§ 8-15.7-5-1 — Public-private agreement by operator; provisions of agreement

Indiana § 8-15.7-5-1

• Jurisdiction: Indiana
• Art. 15.7: PUBLIC-PRIVATE PARTNERSHIPS
• Ch. 5: Public-Private Agreements

Text

(a) Before beginning:
(1) the development;
(2) the financing;
(3) the operation; or
(4) any combination of the development, financing, or operation;
of a qualifying project, the operator must enter into a public-private
agreement with the department. Subject to the other provisions of this
article, the department and a private entity may enter into a
public-private agreement with respect to a project. Subject to the
requirements of this article, a public-private agreement may provide
that the private entity, acting on behalf of the department or the
authority, is partially or entirely responsible for any combination of
developing, financing, or operating the qualifying project.
(b) The public-private agreement may, as determined appropriate by
the department for the particular qualifying project, provide for all or
part of the following:
(1) Delivery of performance and payment bonds or other
performance security determined suitable by the department,
including letters of credit, United States bonds and notes, parent
guaranties, and cash collateral, in connection with the
development, financing, or operation of the qualifying project, in
the forms and amounts set forth in the public-private agreement
or otherwise determined as satisfactory by the department to
protect the department and payment bond beneficiaries who have
a direct contractual relationship with the operator or a
subcontractor of the operator to supply labor or material. A
payment or performance bond or alternative form of performance
security required under a public-private agreement shall not be
required for the part of a public-private agreement that includes
only design, planning, or financing services, the performance of
preliminary studies, or the acquisition of real property.
(2) Review of plans for any development or operation, or both, of
the qualifying project by the department.
(3) Inspection of any construction of or improvements to the
qualifying project by the department or another entity designated
by the department or under the public-private agreement to ensure
that the construction or improvements conform to the standards
set forth in the public-private agreement or are otherwise
acceptable to the department.
(4) Maintenance of:
(A) one (1) or more policies of public liability insurance (copies
of which shall be filed with the department accompanied by
proofs of coverage); or
(B) self-insurance;
each in the form and amount required by the public-private
agreement or otherwise satisfactory to the department as
reasonably sufficient to insure coverage of tort liability to the
public and employees and to enable the continued operation of the
qualifying project.
(5) If operations are included within the operator's obligations
under the public-private agreement, monitoring of the
maintenance practices of the operator by the department or
another entity designated by the department or under the
public-private agreement, and the taking of the actions that the
department finds appropriate to ensure that the qualifying project
is properly maintained.
(6) Reimbursement to be paid to the department as set forth in the
public-private agreement for services provided by the department.
(7) Filing of appropriate financial statements and reports as set
forth in the public-private agreement or as otherwise in a form
acceptable to the department on a periodic basis.
(8) Compensation or payments to the operator, attorneys, bankers,
financial advisors, or other professionals. Compensation or
payments may include one (1) or more of the following:
(A) A development fee, payable on a lump sum basis, progress
payment basis, time and materials basis, or any other basis
considered appropriate by the department.
(B) An operations fee, payable on a lump sum basis, time and
material basis, periodic basis, or any other basis considered
appropriate by the department.
(C) All or part of the revenues, if any, arising out of operation
of the qualifying project.
(D) A maximum rate of return on investment or return on
equity or a combination of the two (2).
(E) In kind services, materials, property, equipment, or other
items.
(F) Compensation in the event of any termination.
(G) A cash payment to pay part of the project cost.
(H) Other compensation set forth in the public-private
agreement or otherwise considered appropriate by the
department.
(9) Compensation or payments to the department, if any.
Compensation or payments may include one (1) or more of the
following:
(A) A concession payment, lease payment, or other fee, which
may be payable in a lump sum, on a periodic basis, or on any
other basis considered appropriate by the department.
(B) Sharing of revenues, if any, from the operation of the
qualifying project.
(C) Payment for any services, materials, equipment, personnel,
or other items provided by the department to the operator under
the public-private agreement or in connection with the
qualifying project.
(D) Other compensation set forth in the public-private
agreement or otherwise considered appropriate by the
department.
(10) The date and terms of termination of the operator's authority
and duties under this article, and circumstances under which the
operator's authority and duties may be terminated before that date.
(11) Reversion of the qualifying project to the department at the
termination or expiration of the public-private agreement.
(12) Rights and remedies of the department if the operator
defaults or otherwise fails to comply with the terms of the
public-private agreement.
(c) A public-private agreement may not provide that the state or the
department is responsible for any debt incurred by an operator in
connection with the delivery of a project.

Legislative History

As added by P.L.47-2006, SEC.40.