Infrastructure And Public Utilities Under Franchise Management

Original Language Title: 基础设施和公用事业特许经营管理办法

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Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201506/20150600399685.shtml

  

People's Republic of China's national development and Reform Commission of People's Republic of China Ministry of People's Republic of China housing and urban-rural construction People's Republic of China Ministry of transportation People's Republic of China Ministry of the rules of the 25th that the infrastructure and utilities franchising management measures were approved by the State Council, are hereby published, as of June 1, 2015. National development reform Board Director: Xu shaoshi Treasury Minister: Lou Jiwei housing urban and rural construction Minister: writing reveals high traffic Transport Department Minister: Yang water Minister: Lei people Bank line President: Zhou xiaochuan April 25, 2015 based facilities and utilities franchise management approach first chapter General first article for encourages and guide social capital participation based facilities and utilities construction operation, improve public service quality and efficiency, protection franchise who lawful rights and interests of, guarantees social public interests and public security,

Promote the sustainable and healthy development of economy and society, these measures are formulated.

Article People's Republic of China territory of energy, transportation, water conservancy, environmental protection, municipal engineering and other areas of infrastructure and public utility franchise, these measures shall apply.

Article franchise of infrastructure and public utilities in these measures refers to Government adopt competition law authorized People's Republic of China inside and outside the legal person or other organization, clear rights and obligations by agreement and risk-sharing, agreed to its limited time and within the investment and reap the benefits of construction and operation of infrastructure and public utilities, providing public goods or public services.

Fourth article based facilities and utilities franchise should insisted public, and fair, and just, protection parties trust interests, and followed following principles: (a) play social capital financing, and professional, and technology and management advantage, improve public service quality efficiency; (ii) change government functions, strengthened Government and social capital consultations cooperation; (three) protection social capital lawful rights and interests of, guarantee franchise continued sex and stability; (four) both business sex and public balance, maintenance public interests. Fifth article based facilities and utilities franchise can take following way: (a) in must term within, Government grant franchise who investment new or modified expansion, and operation based facilities and utilities, term expires transfer Government; (ii) in must term within, Government grant franchise who investment new or modified expansion, and has and operation based facilities and utilities, term expires transfer Government; (three) franchise who investment new or modified expansion based facilities and utilities and transfer Government Hou,

Granted by the Government within a certain period of operation, (iv) otherwise stipulated by the State.

Article sixth infrastructure and public utilities concession period should be based on industry, the provision of public goods or service needs, the project life cycle, integrated factors such as payback period, maximum of 30 years.

For large scale of investment and long return period of infrastructure and public services concessions (hereinafter referred to as the franchise project) may be authorized by the Government or its departments according to the actual situation with the franchise, agreed more than the franchise period provided in the preceding paragraph.

Article seventh development and reform of the State Council, finance, land and environmental protection, housing and urban-rural construction, water conservancy, energy, transportation, finance, safety and other relevant departments according to their respective duties, responsible for the areas of infrastructure and public utility franchise regulations, policy development and regulatory work.

Local people's Governments at or above the county level development and reform, financial, land, environmental protection, housing and urban-rural construction, transportation, water conservancy, price, energy, financial regulation and other relevant departments according to the Division of responsibilities, responsible for franchising in project implementation and supervision.

Article eighth participation of relevant departments of local people's Governments at or above the county level should establish infrastructure and public utility franchise sector coordination mechanisms to co-ordinate relevant policies and measures, and franchise program to organize and coordinate the implementation and administration.

Chapter Nineth concluded a franchising agreement related to the people's Governments above the county level shall the competent authority or authorized government departments (hereinafter referred to as project sector) in accordance with economic and social development needs, as well as the franchise program recommendations relating to legal persons and other organizations such as, franchising project implementation plans.

Franchising program should comply with the overall national economic and social development planning, main functional district planning, regional planning, environmental planning and safety planning, special planning, land-use planning, urban and rural planning, medium-term fiscal planning, and construction and operation standards and regulatory requirements clear.

Projects Department shall ensure the integrity and continuity of franchise program.

Tenth Article franchise project implementation programme should including following content: (a) project name; (ii) project implementation institutions; (three) project construction scale, and investment total, and implementation progress, and provides public products or public service of standard, basic economic technology index; (four) investment returns, and price and measuring; (five) feasibility analysis, that reduced full life cycle cost and improve public service quality efficiency of analysis estimates,; (six) franchise agreement framework draft and the franchise term;

(VII) the operator shall meet the conditions and choices; (h) the commitment of the Government and security; (IX) after the expiry of the franchise period asset disposition; (j) other matters should be clear.

