after the budget
committee has reviewed the development authority's
comprehensive strategic development plan under IC 36-7.6-3-4 and
the director of the office of management and budget has approved
the comprehensive strategic development plan.
(e) If the Indiana Toll Road is sold or leased before January 1,
2008 (other than a lease to the department), and the sale or lease
agreement does not require the purchaser or lessee to continue
making the distributions required by subsection (b), the treasurer
of state shall pay:
(1) for the calendar year 2007, an amount equal to the greater
of zero (0) or the result of:
(A) ten million dollars ($10,000,000); minus
(B) any amounts transferred to the development authority
under this section before the sale or lease;
to the development authority fund established under
IC 36-7.6-4-1 from the state general fund or from the toll road
fund in accordance with IC 8-15.5-11; and
(2) for each of the calendar years 2008 through 2016, an
amount equal to ten million dollars ($10,000,000) to the
development authority fund established under IC 36-7.6-4-1
from the toll road fund in accordance with IC 8-15.5-11.
(f) Amounts distributed or paid to the development authority
under this section may be used for any purpose of the development
authority authorized under IC 36-7.6.
(g) The amounts necessary to make any distributions or
payments required or authorized by this section are appropriated.
to whom, or any bank or trust company to which, such moneys shall be
paid shall:
(1) act as trustee of such moneys; and
(2) hold and apply the same for the purposes of this chapter,
subject to such regulations as this chapter and such resolution or
trust agreement may provide.
(c) This section does not apply to money paid or received with
respect to a toll road project that is the subject of a public-private
agreement under IC 8-15.5.
control signs and signals for motor vehicles in traffic lanes,
acceleration and deceleration lanes, toll plazas, and interchanges
on a toll road project.
(7) Determining the limitation of entry to and exit from a toll road
project to designated entrances and exits.
(8) Determining the limitation on use of a toll road project by
pedestrians and aircraft and by vehicles of a type specified in such
rules and regulations.
(9) Regulating commercial activity on a toll road project,
including but not limited to:
(A) the offering or display of goods or services for sale;
(B) the posting, distributing, or displaying of signs,
advertisements, or other printed or written material; and
(C) the operation of a mobile or stationary public address
system.
(10) Establishing enforcement procedures and making
assessments for the failure to pay required tolls.
(b) A person who violates a rule adopted under this section commits
a Class C infraction. However, a violation of a weight limitation
established by the authority under this section is:
(1) a Class B infraction if the total of all excesses of weight under
those limitations is more than five thousand (5,000) pounds but
not more than ten thousand (10,000) pounds; and
(2) a Class A infraction if the total of all excesses of weight under
those limitations is more than ten thousand (10,000) pounds.
(c) It is a defense to the charge of violating a weight limitation
established by the authority under this section that the total of all
excesses of weight under those limitations is less than one thousand
(1,000) pounds.
(d) The court may suspend the registration of a vehicle that violated:
(1) a size or weight limitation established by the authority under
this section; or
(2) a rule adopted under subsection (a)(10);
for a period of not more than ninety (90) days.
(e) Upon the conviction of a person for a violation of a weight or
size limitation established by the authority under this section, the court
may recommend suspension of the person's current chauffeur's license
only if the violation was committed knowingly.
road project constructed or operated by the authority, other than a toll
road project that is subject to a public-private agreement under
IC 8-15.5, should become a part of the system of state highways free
of tolls or become a tollway under IC 8-15-3.
(b) Any resolution as to any project described in subsection (a) shall
not become effective until all bonds to which the revenues of any
project were pledged for payment, together with all interest thereon, is
paid, or a sufficient amount for the payment of all bonds and the
interest thereon to maturity is set aside in trust for the benefit of
bondholders.
(c) Until any resolution is adopted by the authority under subsection
(a) and becomes effective as provided in subsection (b), and subject
to the terms of any public-private agreement under IC 8-15.5, any
project constructed by the authority or its predecessors remains under
the jurisdiction of the authority and the authority shall continue to
maintain and operate the project and levy and collect tolls as provided
in this chapter. Subject to any agreement entered into by the Secretary
of Commerce of the United States, acting by and through the federal
highway administrator, the Indiana toll road commission, and the state,
acting by and through the Indiana department of transportation, Tolls
on any project may be continued after the date of the payment of the
principal of and interest on bonds issued for the construction of that
project.
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 2.5. "Operator" refers to one (1) or more
private individuals or entities that enter into a public-private
agreement to do one (1) or more of the following with respect to
one (1) or more tollways:
(1) Planning.
(2) Design.
(3) Development.
(4) Construction.
(5) Reconstruction.
(6) Maintenance.
(7) Repair.
(8) Financing.
(9) Operation.
