Citations Affected: IC 4-4-10.9-1.2; IC 4-22-2-37.1; IC 8-14-14;
IC 8-15; IC 8-15.5; IC 8-15.7; IC 8-23; IC 9-13-2-6.3; IC 9-21-3.5;
IC 34-13-3-3.
Effective: Upon passage.
January 10, 2006, read first time and referred to Committee on Ways and Means.
from the state general fund or the proceeds of a public-private
agreement (current law provides for payment 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 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.
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.
IC 7.1-3-20-24.4.
(18) An emergency rule adopted by the department of financial
institutions under IC 28-15-11.
(19) An emergency rule adopted by the office of the secretary of
family and social services under IC 12-8-1-12.
(20) An emergency rule adopted by the office of the children's
health insurance program under IC 12-17.6-2-11.
(21) An emergency rule adopted by the office of Medicaid policy
and planning under IC 12-15-41-15.
(22) An emergency rule adopted by the Indiana state board of
animal health under IC 15-2.1-18-21.
(23) An emergency rule adopted by the board of directors of the
Indiana education savings authority under IC 21-9-4-7.
(24) An emergency rule adopted by the Indiana board of tax
review under IC 6-1.1-4-34.
(25) An emergency rule adopted by the department of local
government finance under IC 6-1.1-4-33.
(26) An emergency rule adopted by the boiler and pressure vessel
rules board under IC 22-13-2-8(c).
(27) An emergency rule adopted by the Indiana board of tax
review under IC 6-1.1-4-37(l) or an emergency rule adopted by
the department of local government finance under
IC 6-1.1-4-36(j) or IC 6-1.1-22.5-20.
(28) An emergency rule adopted by the board of the Indiana
economic development corporation under IC 5-28-5-8.
(29) A rule adopted by the department of financial institutions
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;
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. The authority may distribute money from the fund at the
request of the department for any of the following purposes:
(1) The payment of any obligation incurred by the authority
or the department or an operator under IC 8-15-3 or
IC 8-15.7.
(2) Lease payments to the authority.
(3) 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.
an allocation of money from the rural transportation road fund
under IC 8-9.5-8-16 or from revenues or from the proceeds of
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.
vehicle identification systems, electronic toll collection
systems, and, to the extent permitted by law, including rules
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.
agreement, the authority shall fix the tolls for any toll road under its
jurisdiction.
(b) Subsection (a) does not apply to tolls fixed, authorized, or
established in accordance with a public-private agreement under
IC 8-15.5.
maximum allowable dimensions or weights as set out by the
authority in rules and regulations shall apply to the authority
in writing, for an application for a special hauling permit,
which application must be in compliance with all the terms
thereof, and which application must be received at least seven
(7) days prior to the time of permitted entry should such permit
be granted. Such permit, if granted, will be returned to the
applicant in duplicate, properly completed and numbered, and
the driver of the vehicle shall have a copy to present to the toll
attendant on duty at the point of entry.
(B) The authority shall assess a fee for issuing a special
hauling permit. In assessing the fee, the authority shall take
into consideration the following factors:
(i) The administrative cost of issuing the permit.
(ii) The potential damage the vehicle represents to the
project.
(iii) The potential safety hazard the vehicle represents.
(2) Establishing the minimum speed that a motor vehicle may be
driven on the interstate defense network of dual highways.
(3) Designating one-way traffic lanes on a toll road project.
(4) Determining the manner of operation of motor vehicles
entering and leaving traffic lanes on a toll road project.
(5) Determining the regulation of U-turns, of crossing or entering
medians, of stopping, parking, or standing, and of passing motor
vehicles on a toll road project.
(6) Determining the establishment and enforcement of traffic
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.
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.
of the operator and the entity's or operator's ability to enter into
a public-private agreement.
operation, or maintenance of a tollway.
(d) The department may, in any combination, plan, design,
develop, construct, reconstruct, or improve, maintain, repair,
operate, or finance the construction or reconstruction of an arterial
highway or an arterial street that:
(1) is adjacent to, appurtenant to, or interchanges with a
tollway; or
(2) intersects with a road or street that interchanges with a
tollway.
appropriate for financing the tollway or to reduce traffic
congestion, increase mobility, improve connectivity, promote fuel
conservation, achieve operating efficiencies, or promote public
safety. The department shall specify the times or conditions under
which an increased toll will be imposed. A reduced rate of toll is
not allowed within a class, except:
(1) through the use of commutation or other tickets or
privileges based upon frequency or volume of use;
(2) as permitted under an electronic tolling program;
(3) as permitted under a managed lane program under section
27.5 of this chapter;
(4) as necessary, desirable, or appropriate for financing the
tollway;
(5) on a part of a tollway designated by the department, in its
discretion, as an area free of tolls;
(6) as determined appropriate by the department; or
(7) as permitted under a public-private agreement.
