(A) Establishment. The Pendleton Town Council hereby establishes, by ordinance, a public-private agreement policy and adopts by incorporation the provisions of IC 5-23. The purpose of this policy is to authorize and provide for the regulation of build-operate-transfer agreements and operating agreements in a manner consistent with the provisions of IC 5-23.
(B) Definitions. The following definitions shall apply throughout this policy:
"BOT AGREEMENT." Any agreement between the Town of Pendleton and an operator to construct, operate, and maintain a public facility and to transfer the public facility back to the Town of Pendleton at an established future date.
"CONSTRUCTION." The process of building, renovating, reconstructing, expanding, modernizing, or assembling a public work, including any material enhancements or upgrades to an existing public facility. This term does not include normal repair, operation, general maintenance, or preservation of a public work.
"COST." The cost of entering into any public-private agreement, including, without limitation, the following:
(a) The cost of acquisition and construction of any public facility or any modification, improvement, or extension of that facility.
(b) Any cost incident to the acquisition of any necessary property, easement, or right-of-way.
(c) Engineering or architectural fees, legal fees, and fiscal agents and financial advisers' fees.
(d) Any cost incurred for preliminary planning to determine the economic or engineering feasibility of a proposed public-private agreement.
(e) Costs of economic investigations and studies, surveys, preparation of designs, plans, working drawings, specifications, the inspection and supervision of the construction of any public facility, and any other cost incurred by the Town of Pendleton.
"COUNCIL." Refers to the Pendleton Town Council.
"OPERATING AGREEMENT." An agreement between an operator and the Council for the operation, maintenance, repair, or management of a public facility.
“OPERATOR.” A person who has entered into either an operating agreement or a BOT agreement with the town to provide services to or on behalf of the town.
"ORIGINAL TERM." The initial term of a public-private agreement. The term includes all automatic renewals and automatic extensions of a public-private agreement.
"PERSON." An association, a corporation, a limited liability company, a fiduciary, an individual, a joint stock company, a joint venture, a partnership, a sole proprietorship, or any other private legal entity.
"PUBLIC FACILITY." A facility located on, or to be located on, real property owned or leased by the town and upon which a public service is or may be provided.
"PUBLIC-PRIVATE AGREEMENT." A BOT agreement or an operating agreement.
"PUBLIC WORK." Any public building, highway, street, alley, bridge, sewer, drain, or any other public facility that is paid for out of public funds.
"TOWN." The Town of Pendleton, Madison County, Indiana.
(C) Authority. The Council may enter into an agreement with an operator for the acquisition, planning, design, development, reconstruction, repair, maintenance, or financing of any public facility on behalf of the town.
(D) Prohibited persons. A person may not be awarded a contract under this policy if the person is or would be disqualified from being awarded a contract, including contracts for professional services, for dealing with the Government of Iran, pursuant to IC 5-22-16.5.
(E) BOT agreement.
(1) Discretionary terms. A BOT agreement may provide the following:
(a) The design, construction, operation, management, maintenance, or financing of the cost of a public facility shall be partially or entirely the responsibility of the operator.
(b) The town may lease the public facility and real property owned by the town upon which the public facility is to be located to the operator for a predetermined period. Except as provided in this section, the BOT agreement must provide for ownership of all improvements by the town, unless the town elects to provide for ownership of the public facility by the operator during the term of the BOT agreement. In this case, ownership reverts back to the town upon the termination of the BOT agreement.
(c) The operator may be authorized to retain a mutually agreed upon percentage of the revenues received in the operation and management of the public facility, or the operator may be paid an amount established by the court which shall be applied as follows:
1. Capital outlay costs for the public facility and public service plus interest and principal repayment for any debt incurred.
2. Costs associated with the operation, management, and maintenance of the public facility.
3. Payment to the town for reimbursement of the costs of maintenance, law enforcement, and other services if the services are performed by the town under the BOT agreement.
4. An agreed upon return on investment to the operator.
(d) The operator may pay the town either a lease payment or a percentage of gross revenue per month for the operator's operation and use of the public facility.
(2) Mandatory terms. The BOT agreement must provide for the following:
(a) The identification of which costs are to be the responsibility of the operator and which costs are to be the responsibility of the town.
(b) The payment of contractors and subcontractors under IC 36-1-12.
(c) Provisions for payment and performance bonds as follows:
1. For a payment bond, an amount not less than 100% of the cost to design and construct the public facility.
2. For a performance bond, an amount not less than 50% of the cost to design and construct the public facility.
(3) Applicable laws. If the town enters into a BOT agreement that involves the construction of a public facility with public funds under policy, the construction of that public facility is subject to provisions of IC 36-1-12 regarding public works projects.
