Administrative Measures For The Shanghai Urban Infrastructure Franchises

Original Language Title: 上海市城市基础设施特许经营管理办法

Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/dfzfgz/201105/20110500340886.shtml

Administrative measures for the Shanghai urban infrastructure franchises

    (December 6, 2010 92nd meeting consideration of Shanghai Municipality on December 20, 2010, Shanghai Municipal People's Government, the 55th release as of May 1, 2011) Chapter I General provisions

    The first (objectives)

    In order to regulate the urban infrastructure of the city franchise, maintaining the legitimate rights and interests of the franchisee, improving the quality of public goods and public services, safeguarding public interests and public security, in accordance with the relevant laws and regulations, these measures are formulated.

    Article II (definitions)

    Urban infrastructure franchises in these measures (hereinafter referred to as the franchise), refers to the Government by law choice People's Republic of China domestic and foreign legal persons or other organizations, and authorized it to within a certain duration and scope of the operation of an urban infrastructure, providing public goods or public service activities.

    Article III (scope of application)

    Franchise in the administrative area of the city, these measures shall apply.

    Following construction and operation of urban infrastructure projects, franchising can be implemented:

    (A) the water supply, gas supply, sewage treatment, waste disposal, urban roads and highways, urban rail and other public transportation projects;

    (B) municipal people's Government considers it necessary to the franchise's other urban infrastructure projects.

    Fourth (franchise mode)

    Franchising can be taken in the following ways:

    (A) in a given period, the Government authorized franchisee investment, construction and operation of urban infrastructure, and handed over to the Government without compensation after the expiry;

    (B) during a certain period, the Government authorized franchisees operating of the city infrastructure has been built and handed over to the Government without compensation after the expiry;

    (C) the municipality agree otherwise.

    Fifth (implementation principles)

    The franchise shall follow the priorities of public interest and the principles of openness, fairness and justice.

    Sixth (participatory)

    Encouraging domestic and foreign enterprises, other organizations and individuals take many forms such as sole proprietorship, joint venture, cooperation, engaged in franchise activities in accordance with law.

    Seventh (management system)

    The municipal development and reform management, franchising, departments are responsible for the general coordination of the work.

    Municipal departments in charge of industry is responsible for the administrative area of the city within the franchise program implementation and supervision, and according to the municipal authority to enter into a franchise agreement.

    For service in specific districts and counties within the administrative area of franchise program, available to district or county people's Government is responsible for the implementation and supervision work, and signing franchising agreements.

    Municipal departments in charge of industry and district and county people's Government of the franchise project-specific division of labour, the municipal development and reform the administrative authorities and the relevant administrative departments.

    City transportation, land planning, environmental protection, finance, pricing, business administration, auditing, monitoring and other related administrative departments within the scope of their respective duties, perform his duties of supervision and management.

    Chapter grant of franchise

    Eighth (project) franchise shall conform to the national economic and social development of the city planning, urban planning, infrastructure planning and urban construction and development needs of the city.

    Nineth (implementation plan)

    Municipal departments in charge of industry and the district and county governments (hereinafter referred to as organ) should develop a franchise project implementation plan.

    Implementation plan should include the following:

    (A) the name and basic situation of project;

    (B) the implementation of the project;

    (C) the project's basic economic indicators;

    (D) the operator shall meet the conditions and choices;

    (E) draft franchise agreements and franchising terms;

    (F) investments, return on investment, prices and calculate the total amount;

    (G) the commitment of the Government and security;

    (H) other matters should be clear.

    Franchise program unit designated by the Government to pay costs or needs to be integrated into project cost accounting of Government pricing, calculation basis in the implementation of the programme of the implementation authority shall be audited.

    Adoption of this article fourth paragraph (a) provided by way of franchising, organ should be approved by the approved project proposal or project advice and land planning and environmental protection administration issued as annex to the implementation plan.

    Tenth (implementation plan approved) Organ franchising project implementation should be reported to the administration of the municipal development and reform Department. Are received by the Administrative Department of the municipal development and reform for examination after the implementation of the programme, should be based on the actual situation, in conjunction with city building transportation, land planning and environmental protection, fiscal, price, industrial and commercial administrative departments to review the implementation plan; related administrative departments shall be respectively issued a written review.

    Administrative Department in conjunction with the implementation of the municipal development and reform authorities, according to the review after the amended implementation plan, submitted to the municipal people's Government.

    District and county people's Government implemented the franchising program, its implementation should agree on the prior consent of the municipal departments in charge of industry.