(d) A person that passes a toll gate or other area of a tollway
where a toll, charge, or fee is due without paying that amount
commits a Class C infraction.
restrictions may include limiting use of one (1) or more lanes to
private vehicles, high occupancy vehicles, vehicles that participate
in an electronic tolling program, trucks, commercial vehicles,
special fuel vehicles, transit vehicles, or vehicles that pay a higher
toll for exclusive use of a dedicated lane. The rules may require a
person eligible to use a restricted lane to obtain the permit
specified by the department or an operator, as permitted under a
public-private agreement.
(b) The department may require that an electronic device or
other identification device specified by the department or by an
operator as permitted under a public-private agreement be
maintained in a vehicle using a restricted lane on a tollway.
(c) The department may construct barriers or implement other
design, construction, or operational features to implement a
managed lane, express lane, or other program under this section.
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.
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 35. (a) If a public-private agreement is
entered into under IC 8-15.7 with respect to a project, the
department may authorize:
(1) the authority to exercise all or a part of the powers of the
department under this chapter necessary or desirable to
accomplish the purposes of this chapter or IC 8-15.7; and
(2) the operator under the public-private agreement to
exercise all or a part of the powers of the department under
sections 9, 16, 29, and 30 of this chapter under the
public-private agreement.
(b) The department may authorize the authority to exercise all
or a part of the powers of the department under this chapter
necessary or desirable to accomplish the purposes of this chapter.
of return through tolls or user fees.
(4) The Indiana finance authority should be authorized to test
the feasibility of entering into agreements with the private
sector for the purposes described in subdivision (3) and
should be authorized to solicit, evaluate, negotiate, and
administer such agreements.
(5) It is necessary to serve the public interest and to provide
for the public welfare by adopting this article for the purposes
described in this article.
Sec. 2. The powers conferred by this article shall be liberally
construed in order to accomplish their purposes and are in
addition and supplemental to the powers conferred by any other
law. If any other law or rule is inconsistent with this article, this
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.
Chapter 3. Authority to Enter Into Public-Private Agreements
Sec. 1. Subject to the other provisions of this article, the
authority and a private entity may enter into a public-private
agreement with respect to a toll road project. Subject to the
requirements of this article, a public-private agreement may
provide that the private entity is partially or entirely responsible
for any combination of the following activities with respect to the
project:
(1) Planning.
(2) Design.
(3) Acquisition.
(4) Construction.
(5) Reconstruction.
(6) Improvement.
(7) Extension or expansion.
(8) Operation.
(9) Repair.
(10) Management.
(11) Maintenance.
(12) Financing.
Chapter 4. Selection of Operator by Request for Proposals
Sec. 1. Before entering into a public-private agreement under
this article, the authority must issue a request for proposals as set
forth in this chapter. A request for proposals for a toll road project
may be issued by the authority in one (1) or more phases and may
include a request for qualifications.
Sec. 2. A request for proposals issued by the authority must
include the following:
(1) The factors or criteria that will be used in evaluating the
proposals.
(2) A statement that a proposal must be accompanied by
evidence of financial responsibility as considered appropriate
and satisfactory by the authority.
(3) A statement concerning whether discussions may be
conducted with the offerors for the purpose of clarification to
assure full understanding of and responsiveness to the
solicitation requirements.
(4) A statement concerning any other information that the
authority may consider in evaluating the proposals.
(5) A statement that, except as otherwise required by law or
under order from a court of competent jurisdiction, the
authority may not disclose the contents of proposals during:
(A) discussions; or
(B) negotiations;
with eligible offerors to other eligible offerors.
Sec. 3. Notice of a request for proposals shall be given by
publication in accordance with IC 5-3-1.
Sec. 4. As provided in a request for proposals, discussions may
be conducted with the offerors for the purpose of clarification to
assure full understanding of and responsiveness to the solicitation
requirements.