A public entity may provide services to an operator as a
subcontractor or subconsultant without affecting the private status
of the operator and the entity's or operator's ability to enter into
a public-private agreement.
which is one (1) or more items described in this section,
including any nontolled part, that are separately designated by
name or number.
grants for or in aid of the planning, design, construction, financing,
repair, rehabilitation, expansion, improvement, operation, or
maintenance of all or part of any tollway, and receive and accept aid
or contributions from any source of either money, property, labor, or
other things of value, to be held, used, and applied only for the
purposes for which those loan proceeds, proceeds from lines of
credit, proceeds from credit guarantees, grants, or contributions are
made. The department may distribute any part of loan proceeds,
proceeds from lines of credit, proceeds from credit guarantees, and
grants received under this section to an operator as permitted by
the terms of the loan, line of credit, credit guarantee, or grant. The
department, the authority, or an operator, as required by a
public-private agreement, shall repay any loan, line of credit, credit
guarantee, or grant from a federal, state, or local agency, if a
repayment is necessary to free the department from restrictions that the
department determines to be in the public interest to remove.
or property interest acquired by the operator under a
public-private agreement, or any possessory interest in the tollway
or in property granted or created by the public-private agreement
under this chapter or IC 8-15.7.
(d) An operator or any other person purchasing tangible
personal property for incorporation or improvement of a structure
or facility constituting or becoming part of the land included in:
(1) a tollway; or
(2) property granted or created by the public-private
agreement;
is entitled to the exemption from gross retail tax and use tax
provided under IC 6-2.5-4-9(b) and IC 6-2.5-3-2(c), respectively,
with respect to that tangible personal property.
maintain the balance of funds in the account specified by
the department.
(B) Hold and use any device provided to register use of a
tollway that is chargeable to the participant's account in
the manner specified in the rules and participant's
agreement.
(C) Pay the fees, charges, and tolls specified by the
department or an operator, as permitted under a
public-private agreement.
(D) Comply with any other necessary or appropriate terms
and conditions specified by the department or an operator,
as permitted under a public-private agreement.
(3) A method for resolving disputed charges with account
holders, including an agreement by the account holder to hold
the department and its agents harmless for the payment of
any unpaid financial obligation incurred by the account
holder.
(4) The program will comply with all applicable federal and
state laws, regulations, and rules regulating credit
transactions between the entity holding the account and the
account holder.
(5) Notice will be provided to the participant of all federal and
state privacy, credit, and other laws, regulations, and policies
applicable to an account and the program.
(b) The department may establish reasonable fees and charges
to be charged to account holders and business entities participating
in the electronic tolling program and to recover costs of
administration, account initiation and maintenance, late payments,
credit card and other electronic transactions, enforcement, and
improvement of the program. The fees and charges shall be
deposited in the appropriate special funds account for the tollways
covered by the program, as specified by the department, or used,
retained, or deposited as permitted under a public-private
agreement.
(c) The identifying credit and tollway use information of an
electronic tolling program participant may not be used by the
department or an operator for commercial purposes not related to
the tollway.
issuing an order and after receiving the governor's approval, at any time
determine that a tollway under its jurisdiction should become a part of
the system of state highways free of tolls.
toll collection facility.
article is controlling as to any public-private agreement entered
into under this article.
Sec. 3. This article contains full and complete authority for
public-private agreements between the authority and a private
entity. Except as provided in this article, no law, procedure,
proceeding, publication, notice, consent, approval, order, or act by
the authority or any other officer, department, agency, or
instrumentality of the state or any political subdivision is required
for the authority to enter into a public-private agreement with a
private entity under this article, or for a toll road project that is the
subject of a public-private agreement to be constructed, acquired,
maintained, repaired, operated, financed, transferred, or conveyed.
Chapter 2. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Authority" refers to the Indiana finance authority.
Sec. 3. "Department" refers to the Indiana department of
transportation.
Sec. 4. "Offeror" means a private entity that has submitted a
proposal for a public-private agreement under this article.
Sec. 5. "Operator" means a private entity that has entered into
a public-private agreement with the authority.
Sec. 6. "Private entity" means any individual, sole
proprietorship, corporation, limited liability company, joint
venture, general partnership, limited partnership, nonprofit entity,
or other private legal entity. A public agency may provide services
to a private entity without affecting the private status of the private
entity and the ability to enter into a public-private agreement.
Sec. 7. "Project" or "toll road project" has the meaning set
forth in IC 8-15-2-4(4).
Sec. 8. "Public-private agreement" means an agreement under
this article between a private entity and the authority under which
the private entity, acting on behalf of the authority as lessee,
licensee, or franchisee, will plan, design, acquire, construct,
reconstruct, improve, extend, expand, lease, operate, repair,
manage, maintain, or finance a toll road project.
Sec. 9. "Request for proposals" means all materials and
documents prepared by or on behalf of the authority to solicit
proposals from offerors to enter into a public-private agreement.
Sec. 10. "User fees" means the rates, tolls, or fees imposed for
the use of, or incidental to, all or any part of a toll road project
under a public-private agreement.
notice of the hearing one (1) time in accordance with IC 5-3-1 at
least seven (7) days before the hearing. The notice must include the
following:
(1) The date, time, and place of the hearing.
(2) The subject matter of the hearing.
(3) A description of the related toll road project and of the
public-private agreement to be awarded.
(4) The identity of the offeror that has been preliminarily
selected as the operator for the project.
(5) The address and telephone number of the authority.
