Modifies The Decree With Force Of Law No. 164 Of 1991, Of The Ministry Of Works Public, Over Legal Regime Works Concessions Public, And The Rules Tax Indicating


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"Article 1-Introducense the following |! |" amendments to the decree with force of law N ° 164, |! | in 1991, the Ministry of public works, in his text |! | modified by the law N ° 19.252: 1. (Modifíca_se el artículo 2°, de la siguiente forma: a) added as new, third subsection the |! | Next: "only to express the applicant's request formulated |! |" to present an initiative idea private and only |! | in large or complex technical projects or |! | with a very high initial investment, the Ministry may |! | extend for up to two years in total, the term for the |! | development of the studies of that proposition, counted |! | Since the original submission. In these cases, the |! | Ministry shall be expressly empowered to set |! | substages in those studies, the term delivery of |! | which you can reject the proposed idea or define |! | new studies. "."
(b) Consultanse paragraphs as fourth and fifth their |! | current paragraphs third and fourth, respectively, without |! | amendments.
(c) insert in its fifth paragraph, which became |! | Sixth, after the expression "not be tendered," thing |! | Next: "or if the tender convened not be |! |" perfect for lack of adjudication or any |! | otherwise, in one or two so-called "."
2. replace article 7 °, by the following: ' article 7.-the tender for the work matter of |! | " Award will be decided by evaluating bids |! | technically acceptable, according to the |! | characteristics of the works, attended one or more |! | of the following, depending on the system of |! | evaluation to the Ministerio de Obras Públicas |! | (set to the concession: to) tariff structure;
(b) concession period;
(c) grant from the State to the offeror;
(d) payments offered by the offeror to State, in the |! | case that the delivered goods or rights to be |! | used in the grant;
(e) income guaranteed by the State;
(f) degree of commitment of risk assumed by the |! | Offeror during construction or operation of the |! | work, such as unforeseeable circumstances or force majeure;
(g) adjustment of rates and its system formula |! | revision;
(h) retrieved partial or total score in the |! | technical qualification, as it set out at the bases |! | invitation to tender;
i) offer the opponent of tariff reduction to the |! | user, reduction of the period of the concession or |! | extraordinary payments to the State when the profitability |! | on the property or assets, defined this as |! | established in the bidding rules or by the |! | opponent, exceed a predetermined maximum percentage. In |! | Anyway, this offer can only be performed on those |! | tenders in which the State guaranteed income of |! | (according to the provisions of the letter e) above;
(j) additional services qualification |! | useful and necessary;
(k) environmental considerations and |! | ecological, such as for example noise, beauty |! | stage in the case of the road layout, plantation of |! | trees on public roads fasciae |! | conceded, evaluated by experts and view |! | consideration of the cost in relation to the total value |! | (deel proyecto, y l) total income from the grant calculated from |! | According to the established in the bidding rules. |!| This tender factor should be used only in the form |! | exceptional, its resolution shall be founded, and not |! | It can be used in conjunction with any of the |! | (((factors indicated in letters to), b) or i) earlier.
The definition of these factors and their form of |! | application for awarding the concession will be established |! | by the Ministry of public works on the Bases of |! | Tender. On these bases you may see one or |! | most of the factors indicated as part of the regimen |! | economic award. Similarly, in databases is |! | You must establish if the investment and construction are |! | performed in one or several stages, during the period of |! | the contract of concession, in accordance to the |! | compliance with the levels of service previously |! | established. Investments and planned constructions |! | to take place subsequent to the start of the |! | partial exploitation or total of the work, may be |! | subject to one or several instalments, or the fulfillment of a |! | or more conditions, together or separately. Deadlines |! | and conditions must be clearly determined |! | on the bases.
In any case, if in the bidding rules are |! | seen as part of the economic regime of the contract |! | (de concesión el factor contemplado en la letra d) of the |! | the first paragraph of this article, and this is not a factor |! | bidding, payments must be equivalent to the |! | economic value of the assets or rights thereto. |!| This is determined by the expertise previously |! | hired by the Ministry.
