SB 473-1_ Filed 04/28/2011, 14:51
Adopted 4/28/2011

CONFERENCE COMMITTEE REPORT

DIGEST FOR ESB 473



Citations Affected: IC 8-15; IC 8-15.5; IC 8-15.7; IC 8-23-7; IC 9-18-2-17; IC 9-21-3.5.

Synopsis: Various transportation matters. CONFERENCE COMMITTEE REPORT TO ESB 473. Requires the general assembly to enact a statute to authorize : (1) imposing tolls as part of a public-private agreement, on an existing highway, or on I-69; or (2) constructing part of I-69. Provides that, beginning July 1, 2011, and ending June 30, 2021, legislative approval is not required to impose tolls on certain projects. Provides that a public-private agreement entered into after June 30, 2011, must contain certain provisions concerning methodologies used to fix user fees or tolls. Requires the budget committee to meet within 90 days and conduct a review of any project that includes tolls. Provides that the common construction wage applies to projects that are subjects of public-private agreements entered into after April 30, 2011. Provides that the owner of a motor vehicle that passes through a toll collection facility without paying the proper toll commits a moving violation, a Class C infraction. Establishes procedures for the collections of unpaid fines for these moving violations. (This conference committee report does the following: (1) Deletes provisions allowing tolls to be imposed without general assembly recognition on I-69 between I-64 and Martinsville. (2) Amends language concerning new projects for purposes of allowing tolling without general assembly recognition. (3) Provides that general assembly recognition is required to impose tolls on: (A) nontolled highways in existence or under construction on July 1, 2011, including interstate highways, U.S. routes, and state routes; and (B) I-69. (4) Makes a technical correction in provisions concerning methodologies to be used when calculating increases or decreases in user fees.)

Effective: Upon passage; July 1, 2011.



Text Box

Adopted Rejected


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CONFERENCE COMMITTEE REPORT

MR. SPEAKER:
    Your Conference Committee appointed to confer with a like committee from the Senate upon Engrossed House Amendments to Engrossed Senate Bill No. 473 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:

SOURCE: IC 8-15-2-1; (11)CC047302.1. -->     SECTION 1. IC 8-15-2-1, AS AMENDED BY P.L.1-2007, SECTION 80, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1. (a) In order to remove the handicaps and hazards on the congested highways in Indiana, to facilitate vehicular traffic throughout the state, to promote the agricultural and industrial development of the state, and to provide for the general welfare by the construction of modern express highways embodying safety devices, including center division, ample shoulder widths, long sight distances, multiple lanes in each direction, and grade separations at intersections with other highways and railroads, the authority may:
        (1) subject to subsection (d), construct, reconstruct, maintain, repair, and operate toll road projects at such locations as shall be approved by the governor;
        (2) in accordance with such alignment and design standards as shall be approved by the authority and subject to IC 8-9.5-8-10, issue toll road revenue bonds of the state payable solely from funds pledged for their payment, as authorized by this chapter, to pay the cost of such projects;
        (3) finance, develop, construct, reconstruct, improve, or maintain improvements for manufacturing, commercial, or public transportation activities within a county through which a toll road

passes;
        (4) in cooperation with the Indiana department of transportation or a political subdivision, construct, reconstruct, or finance the construction or reconstruction of an arterial highway or an arterial street that is located within a county through which a toll road passes and that:
            (A) interchanges with a toll road project; or
            (B) intersects with a road or a street that interchanges with a toll road project;
        (5) finance improvements necessary for developing transportation corridors in northwestern Indiana; and
        (6) exercise these powers in participation with any governmental entity or with any individual, partnership, limited liability company, or corporation.
    (b) Notwithstanding subsection (a), the authority shall not construct, maintain, operate, nor contract for the construction, maintenance, or operation of transient lodging facilities on, or adjacent to, such toll road projects.
    (c) This chapter:
        (1) applies to the authority only when acting for the purposes set forth in this chapter; and
        (2) does not apply to the authority when acting under any other statute for any other purpose.
    (d) Notwithstanding any other law, neither Before the authority nor or an operator selected under IC 8-15.5 may carry out any of the following activities under this chapter, unless the general assembly enacts must enact a statute authorizing that activity:
        (1) Carrying out construction for Interstate Highway 69 in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousand five hundred (93,500).
        (2) Imposing tolls on motor vehicles for use of the part of an interstate highway that connects a consolidated city and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740). Interstate Highway 69.
        (3) Imposing tolls on motor vehicles for use of a nontolled highway, roadway, or other facility in existence or under construction on July 1, 2011, including nontolled interstate highways, U.S. routes, and state routes.

SOURCE: IC 8-15-3-7; (11)CC047302.2. -->     SECTION 2. IC 8-15-3-7, AS AMENDED BY P.L.85-2010, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 7. As used in this chapter, "tollway" includes: any combination or part of:
        (1) an express highway, limited access facility, superhighway, bridge, tunnel, or motor way, including express lanes and managed lanes, constructed under this chapter or IC 8-15.7 or, subject to section 10 of this chapter, converted to a tollway under IC 8-23-7-22;
        (2) any bridge, tunnel, overpass, underpass, interchange, structure, ramp, access road, service road, entrance plaza,

approach, tollhouse, utility corridor, toll gantry, rest stop, service station, or administration, storage, or other buildings or facilities, including temporary facilities and buildings, facilities, and structures that will not be tolled, that the department considers appurtenant to or necessary or desirable for the financing, construction, operation, or maintenance of one (1) or more of the items described in subdivision (1);
        (3) any subsequent improvement, betterment, enlargement, extension, or reconstruction of one (1) or more items described in this section, including any nontolled part, that are separately designated by name or number; and
        (4) a project connecting the state of Indiana with an adjacent state; or
        (5) any combination of items or projects described in subdivisions (1) through (4).

