Indiana 2023 Regular Session

Indiana House Bill HB1078 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2	Introduced Version
3	3	HOUSE BILL No. 1078
4	4	_____
5	5	DIGEST OF INTRODUCED BILL
6	6	Citations Affected: IC 5-23-8; IC 6-1.1-10-49; IC 6-2.5-5-56.
7	7	Synopsis: Governance of public-private agreements. Requires a
8	8	governmental body to entertain more than one bidder before entering
9	9	into a public-private agreement for a qualifying project. Provides that
10	10	for both performance and payment bonds, the amount must be an
11	11	amount not less than 100% of the cost to design and construct the
12	12	qualifying project. Requires the operator to perform at least 30% of the
13	13	work on the qualifying project. Requires the governmental body and
14	14	the operator to provide full disclosure in the public-private agreement
15	15	and to the public of any imputed interest rate regarding the qualifying
16	16	project. Requires the governmental body to report to the department of
17	17	local government finance the amount and duration of any availability
18	18	payment related to the qualifying project. Requires the governmental
19	19	body to hold a public comment hearing regarding the necessity of the
20	20	qualifying project.
21	21	Effective: July 1, 2023.
22	22	Heine
23	23	January 9, 2023, read first time and referred to Committee on Government and Regulatory
24	24	Reform.
25	25	2023 IN 1078—LS 6740/DI 134 Introduced
26	26	First Regular Session of the 123rd General Assembly (2023)
27	27	PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
28	28	Constitution) is being amended, the text of the existing provision will appear in this style type,
29	29	additions will appear in this style type, and deletions will appear in this style type.
30	30	Additions: Whenever a new statutory provision is being enacted (or a new constitutional
31	31	provision adopted), the text of the new provision will appear in this style type. Also, the
32	32	word NEW will appear in that style type in the introductory clause of each SECTION that adds
33	33	a new provision to the Indiana Code or the Indiana Constitution.
34	34	Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
35	35	between statutes enacted by the 2022 Regular Session of the General Assembly.
36	36	HOUSE BILL No. 1078
37	37	A BILL FOR AN ACT to amend the Indiana Code concerning state
38	38	and local administration.
39	39	Be it enacted by the General Assembly of the State of Indiana:
40	40	1 SECTION 1. IC 5-23-8-1, AS ADDED BY P.L.57-2022, SECTION
41	41	2 9, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
42	42	3 2023]: Sec. 1. (a) A governmental body must entertain more than
43	43	4 one (1) bidder before entering into an agreement under subsection
44	44	5 (b) or (c).
45	45	6 (a) (b) A governmental body may enter into a public-private
46	46	7 agreement with respect to a transportation project, if the governmental
47	47	8 body complies with the statutory requirements under this article. Any
48	48	9 public-private agreement with respect to a transportation project may
49	49	10 use availability payments to finance all or a portion of the project.
50	50	11 (b) (c) A governmental body may also enter into a development
51	51	12 agreement with a private party for the development, construction, and
52	52	13 financing of a privately owned and operated transportation or
53	53	14 infrastructure project if the development agreement:
54	54	15 (1) does not obligate the governmental body to spend any public
55	55	16 funds for the privately owned and operated transportation or
56	56	17 infrastructure project;
57	57	2023 IN 1078—LS 6740/DI 134 2
58	58	1 (2) obligates the private party to operate the transportation or
59	59	2 infrastructure project without limitation on the persons, class of
60	60	3 persons, or vehicles using the project, except as may be dictated
61	61	4 by safety, security, design, and load capacities of the project; and
62	62	5 (3) obligates the private party to permit local, state, and federal
63	63	6 emergency vehicles, including vehicles operated by police, fire,
64	64	7 emergency medical services, and sheriff personnel, to use the
65	65	8 transportation project without tolls or fees.
66	66	9 SECTION 2. IC 5-23-8-2, AS ADDED BY P.L.57-2022, SECTION
67	67	10 9, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
68	68	11 2023]: Sec. 2. (a) Before developing or operating the qualifying
69	69	12 project, the operator must enter into a public-private agreement with
70	70	13 the governmental body. The public-private agreement must provide for
71	71	14 the following:
72	72	15 (1) Delivery of performance and payment bonds, letters of credit,
73	73	16 or other security acceptable to the governmental body in
74	74	17 connection with the development or operation of the qualifying
75	75	18 project. in the form and amount required by IC 5-23-3-2(a)(8).
76	76	19 For each performance and payment bond, the amount must
77	77	20 be an amount not less than one hundred percent (100%) of
78	78	21 the cost to design and construct the qualifying project.
79	79	22 (2) Review of the design for the qualifying project by the
80	80	23 governmental body and, if the design conforms to standards
81	81	24 acceptable to the governmental body, the approval of the
82	82	25 governmental body. This subdivision does not require the
83	83	26 operator to complete the design of the qualifying project before
84	84	27 the execution of the public-private agreement.
85	85	28 (3) Inspection of the qualifying project by the governmental body
86	86	29 to ensure that the operator's activities are acceptable to the
87	87	30 governmental body as outlined in the public-private agreement.
88	88	31 (4) Maintenance of a policy of public liability insurance, a copy
89	89	32 of which must be filed with the governmental body and
90	90	33 accompanied by proofs of coverage, or self-insurance, each in the
91	91	34 form and amount satisfactory to the governmental body and
92	92	35 reasonably sufficient to ensure coverage of tort liability to the
93	93	36 public and employees and to enable the continued operation of the
94	94	37 qualifying project.