Can only be tender factor referred |! | (en la letra d) of the first paragraph of this article, in |! | cases in which the service provided by the work in |! | grant is also offered on conditions |! | competitive in the market that, for these purposes, be |! | It considers relevant. The Ministry will declare this condition |! | founded in the bidding rules.
For its part, in tenders that have their |! | origin in a private initiative, the contemplated factor |! | (en la letra h) of the referred paragraph can only |! | be considered to resolve the tie between offers |! | economically the same.
The offered rates, with its corresponding |! | reset, they will be understood as maximum rates, by thing |! | that the dealer can reduce them.
The Director-General of public works, seen |! | good of the Minister of public works, may request a |! | Offerors, prior to the opening of the offer |! | economic, clarifications, corrections for errors of |! | form or omissions, and delivery of background, with the |! | order to clarify and specify the correct direction and |! | scope of supply, avoiding to make any |! | disqualified by formal aspects in assessing |! | technique. "."
3 Introducense the following modifications to the |! | ((article 9: a) replaced the letter b), with the following: "b) sign before a notary three transcripts of the |! |" Supreme Decree for the award of the concession, in |! | acceptance of its contents signal, Dante |! | Protocol before the same notary one of its |! | copies, within the time specified in the bases of |! | tender, numbered ever since its publication in the |! | Official Journal. One of the related transcripts |! | previously will be delivered to your file to the |! | Department of concessions of the General direction of |! | Public works, and the other to the Prosecutor's Office of the Ministry |! | Public works. Subscribed transcripts in the |! | designated form will make faith on anyone and |! | will have merit Executive without recognition |! | prior. "."
(b) add the following new second subsection: "these deadlines will be fatal and may not be |! |" less than sixty days. The breach of the |! | (obligaciones señaladas en las letras a) and b) |! | declared by Supreme Decree of the Ministry of |! | Public works, which is tolled this |! | assignment. In this case, the Ministry will call a |! | a new tender or public, through the mechanism of |! | private tender, others offering to call |! | presented in the tender as made to improve their |! | offers in within 15 days. "."
(c) add the following new third subsection: "the beginning of the computation of the term of duration of the |! |" concession contract shall be governed by the provisions in the |! | section 25 of this Act. "."
4. replace article 19, by the following: ' article 19.-the Ministry of public works, since |! | " that improve the contract, may change by |! | reasons of public interest, the characteristics of the |! | works and services contracted and, consequently, |! | You must compensate the concessionaire with the |! | necessary compensation in case of injury, |! | According to one compensation that may |! | expressed in the term of the concession in rates, |! | contributions or subsidies or other factors of the |! | economic concession regime agreed, allowing |! | use one or more of these factors at the same time. The |! | disputes that may arise between the concessionaire and |! | the Ministry about this compensation is |! | they will resolve in accordance with in article |! | 35. the bidding rules will establish the maximum amount |! | the investment that the concessionaire may be |! | forced to make under in the |! | previous paragraph, as well as the maximum term within the |! | which the Ministry may order modification of the |! | works concessions. If the bases say nothing this |! | regard, the maximum amount of these new investments not |! | It may exceed 15% of the total amount of investment |! | initial by the concessionaire, depending on the value |! | defined after the final delivery of the work, neither |! | may be required at a later date to the |! | compliance of the half of the total term of the |! | grant, except in the cases of express agreement by |! | writing of the concessionaire.
The bidding rules will establish the form and the |! | term in which the licensee may request the |! | review of the tariff system of its formula of reset |! | or the term of the concession, due to supervening |! | to justify it, and can do it for one or |! | several of those factors at the same time. In cases where |! | the bases not contemplaren these materials, the |! | disputes arising between the parties is |! | they are subject to the provisions of article 35 of this law.
Modifications will be made by Supreme Decree |! | founded issued by the Ministry of public works, the |! | that must also bear the signature of the Minister of |! | Hacienda. "."