SOURCE: IC 8-15-3-9; (11)CC047302.3. -->     SECTION 3. IC 8-15-3-9, AS AMENDED BY P.L.85-2010, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 9. (a) Subject to subsection (e), the governor must approve the location of any tollway.
    (b) The department may, in any combination, plan, design, develop, construct, reconstruct, maintain, repair, police, finance, and operate tollways, public improvements, and arterial streets and roads at those locations that the governor approves.
    (c) The department may, in any combination, plan, design, develop, construct, reconstruct, improve, finance, operate, repair, or maintain public improvements such as roads and streets, sewer lines, water lines, and other utilities if these improvements are:
        (1) adjacent or appurtenant to a tollway; or
        (2) necessary or desirable for the financing, construction, operation, or maintenance of a tollway.
    (d) The department may, in any combination, plan, design, develop, construct, reconstruct, improve, maintain, repair, operate, or finance the construction or reconstruction of an arterial highway or an arterial street that:
        (1) is adjacent to, appurtenant to, or interchanges with a tollway; or
        (2) intersects with a road or street that interchanges with a tollway.
    (e) Notwithstanding any other law, Before the governor, the department, or an operator may not carry out any of the following activities under this chapter, unless the general assembly enacts must enact a statute authorizing that activity:
        (1) Approve the location of a tollway other than
            (A) Interstate Highway 69 between Interstate Highway 64 and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740);
            (B) the Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois; or
            (C) a project that is located within a metropolitan planning

area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky. a tollway that is approved before July 1, 2011.
        (2) Carry out construction for Interstate Highway 69 in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousand five hundred (93,500).
        (3) Impose tolls on motor vehicles for use of the part of an interstate highway that connects a consolidated city and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740). Interstate Highway 69.
    (f) Notwithstanding subsection (e), during the period beginning July 1, 2011, and ending June 30, 2021, the general assembly is not required to enact a statute authorizing the governor, the department, or an operator to approve the location of a tollway with respect to the following projects:
        (1) A project on which construction begins after June 30, 2011, not including any part of Interstate Highway 69 other than a part described in subdivision (4).
        (2) The addition of toll lanes, including high occupancy toll lanes, to a highway, roadway, or other facility in existence on July 1, 2011, if the number of nontolled lanes on the highway, roadway, or facility as of July 1, 2011, does not decrease due to the addition of the toll lanes.
        (3) The Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois.
        (4) A project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky.

SOURCE: IC 8-15.5-1-2; (11)CC047302.4. -->     SECTION 4. IC 8-15.5-1-2, AS AMENDED BY P.L.85-2010, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 2. (a) This article contains full and complete authority for public-private agreements between the authority and a private entity. Except as provided in this article, no law, procedure, proceeding, publication, notice, consent, approval, order, or act by the authority or any other officer, department, agency, or instrumentality of the state or any political subdivision is required for the authority to enter into a public-private agreement with a private entity under this article, or for a toll road project that is the subject of a public-private agreement to be constructed, acquired, maintained, repaired, operated, financed, transferred, or conveyed.
    (b) This subsection does not apply to a project for the construction of the Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois or a project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky. Notwithstanding any other law, after August 1, 2006, neither Before the authority nor or the department may (1) issue a request for proposals for or (2) enter into a public-private agreement under this article that would authorize an

operator to impose tolls for the operation of motor vehicles on all or part of a project, unless the general assembly adopts must adopt a statute authorizing the imposition of tolls. However, during the period beginning July 1, 2011, and ending June 30, 2021, and notwithstanding subsection (c), the general assembly is not required to enact a statute authorizing the authority or the department to issue a request for proposals or enter into a public-private agreement to authorize an operator to impose tolls for the operation of motor vehicles on all or part of the following projects:
        (1) A project on which construction begins after June 30, 2011, not including any part of Interstate Highway 69 other than a part described in subdivision (4).
        (2) The addition of toll lanes, including high occupancy toll lanes, to a highway, roadway, or other facility in existence on July 1, 2011, if the number of nontolled lanes on the highway, roadway, or facility as of July 1, 2011, does not decrease due to the addition of the toll lanes.
        (3) The Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois.
        (4) A project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky.

    (c) Notwithstanding any other law, neither Before the authority nor or an operator may carry out any of the following activities under this article, unless the general assembly enacts must enact a statute authorizing that activity:
        (1) Carrying out construction for Interstate Highway 69 in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousand five hundred (93,500).
        (2) Imposing tolls on motor vehicles for use of the part of an interstate highway that connects a consolidated city and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740). Interstate Highway 69.
        (3) Imposing tolls on motor vehicles for use of a nontolled highway, roadway, or other facility in existence or under construction on July 1, 2011, including nontolled interstate highways, U.S. routes, and state routes.

