Citations Affected: IC 5-1-17-9.5; IC 5-1-17-18.5; IC 34-30-2-8.5; IC 36-1-12-13.1;
IC 36-1-12-14; IC 36-7-31-14.1.
Synopsis: Stadium funding and contracts. Provides immunity from personal liability and
accountability to the members, executive director, officers, and employees of the Indiana stadium
and convention building (ISCB) authority for acts authorized by the ISCB authority's enabling
statute. Provides conditions under which the ISCB authority may negotiate with a single bidder.
Permits the ISCB authority to waive payment bond and performance bond requirements for
contracts for capital improvement projects under certain conditions if an adequate alternative is
provided. Provides for the termination of the annual capture of $11,000,000 of state revenue for
use to pay obligations owed by the Marion County capital improvement board to the Indiana
stadium and convention building authority or a state agency. Provides that after January 1, 2010,
the annual capture terminates in the year following the first year when none of the obligations
remain outstanding. (This conference committee report inserts the language concerning
waiver of payment bond and performance bond requirements under certain conditions if
an adequate alternative is provided.)
Effective: Upon passage; May 15, 2005 (retroactive); July 1, 2006.
MADAM PRESIDENT:
Your Conference Committee appointed to confer with a like committee from the House
upon Engrossed House Amendments to Engrossed Senate Bill No. 259 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the Senate recede from its dissent from all House amendments and that
the Senate now concur in all House amendments to the bill and that the bill
be further amended as follows:
Delete everything after the enacting clause and insert the following:
rebidding:
(1) is not practicable or advantageous; or
(2) would adversely affect the construction schedule or budget
of the project.
(c) The board shall prepare a bid file containing the following
information:
(1) A copy of all documents that are included as part of the
invitation for bids.
(2) A list of all persons to whom copies of the invitation for bids
were given, including the following information:
(A) The name and address of each person who received an
invitation for bids.
(B) The name of each bidder who responded and the dollar
amount of the bid.
(C) A summary of the bid received.
(3) The basis on which the bid was accepted.
(4) Documentation of the board's negotiating process with the
bidder. The documentation must include the following:
(A) A log of the dates and times of each meeting with the
bidder.
(B) A description of the nature of all communications with
the bidder.
(C) A copy of all written communications, including
electronic communications, with the bidder.
(5) The entire contents of the contract file except for
proprietary information included with the bid, such as trade
secrets, manufacturing processes, and financial information
that was not required to be made available for public
inspection by the terms of the invitation for bids.
other lease-back arrangement containing an option to purchase,
notwithstanding the statutory provisions governing those leases.
(b) A board that enters into a contract for public work, and a
contractor who subcontracts parts of that contract, shall include in their
respective contracts provisions for the retainage of portions of payments
by the board to contractors, by contractors to subcontractors, and for the
payment of subcontractors. At the discretion of the contractor, the
retainage shall be held by the board or shall be placed in an escrow
account with a bank, savings and loan institution, or the state as the
escrow agent. The escrow agent shall be selected by mutual agreement
between board and contractor or contractor and subcontractor under a
written agreement among the bank or savings and loan institution and:
(1) the board and the contractor; or
(2) the subcontractor and the contractor.
The board shall not be required to pay interest on the amounts of
retainage that it holds under this section.
(c) To determine the amount of retainage to be withheld, the board
shall:
(1) withhold no more than ten percent (10%) of the dollar value of
all work satisfactorily completed until the public work is fifty
percent (50%) completed, and nothing further after that; or
(2) withhold no more than five percent (5%) of the dollar value of
all work satisfactorily completed until the public work is
substantially completed.
If upon substantial completion of the public work minor items remain
uncompleted, an amount computed under subsection (f) of this section
shall be withheld until those items are completed.
(d) The escrow agreement must contain the following provisions:
(1) The escrow agent shall invest all escrowed principal in
obligations selected by the escrow agent.
(2) The escrow agent shall hold the escrowed principal and income
until receipt of notice from the board and the contractor, or the
contractor and the subcontractor, specifying the part of the
escrowed principal to be released from the escrow and the person
to whom that portion is to be released. After receipt of the notice,
the escrow agent shall remit the designated part of escrowed
principal and the same proportion of then escrowed income to the
person specified in the notice.
(3) The escrow agent shall be compensated for the agent's services.