In article 20, the following 5 Introducense |! | (modificaciones: a) replacements first and second, subparagraphs by |! | the following: "If during the term of the concession work |! |" It proves to be insufficient for the provision of the service |! | in the levels defined in the concession contract and |! | is considered convenient to their expansion or improvement |! | on the initiative of the State, or at the request of the |! | dealer, will proceed to the subscription of a |! | complementary to the referred Agreement Convention de |! | concession. This Convention will host the Special |! | conditions to the realization should be held of the |! | works and its impact on the regime of tariffs or |! | any other factor of the economic regime or in the |! | the concession period, and empowered the Ministry |! | of public works to include in that Convention, such as |! | compensation, only one or several of these factors to the |! | time.
Without limiting the foregoing, the bases of |! | tender may provide compensation mechanisms, |! | in the period of the concession or in any of the |! | other economic factors of the current contract for |! | pay the additional works not foreseen in the contract, |! | in the same situation of the previous paragraph. "."
(b) add the following new third subsection: "the approval of the respective agreement |! |" supplementary will be report of the respective |! | Address by Supreme Decree of the Ministry of |! | Public works, which must, in addition, bear the signature of the |! | Finance Minister. "."
6 article 21, replaced by the following: "article 21.-the dealer will comply the |! |" functions built into the concession agreement with |! | According to the rules of public law, especially |! | as regards its relations with the Ministry, to |! | regulations on construction schemes and |! | exploitation of the work and the collection of rates, its |! | system reset and the compensations with the |! | Treasury, that make up the economic arrangements of the contract. |!| Equally, must meet the standards that regulate the |! | activity given in concession.
On the other hand, in what refers to rights and |! | financial obligations with third parties, society |! | concessionaire shall be governed by the rules of the law |! | private and, in general, you can make any |! | lawful operation, without the need for prior authorization |! | the Ministry of public works, with the solo |! | exceptions expressly regulating this law and which |! | be stipulated in the contract. Thus, among others, the |! | dealer may then on contract or pledge |! | flows and future income of the concession for |! | guarantee obligations arising out of the concession, |! | assign or turn freely any payment offered by |! | the Treasury stating the contract, without the need of |! | prior authorization from the Ministry of public works.
From the improvement of the contract the |! | Licensee may transfer the concession or the |! | rights of the concessionaire. The Ministry of |! | Public works shall authorise such transfer always |! | therein be given enforcement provisions in the |! | next paragraph: it must deny the |! | authorization by founded resolution. If after |! | sixty days from the request of |! | authorization, the Ministry has not acted, |! | means that he grants it.
Voluntary or compulsory transfer of the concession |! | It must be total, comprising all rights and |! | obligations of such contract and it may only be a |! | a natural or legal person, or group of them, |! | meets the requirements to be bidding, isn't |! | subject to disabilities and render performance provisions |! | in article 9 of the present legal body.
The Ministry will always pamper transfers |! | in favour of the pledgee, when these are |! | result of the execution of obligations |! | guaranteed with the garment that is set in the |! | Article 42 of this law, in favour of any entity |! | financial subject to the control of the |! | Superintendency of banks and financial institutions, |! | of the Superintendency of securities and insurance, or the |! | Investment funds, regulated by law N ° 18.815, or |! | of the pension funds, |! | established in accordance with the rules of Decree-Law |! | No. 3,500 of 1980, and, of course, in favour of any |! | another natural or legal person who fulfils the |! | requirements established in the bidding rules. "."
In article 25, the following 7 Introducense |! | (amendments: to) replaced its second subparagraph by the following: "the term shall be calculated pursuant to |! |" in the bidding rules. In any case their home |! | It may be earlier than the date of publication of the Decree |! | Supreme award in the Gazette. "."
(b) Agreganse as paragraphs third and fourth, new, |! | as follows: "upon completion of the term of the concessions, the |! |" works must be again delivered in concession by |! | the Ministry of public works for their conservation, |! | repair, expansion or exploitation, isolated, |! | divided or integrated together with other works. The |! | corresponding tender must be made with the |! | Notice that there is no solution of |! | continuity between both concessions.