SOURCE: IC 8-15.5-4-11; (11)CC047302.5. -->     SECTION 5. IC 8-15.5-4-11, AS ADDED BY P.L.47-2006, SECTION 39, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 11. (a) After the procedures required in this chapter have been completed, the authority shall make a determination as to whether the offeror that submitted the selected offer should be designated as the operator for the related toll road project and shall submit the authority's determination to the governor and the budget committee.
    (b) After review of the authority's determination by the budget committee, the governor may accept or reject the determination of the

authority. If the governor accepts the determination of the authority, the governor shall designate the offeror who submitted the selected offer as the operator for the related toll road project. The authority shall publish notice of the designation of the operator for the related toll road project one (1) time, in accordance with IC 5-3-1.
    (c) After the designation of the operator for the related toll road project, the authority may execute the public-private agreement with that operator.
     (d) The budget committee shall hold a meeting and conduct a review of the determination not later than ninety (90) days after the date the authority's determination is submitted for review.

SOURCE: IC 8-15.5-6-2; (11)CC047302.6. -->     SECTION 6. IC 8-15.5-6-2, AS AMENDED BY P.L.85-2010, SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. (a) Unless otherwise provided by federal law or this section, the operator or any contractor or subcontractor of the operator engaged in the construction of a toll road project is not required to comply with IC 4-13.6 or IC 5-16 concerning state public works, IC 5-17 concerning purchases of materials and supplies, or other statutes concerning procedures for procurement of public works or personal property as a condition of being awarded and performing work on the project.
    (b) IC 5-16-7 concerning the common construction wage applies to the following:
        (1) The
operator or any contractor or subcontractor of the operator engaged in a project for the construction of the Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois.
         (2) The operator or any contractor or subcontractor of the operator engaged in the construction of a project that is the subject of a public-private agreement entered into after April 30, 2011.
SOURCE: IC 8-15.5-7-1; (11)CC047302.7. -->     SECTION 7. IC 8-15.5-7-1, AS ADDED BY P.L.47-2006, SECTION 39, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1. (a) Notwithstanding IC 8-9.5-8 and IC 8-15-2-14(j), the authority may fix and revise the amounts of user fees that an operator may charge and collect for the use of any part of a toll road project in accordance with the public-private agreement.
    (b) In fixing the amounts referred to in subsection (a), the authority may:
        (1) establish maximum amounts for the user fees; and
        (2) subject to subsection (c), provide for increases or decreases of the user fees or the maximum amounts established based upon the indices, methodologies, or other factors that the authority considers appropriate.
    (c) For a public-private agreement entered into after June 30, 2011, the department may not use a methodology based on:
        (1) toll collection success rates; or
        (2) other factors internal to the operator;
that could result in increases of the maximum amounts due to actual toll collection rates that are below estimated or anticipated

toll collection rates.

SOURCE: IC 8-15.5-7-5; (11)CC047302.8. -->     SECTION 8. IC 8-15.5-7-5, AS ADDED BY P.L.47-2006, SECTION 39, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 5. A public-private agreement may:
        (1) grant an operator a license or franchise to charge and collect tolls for the use of the toll road project;
        (2) authorize the operator to adjust the user fees charged and collected for the use of the toll road project, so long as the amounts charged and collected by the operator do not exceed the maximum amounts established by the authority under section 1 of this chapter;
        (3) provide that any adjustment by the operator permitted under subdivision (2) may be based on such indices, methodologies, or other factors as described in the public-private agreement or section 1 of this chapter or as approved by the authority, as applicable;
        (4) authorize the operator to charge and collect user fees through manual and nonmanual methods, including, but not limited to, automatic vehicle identification systems, electronic toll collection systems, and, to the extent permitted by law, including rules adopted by the authority under IC 8-15-2-17.2(a)(10), global positioning systems and photo or video based toll collection or toll collection enforcement systems; and
        (5) authorize the collection of user fees charges by a third party.
SOURCE: IC 8-15.5-10-3; (11)CC047302.9. -->     SECTION 9. IC 8-15.5-10-3, AS ADDED BY P.L.47-2006, SECTION 39, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 3. (a) The authority may pay any amounts owed by the authority under a public-private agreement entered into under this article from any funds available to the authority under this article or any other statute.
    (b) Subject to review by the budget committee established by IC 4-12-1-3 and approval by the budget director appointed under IC 4-12-1-3, a public-private agreement entered into under this article may:
        (1) establish a procedure for the authority or a person acting on behalf of the authority to certify to the general assembly the amount needed to pay any amounts owed by the authority under a public-private agreement; or
        (2) otherwise create a moral obligation of the state to pay any amounts owed by the authority under the public-private agreement.
    (c) The authority may issue bonds under IC 4-4-11 or IC 8-15-2 to provide funds for any amounts identified under this section without complying with IC 8-9.5-8-10.
    (d) If the agreement that is submitted for review provides for any tolls, the budget committee shall hold a meeting and conduct a review of the agreement not later than ninety (90) days after the date the agreement is submitted for review.
SOURCE: IC 8-15.7-1-5; (11)CC047302.10. -->     SECTION 10. IC 8-15.7-1-5, AS AMENDED BY P.L.85-2010, SECTION 14, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 5. (a) This article contains full and complete