(6) A statement indicating that, subject to section 6 of this
chapter, and except for those portions that are confidential
under IC 5-14-3, the selected offer and an explanation of the
basis upon which the preliminary selection was made are
available for public inspection and copying at the principal
office of the authority during regular business hours.
Sec. 10. (a) Subject to section 6 of this chapter, and except for
those parts that are confidential under IC 5-14-3, the selected offer
and a written explanation of the basis upon which the preliminary
selection was made shall be made available for inspection and
copying in accordance with IC 5-14-3 at least seven (7) days before
the hearing scheduled under section 9 of this chapter.
(b) At the hearing, the authority shall allow the public to be
heard on the preliminary selection.
Sec. 11. (a) After the procedures required in this chapter have
been completed, the authority shall make a determination as to
whether the offeror that submitted the selected offer should be
designated as the operator for the related toll road project and
shall submit its determination to the governor and the budget
committee.
(b) After review of the authority's determination by the budget
committee, the governor may accept or reject the determination of
the authority. If the governor accepts the determination of the
authority, the governor shall designate the offeror who submitted
the selected offer as the operator for the related toll road project.
The authority shall publish notice of the designation of the
operator for the related toll road project one (1) time, in
accordance with IC 5-3-1.
(c) After the designation of the operator for the related toll road
project, the authority may execute the public-private agreement
with that operator.
Sec. 12. Any action to contest the validity of a public-private
agreement entered into under this chapter may not be brought
after the fifteenth day following the publication of the notice of the
designation of an operator under the public-private agreement as
provided in section 11 of this chapter.
Sec. 13. The authority shall disclose the contents of all
proposals, except the portions of the proposals that may be treated
as confidential in accordance with IC 5-14-3, when either:
(1) the request for proposal process is terminated under
section 8 of this chapter; or
(2) the public-private agreement has been executed and the
closing for each financing transaction required to provide
funding to carry out the agreement has been conducted.
Chapter 5. Terms and Conditions of Public-Private Agreements
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.
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 ninety-nine (99) 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.
Sec. 3. In addition to the requirements of section 2 of this
chapter, a public-private agreement may include additional
provisions concerning:
(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.
operator.
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.
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.
Chapter 6. Construction and Operating Standards for Toll
Road Projects
Sec. 1. The plans and specifications for each toll road project
constructed under this article must comply with:
(1) the authority's standards for other projects of a similar
nature, except as otherwise provided in the public-private
agreement; and
(2) any other applicable state or federal standards.
Sec. 2. Unless otherwise provided by federal law, the operator
or any contractor or subcontractor of the operator engaged in the
construction of a toll road project is not required to comply with
IC 4-13.6 or IC 5-16 concerning state public works, IC 5-17
concerning purchases of materials and supplies, or other statutes
concerning procedures for procurement of public works or
personal property as a condition of being awarded and performing
work on the project.
Sec. 3. The operator or any contractor or subcontractor of the
operator engaged in the construction of a toll road project is
subject to:
(1) the provisions of 25 IAC 5 concerning equal opportunities
for minority business enterprises and women's business
enterprises to participate in procurement and contracting
processes; and
(2) the provisions that may be established by the authority in
a public-private agreement with respect to awarding
contracts to Indiana businesses (as defined in
IC 5-22-15-20.5).
Sec. 4. Each toll road project constructed or operated under this
article is considered to be part of the state highway system
designated under IC 8-23-4-2 for purposes of identification,
maintenance standards, and enforcement of traffic laws.
Sec. 5. An operator may enter into agreements for maintenance
or other services under this article with the authority, the
department, or other state agencies. The authority may:
(1) with the assistance of all applicable state agencies,
establish a unified permitting and licensing process for the
processing and issuance of all necessary permits and licenses
for toll road projects under this article, including, but not
limited to, all environmental permits and business and tax
licenses; and
(2) provide other services for which the authority is
reimbursed, including, but not limited to, preliminary
planning, environmental certification (including the
procurement of all necessary environmental permits), and
preliminary design of toll road projects under this article.
Sec. 6. The authority shall seek the cooperation of federal and
local agencies to expedite all necessary federal and local permits,
licenses, and approvals necessary for toll road projects under this
article.
Chapter 7. User Fees
Sec. 1. (a) Notwithstanding IC 8-9.5-8 and IC 8-15-2-14(j), and
subject to section 8 of this chapter, the authority may fix and revise
the amounts of user fees that an operator may charge and collect
for the use of any part of a toll road project in accordance with the
public-private agreement.
(b) In fixing the amounts referred to in subsection (a), the
authority may:
(1) establish maximum amounts for the user fees; and
(2) provide for increases or decreases of the user fees or the
maximum amounts established based upon the indices,
methodologies, or other factors that the authority considers
appropriate.
Sec. 2. A schedule of the current user fees shall be made
available by the operator to any member of the public on request.
Sec. 3. User fees established by the authority under this article
are not subject to supervision or regulation by any other
commission, board, bureau, or agency of the state, or by any
political subdivision.
Sec. 4. (a) Subject to section 8 of this chapter, user fees
established by the authority under section 1 of this