Citations Affected: IC 5-1-17-9.5; IC 5-1-17-18.5; IC 34-30-2-8.5; IC 36-1-12-13.1;
IC 36-1-12-14; IC 36-7-31-14.1.
Synopsis: Stadium funding and contracts. Provides immunity from personal liability and
accountability to the members, executive director, officers, and employees of the Indiana stadium
and convention building (ISCB) authority for acts authorized by the ISCB authority's enabling
statute. Provides conditions under which the ISCB authority may negotiate with a single bidder.
Permits the ISCB authority to waive payment bond and performance bond requirements for
contracts for capital improvement projects under certain conditions if an adequate alternative is
provided. Provides for the termination of the annual capture of $11,000,000 of state revenue for
use to pay obligations owed by the Marion County capital improvement board to the Indiana
stadium and convention building authority or a state agency. Provides that after January 1, 2010,
the annual capture terminates in the year following the first year when none of the obligations
remain outstanding. (This conference committee report inserts the language concerning
waiver of payment bond and performance bond requirements under certain conditions if
an adequate alternative is provided.)
Effective: Upon passage; May 15, 2005 (retroactive); July 1, 2006.
MR. SPEAKER:
Your Conference Committee appointed to confer with a like committee from the Senate
upon Engrossed House Amendments to Engrossed Senate Bill No. 259 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the Senate recede from its dissent from all House amendments and that
the Senate now concur in all House amendments to the bill and that the bill
be further amended as follows:
Delete everything after the enacting clause and insert the following:
conditions of the public work contract, plans, specifications,
drawings, or profile;
(2) a defect in the public work contract; or
(3) a defect in the proceedings preliminary to the letting and
awarding of the public work contract;
does not discharge the surety. The surety of the payment bond may not
be released until one (1) year after the board's final settlement with the
contractor.
(d) A person to whom money is due for labor performed, material
furnished, or services provided shall, within sixty (60) days after the
completion of the labor or service, or within sixty (60) days after the
last item of material has been furnished, file with the board signed
duplicate statements of the amount due. The board shall forward to the
surety of the payment bond one (1) of the signed duplicate statements.
However, failure of the board to forward a signed duplicate statement
does not affect the rights of a person to whom money is due. In
addition, a failure to forward the statement does not operate as a
defense for the surety.
(e) An action may not be brought against the surety until thirty (30)
days after the filing of the signed duplicate statements with the board.
If the indebtedness is not paid in full at the end of that thirty (30) day
period the person may bring an action in court. The court action must
be brought within sixty (60) days after the date of the final completion
and acceptance of the public work.
(f) This subsection applies to contracts for a capital improvement
entered into by, for, or on behalf of the Indiana stadium and
convention building authority created by IC 5-1-17-6. The board
awarding the contract for the capital improvement project may
waive any payment bond requirement if the board, after public
notice and hearing, determines:
(1) that:
(A) an otherwise responsive and responsible bidder is unable
to provide the payment bond; or
(B) the cost or coverage of the payment bond is not in the
best interest of the project; and
(2) that an adequate alternative is provided through a letter of
credit, additional retainage of at least ten percent (10%) of the
contract amount, a joint payable check system, or other
sufficient protective mechanism.
by the board to contractors, by contractors to subcontractors, and for the
payment of subcontractors. At the discretion of the contractor, the
retainage shall be held by the board or shall be placed in an escrow
account with a bank, savings and loan institution, or the state as the
escrow agent. The escrow agent shall be selected by mutual agreement
between board and contractor or contractor and subcontractor under a
written agreement among the bank or savings and loan institution and:
(1) the board and the contractor; or
(2) the subcontractor and the contractor.
The board shall not be required to pay interest on the amounts of
retainage that it holds under this section.
(c) To determine the amount of retainage to be withheld, the board
shall:
(1) withhold no more than ten percent (10%) of the dollar value of
all work satisfactorily completed until the public work is fifty
percent (50%) completed, and nothing further after that; or
(2) withhold no more than five percent (5%) of the dollar value of
all work satisfactorily completed until the public work is
substantially completed.
If upon substantial completion of the public work minor items remain
uncompleted, an amount computed under subsection (f) of this section
shall be withheld until those items are completed.
(d) The escrow agreement must contain the following provisions:
(1) The escrow agent shall invest all escrowed principal in
obligations selected by the escrow agent.
(2) The escrow agent shall hold the escrowed principal and income
until receipt of notice from the board and the contractor, or the
contractor and the subcontractor, specifying the part of the
escrowed principal to be released from the escrow and the person
to whom that portion is to be released. After receipt of the notice,
the escrow agent shall remit the designated part of escrowed
principal and the same proportion of then escrowed income to the
person specified in the notice.
(3) The escrow agent shall be compensated for the agent's services.
The parties may agree on a reasonable fee comparable with fees
being charged for the handling of escrow accounts of similar size
and duration. The fee shall be paid from the escrowed income.
The escrow agreement may include other terms and conditions
consistent with this subsection, including provisions authorizing the
escrow agent to commingle the escrowed funds with funds held in other
escrow accounts and limiting the liability of the escrow agent.
(e) Except as provided by subsection (i), the contractor shall furnish
the board with a performance bond equal to the contract price. If
acceptable to the board, the performance bond may provide for
incremental bonding in the form of multiple or chronological bonds
that, when taken as a whole, equal the contract price. The surety on the
performance bond may not be released until one (1) year after the date
of the board's final settlement with the contractor. The performance
bond must specify that:
(1) a modification, omission, or addition to the terms and
conditions of the public work contract, plans, specifications,
drawings, or profile;
(2) a defect in the public work contract; or
(3) a defect in the proceedings preliminary to the letting and
awarding of the public work contract;
does not discharge the surety.
(f) The board or escrow agent shall pay the contractor within
sixty-one (61) days after the date of substantial completion, subject to
sections 11 and 12 of this chapter. Payment by the escrow agent shall
include all escrowed principal and escrowed income. If within sixty-one
(61) days after the date of substantial completion there remain
uncompleted minor items, an amount equal to two hundred percent
(200%) of the value of each item as determined by the
architect-engineer shall be withheld until the item is completed.
Required warranties begin not later than the date of substantial
completion.
(g) Actions against a surety on a performance bond must be brought
within one (1) year after the date of the board's final settlement with the
contractor.
(h) This subsection applies to public work contracts of less than two
hundred fifty thousand dollars ($250,000). The board may waive the
performance bond requirement of subsection (e) and accept from a
contractor an irrevocable letter of credit for an equivalent amount from
an Indiana financial institution approved by the department of financial
institutions instead of a performance bond. Subsections (e) through (g)
apply to a letter of credit submitted under this subsection.
(i) This subsection applies to the Indiana stadium and convention
building authority created by IC 5-1-17-6. The board awarding the
contract for a capital improvement project may waive any
performance bond requirement if the board, after public notice
and hearing, determines:
(1) that:
(A) an otherwise responsive and responsible bidder is unable
to provide the performance bond; or
(B) the cost or coverage of the performance bond is not in the
best interest of the project; and
(2) that an adequate alternative is provided through a letter of
credit, additional retainage of at least ten percent (10%) of the
contract amount, a joint payable check system, or other
sufficient protective mechanism.
____________________________ ____________________________
Senator KenleyRepresentative Espich
Chairperson
____________________________ ____________________________
Senator HumeRepresentative Crawford
Senate Conferees House Conferees