The parties may agree on a reasonable fee comparable with fees
being charged for the handling of escrow accounts of similar size
and duration. The fee shall be paid from the escrowed income.
The escrow agreement may include other terms and conditions
consistent with this subsection, including provisions authorizing the
escrow agent to commingle the escrowed funds with funds held in other
escrow accounts and limiting the liability of the escrow agent.
(e) Except as provided by subsection (i), the contractor shall
furnish the board with a performance bond equal to the contract price.
If acceptable to the board, the performance bond may provide for
incremental bonding in the form of multiple or chronological bonds that,
when taken as a whole, equal the contract price. The surety on the
performance bond may not be released until one (1) year after the date
of the board's final settlement with the contractor. The performance
bond must specify that:
(1) a modification, omission, or addition to the terms and
conditions of the public work contract, plans, specifications,
drawings, or profile;
(2) a defect in the public work contract; or
(3) a defect in the proceedings preliminary to the letting and
awarding of the public work contract;
does not discharge the surety.
(f) The board or escrow agent shall pay the contractor within
sixty-one (61) days after the date of substantial completion, subject to
sections 11 and 12 of this chapter. Payment by the escrow agent shall
include all escrowed principal and escrowed income. If within sixty-one
(61) days after the date of substantial completion there remain
uncompleted minor items, an amount equal to two hundred percent
(200%) of the value of each item as determined by the
architect-engineer shall be withheld until the item is completed.
Required warranties begin not later than the date of substantial
completion.
(g) Actions against a surety on a performance bond must be brought
within one (1) year after the date of the board's final settlement with the
contractor.
(h) This subsection applies to public work contracts of less than two
hundred fifty thousand dollars ($250,000). The board may waive the
performance bond requirement of subsection (e) and accept from a
contractor an irrevocable letter of credit for an equivalent amount from
an Indiana financial institution approved by the department of financial
institutions instead of a performance bond. Subsections (e) through (g)
apply to a letter of credit submitted under this subsection.
(i) This subsection applies to the Indiana stadium and convention
building authority created by IC 5-1-17-6. The board awarding the
contract for a capital improvement project may waive any
performance bond requirement if the board, after public notice
and hearing, determines:
(1) that:
(A) an otherwise responsive and responsible bidder is unable
to provide the performance bond; or
(B) the cost or coverage of the performance bond is not in the
best interest of the project; and
(2) that an adequate alternative is provided through a letter of
credit, additional retainage of at least ten percent (10%) of the
contract amount, a joint payable check system, or other
sufficient protective mechanism.
appointed under IC 4-12-1-3 may determine that, commencing July 1,
2007, there may be captured in the tax area up to eleven million dollars
($11,000,000) per year in addition to the up to five million dollars
($5,000,000) of state revenue to be captured by the tax area under
section 14 of this chapter, for up to thirty-four (34) consecutive years.
The budget director's determination must specify that the termination
date of the tax area for purposes of the collection of the additional
eleven million dollars ($11,000,000) per year is extended to not later
than:
(1) January 1, 2041; or
(2) January 1, 2010, if on that date there are no obligations owed
by the capital improvement board of managers to the Indiana
stadium and convention building authority or to any state agency
under IC 5-1-17-26.
Following the budget director's determination, and commencing July 1,
2007, the maximum total amount of revenue captured by the tax area
for years ending before January 1, 2041, shall be sixteen million dollars
($16,000,000) per year.
(b) The additional revenue captured pursuant to a determination under
subsection (a) shall be distributed to the capital improvement board or
its designee. So long as there are any current or future obligations owed
by the capital improvement board to the Indiana stadium and
convention building authority created by IC 5-1-17 or any state agency
under a lease or another agreement entered into between the capital
improvement board and the Indiana stadium and convention building
authority or any state agency under IC 5-1-17-26, the capital
improvement board or its designee shall deposit the additional revenue
received under this subsection in a special fund, which may be used only
for the payment of the obligations described in this subsection.
(c) Notwithstanding the budget director's determination under
subsection (a), after January 1, 2010, the capture of the additional
eleven million dollars ($11,000,000) per year described in
subsection (a) terminates on January 1 of the year following the
first year in which no obligations of the capital improvement board
described in subsection (b) remain outstanding.
____________________________ ____________________________
Senator KenleyRepresentative Espich
Chairperson
____________________________ ____________________________
Senator HumeRepresentative Crawford
Senate Conferees House Conferees