authority for agreements and leases with private entities to carry out the activities described in this article. Except as provided in this article, no procedure, proceeding, publication, notice, consent, approval, order, or act by the authority, the department, or any other state or local agency or official is required to enter into an agreement or lease, and no law to the contrary affects, limits, or diminishes the authority for agreements and leases with private entities, except as provided by this article.
    (b) Notwithstanding any other law, before the department, the authority, or an operator may not carry out any of the following activities under this article, unless the general assembly enacts must enact a statute authorizing that activity:
        (1) Subject to subsection (d), and after June 30, 2011, issuing a request for proposals for, or entering into, a public-private agreement concerning a project. other than:
            (A) Interstate Highway 69 between Interstate Highway 465 and Interstate Highway 64;
            (B) the Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois; or
            (C) a project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky.
        (2) Carrying out construction for Interstate Highway 69 in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousand five hundred (93,500).
        (3) Imposing user fees on motor vehicles for use of the part of an interstate highway that connects a consolidated city and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740). Interstate Highway 69.
    (c) Notwithstanding subsection (b) or any other law, the department or the authority may enter into a public-private agreement concerning a project consisting of a passenger or freight railroad system described in IC 8-15.7-2-14(a)(4). Such an agreement is subject to review and appropriation by the general assembly. However, this subsection does not prohibit the department from:
        (1) conducting preliminary studies that the department considers necessary to determine the feasibility of such a project; or
        (2) issuing a request for qualifications or a request for proposals, or both, under IC 8-15.7-4 for such a project.
     (d) Notwithstanding subsection (b), during the period beginning July 1, 2011, and ending June 30, 2021, the general assembly is not required to enact a statute authorizing the department, the authority, or an operator to issue a request for proposals for, or enter into, a public-private agreement for the following projects:
        (1) A project on which construction begins after June 30, 2011, not including any part of Interstate Highway 69 other than a part described in subdivision (4).
        (2) The addition of toll lanes, including high occupancy toll lanes, to a highway, roadway, or other facility in existence on

July 1, 2011, if the number of nontolled lanes on the highway, roadway, or facility as of July 1, 2011, does not decrease due to the addition of the toll lanes.
        (3) The Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois.
        (4) A project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky.

SOURCE: IC 8-15.7-4-1; (11)CC047302.11. -->     SECTION 11. IC 8-15.7-4-1, AS AMENDED BY P.L.85-2010, SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1. (a) The department may request proposals from private entities for all or part of the development, financing, and operation of one (1) or more projects.
    (b) If all or part of the project will consist of a tollway, the department shall take the following steps before the commencement of the procurement process under this chapter:
        (1) Except as provided by subsection (c), the department shall cause to be prepared a preliminary feasibility study and an economic impact study on that part of the project consisting of a tollway by a firm or firms internationally recognized in the preparation of studies or reports on the financial feasibility and economic impact of proposed toll road projects. Before the preparation of the preliminary feasibility study and the economic impact study, the department must conduct a public hearing on the proposed studies in the county seat of the county in which the proposed project would be located. At least ten (10) days before each public hearing, the authority shall:
            (A) post notice of the public hearing on the department's Internet web site;
            (B) publish notice of the public hearing one (1) time in accordance with IC 5-3-1 in two (2) newspapers of general circulation in the county in which the proposed project would be located; and
            (C) include in the notices under clauses (A) and (B):
                (i) the date, time, and place of the hearing;
                (ii) the subject matter of the hearing;
                (iii) a description of the purpose of the proposed preliminary feasibility study and economic impact study; and
                (iv) a description of the proposed project and its location.
        At the hearing, the department shall allow the public to be heard on the proposed studies and the proposed project.
        (2) The preliminary feasibility study must be based upon a public-private financial and project delivery structure. The economic impact study must, at a minimum, include an analysis of the following matters with respect to the proposed project:
            (A) Economic impacts on existing commercial and industrial development.
            (B) Potential impacts on employment.
            (C) Potential for future development near the project area, including consideration of locations for interchanges that will

maximize opportunities for development.
            (D) Fiscal impacts on revenues to local units of government.
            (E) Demands on government services, such as public safety, public works, education, zoning and building, and local airports.
        The department shall post copies of the preliminary feasibility study and the economic impact study on the department's Internet web site and shall also provide copies of the studies to the governor and to the legislative council (in an electronic format under IC 5-14-6).
        (3) After the completion of the preliminary feasibility study and the economic impact statement, the department shall schedule a public hearing on the proposed project and the studies in the county seat of the county that would be an affected jurisdiction for purposes of the proposed project. At least ten (10) days before the public hearing, the department shall:
            (A) post notice of the public hearing on the department's Internet web site;
            (B) publish notice of the hearing one (1) time in accordance with IC 5-3-1 in two (2) newspapers of general circulation in the county; and
            (C) include the following in the notices under clauses (A) and (B):
                (i) The date, time, and place of the hearing.
                (ii) The subject matter of the hearing.
                (iii) A description of the proposed project, its location, the part of the project consisting of a tollway, and, consistent with the assessments reached in the preliminary feasibility study, the estimated total cost of the acquisition, construction, installation, equipping, and improving of the proposed project, as well as the part of the project consisting of a tollway.
                (iv) The address and telephone number of the department.
                (v) A statement concerning the availability of the preliminary feasibility study and the economic impact study on the department's Internet web site.
        (4) At the hearing, the department shall allow the public to be heard on the proposed project, the preliminary feasibility study, and the economic impact study.
        (5) After the completion of the public hearings described in subdivision (3), the department shall submit the preliminary feasibility study and the economic impact study to the budget committee for its review before the commencement of the procurement process under this chapter. If the preliminary feasibility study or the economic impact study submitted for review provides for any tolls, the budget committee shall hold a meeting and conduct a review of the preliminary feasibility study and the economic impact study not later than ninety (90) days after the date the preliminary feasibility study and the economic impact study are submitted for review.
    (c) The following provisions apply if the department determines that