Department may delegate article 11th item with the appropriate ability and experience of third parties, carry out a franchise feasibility assessment, improve franchising project implementation plans. Feasibility gap requires the Government to provide subsidies or a value for money assessment, is responsible for the relevant work carried out by the financial sector.

Specific measures shall be formulated separately by the financial Department of the State Council.

12th article franchise feasibility assessment should main including following content: (a) franchise project full life cycle cost, and technology route and engineering programme of rationality, may of financing way, and financing scale, and funds cost, by provides public service of quality efficiency, construction operation standard and regulatory requirements,; (ii) related field market development degree, market subject construction operation capacity status and participation wishes; (three) user paid project public paid wishes and capacity assessment. 13th item sector relies on the people's Governments at the corresponding level in accordance with the measures article eighth sector coordination mechanisms established, in conjunction with the reform, finance, urban planning, land development, environmental protection, water conservancy and other relevant departments of the franchise project implementation plans reviewed.

Upon examination, considers that implementation is feasible, each and every sector should be under a duty written review.

Project sector departments written review comments, the Department authorized by the local government or its authorized franchise program implementation plan.

14th people's Governments above the county level shall authorize the relevant departments or units as the implementing agency responsible for franchise implementation related to the project, and identify the specific mandate.

15th implementing agency in accordance with the approved franchise project implementation programme, should select franchise through tendering, competitive negotiations and competition.

Franchise project construction and operation standards and regulatory requirements clear and full market competition in the relevant fields should be selected through bidding franchises.

Article 16th Office shall tender or negotiation contained in the file to set up franchise companies. 17th implementing agencies should be a fair selection with appropriate experience, professional competence, financial strength and good credit status of a legal person or other organization as a franchisee.

Encourage the involvement of financial institutions and the competition legal persons or other organizations to develop investment and financing programmes.

Admission of foreign investment within the franchisee selection should be consistent with the relevant laws and administrative regulations.

Selected franchisees according to law shall be made to the public.

Article 18th implementing agencies should be selected according to law signed a franchising agreement franchisees.

Need of the establishment of the project company, implementing agencies should be preliminary agreements with selected investors according to law, incorporated project company within the agreed deadline and signed a franchise agreement with the project company. Franchise agreement should main including following content: (a) project name, and content; (ii) franchise way, and regional, and range and term; (three) project company of business range, and registered capital, and shareholders funded way, and funded proportion, and equity transfer,; (four) by provides products or service of number, and quality and standard; (five) facilities ownership, and corresponding of maintenance and update transformation; (six) monitoring assessment; (seven) voted financing term and way; (eight) returns made way,

Price and charges standard of determine method and adjustment program; (nine) performance guarantees; (10) franchise period within of risk share; (11) Government commitment and guarantees; (12) emergency plans and temporary took over plans; (13) franchise term expires Hou, project and the assets transfer way, and program and requirements,; (14) change, and ahead of terminated and the compensation; (15) default responsibility; (16) dispute solution way; (17) need clear of other matters.

19th franchise agreements in accordance with the relevant laws, administrative regulations, and State regulations, and franchisees through user fees, such as may be agreed upon to make gain.

To charge enough to cover franchise-building, operational costs and reasonable profits, by feasibility gap grants provided by the Government, including Government granted concession projects related to the development and operation of other interests. 20th franchise agreements should make clear the price or fee determining and adjusting mechanisms.

Franchise prices or fees shall be according to the relevant laws, administrative regulations and the franchising agreement shall be determined and adjusted.

Article 21st in franchise agreements, the Government can prevent unnecessary similar competitive projects, reasonable financial subsidies, the necessary supporting public services and infrastructure to provide commitment, but not promise a fixed return on investment and other items prohibited by laws and administrative regulations.

22nd franchisee under the franchise agreement, needs to go through planning and site selection, land use and project approval or approval procedures, authorities at the time of audit, should simplify audit content optimization process, shorten the processing time for this sector according to the 13th written opinions issued by these measures has made it clear, and will not pre-empt the review.
Implementing agencies should assist the franchisee with the relevant procedures.

23rd State encourages financial institutions to franchise program provides financial advisory, financing, syndicated loans and other financial services. Policy, development finance institutions can give franchising project differentiated credit support for eligible projects, loan terms of up to 30 years.