95	95	38 (5) Monitoring by the governmental body of the maintenance
96	96	39 practices to be performed by the operator to ensure that the
97	97	40 qualifying project is properly maintained.
98	98	41 (6) Periodic filing by the operator of the appropriate financial
99	99	42 statements that pertain to the qualifying project.
100	100	2023 IN 1078—LS 6740/DI 134 3
101	101	1 (7) Procedures that govern the rights and responsibilities of the
102	102	2 governmental body and the operator in the course of the
103	103	3 construction and operation of the qualifying project and in the
104	104	4 event of the termination of the public-private agreement or a
105	105	5 material default by the operator. The procedures must include
106	106	6 conditions that govern the assumption of the duties and
107	107	7 responsibilities of the operator by an entity that funded, in whole
108	108	8 or part, the qualifying project or by the governmental body, and
109	109	9 must provide for the transfer or purchase of property or other
110	110	10 interests of the operator by the governmental body.
111	111	11 (8) Have safeguards in place to ensure that additional costs or
112	112	12 service disruptions are not imposed on the public in the event of
113	113	13 material default or cancellation of the public-private agreement by
114	114	14 the governmental body.
115	115	15 (9) Have safeguards in place to ensure that the governmental body
116	116	16 or operator has the opportunity to add capacity to the proposed
117	117	17 qualifying project or other facilities serving similar predominantly
118	118	18 public purposes.
119	119	19 (10) Duties of the operator, including the terms and conditions
120	120	20 that the governmental body determines serve the public purpose
121	121	21 of this section, and a requirement that the operator perform
122	122	22 at least thirty percent (30%) of the work on the qualifying
123	123	23 project.
124	124	24 (11) Full disclosure of any imputed interest rate regarding the
125	125	25 qualifying project, and a requirement that any such imputed
126	126	26 interest rate be published in one (1) newspaper of general
127	127	27 circulation in the city, town, or county where the qualifying
128	128	28 project is to be located.
129	129	29 (12) A requirement that the governmental body report to the
130	130	30 department of local government finance the amount and
131	131	31 duration of any availability payment related to the qualifying
132	132	32 project.
133	133	33 (b) The public-private agreement under this chapter may include the
134	134	34 following:
135	135	35 (1) An agreement by the governmental body to make grants or
136	136	36 loans to the operator from amounts received from the federal,
137	137	37 state, or local government or an agency or instrumentality thereof.
138	138	38 (2) A provision under which each entity agrees to provide notice
139	139	39 of default and cure rights for the benefit of the other entity,
140	140	40 including, but not limited to, a provision regarding unavoidable
141	141	41 delays.
142	142	42 (3) A provision that terminates the authority and duties of the
143	143	2023 IN 1078—LS 6740/DI 134 4
144	144	1 operator under this section and dedicates the qualifying project to
145	145	2 the governmental body.
146	146	3 (c) The governmental body shall hold a public comment hearing,
147	147	4 which may be conducted by the governmental body or any officer,
148	148	5 member, or agent designated by the governmental body, on the
149	149	6 necessity of the qualifying project, after giving notice by
150	150	7 publication in one (1) newspaper of general circulation in the city,
151	151	8 town, or county where the qualifying project is to be located at
152	152	9 least ten (10) days in advance of the public comment hearing.
153	153	10 SECTION 3. IC 6-1.1-10-49, AS ADDED BY P.L.57-2022,
154	154	11 SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
155	155	12 JULY 1, 2023]: Sec. 49. (a) This section applies to assessment dates
156	156	13 occurring after December 31, 2022.
157	157	14 (b) Tangible property (including without limitation, land, personal
158	158	15 property, real property, and improvements to land) is exempt from
159	159	16 property taxation if the property is used as a part of or incorporated into
160	160	17 a transportation facility (as defined IC 5-23-2-17) under a
161	161	18 public-private agreement executed in accordance with IC 5-23-8-1(a)
162	162	19 IC 5-23-8-1(b) or a development agreement executed in accordance
163	163	20 with IC 5-23-8-1(b). IC 5-23-8-1(c).
164	164	21 (c) The application of the exemption described in subsection (b)
165	165	22 shall apply to otherwise qualifying tangible property irrespective of the
166	166	23 owner or taxpayer of the property or when such property was placed in
167	167	24 service.
168	168	25 SECTION 4. IC 6-2.5-5-56, AS ADDED BY P.L.57-2022,
169	169	26 SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
170	170	27 JULY 1, 2023]: Sec. 56. (a) Transactions involving tangible personal
171	171	28 property are exempt from the state gross retail tax if the person
172	172	29 acquiring the property acquires it for incorporation into a transportation
173	173	30 facility (as defined in IC 5-23-2-17) under a:
174	174	31 (1) public-private agreement executed in accordance with
175	175	32 IC 5-23-8-1(a); IC 5-23-8-1(b); or
176	176	33 (2) development agreement executed in accordance with
177	177	34 IC 5-23-8-1(b). IC 5-23-8-1(c).
178	178	35 (b) The exemption described in subsection (a) shall not apply to the
179	179	36 extent that the applicable public-private agreement or development
180	180	37 agreement is entered into before January 1, 2023.
181	181	2023 IN 1078—LS 6740/DI 134