Sec. 5. Eligible offerors must be accorded fair and equal
treatment with respect to any opportunity for discussion and
revision of proposals.
Sec. 6. (a) The authority may not disclose the contents of
proposals during discussions or negotiations with eligible offerors.
(b) The authority may, in its discretion in accordance with
IC 5-14-3, treat as confidential all records relating to discussions
or negotiations between the authority and eligible offerors if those
records are created while discussions or negotiations are in
progress.
(c) Notwithstanding subsections (a) and (b), and with the
exception of portions that are confidential under IC 5-14-3, the
terms of the selected offer negotiated under this article shall be
available for inspection and copying under IC 5-14-3 after
negotiations with the offerors have been completed.
(d) When disclosing the terms of the selected offer under
subsection (c), the authority shall certify that the information being
disclosed accurately and completely represents the terms of the
selected offer.
Sec. 7. The authority shall negotiate with one (1) or more
responsible offerors who submit proposals that are determined to
be reasonably capable of being selected for a public-private
agreement and may seek to obtain a final offer from one (1) or
more responsible offerors.
Sec. 8. After the final offers from responsible offerors have been
negotiated under section 7 of this chapter, the authority shall:
(1) make a preliminary selection of an offeror as the operator
for the related toll road project, whose final offer shall be
referred to in this article as the "selected offer"; or
(2) terminate the request for proposal process.
Sec. 9. If the authority makes a preliminary selection of an
operator under section 8 of this chapter, the authority shall
schedule a public hearing on the preliminary selection and publish
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 selected offeror commences operations under the
public-private agreement.
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.
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), 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) User fees established by the authority under section
1 of this chapter for the use of a toll road 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, or traffic congestion or such other means or
classification as the authority determines to be appropriate;
(2) vary by time of day or year; or
(3) be based on one (1) or more factors considered relevant by
the authority, which may include any combination of:
(A) the costs of:
(i) operation;
(ii) maintenance; and
(iii) repair and rehabilitation;
(B) debt service payments on bonds or other obligations;
(C) adequacy of working capital;
(D) depreciation;
(E) payment of user fees, any state, federal, or local taxes,
or payments in lieu of taxes; and
(F) the sufficiency of income to:
(i) maintain the toll road project in a sound physical and
financial condition to render adequate and efficient
service; and
(ii) induce an operator to enter into a public-private
agreement.
Sec. 5. A public-private agreement may:
(1) grant an operator a license or franchise to charge and
collect tolls for the use of the toll road project;
(2) authorize the operator to adjust the user fees charged and
collected for the use of the toll road project, so long as the
amounts charged and collected by the operator do not exceed
the maximum amounts established by the authority under
section 1 of this chapter;
(3) provide that any adjustment by the operator permitted
under subdivision (2) may be based on such indices,
methodologies, or other factors as described in the
public-private agreement or as approved by the authority;
(4) 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 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; and
(5) authorize the collection of user fees charges by a third
party.
Sec. 6. (a) After expiration of a public-private agreement, the
authority may:
(1) continue to charge user fees for the use of the toll road
project; or
(2) delegate to a third party the authority to continue to
collect the user fees.
(b) Revenues collected under this section must first be used for
operations and maintenance of the toll road project. Any revenues
determined by the authority to be excess must be paid to the
authority for deposit in the toll road fund established by
IC 8-15.5-11-5.
Sec. 7. 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 such user fees adopted under
IC 4-22-2-37.1(a)(30).
Chapter 8. Taxation of Operators
Sec. 1. A toll road project and tangible personal property used
exclusively in connection with a toll road project that are:
(1) owned by the authority and leased, franchised, licensed or
otherwise conveyed to an operator; or
(2) acquired, constructed, or otherwise provided by an
operator in connection with the toll road project;
under the terms of a public-private agreement are considered to be
public property devoted to an essential public and governmental
function and purpose and the property, and an operator's
leasehold estate, franchise, license, and other interests in the
property are exempt from all ad valorem property taxes and
special assessments levied against property by the state or any
political subdivision of the state.
Sec. 2. Income received by an operator under the terms of a
public-private agreement is subject to taxation in the same manner
as income received by other private entities.
Sec. 3. An operator or any other person purchasing tangible
personal property for incorporation into or improvement of a
structure or facility constituting or becoming part of the land
included in the toll road project is not exempt from the application
of the gross retail or use tax under IC 6-2.5 with respect to such a
purchase.