a feasibility study for the Illiana Expressway that was prepared before March 15, 2010, meets the requirements of subsection (b) concerning the preparation of a preliminary feasibility study:
        (1) The department is not required to prepare an additional preliminary feasibility study.
        (2) The requirement under subsection (b)(1) for a public hearing before preparation of a preliminary feasibility study does not apply. However, the requirement under subsection (b)(1) for a public hearing on the economic impact study does apply.
        (3) The feasibility study prepared before March 15, 2010, is considered to be the preliminary feasibility study for purposes of subsection (b)(3) through (b)(5).

SOURCE: IC 8-15.7-4-2; (11)CC047302.12. -->     SECTION 12. IC 8-15.7-4-2, AS AMENDED BY P.L.85-2010, SECTION 17, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 2. (a) This section establishes the competitive proposal procedure that the department shall use to enter into a public-private agreement with an operator under this article.
    (b) The department may pursue a competitive proposal procedure using a request for qualifications and a request for proposals process or proceed directly to a request for proposals.
    (c) If the department elects to use a request for qualifications phase, it must provide a public notice of the request for qualifications, for the period considered appropriate by the department, before the date set for receipt of submittals in response to the solicitation. The department shall provide the notice by posting in a designated public area and publication in a newspaper of general circulation, in the manner provided by IC 5-3-1. In addition, submittals in response to the solicitation may be solicited directly from potential offerors.
    (d) The department shall evaluate qualification submittals based on the requirements and evaluation criteria set forth in the request for qualifications.
    (e) If the department has undertaken a request for qualifications phase resulting in one (1) or more prequalified or shortlisted offerors, the request for proposals shall be limited to those offerors that have been prequalified or shortlisted.
    (f) If the department has not issued a request for qualifications and intends to use only a one (1) phase request for proposals procurement, the department must provide a public notice of the request for proposals for the period considered appropriate by the department, before the date set for receipt of proposals. The department shall provide the notice by posting in a designated public area and publication in a newspaper of general circulation, in the manner provided by IC 5-3-1. In addition, proposals may be solicited directly from potential offerors.
    (g) The department shall submit a draft of the request for proposals to the budget committee for its review before the issuance by the department of the request for proposals to potential offerors. The request for proposals must:
        (1) indicate in general terms the scope of work, goods, and services sought to be procured;
        (2) contain or incorporate by reference the specifications and

contractual terms and conditions applicable to the procurement and the qualifying project;
        (3) specify the factors, criteria, and other information that will be used in evaluating the proposals;
        (4) specify any requirements or goals for use of:
            (A) minority business enterprises and women's business enterprises certified under IC 4-13-16.5;
            (B) disadvantaged business enterprises under federal or state law;
            (C) businesses defined under IC 5-22-15-20.5 as Indiana businesses, to the extent permitted by applicable federal and state law and regulations; and
            (D) businesses that qualify for a small business set-aside under IC 4-13.6-2-11;
        (5) if all or part of the project will consist of a tollway, require any offeror to submit a proposal based upon that part of the project that will consist of a tollway, as set forth in the request for proposals, and permit any offeror to submit one (1) or more alternative proposals based upon the assumption that a different part or none of the project will consist of a tollway;
        (6) contain or incorporate by reference the other applicable contractual terms and conditions; and
        (7) contain or incorporate by reference any other provisions, materials, or documents that the department considers appropriate.
If the draft of the request for proposals submitted for review provides for any tolls, the budget committee shall hold a meeting and conduct a review of the draft of the request for proposals not later than ninety (90) days after the date the draft request for proposals is submitted for review.
    (h) The department shall determine the evaluation criteria that are appropriate for each project and shall set those criteria forth in the request for proposals. The department may use a selection process that results in selection of the proposal offering the best value to the public, a selection process that results in selection of the proposal offering the lowest price or cost or the highest payment to, or revenue sharing with, the department, or any other selection process that the department determines is in the best interests of the state and the public.
    (i) The department shall evaluate proposals based on the requirements and evaluation criteria set forth in the request for proposals.
    (j) The department may select one (1) or more offerors for negotiations based on the evaluation criteria set forth in the request for proposals. If the department believes that negotiations with the selected offeror or offerors are not likely to result in a public-private agreement, or, in the case of a best value selection process, no longer reflect the best value to the state and the public, the department may commence negotiations with other responsive offerors, if any, and may suspend, terminate, or continue negotiations with the original offeror or offerors. If negotiations are unsuccessful, the department shall terminate the procurement, may not award the public-private agreement, and may

