Section 8-15.7-5-1 - Public-private agreement by operator; provisions of agreement(a) Before beginning: (4) any combination of the development, financing, or operation; of a qualifying project, the operator must enter into a public-private agreement with the department. Subject to the other provisions of this article, the department and a private entity may enter into a public-private agreement with respect to a project. Subject to the requirements of this article, a public-private agreement may provide that the private entity, acting on behalf of the department or the authority, is partially or entirely responsible for any combination of developing, financing, or operating the qualifying project.
(b) The public-private agreement may, as determined appropriate by the department for the particular qualifying project, provide for all or part of the following: (1) Delivery of performance and payment bonds or other performance security determined suitable by the department, including letters of credit, United States bonds and notes, parent guaranties, and cash collateral, in connection with the development, financing, or operation of the qualifying project, in the forms and amounts set forth in the public-private agreement or otherwise determined as satisfactory by the department to protect the department and payment bond beneficiaries who have a direct contractual relationship with the operator or a subcontractor of the operator to supply labor or material. A payment or performance bond or alternative form of performance security required under a public-private agreement shall not be required for the part of a public-private agreement that includes only design, planning, or financing services, the performance of preliminary studies, or the acquisition of real property.(2) Review of plans for any development or operation, or both, of the qualifying project by the department.(3) Inspection of any construction of or improvements to the qualifying project by the department or another entity designated by the department or under the public-private agreement to ensure that the construction or improvements conform to the standards set forth in the public-private agreement or are otherwise acceptable to the department.(4) Maintenance of: (A) one (1) or more policies of public liability insurance (copies of which shall be filed with the department accompanied by proofs of coverage); or(B) self-insurance; each in the form and amount required by the public-private agreement or otherwise satisfactory to the department as reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying project.
(5) If operations are included within the operator's obligations under the public-private agreement, monitoring of the maintenance practices of the operator by the department or another entity designated by the department or under the public-private agreement, and the taking of the actions that the department finds appropriate to ensure that the qualifying project is properly maintained.(6) Reimbursement to be paid to the department as set forth in the public-private agreement for services provided by the department.(7) Filing of appropriate financial statements and reports as set forth in the public-private agreement or as otherwise in a form acceptable to the department on a periodic basis.(8) Compensation or payments to the operator, attorneys, bankers, financial advisors, or other professionals. Compensation or payments may include one (1) or more of the following:(A) A development fee, payable on a lump sum basis, progress payment basis, time and materials basis, or any other basis considered appropriate by the department.(B) An operations fee, payable on a lump sum basis, time and material basis, periodic basis, or any other basis considered appropriate by the department.(C) All or part of the revenues, if any, arising out of operation of the qualifying project.(D) A maximum rate of return on investment or return on equity or a combination of the two (2).(E) In kind services, materials, property, equipment, or other items.(F) Compensation in the event of any termination.(G) A cash payment to pay part of the project cost.(H) Other compensation set forth in the public-private agreement or otherwise considered appropriate by the department.(9) Compensation or payments to the department, if any. Compensation or payments may include one (1) or more of the following:(A) A concession payment, lease payment, or other fee, which may be payable in a lump sum, on a periodic basis, or on any other basis considered appropriate by the department.(B) Sharing of revenues, if any, from the operation of the qualifying project.(C) Payment for any services, materials, equipment, personnel, or other items provided by the department to the operator under the public-private agreement or in connection with the qualifying project.(D) Other compensation set forth in the public-private agreement or otherwise considered appropriate by the department.(10) The date and terms of termination of the operator's authority and duties under this article, and circumstances under which the operator's authority and duties may be terminated before that date.(11) Reversion of the qualifying project to the department at the termination or expiration of the public-private agreement.(12) Rights and remedies of the department if the operator defaults or otherwise fails to comply with the terms of the public-private agreement.(c) A public-private agreement may not provide that the state or the department is responsible for any debt incurred by an operator in connection with the delivery of a project.As added by P.L. 47-2006, SEC.40.