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

Original Language Title: MODIFICA EL DECRETO CON FUERZA DE LEY N° 164, DE 1991, DEL MINISTERIO DE OBRAS PUBLICAS, SOBRE REGIMEN LEGAL DE CONCESIONES DE OBRAS PUBLICAS, Y LAS NORMAS TRIBUTARIAS QUE INDICA

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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. "."