commence a new procurement for a public-private agreement. If the department determines that negotiations with an offeror have been successfully completed, the department shall, subject to the other requirements of this article, award the public-private agreement to the offeror.
    (k) Before awarding a public-private agreement to an operator, the department shall schedule a public hearing on the preliminary selection of the operator and the terms of the proposed public-private agreement. The hearing shall be conducted in the county seat of the county that would be an affected jurisdiction for purposes of the proposed project. The department shall do the following:
        (1) At least ten (10) days before the public hearing, post on the department's Internet web site:
            (A) the proposal submitted by the offeror that has been preliminarily selected as the operator for the project, except for those parts of the proposal that are confidential under this article; and
            (B) the proposed public-private agreement for the project.
        (2) At least ten (10) days before the public hearing:
            (A) post notice of the public hearing on the department's Internet web site; and
            (B) publish notice of the hearing one (1) time in accordance with IC 5-3-1 in two (2) newspapers of general circulation in the county that would be an affected jurisdiction for purposes of the proposed project.
        (3) Include the following in the notices required by subdivision (2):
            (A) The date, time, and place of the hearing.
            (B) The subject matter of the hearing.
            (C) A description of the agreement to be awarded.
            (D) The recommendation that has been made to award the agreement to an identified offeror or offerors.
            (E) The address and telephone number of the department.
            (F) A statement indicating that, subject to section 6 of this chapter, and except for those portions that are confidential under IC 5-14-3, the following are available on the department's Internet web site and are also available for public inspection and copying at the principal office of the department during regular business hours:
                (i) The selected offer.
                (ii) An explanation of the basis upon which the preliminary selection was made.
                (iii) The proposed public-private agreement for the project.
    (l) At the hearing, the department shall allow the public to be heard on the preliminary selection of the operator and the terms of the proposed public-private agreement.
    (m) When the terms and conditions of multiple awards are specified in the request for proposals, awards may be made to more than one (1) offeror.

SOURCE: IC 8-15.7-4-3; (11)CC047302.13. -->     SECTION 13. IC 8-15.7-4-3, AS ADDED BY P.L.47-2006, SECTION 40, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE

JULY 1, 2011]: Sec. 3. (a) After the procedures required in this chapter have been completed, the department shall make a determination as to whether the successful offeror should be designated as the operator for the project and shall submit its decision to the governor and the budget committee.
    (b) After review of the department's determination by the budget committee, the governor may accept or reject the determination of the department. If the governor accepts the determination of the department, the governor shall designate the successful offeror as the operator for the project. The department shall publish notice of the designation of the operator one (1) time, in accordance with IC 5-3-1.
    (c) After the designation of the successful offeror as the operator for the project, the department may execute the public-private agreement.
    (d) An action to contest the validity of a public-private agreement entered into under this chapter may not be brought after the fifteenth day following the publication of the notice of the designation of the operator under the public-private agreement under subsection (b).
     (e) If the department's determination submitted for review provides for any tolls, the budget committee shall hold a meeting and conduct a review of the determination not later than ninety (90) days after the date the determination is submitted for review.

SOURCE: IC 8-15.7-5-2; (11)CC047302.14. -->     SECTION 14. IC 8-15.7-5-2, AS ADDED BY P.L.47-2006, SECTION 40, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 2. (a) The department may fix and revise the amounts of user fees that an operator may charge and collect for the use of any part of a qualifying project in accordance with the public-private agreement. In fixing these amounts, the department may:
        (1) establish maximum amounts for the user fees; and
        (2) subject to subsection (b), provide for increases or decreases of the maximum amounts based upon the indices, methodologies, or other factors that the department considers appropriate.
    (b) For a public-private agreement entered into after June 30, 2011, the department may not use a methodology based on:
        (1) toll collection success rates; or
        (2) other factors internal to the operator;
that could result in increases of the maximum amounts due to actual toll collection rates that are below estimated or anticipated toll collection rates.