    Belonging to the second paragraph of article III of this approach (a) the provision of concessions, the implementation authorities shall, before the administrative authority implementation plans submitted to the municipal development and reform, seeking the views of urban construction and traffic administration departments.

    Is a major franchise, the municipal development and reform administrative departments audited in the course of programme implementation, experts should be organized.

    11th (franchisee) to After the implementation of programmes approved by the municipal people's Government to implement organ shall select franchisees through bidding.

    Tender documents shall conform to the approved implementation plan.

    No bidder or the bidder does not comply with the tender conditions, you can determine competitive negotiation way franchisee.

    12th (agreement signed) Franchise owners determined, organ and concession operators should sign the franchise agreement.

    Franchising agreement shall conform to the approved implementation plan, and the tender documents.

    Requires establishment of the project company, Charter operators shall be in accordance with the provisions of law of the project company, the project company's articles of Association shall be approved by the implementing authority. Franchisees will transfer to the project company's rights and obligations, should agree on the prior consent of the organ, and enter into a written agreement.

    When the project company is not performed or is unable to perform the relevant obligations, their rights and obligations are followed by the franchise.

    13th (Agreement)

    Franchising agreement shall include the following information:

    (A) project name, contents;

    (B) by way of franchising, regional, scope, duration;

    (C) the establishment of the project company and the project company's business scope, the registered capital, the proportion of shareholders, investors, equity transfers and so on;

    (D) the products or services provided by the quantity, quality and standards;

    (E) the maintenance and renovation of facilities;

    (Vi) performance monitoring;

    (G) financing terms and modalities;

    (H) the return on investment way and determined, the adjustment mechanism;

    (I) the methods of determining the prices and charges, standards and adjustment programs;

    (10) the ownership of the facility;

    (11) the rights and obligations of the franchisee;

    (12) the performance security;

    (13) the franchise period risk sharing;

    (14) the commitment of the Government and security;

    (15) the emergency and temporary takeover plan;

    (16) after the expiry of the franchise period, methods, procedures for the transfer of the project;

    (17) changes, early termination and compensation;

    (18) the liability for breach;

    (19) the dispute;

    (20) the implementation of franchising authorities specific duties of supervision and inspection activities;

    (21) other things to clear.

    14th (returns on investment made)

    In the franchise agreement, the parties may agree to franchisees or the project company (hereinafter referred to as Project Manager) to obtain a return in the following ways:

    (A) according to the product or service to the consumer provides franchise fees;

    (B) Government grants and concessions related to the development and operation of other rights;

    (C) subsidies from the Government;

    (D) the municipality agree otherwise.

    15th (pricing)

    Franchise program obtain income from user fees through sales and service channels, pricing their products or services in accordance with the general criteria released by the price departments belonging to separate pricing range, according to the price law, regulations and related provisions, by the price departments audited the implementation of mouthpiece. Franchise term, pricing departments in accordance with the relevant laws, regulations, pricing or licensing agreement.

    If the agreement is changed, it relates to pricing standard adjustment alone, subject to prior approval by the Municipal Department in charge of price.

    16th (business term) Franchise period should be based on industry, business size, mode of operation and other factors, maximum of 30 years.

    Otherwise provided by laws and regulations, from its provisions.

    17th (Government commitments)

    In franchising agreements, Government commitments and concessions relating to land-use, urban infrastructure delivery, competitive projects, be reasonably necessary to prevent unnecessary subsidies, but not committed to business fixed investment in risk-sharing, rewards and other items prohibited by laws and regulations.

    18th (procedure) After the signing of franchise agreements, project managers should related formalities to the relevant administrative departments according to law.

    Relevant departments for the administration of matters that had been issued by the review opinion, will not pre-empt review review on matters not involving must not result in substantive changes to franchise agreements.

    19th (agreements for the record) Organ should sign a franchise agreement in the 30th after the agreement submitted to the municipal development and reform administrative departments for the record.
Among them, belong to the second paragraph of article III of this approach (a) provides franchise program and implementation organs should also be submitted to the municipal construction and traffic administration departments for the record.

    Chapter III implementation of the franchise

    20th (service codes)

    Project managers should follow the franchising agreement, providing safe, qualified products and sustainable, convenient, consistent with standards of service, and in accordance with the agreement to consumers, without discrimination, to provide public goods and public services.

    21st (facilities maintenance)

    Project managers should be in accordance with the technical specifications, facilities repair and maintenance franchise project on a regular basis to ensure facilities are operating normally, and facilities health report organ, but franchising agreement except as otherwise agreed.