Where the concession works have been |! | disused or for technical reasons resulting |! | irrelevant, inconvenient or damaging to State |! | of Chile lease them back, the President of the |! | Republic may declare it thus, by Decree |! | founded, and exempt the compliance as indicated in the |! | previous paragraph. "."
8 article 27, replace by the following: "article 27.-the concession shall terminate by the |! |" following grounds: 1.-the deadline for which was awarded with |! | his modifications if appropriate;
2. mutual agreement between the Ministry of works |! | Public and dealer. The Ministry can only |! | the agreement to attend if the creditors having |! | established in his favour the established garment in the |! | Article 42 consintieren in lift it or accept |! | previously, and in writing such early extinction;
3. serious breach of the obligations of the |! | dealer, and 4-which is stipulated in the bases of |! | tender. "."
9 Add the following article 27 bis: "article 27 bis.-the Declaration of default |! |" grave of the concession contract must be requested, |! | based on any of the grounds set forth in the |! | respective contract of concession or in the respective |! | bidding, by the Ministry of public works rules |! | to the conciliatory Commission established in article 35 |! | of this law. She will resolve the application quality of |! | Arbitration Commission, in accordance with the provisions in the |! | referred to article.
Declared a serious breach of the contract by |! | the conciliatory Commission, the Ministry of works |! | Public shall appoint an auditor, which only |! | you will have the necessary authority to ensure by the |! | compliance with the concession contract, to be |! | applicable rules of article 200, numbers 1 to 5 |! | Law N ° 18.175, bankruptcy. This auditor |! | It will be liable for slight negligence.
The Ministry shall, in addition, to tender |! | publicly and in the term of 180 days counted from the |! | statement, the concession by the term contract |! | subtract you. The bases of the invitation to tender shall establish |! | the requirements that will meet new |! | dealer that, in any case, may be more |! | burdensome than those imposed to the original dealer. To the |! | take the new concessionaire, shall cease its functions |! | the controller that is designated under thing |! | provisions of the preceding paragraph.
In the first call to tender the minimum of the |! | positions may not be less than two-thirds of the |! | debt incurred by the concessionaire, not less to the |! | half in the second tender. In the absence of stakeholders |! | There shall be a third tender, without a minimum.
The Declaration of serious breach of the |! | obligations of the concessionaire will make enforceable the |! | credits that are guaranteed with the garment |! | established in article 42 of this law. They are |! | they will be effective in the tender product with |! | preference to any other credit, being the |! | remaining, if any, owned by the primitive |! | dealer.
In the event that during the procedure the |! | concessionaire has contracted loans with |! | the approval of the creditors listed in subsection |! | above, and such claims are required, they are |! | they will be effective in the aforementioned tender product |! | with preference to those guaranteed with the garment |! | special public works concession. "."
10 article 35, replace by the following: ' article 35.-disputes or claims that |! | " occur on the occasion of the interpretation or |! | implementation of the contract of concession or that will lead your |! | execution, will add to the knowledge of a Commission |! | Conciliatory which will be composed by a professional |! | University appointed by the Minister of works |! | Public, a University professional appointed by the |! | dealer and a University named professional of |! | common agreement by the parties, who will chair it. A |!| lack of agreement, the latter shall be appointed by the |! | President of the Court of appeals of Santiago.
The members of the Commission shall be |! | appointed at the beginning of the respective granting, without |! | prejudice that can be replaced whenever |! | necessary or deemed suitable. The Commission shall |! | determine its standards and procedures must |! | see, in any case, the hearing of the parties and |! | mechanisms to receive proofs and history |! | that they provide and shall establish, as is |! | appoint its members, how will you |! | they will make requests or complaints and the |! | notification mechanism that it will employ to put |! | to the attention of parties decisions or |! | decisions adopted.
Creditors who have lodged in their favor the |! | garment established in article 42 of this law, shall be |! | admitted in proceedings to give place the |! | functioning of this Commission, provided that they have |! | interest and quality of independent third-party.
Raised the claim before the Commission, and a |! | request of the claimant, she can enact the |! | suspension of the effects of the decision of the |! | Ministry to which the claim relates.