    (b) (c) User fees established by the department for the use of a qualifying project must be nondiscriminatory and may:
        (1) include different user fees based on categories such as vehicle class, vehicle size, vehicle axles, vehicle weight, volume, location, traffic congestion, or other means or classification that the department determines to be appropriate;
        (2) vary by time of day or year; and
        (3) be based on one (1) or more factors considered relevant by the department, which may include any combination of:
            (A) lease payments;
            (B) financing costs and charges;
            (C) debt repayment, including principal and interest;
            (D) costs of development;
            (E) costs of operation;
            (F) working capital;
            (G) reserves;
            (H) depreciation;
            (I) compensation to the operator;
            (J) compensation to the department; and
            (K) other costs, expenses, and factors set forth in the public-private agreement or otherwise considered appropriate by the department.
    (c) (d) A public-private agreement may:
        (1) authorize the operator to adjust the user fees for the use of the qualifying project, so long as the amounts charged and collected by the operator do not exceed the maximum amounts established by the department under this chapter;
        (2) provide that any adjustment by the operator permitted under subdivision (1) may be based on indices, methodologies, or other factors described in the public-private agreement or approved by the department; subsection (a) or (b), as applicable;
        (3) authorize the operator to charge and collect user fees through manual and nonmanual methods, including, but not limited to, automatic vehicle identification systems, electronic toll collection systems, and, to the extent permitted by law, including rules adopted by the department, global positioning systems and photo or video based toll collection enforcement systems; and
        (4) authorize the collection of user fees by a third party.
    (d) (e) A schedule of the current user fees shall be made available by the operator to any member of the public on request. User fees and the setting of user fee rates are not subject to supervision or regulation by any other commission, board, bureau, or agency of the state or any municipality, except to the extent set forth in the public-private agreement.
    (e) (f) Any action to contest the validity of user fees fixed under this
chapter may not be brought after the fifteenth day following the effective date of a rule fixing the user fees.
SOURCE: IC 8-15.7-6-2; (11)CC047302.15. -->     SECTION 15. IC 8-15.7-6-2, AS AMENDED BY P.L.85-2010, SECTION 19, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. (a) Unless otherwise provided by federal law or this section, the operator or any contractor or subcontractor of the operator engaged in the construction of a project is not required to comply with IC 4-13.6 or IC 5-16 concerning state public works, IC 5-17 concerning purchases of materials and supplies, or other statutes concerning procedures for procurement of public works or personal property as a condition of being awarded and performing work on the project.
    (b) IC 5-16-7 concerning the common construction wage applies to the following:
        (1) The
operator or any contractor or subcontractor of the operator engaged in a project for the construction of the Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois.
         (2) The operator or any contractor or subcontractor of the operator engaged in the construction of a project that is the subject of a public-private agreement entered into after April 30, 2011.
SOURCE: IC 8-15.7-8-6; (11)CC047302.16. -->     SECTION 16. IC 8-15.7-8-6, AS ADDED BY P.L.47-2006, SECTION 40, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 6. (a) For the purpose of financing a qualifying project, the authority may enter into agreements, leases, or subleases with the department or an operator, or both, and do the following:
        (1) Issue bonds, debt, or other obligations under IC 4-4-11, IC 8-15-2, or IC 8-15.7-9.
        (2) Enter into loan agreements or other credit facilities.
        (3) Secure any financing with a pledge of, security interest in, or lien on all or part of a property subject to the agreement, including all of the party's property interests in the qualifying project.
        (4) Subject to review by the budget committee established in IC 4-12-1-3 and approval by the budget director appointed under IC 4-12-1-3:
            (A) establish a procedure for the authority or a person acting on behalf of the authority to certify to the general assembly the amount needed to pay costs incurred under a public-private agreement; or
            (B) otherwise create a moral obligation of the state to pay all or part of any costs incurred by the authority under a public-private agreement.
    (b) The department and an operator may transfer any interest in property that the department or operator has to the authority to secure the financing.
    (c) If items submitted for review under subsection (a)(4) provide for any tolls, the budget committee shall hold a meeting and conduct a review of the items not later than ninety (90) days after the date the items are submitted for review.
SOURCE: IC 8-23-7-22; (11)CC047302.17. -->     SECTION 17. IC 8-23-7-22, AS AMENDED BY P.L.85-2010, SECTION 24, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 22. (a) Subject to subsection (b), the department may, after issuing an order and receiving the governor's approval, determine that a state highway should become a tollway. After the order becomes effective, the department shall maintain and operate the tollway and levy and collect tolls as provided in IC 8-15-3 or enter into a public-private agreement with an operator with respect to the tollway under IC 8-15.7. Before issuing an order under this section, the department shall submit to the governor a plan to bring the tollway to the current design standards of the department for new state highways within a specified period. The specified period may not exceed five (5) years.
    (b) Notwithstanding any other law, Before the governor, the department, or an operator may not carry out any of the following activities under this section, unless the general assembly enacts must enact a statute authorizing that activity:
        (1) Determine that a highway other than:
            (A) Interstate Highway 69 between Interstate Highway 64 and

a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740);
            (B) the Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois; or
            (C) a project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky; that is in existence or under construction on July 1, 2011,
        should become a tollway.
        (2) Carry out construction for Interstate Highway 69 in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousand five hundred (93,500).
        (3) Impose tolls on motor vehicles for use of the part of an interstate highway that connects a consolidated city and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740). Interstate Highway 69.
    (c) Notwithstanding subsection (b), during the period beginning July 1, 2011, and ending June 30, 2021, the general assembly is not required to enact a statute authorizing the governor, the department, or an operator to determine that all or part of the following projects should become a tollway:
        (1) A project on which construction begins after June 30, 2011, not including any part of Interstate Highway 69 other than a part described in subdivision (4).
        (2) The addition of toll lanes, including high occupancy toll lanes, to a highway, roadway, or other facility in existence on July 1, 2011, if the number of nontolled lanes on the highway, roadway, or facility as of July 1, 2011, does not decrease due to the addition of the toll lanes.
        (3) The Illiana Expressway, a limited access facility connecting Interstate Highway 65 in northwestern Indiana with an interstate highway in Illinois.
        (4) A project that is located within a metropolitan planning area (as defined by 23 U.S.C. 134) and that connects the state of Indiana with the commonwealth of Kentucky.

