First Regular Session 117th General Assembly (2011)
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SENATE ENROLLED ACT No. 473
AN ACT to amend the Indiana Code concerning transportation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 8-15-2-1; (11)SE0473.1.1. -->
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)SE0473.1.2. -->
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)SE0473.1.3. -->
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)SE0473.1.4. -->
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)SE0473.1.5. -->
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)SE0473.1.6. -->
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)SE0473.1.7. -->
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)SE0473.1.8. -->
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)SE0473.1.9. -->
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)SE0473.1.10. -->
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)SE0473.1.11. -->
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)SE0473.1.12. -->
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)SE0473.1.13. -->
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)SE0473.1.14. -->
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)SE0473.1.15. -->
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)SE0473.1.16. -->
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)SE0473.1.17. -->
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)SE0473.1.18. -->
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)SE0473.1.19. -->
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)SE0473.1.20. -->
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)SE0473.1.21. -->
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)SE0473.1.22. -->
SECTION 22.
An emergency is declared for this act.
SEA 473 _ CC 1
Figure
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