    22nd (emergency)

    Implementation bodies and project managers should develop emergency plans, and, after emergency, activate contingency plans in a timely manner, maximum protection of public goods and the delivery of public services.

    23rd (information report)

    Project managers should be medium-and long-term development plan, the annual operating plan, annual management report, annual financial reports, as well as other major issues, timely, complete and submit the implementation record.

    24th (information management)

    Franchising project managers should project construction and operation of the relevant information in the collection, compilation and safekeeping.

    25th (franchise qualification)

    Without the implementation of the agreement of the authorities, project managers may not transfer, lease, pledge, mortgage or otherwise dispose of the franchise without authorization rights and franchise-related land, facilities, and assets such as shares and interests.

    During the term of the franchise, project operators must not be franchise loans, facilities and related land use rights for use outside of the franchise program.

    26th (variation by agreement) During the term of the franchise, after consulting the parties may change the franchise agreements, it should be reported to the relevant administrative department in accordance with article 19th of this approach the record. Among them, the franchise agreements require major changes, organ 30th in advance should be submitted to the municipal people's Government.

    Is a major change, should be specified in the franchise agreement.

    Laws, rules and regulations amended or annulled, or town and country planning, technical standards, significant policy adjustments need to change the franchise agreements, the implementation authorities shall, in consultation with the project manager; consensus still cannot be reached after consultation by both sides, organ may call the franchise after submitted to the municipal people's Government for approval, but project managers should be given reasonable compensation.

    27th (specific supervisory duties)

    Implementation organs should strengthen the operators franchise in terms of guidance, supervision and management, carry out the following functions:

    (A) the development of products and services quality evaluation criteria, and to assist the Department in charge of price supervision and examination work on the Government's pricing costs proposed price adjustments;

    (B) supervision and project operators to comply with the statutory obligations and contractual obligations of the agreement;

    (C) the operators in terms of implementation of the business plans, products and the quality and safety of services to carry out supervision and inspection;

    (D) the public complaints about the project manager;

    (E) supervision and examination reports submitted to the Government an annual franchise;

    (F) in certain cases, temporarily take over concessions;

    (G) the laws, rules, regulations, or other duties as stipulated in the agreement.

    28th (duty of confidentiality)

    In franchise activities and supervision is aware of project managers in the management of business secrets, know-how, implementation and other administrative organs and their staff have the duty of confidentiality.

    29th (instruction in special circumstances)

    Due to special needs instruction outside the project operators franchise agreement of public goods or public services, implementing authority shall be submitted to the municipal people's Government for approval, but project managers should be given reasonable compensation.

    30th (records management and evaluation system)

    Implementing authority shall establish and maintain a franchise project archive. Organ should monitor the implementation, analyze franchise program, in conjunction with relevant departments, professional bodies regularly conduct a comprehensive assessment of the implementation of the project, and copy to the Administrative Department of the municipal development and reform the assessment report. Evaluation cycle shall be not less than 2 years, annual assessments can be implemented under special circumstances.

    Contents of the assessment shall include product and service quality standards, equipment availability, and so on.

    31st (temporarily take over the application)

    Project Manager in the franchise process, any of the following circumstances, should implement interim receiver:

    (A) internal major unexpected events leading to project operators according to the franchise agreement to provide public goods and public services;

    (B) the 40th provided these measures;

    (C) the other has endangered or may seriously jeopardize the public interest, public safety and other unexpected events.

    32nd (temporary takeover decision) 31st under the circumstance of these measures, after it has been submitted to the municipal people's Government for approval, implementation organ is required to activate temporary takeover plans, and made temporary takeovers of urban infrastructure decisions.

    Specific temporary takeover plan, formulated by the organ in charge.

    Temporary takeover decision should include taking over reason, receivers, taking in elements such as content, the term, and should be published.

    33rd (temporarily take over the operation) During the interim receiver, the implementation authority shall temporarily take over decided to take over.

    Project managers should carry out their duties in good faith, with receivers and make relevant work, and accepts to take over supervision of personnel management.

    34th (termination of the interim receiver)

    Any of the following circumstances, after it has been submitted to the municipal people's Government for approval, terminate the interim receiver, and make an announcement:

    (A) the project operators have already resumed normal operations;

    (B) other seriously endangered or may seriously jeopardize the public interest, public safety and accident conditions have disappeared;

    (Iii) other circumstances that warrant the termination of temporary takeover.

    35th (supervision)

    Franchise project managers should be quality, technical standards, and other information of public interest, public safety announced to the public in a timely manner.