SOURCE: IC 8-23-7-23; (11)CC047302.18. -->     SECTION 18. IC 8-23-7-23, AS AMENDED BY P.L.47-2006, SECTION 42, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 23. (a) Subject to subsection (c), the department may, after issuing an order and receiving the governor's approval, determine that a state highway should become a toll road. An order under this section does not become effective unless the authority adopts a resolution to accept the designated state highway, or part of the highway, as a toll road project under the conditions contained in the order. An order issued by the department under this section must set forth the conditions upon which the transfer of the state highway, or part of the highway, to the authority must occur, including the following:
        (1) The consideration, if any, to be paid by the authority to the

department.
        (2) A requirement that the authority:
            (A) enter into a contract or lease with the department with respect to the toll road project under IC 8-9.5-8-7 or IC 8-9.5-8-8; or
            (B) enter into a public-private agreement with an operator with respect to the toll road under IC 8-15.5.
    (b) To complete a transfer under this section, the department must, with the governor's approval, execute a certificate describing the real and personal property constituting or to be transferred with the state highway that is to become a toll road project. Upon delivery of the certificate to the authority, the real and personal property described in the certificate is under the jurisdiction and control of the authority.
    (c) Notwithstanding any other law, neither Before the authority nor or an operator may carry out any of the following activities under this section, unless the general assembly enacts must enact a statute authorizing that activity:
        (1) Carrying out construction for Interstate Highway 69 in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousand five hundred (93,500).
        (2) Imposing tolls on motor vehicles for use of the part of an interstate highway that connects a consolidated city and a city having a population of more than eleven thousand five hundred (11,500) but less than eleven thousand seven hundred forty (11,740). Interstate Highway 69.
        (3) Imposing tolls on motor vehicles for use of a nontolled highway, roadway, or other facility in existence or under construction on July 1, 2011, including nontolled interstate highways, U.S. routes, and state routes.

SOURCE: IC 9-18-2-17; (11)CC047302.19. -->     SECTION 19. IC 9-18-2-17 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 17. (a) Upon receiving an application under section 16 of this chapter, the bureau shall:
        (1) file each application received; and
        (2) when satisfied:
         (1) determine:
            (A) of the genuineness and regularity of the application; and
            (B) that the person applying for registration is entitled to register the vehicle;
         (2) file the application;
        (3)
subject to subsection (b), register the vehicle described in the application; and
         (4) keep a record of the application on suitable index cards under a distinctive registration number assigned to the vehicle and in any other manner the bureau considers desirable for the convenience of the bureau.
     (b) Upon receiving notice, as described in IC 9-21-3.5-10(c), of the failure of an owner of a vehicle to pay a fine, charge, or other assessment for a toll violation documented under IC 9-21-3.5-12, the bureau shall withhold the annual registration of the vehicle that was used in the commission of the toll violation until the owner

pays the fine, charge, or other assessment, plus any applicable fees, to:
        (1) the bureau; or
        (2) the appropriate authority under IC 9-21-3.5 that is responsible for the collection of fines, charges, or other assessments for toll violations under IC 9-21-3.5.
If the owner pays the fine, charge, or assessment, plus any applicable fees, to the bureau as described in subdivision (1), the bureau shall remit the appropriate amount to the appropriate authority under IC 9-21-3.5 that is responsible for the collection of fines, charges, assessments, or fees for toll violations under IC 9-21-3.5.

SOURCE: IC 9-21-3.5-9; (11)CC047302.20. -->     SECTION 20. IC 9-21-3.5-9, AS ADDED BY P.L.47-2006, SECTION 45, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 9. (a) The owner of a motor vehicle, other than an authorized emergency vehicle, that is driven or towed through a toll collection facility on a toll road, tollway, or qualifying project shall pay the proper toll or user fee.
    (b) A person who violates subsection (a) commits a moving violation, a Class C infraction.
SOURCE: IC 9-21-3.5-10; (11)CC047302.21. -->     SECTION 21. IC 9-21-3.5-10, AS ADDED BY P.L.47-2006, SECTION 45, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 10. (a) The department or the authority may adopt and enforce rules concerning:
        (1) the placement and use of automated traffic law enforcement systems to enforce collection of user fees;
        (2) required notification in the form of a citation to owners of toll violations; the owner of a vehicle used in the commission of a moving violation under section 9 of this chapter;
        (3) the process for notification, collection, and enforcement of unpaid amounts;
        (4) the amount of fines, charges, and assessments for toll violations, including, with respect to amounts unpaid by violators who are not subject to IC 9-18-2-17(b):
            (A) contracting with a collection agency; and
            (B) authorizing the collection agency in the contract for collection services to impose on and collect from the violator an additional collection fee;
and
        (5) other matters relating to automated traffic law enforcement systems that the department or the authority considers appropriate.
     (b) A rule adopted under subsection (a)(2) must establish:
        (1) a deadline for the department, authority, or operator, as applicable, to issue a citation to an owner of a vehicle used in the commission of a moving violation under section 9 of this chapter; and
        (2) a deadline, not to exceed thirty (30) days following receipt of the citation as determined under section 12(b)(1) of this chapter, for the owner to pay a fine, charge, or other assessment for the toll violation.
    (c) The department shall establish a process by which the

department, authority, or operator, as applicable, shall notify the bureau of an owner's failure to pay a fine, charge, or other assessment for a toll violation following the expiration of the deadline described in subsection (b)(2).

SOURCE: ; (11)CC047302.22. -->     SECTION 22. An emergency is declared for this act.
    (Reference is to ESB 473 as printed April 18, 2011.)




Conference Committee Report

on

Engrossed Senate Bill 473



Text Box

S

igned by:

    ____________________________    ____________________________
    Senator WyssRepresentative Soliday
    Chairperson

    ____________________________    ____________________________
    Senator RogersRepresentative Dobis

    Senate Conferees    House Conferees


CC047302/DI 103
2011