Requested the intervention of the Commission, she |! | He will seek conciliation between the parties. If this not be |! | in within 30 days, the dealer may |! | request to the Commission, within the period of 5 days, which are |! | incorporate in Arbitration Commission, or resort in the same |! | term, the Court of appeals of Santiago. In the |! | first case, the Commission will act according to the norms |! | fixed for the arbitrators and shall have the period |! | 30 days for failing, period during which are |! | It will maintain the suspension of the effects of the decision |! | or decision of the Ministry. The decision of the Commission, in |! | this case, will not be subject to appeal.
In the event that the concessionaire stand the |! | appeal to the Court of appeals, this will be processed |! | in accordance with the procedure laid down in articles |! | 69 to 71 of the N ° 18.840, constitutional organic law of the |! | Central Bank of Chile, and to the following |! | provisions: 1. shall not be enforceable Bill of consignment.
2. the transfer of the resource will be Director |! | General of public works.
If the dealer not sought from the Commission which |! | fails as the Arbitration Committee, or brought the appeal |! | the Court of appeals shall be to firm the |! | resolution or decision of the Ministry.
This article is without prejudice of |! | the powers of the Judicial Branch and the Comptroller |! | General de la República. "."
11 replace article 36 with the following: "article 36.-in the event that the licensee abandons |! |" the work or unjustifiably interrupted service, the |! | Ministry shall request the conciliatory Commission |! | so declare and authorize it to proceed to the |! | appointment of an auditor.
The Commission will meet the quality issue of |! | Arbitration Commission, pursuant to article |! | above, and shall have a period of 3 business days counted |! | Since the application to solve founded. You can |! | extend this period by period, by a single |! | time and informed decision. If the deadline elapses without |! | statement means that you authorization to the |! | Ministry to proceed with the designation.
The appointed auditor in accordance to thing |! | designated in this article will have only the powers of |! | necessary to ensure compliance with management |! | of the concession contract. He will stop in his role as |! | the dealer resume their functions, for which |! | simply the expression of will of this accordingly, |! | formally and in writing, approved by the Committee |! | Conciliatory. In any case, if after ninety days |! | designation of the external auditor, the non-dealer |! | resumes, means that there is serious non-compliance, and is |! | It will apply the provisions of article 27 bis.
If given the gravity of the case it was necessary, |! | the Commission may require the public force is |! | proceed to the immediate resumption of the service while |! | the resolution is pending about the |! | intervention. In this case it may suspend payment |! | the toll or fee respective to the users. The |! | Commission may rescind this decision in |! | any time.
The appointed auditor in accordance to thing |! | provisions of this article shall be liable for their performances |! | up to slight guilt. "."
12 Introducense in article 37, the following |! | "(modificaciones: a) replace, in the second paragraph, the expression |! |" on investment"by" the amount of debt |! | " contracted".
(b) replace the fourth subparagraph by the following: "in the event that the Board of creditors agreed |! |" the effective continuation of the rotation of the concessionaire, |! | This is not subject to another term to term what |! | subtract from the concession contract. Otherwise, be |! | it be governed by provisions of the articles 112 and |! | following of the law N ° 18.175. "."
(c) incorporate the following fifth subparagraph: "in the event of bankruptcy, the Ministry shall appoint a |! |" Representative for that, acting in coordination with the |! | trustee and the creditors Board, ensure by the |! | maintenance of the or services object of the |! | granting, without prejudice of the representation of the |! | tax interest is carried out by who or whom |! | appropriate. "."
13 Agreganse, in article 38, the following |! | second and third subparagraphs new: "the Ministry of public works is responsible for |! |" granted in concession all public work, except in the case in |! | that such works are delivered to the competition of |! | another Ministry, public service, municipality or company |! | public or other Member of the management body |! | of the State. In these cases, these public bodies may |! | delegate through mandate signed agreement with the |! | Ministry of public works, delivery in granting of |! | such works under their jurisdiction, so this deliver |! | its concession, governed by this law. In these cases be |! | included in this agreement means the totality of the |! | legal status of public works concessions, this |! | is the procedure of tender, award and |! | the implementation, maintenance and operation as the |! | powers, rights and obligations emanating from the |! | law.