    The public's right to monitor the franchise in this city, and to make recommendations and observations to the organ.

    Chapter fourth franchise termination

    Article 36th (franchise protection)

    No unit or individual shall not violate the laws, rules and regulations and terminated the project in this way the operators of franchises.

    37th (termination of expiration) Expiry of the franchise, project operator franchises terminated.

    The Parties shall, according to the franchise agreement of the contract to handle the urban infrastructure, information and file transfer, takeover procedures.

    38th (operator premature termination)

    During the franchise period, project managers are not allowed to terminate the franchise.

    Do not operating properly due to force majeure, the project operator can terminate the franchise application to organ, organ of municipal audit after its implementation, should allow it to terminate the franchise. Termination for reasons other than force majeure require advance franchise, project managers should apply to the organ in advance, upon approval by the implementing organ of municipal people's Government, may rescind the franchise agreement, terminate the franchise.

    Implementing authority shall reply within 3 months of receipt of the application.

    Prior to the termination of the franchise agreement, project managers should perform related duties under franchise agreements.

    39th (repossessed by the public interest in advance) Laws, rules and regulations amended or annulled, or significant policy adjustments, required in the public interest, after it has been submitted to the municipal people's Government for approval, organ may call the franchise, but it should be reasonable compensation according to the franchise agreement, the Parties shall grant the project operators.

    Franchise agreements have no agreement on compensation, the parties may by mutual agreement settle the compensation package.

    The parties unable to agree on compensation, organ may develop compensation programmes, project managers to maintain the normal operation of the franchise business investment and construction of net value of fixed assets and some other reasonable compensation.

    Compensation scheme by implementing organ of municipal people's Government for approval.

    40th (because the illegal breach of early recovery)

    Project managers have one of the following, implementing agencies should be ordered to correct, and in accordance with the prescribed procedures submitted to the municipal people's Government for approval, call the franchise projects as well as the corresponding liability of the operator:

    (A) the project manager in violation of the law, regulations, rules or franchise agreement, the Parties shall, if the circumstances are serious;

    (B) the project operators do not carry out maintenance and renewal obligations against public interests and public security;

    (C) without the implementation of the agreement of the authorities, the project operator unauthorized transfer, lease, pledge, mortgage or otherwise dispose of the franchise without authorization rights and franchise-related land, equipment and assets such as shares and interests;

    (D) the project operators allowed to go out of business, closing, impact on public interest and public safety;

    (E) the project operators to provide public goods and public services are not up to the required standards and requirements, seriously affecting the public interest;

    (F) the laws, rules, regulations or other circumstances as stipulated in the franchise agreement.

    41st (call the program requirements) Implementing authority shall call the franchise shall, within 6 months will be withdrawn before reason, recover the date written notice of the project operators, and announcements.

    Project managers can in writing after receipt of the notification within the 30th plea or request for a hearing.
42nd (data and file transfer)

    Early termination of their franchises, managers should implement the project authority within the prescribed time, in accordance with the conventions of a franchising agreement, will be necessary to maintain the normal operation of the franchise business information and files transferred to the organ.

    43rd (again of franchisees selection)

    Franchise expiration or early termination of their franchises, to continue to move by way of franchising, the city's infrastructure, the implementation authority shall, in accordance with the provisions of these measures again franchisees.

    Reselect the franchise because of the expiry of the franchise, in the same condition, original project operators priority for obtaining the franchise.

    The fifth chapter legal liability

    44th (based on improperly obtained the franchise)

    Through deception, bribery or other improper means for obtaining the franchise, the implementation authorities shall withdraw the franchise and disclosure to the public.

    By the revocation of the franchise of the legal persons or other organizations, 3 years shall not participate in the competition of the urban infrastructure business.

    45th (organ against the processing)

    Organ violates these rules, do not perform their statutory duties, project operator's normal business activities, deception, abuse, by its higher administrative authorities or the supervision agency ordered corrective action and managers directly responsible and other persons directly responsible shall be given administrative sanctions constitute a crime, criminal responsibility shall be investigated according to law.

    The sixth chapter supplementary articles

    46th (International Franchising program specification)

    Foreign investment in the franchise, should apply to both the State and the provisions of the municipal foreign investment management.

    47th (socialization involves transfer of shares)

    Socialized management of urban infrastructure relates to transfer of shares, shall, before the transfer shall obtain the franchise.

    48th (management)

    Municipal administration and the district and county governments can be based on these measures, formulate specific measures for the administration of.

    49th (execution date) These measures shall take effect on May 1, 2011.