§ 5-23-8-2 — Public-private agreement requirements

(a) Before developing or operating the
qualifying project, the operator must enter into a public-private
agreement with the governmental body. The public-private agreement
must provide for the following:
(1) Delivery of performance and payment bonds, letters of credit,
or other security acceptable to the governmental body in
connection with the development or operation of the qualifying
project in the form and amount required by IC 5-23-3-2(a)(8).
(2) Review of the design for the qualifying project by the
governmental body and, if the design conforms to standards
acceptable to the governmental body, the approval of the
governmental body. This subdivision does not require the
operator to complete the design of the qualifying project before
the execution of the public-private agreement.
(3) Inspection of the qualifying project by the governmental body
to ensure that the operator's activities are acceptable to the
governmental body as outlined in the public-private agreement.
(4) Maintenance of a policy of public liability insurance, a copy
of which must be filed with the governmental body and
accompanied by proofs of coverage, or self-insurance, each in the
form and amount satisfactory to the governmental body and
reasonably sufficient to ensure coverage of tort liability to the
public and employees and to enable the continued operation of the
qualifying project.
(5) Monitoring by the governmental body of the maintenance
practices to be performed by the operator to ensure that the
qualifying project is properly maintained.
(6) Periodic filing by the operator of the appropriate financial
statements that pertain to the qualifying project.
(7) Procedures that govern the rights and responsibilities of the
governmental body and the operator in the course of the
construction and operation of the qualifying project and in the
event of the termination of the public-private agreement or a
material default by the operator. The procedures must include
conditions that govern the assumption of the duties and
responsibilities of the operator by an entity that funded, in whole
or part, the qualifying project or by the governmental body, and
must provide for the transfer or purchase of property or other
interests of the operator by the governmental body.
(8) Have safeguards in place to ensure that additional costs or
service disruptions are not imposed on the public in the event of
material default or cancellation of the public-private agreement by
the governmental body.
(9) Have safeguards in place to ensure that the governmental body
or operator has the opportunity to add capacity to the proposed
qualifying project or other facilities serving similar predominantly
public purposes.
(10) Duties of the operator, including the terms and conditions
that the governmental body determines serve the public purpose
of this section.
(b) The public-private agreement under this chapter may include the
following:
(1) An agreement by the governmental body to make grants or
loans to the operator from amounts received from the federal,
state, or local government or an agency or instrumentality thereof.
(2) A provision under which each entity agrees to provide notice
of default and cure rights for the benefit of the other entity,
including, but not limited to, a provision regarding unavoidable
delays.
(3) A provision that terminates the authority and duties of the
operator under this section and dedicates the qualifying project to
the governmental body.

Legislative History

As added by P.L.57-2022, SEC.9.