In the works that are granted in concession by virtue |! | of this law may be, jointly or separately, |! | the granting of the use of the subsoil and rights of |! | construction in the space above the national property |! | public use or tax earmarked for them. |!| Also, the Ministry may attach to award or |! | sell these rights by establishing their physical connection |! | and access to the works that are tender or be |! | they are previously concession. "."
14 article 39, replace by the following: ' article 39.-the Ministry of public works, in |! | " private and special form will be the only body to |! | It will regulate and fix the maximum and minimum limits of |! | speed on roads built, preserved or |! | repaired by the system according to this |! | legal body and any other body shall be competent |! | for this purpose.
These limits may be higher than the fixed in |! | accordance with the legislation of the transit, when the |! | standard and layout of tracks laid down by the Ministry |! | Public works, as permitted. But, in any case, |! | with respect to works that are given in concession |! | lower speeds may be established to the |! | considered for the same situations in the |! | legislation. "."
15 Agreganse the following items: "article 40-the bidding rules will establish |! |" accesses and works of connection that must have a work |! | concessions, including those that allow the use of |! | existing accesses that have been authorized |! | in accordance with law.
The concessionaire, in accordance with provisions in |! | the bases of tender, or at your request, in cases |! | not provided for in those with prior authorization of the |! | Ministry of public works, in both cases, that not |! | You can deny it but for good cause, it will be |! | empowered to authorize interested third parties new |! | access and connections to work in concession, and you can |! | These third parties charge a payment for access, additional |! | the cost of the works necessary for their empowerment. |!| The amount of such payments shall be agreed between the |! | dealer and the stakeholders as provide |! | bases of tender or freely, in cases not |! | referred to in these.
Article 41.-when a user of a given work in |! | grant fails to comply with the payment of your fare or toll, the |! | dealer shall be entitled to charge it judicially. |!| It will be competent to deal with it, according to the |! | procedure laid down in law No. 18.287, judge |! | Local police in the territory in which the |! | fact, which should, when ordering the payment, impose to the |! | condemned a compensatory indemnity in favour of the |! | dealer, of a value equivalent to forty times |! | the unfulfilled payment, more adjustment according to the index of |! | Prices to the consumer between the date of breach |! | and the of the cash payment or the equivalent value to |! | two tax units per month, being obliged to |! | apply the highest value. In the same sentence, is |! | they will regulate the procedural and personal, coasts |! | calculating them with the reset total value of tariff |! | (e) compensation indicated.
In the prosecution of these offences, |! | the following shall constitute evidence photographs, videos and |! | any other technical means that the Ministry of works |! | Public had authorized for the control of the |! | the default tariff.
Article 42.-establish a special garment of |! | Award of public works, which will be without |! | displacement of rights and real love. She |! | It may be agreed by the concessionaire with the |! | financiers of the work or its operation or emission |! | titles of debt of the concessionaire. She |! | (podrá recaer: a) on the concession of public works that right |! | dealer emanate from the contract;
b) especially payment committed by the Treasury to the |! | concessionaire in any capacity, by virtue of the |! | contract award), and (c) on the income of the company.
This garment should be constituted by writing |! | public and entered in the register of garment |! | The conservative de Bienes Raíces de Santiago industrial |! | and at the home of the concessionaire, Yes |! | This is other. In addition, must sign up outside |! | the registration of the concessionaire in the |! | respective trade registry. When this pledge |! | taken over shares of the concessionaire, it |! | you score, moreover, in the corresponding registers of the |! | society.
To this article shall apply in the |! | articles 25, paragraph first; 30; 31; 32; 33; 36; 37; |! | 38; 40; 42; 43; 44; 46; 48; 49 and 50 of the law N ° 5.687, |! | on Industrial garment.
It will be competent to hear any dispute and the |! | execution of this special piece of works concession |! | public, at the option of the creditor, the judge's letters of |! | the capital city of the Region in which it is found |! | registered seat or sociedad concesionaria de |! | Court in which is domiciled that. "."