Explore franchise loans backed by expected returns, supported the use of related benefits as a source of repayment. 24th State encourages the establishment of industry funds shares offer concessions in the form of capital.

Encourage structured finance franchise company, will benefit bills and asset-backed notes issued.

Franchise program encouraged by the State to set up private equity funds, the introduction of strategic investors, issuing corporate bonds, project revenue bonds, corporate bonds, nonfinancial business debt financing instruments, such as widening the financing channels.

25th relevant departments of the people's Governments above the county level can be explored with financial institutions to establish Fund to infrastructure and public utility franchise Guide, and by way of investment grants, subsidies, subsidized loans, supports the franchising project construction and operation.

Chapter III article 26th franchise agreement franchise agreements the Parties shall follow the principle of good faith, in accordance with the agreement fully to meet their obligations.

Except otherwise prescribed by laws and administrative regulations, the implementing agencies and franchisees franchise agreement either not to perform obligations or performance does not meet the prescribed requirements should be based on the agreement continue to perform, to take remedial action or compensation. 27th shall protect the lawful rights and interests of the franchise.

No unit or individual shall not violate laws, administrative regulations and these rules and regulations, interference in the concession operator's legitimate business activities.

28th Charter operators should be under a franchise agreement, franchise projects related to implementation of investment and financing arrangements, ensure appropriate funding or funding to implement.

Article 29th franchise projects involving new or expansion of infrastructure and public utilities shall comply with town and country planning, land management, environmental protection, quality control and production safety construction requirements as prescribed by relevant laws and administrative regulations and construction standards.

Article 30th franchise operator shall, in accordance with relevant laws, administrative regulations, standards, and franchising agreements, provides high quality, sustainable, efficient, and secure public goods or public services.

31st Charter operators should be in accordance with technical specifications, facilities repair and maintenance franchise project on a regular basis to ensure facilities are operating normally and operate the assets transferred by Convention after the expiration.

Article 32nd franchise to keep strictly confidential all matters concerning national security obligations, and should establish and implement appropriate security management system.

Implementing agencies, relevant departments and their staff to franchising and franchisee business secrets obtained in the supervision and management of confidential information.

Article 33rd franchising agencies and Charter operators should project, in the course of operation, repair and maintenance information, in accordance with the relevant provisions of the archives.

Article 34th institutions should strictly comply with the relevant obligations under franchise agreements, facilitate the construction and operation of concessions for the franchise and support, raise the level of public services.

The adjustment of administrative division, heads of Government, sectoral adjustments and change, should not affect the franchise agreement.

Article 35th needs feasibility gap subsidy concessions provided by the Government, should be strictly in accordance with the budget law, considering the Government's fiscal sustainability and debt risks, reasonable financial payment and the total annual amount determined, and links up with the Government's annual budget and medium-term fiscal planning, ensure that the allocation of funds needed.

Article 36th law, administrative regulation or policy adjustments damage franchise expected benefits, or according to the public interest, require the franchisee to provide product or service except as provided in the agreement, franchisee should be given appropriate compensation. Fourth chapter modification and termination of the franchise agreement article 37th period of franchise agreement, really necessary to change the content of the agreement, the Protocol Parties shall sign the supplementary agreement on the basis of consensus. Such as franchising agreements may project the viability of debt have a significant impact, should seek creditor approval.

Franchising involves an act of direct financing of the project, should make timely and relevant disclosures.

After the expiry of the franchise period is necessary to extend, in accordance with the relevant regulations to assess the argument, consensus and approval can be extended.

Article 38th during the term of the franchise, due to serious default by the party to the franchise agreement or force majeure or other reasons, resulting in franchisee is unable to continue to implement the obligation, or a franchise agreement, early termination of the agreement, after the consensus with creditors, early termination of the agreement.

Early termination of the franchise agreement, the Government should recover the franchise program, and according to the actual situation and the agreement of the original franchisees the appropriate compensation.

39th franchise terminated the expiry or early termination of the agreement the Parties shall in accordance with the franchise agreement, as well as the relevant laws, administrative regulations and the provisions of the relevant facilities, information, archives, such as performance testing, assessment, transfer, receiving, inspection and other procedures.

 40th franchise termination or termination in advance of the expiration, on the infrastructure and utilities continued to adopt a franchise mode, implementing agencies should reselect the franchisees according to these rules.

Reselect the franchise due to expiry of the franchise, in the same condition, the original franchise preferred access to franchising.

