Second Regular Session of the 122nd General Assembly (2022)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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provision adopted), the text of the new provision will appear in this style type. Also, the
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a new provision to the Indiana Code or the Indiana Constitution.
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between statutes enacted by the 2021 Regular Session of the General Assembly.
SENATE ENROLLED ACT No. 166
AN ACT to amend the Indiana Code concerning state and local
administration.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1. IC 5-23-2-1.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 1.5. "Availability payment" means any funding
stream, whether from a private, local, state, or federal source that
the governmental body is authorized to use for the construction,
maintenance, financing, or operations of any transportation
infrastructure located within the boundaries of the governmental
body.
SECTION 2. IC 5-23-2-5.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 5.5. "Develop" means to plan, design, finance, lease,
acquire, install, construct, or expand under a public-private
agreement.
SECTION 3. IC 5-23-2-6.3 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 6.3. "Material default" means a nonperformance of
its duties by the operator of a public-private agreement which
jeopardizes adequate service to the public from the project.
SECTION 4. IC 5-23-2-6.9 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 6.9. "Operate" means to finance, maintain, improve,
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equip, modify, or repair.
SECTION 5. IC 5-23-2-15.3 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 15.3. "Qualifying project" refers to either of the
following:
(1) A transportation facility.
(2) A transportation project.
SECTION 6. IC 5-23-2-15.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 15.5. (a) "Revenues" means the income, earnings,
lease payments, or other service payments relating to the
development or operation of a transportation facility or
transportation project.
(b) The term includes, but is not limited to, money received as
grants or otherwise from the governmental body, the federal
government, the state, a public entity, or an agency or
instrumentality thereof in aid of the qualifying project.
SECTION 7. IC 5-23-2-17 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 17. "Transportation facility" means any new or
existing road, highway, toll highway, bridge, tunnel, railroad (as
defined in IC 8-3-1-2), or intermodal facility, located in the
jurisdiction of a governmental body.
SECTION 8. IC 5-23-2-18 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]: Sec. 18. "Transportation project" means any combination
of the development, financing, or operation with respect to all or
a portion of any transportation facility located in the jurisdiction
of a governmental body.
SECTION 9. IC 5-23-8 IS ADDED TO THE INDIANA CODE AS
A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2022]:
Chapter 8. Transportation and Infrastructure Projects
Sec. 1. (a) A governmental body may enter into a public-private
agreement with respect to a transportation project, if the
governmental body complies with the statutory requirements
under this article. Any public-private agreement with respect to a
transportation project may use availability payments to finance all
or a portion of the project.
(b) A governmental body may also enter into a development
agreement with a private party for the development, construction,
and financing of a privately owned and operated transportation or
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infrastructure project if the development agreement:
(1) does not obligate the governmental body to spend any
public funds for the privately owned and operated
transportation or infrastructure project;
(2) obligates the private party to operate the transportation or
infrastructure project without limitation on the persons, class
of persons, or vehicles using the project, except as may be
dictated by safety, security, design, and load capacities of the
project; and
(3) obligates the private party to permit local, state, and
federal emergency vehicles, including vehicles operated by
police, fire, emergency medical services, and sheriff
personnel, to use the transportation project without tolls or
fees.
Sec. 2. (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
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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.
Sec. 3. (a) The operator shall do the following:
(1) Develop or operate the qualifying project in a manner that
is acceptable to the governmental body in accordance with the
provisions of the public-private agreement.
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(2) Maintain or provide by contract for the maintenance or
improvement of the qualifying project if required by the
public-private agreement.
(3) Cooperate with the governmental body in making best
efforts to establish interconnection between the qualifying
project and any other facility or infrastructure as requested
by the governmental body in accordance with the provisions
of the public-private agreement.
(4) Comply with the operating agreement.
(b) Each private facility that is constructed under this section
must comply with the requirements of the following:
(1) Federal, state, and local laws.
(2) State, regional, and local comprehensive plans.
(3) The governmental body's rules, procedures, and standards
for facilities.
(4) All other conditions that the governmental body
determines to be in the public's best interest and that are
included in the public-private agreement.
(c) The governmental body may provide services to the operator
at its option. An agreement for maintenance and other services
entered into under this section must provide for full
reimbursement for services rendered for qualifying projects.
(d) An operator of a qualifying project may provide additional
services for the qualifying project to the public or to other private
entities if the provision of additional services does not impair the
operator's ability to meet its commitments to the governmental
body under the public-private agreement.
SECTION 10. IC 6-1.1-10-49 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2022]: Sec. 49. (a) This section applies to
assessment dates occurring after December 31, 2022.
(b) Tangible property (including without limitation, land,
personal property, real property, and improvements to land) is
exempt from property taxation if the property is used as a part of
or incorporated into a transportation facility (as defined
IC 5-23-2-17) under a public-private agreement executed in
accordance with IC 5-23-8-1(a) or a development agreement
executed in accordance with IC 5-23-8-1(b).
(c) The application of the exemption described in subsection (b)
shall apply to otherwise qualifying tangible property irrespective
of the owner or taxpayer of the property or when such property
was placed in service.
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SECTION 11. IC 6-2.5-5-56 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2023]: Sec. 56. (a) Transactions involving tangible
personal property are exempt from the state gross retail tax if the
person acquiring the property acquires it for incorporation into a
transportation facility (as defined in IC 5-23-2-17) under a:
(1) public-private agreement executed in accordance with
IC 5-23-8-1(a); or
(2) development agreement executed in accordance with
IC 5-23-8-1(b).
(b) The exemption described in subsection (a) shall not apply to
the extent that the applicable public-private agreement or
development agreement is entered into before January 1, 2023.
SEA 166 — Concur President of the Senate
President Pro Tempore
Speaker of the House of Representatives
Governor of the State of Indiana
Date: Time:
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