(F) Operating agreements. The town may enter into an operating agreement with an operator for the operation, maintenance, repair, management, or any combination of operation, maintenance, repair, or management of any public facility for any public service to be performed on behalf of the town.
(G) Request for information.
(1) Purpose. The Council may issue a request for information to consider the factors involved in, the feasibility of, or the potential consequences of a contemplated project involving a public facility, to prepare a request for proposals, and to evaluate any aspect of an existing public-private agreement and an associated public facility. The Council is not required to take any action after receiving a response to a request for information.
(2) Public notice of request for information. If the Council issues a request for information, public notice of the request shall be given in accordance with IC 5-3-1.
(3) Confidentiality of responses; waiver. A response to a request for information is confidential unless the person who submits the response waives its confidentially in writing. The identity of the person submitting the response is a public record.
(H) Selection of contractor by request for proposals.
(1) Advisory Committee. The Council shall appoint a Public-Private Agreement Advisory Committee ("Committee").
(2) Request for proposals. The Council will request proposals for any public-private agreement under this policy. Notice of the request for proposals will be given by publication in accordance with IC 5-3-1. Requests for proposals must include the following:
(a) The factors or criteria that will be used in evaluating the proposals.
(b) A statement concerning the relative importance of price and the other evaluation factors.
(c) A statement concerning whether the proposal must be accompanied by a certified check or other evidence of financial responsibility.
(d) A statement concerning whether discussions may be conducted with the offerors for the purpose of clarification to assume full understanding of and responsiveness to the solicitation requirements.
(3) Committee discussions with offerors. All eligible offerors will be accorded fair and equal treatment with respect to any opportunity for discussion and revisions of proposals. The Committee reserves the right to refuse to disclose the contents of proposals during discussions with eligible offerors.
(4) Negotiations. The Committee will negotiate the best and final offers of responsible offerors who submit proposals that are determined, by the Committee, to be reasonably susceptible of being selected for a public-private agreement.
(5) Recommendation to award agreement. After negotiations, the Committee will either make a recommendation, to the Council, to award the public-private agreement to an offeror or offerors or will terminate the request for proposals process. Any recommendation shall be in writing and explain the basis upon which the recommendation is being made. This recommendation shall be delivered to the Council and made available to the public at least seven days before Council conducts a public hearing on recommendation. If the request for proposal process is terminated, the Council may return the proposals to the offerors.
(6) Public hearing on Committee recommendation. If the Committee's recommendation to award the public-private agreement is made to the Council, the Council shall conduct a public hearing on the recommendation. The Council shall publish notice of the hearing one time at least seven days before the hearing. This public notice must be in accordance with IC 5-3-1, and state the following information:
(a) The date, time, and place of the hearing.
(b) The subject matter of the hearing.
(c) A description of the public-private agreement to be awarded.
(d) The Committee's recommendation that has been made to award the public-private agreement to an identified offeror or offerors.
(e) The address and telephone number of the Council.
(f) A statement indicating that the proposals and an explanation of the basis upon which the recommendation is being made are available for public inspection and copying at the principal office of the Council during regular business hours.
(7) Determination by Council. Following the public hearing, the Council shall make a determination as to the most appropriate response to the request for proposals and may award the public-private agreement to the successful offeror or offerors.
(I) Contract terms and conditions.
(1) Original term. The town may enter into a public-private agreement for an original term not to exceed five years with Council approval. Any public-private agreement with an original term in excess of five years must be approved by the Council, and, if the State of Indiana is a party to the agreement, the Governor of the State of Indiana.
(2) Termination by Council. A public-private agreement may be terminated by the Council in conformity with the terms of the public-private agreement. The agreement may provide for the payment of money to either party if the agreement is terminated. The payment may be used in the form of liquidated damages to compensate the operator for demonstrated unamortized costs, to retire or refinance indebtedness created to improve or construct assets owned by the town, or for any other purpose mutually agreeable to the operator and the town.
(J) Records. The records of an operator that is a party to a public-private agreement are subject to inspection and copying to the same extent the records would be subject to inspection and copying if the operator were a public agency. This section is limited to records directly relating to the public-private agreements. Records that are provided by an operator to the town that relate to compliance by the operator with the terms of a public private agreement are subject to inspection and copying.
(Ord. 22-22, passed 5-12-22)