Before the new franchise owners selected, implementing agencies and the original concession operators should develop a plan to ensure steady provision of public goods and public services.

Fifth chapter of regulatory and public interest safeguards 41st relevant departments of the people's Governments above the county level shall, in accordance with their respective responsibilities, to franchising to execute the laws, administrative regulations, industry standards, technical specifications for products or services, as well as other relevant regulatory requirements for supervision and management, and enhance the cost supervision in accordance with law review.

Auditing authorities above the county level shall be in accordance with the audit of franchise operations.

42nd people's Government above the county level and their departments shall, in accordance with the laws and administrative regulations and administrative approval items of the State Council decided to retain oversight of franchise management, not the franchise for illegal creation of administrative approval items or approval.

43rd implementing agencies should be under the franchise agreement, franchise regularly monitoring and analysis on project construction and operation, performance evaluation, jointly with relevant departments, and according to the performance evaluation results, according to the franchise agreement on price or subsidy adjustment mechanism guarantees the provision of public goods or the quality and efficiency of public services.

Implementing agencies should use public opinion as a monitoring analysis and performance evaluation of important content.

44th the public's right to monitor the franchise, complaints to the relevant authorities, or make suggestion to the implementing agencies and franchisees.

45th franchise should the people's Governments above the county level shall be the relevant policy measures, the franchising sector coordinating mechanisms, as well as responsibilities such as information to the public.

Implementing agencies and Charter operators should be franchising project implementation plans, choice franchisee, franchising and their modification or termination of the agreement, the project construction and operation, provides public service standards, monitoring and performance evaluation, audited annual financial statements and other relevant information in accordance with the regulations to the general public.

Franchisees should disclose the accounting data, financial accounting and other financial metrics, and shall be subject to annual financial audits.

Article 46th concession operators within the service area of the franchising agreement shall be universal to all users, without discrimination, to provide public goods and public services, not differential treatment imposed on new users. 47th implementation bodies and concession operators should develop emergency plans, according to regulations submitted to the relevant authorities.

After the incident occurred, activate contingency plans in a timely manner, safeguard public goods or the delivery of public services.

48th franchise due to force majeure or other reasons cannot continue to fulfill franchise agreements, implementing agencies should take measures to ensure continued stability in the provision of public goods and public services. The sixth chapter the dispute resolution article 49th Agency and franchising on franchise agreement any dispute, should be resolved through consultation.

Consensus, shall enter into supplementary agreements and comply with them. 50th implementing agency and franchising franchise agreements among professional and technical issues in dispute, you can jointly hire an expert or third party mediation.

Of the conciliation agreement, it shall enter into supplementary agreements and comply with them.

51st franchisees think administrative violations of the legitimate rights and interests of the specific administrative act, statement, the right to plead, and may initiate administrative reconsideration or administrative proceedings according to law.

 52nd franchising agreements acquired during the dispute, the parties in the dispute resolution process, and shall continue to perform their obligations under the franchise agreement to ensure the continuity and stability of the public good or public service.

The seventh chapter legal liability article 53rd Charter breach laws, administrative regulations and mandatory standards, serious harm to the public interest, or causes a serious quality and safety accident or unexpected environmental incidents, the departments concerned shall order within a time limit and shall be given administrative punishment; it refuses, and the circumstances are serious, can terminate the franchise agreements constitutes a crime, criminal responsibility shall be investigated according to law.

54th obtained through fraud, bribery or other improper means concessions, they shall recover the franchise, to the public.

55th implementing agencies, relevant administrative departments and their staff to perform the statutory duties and interfere with the franchisee to normal business activities, deception, abuse their powers, neglect their duties, shall be given administrative sanctions constitutes a crime, criminal responsibility shall be investigated according to law. 56th franchising to relevant departments of the people's Governments above the county level should establish credit records in China and their bad behavior, into the national credit information sharing and Exchange platform.

Serious breach of credit exposure according to law, and in conjunction with the departments concerned to implement the joint disciplinary.
The eighth chapter by-laws article 57th infrastructure and public utility franchise involving national security reviews, in accordance with the relevant provisions of the State.

58th laws or administrative rules and regulations for infrastructure and utilities provided in franchise, from its provisions.

Before the implementation of these measures of franchise agreements have been established by law, in accordance with the agreement provisions.

59th article of the approach by the development and reform, jointly with relevant departments of the State Council is responsible for the interpretation.

60th these measures come into force on June 1, 2015.