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The concession agreement is a sample. Federal Law on Concession Agreements

The government's internal policy is directed, inter alia, to improving the state of the country's economic sector. In this regard, special programs are being developed, within the framework of which measures are envisaged to increase the investment attractiveness of the economy. Their implementation is ensured by legal norms. The Federal Law "On Concession Agreements" was adopted with a view to attracting investments in the country's economy, ensuring efficient property, improving the quality of products, works and services provided to consumers. The normative act regulates the relations that arise in connection with the preparation, execution, implementation of conditions and termination of the relevant transactions, as well as determines the guarantees of interests and the rights of their participants. Let's consider further the main provisions of the 115-ФЗ "On concession agreements".

General information

The concession agreement is a transaction in which one entity undertakes to create or reconstruct at its own expense immovable property that is or will be owned by the other party. In this case, the first participant will conduct activities using the specified material values in accordance with the accepted conditions. The second party, in turn, undertakes to grant him the right to own and operate real estate for the necessary work. The terms of the concession agreement are established by the parties.

Features

The contract of the concession agreement is characterized by elements of other transactions provided for in regulatory enactments. Accordingly, they apply the general rules contained in the relevant parts of the Civil Code. At the same time, in 115-ФЗ "On concession agreements" a reservation was made that according to the meaning of normative acts or the essence of the transaction, another procedure for regulating these elements may follow.

Reconstruction

The Law "On Concession Agreements" contains a list of activities that can be performed within the framework of the transaction. Reconstruction, in particular, should be understood as:

  1. Reorganization based on the use of new technologies.
  2. Automation and mechanization of production.
  3. Modernization and replacement of physically and morally obsolete equipment.
  4. Change the functional or technological purpose of the object as a whole or its specific components.
  5. Other measures aimed at improving the operational properties of property.

The objects of the concession agreement subject to reconstruction at the time of the transaction must be owned by the entity that provides them and be free from the rights of other persons.

Important points

The Law "On Concession Agreements" does not allow a change in the purpose of the reconstructed property. Also, it is forbidden to transfer it as a pledge or alienation. Revenues and products that will be received in the course of carrying out activities are the property of the user, unless otherwise provided by the terms of the transaction. The entity reconstructing or exploiting the property bears the risks of its accidental damage or death, unless otherwise specified by the parties. The concession agreement may contain a condition on compulsory insurance of material values by their user for their own funds.

Design nuances

The concession agreement may provide for the transfer of tangible assets belonging to the subject by right of ownership, forming a single whole with the main property provided under the terms of the transaction or intended for operation in accordance with its general purpose. In this case, their composition is established and a description is given, the period and purposes of use are determined, as well as the order according to which their return will be effected. The concession agreement in respect of such material values may also provide for the user's obligation to modernize them, replace the physically and morally obsolete equipment with more efficient ones, and perform a different improvement in their performance characteristics.

additional information

Property that was created or acquired by the user when the concession agreement is executed and does not act as its object is the property of the specified party to the transaction, unless otherwise established by the parties. Exclusive rights to products of intellectual labor that were obtained when the conditions are fulfilled belong to the owner of the transferred material values.

Expenses

The user bears the costs of meeting the obligations assumed, unless otherwise established by the parties. The owner may assume part of the costs of reconstruction or creation of property, use of material values and provide the second participant with a guarantee in the manner prescribed by applicable regulatory enactments. The amount of expenses in this case should be indicated in the tender conditions for the possibility of concluding a concession agreement or in a decision to sign it without holding a tender, and directly in the contract itself.

Registration and registration

FZ "On concession agreements" provides that the user carries out the commissioning of the reconstructed or created property in the manner specified by regulatory enactments. The right of exploitation and possession of material values must be registered as encumbrance of property. The concessionaire (the lawful owner) keeps a record of the object of the agreement on a separate balance sheet and calculates depreciation.

Property Categories

Statutory act No. 115 "On concession agreements" defines types of material assets that can participate in a transaction. They are included in the following property:

  1. Roads, engineering networks of transport infrastructure. They include, among other things, overpasses, tunnels, bridges, car parks, checkpoints of the TS, sites for charging the owners of trucks.
  2. Objects of the railway transport network.
  3. River, sea ports, their hydraulic structures, engineering and production infrastructure.
  4. Aerodromes or structures / buildings intended for departure, landing, moving or parking of airliners.
  5. River vessels, ships of mixed navigation and carrying out scientific research, geographic activity, icebreaker wiring, dry and floating docks, ferry crossings.
  6. Industrial and engineering infrastructure of airports.
  7. Objects related to a single system of air traffic management.
  8. Separate hydraulic engineering structures.
  9. Pipeline transportation facilities .
  10. Installations designed for the production, transmission and distribution of thermal and electrical energy.
  11. Facilities and utilities, including those used for gas, water, energy and heat supply, sewage treatment, water disposal, lighting of rural and urban settlements, as well as for improvement.
  12. Metropolitan and other public transport.
  13. Objects operated in medical-prophylactic, medical purposes, as well as for organizing tourism and recreation.
  14. Buildings / buildings for cultural, sporting, recreational activities, social and consumer services.

Note

The regulatory act under consideration provides for certain opportunities for entities signing the concession agreement. Municipal / state or other property may be intended for use in accordance with a general purpose, to ensure a unified organized technological process and conduct activities specified in the terms of the transaction. The user has the right to conclude a civil act with the private owner, in which rules for the provision of material values will be determined. At the same time, he is obliged to place his rights and duties in dependence on relations under the agreement.

Participants in the transaction

FZ "On concession agreements" as subjects calls:

  1. The Russian Federation. It acts as a final (owner). On its behalf, the Government or the executive (federal) body authorized by it. The owner may also be a region or a Ministry of Defense. On behalf of the subject of the Russian Federation the state authority acts, and the representative of the municipal entity is the structure of the local government.
  2. An individual entrepreneur, a foreign or Russian legal entity or two or more organizations operating within the framework of a simple partnership (without the formation of a legal entity). These entities act as concessionaires (users).

Restrictions

The concession agreement may provide for the change of persons through assignment of rights of claim or transfer of debt. These procedures are allowed with the consent of the owner from the date of putting the property into operation. The transfer of duties and rights of the user-legal entity during its reorganization to another company is carried out in compliance with the requirements established by the concession agreement.

Validity

Term of the agreement is determined by the parties. At the same time, the period of reconstruction or creation of property, the amount of investments necessary for carrying out the relevant measures, and the time of their payback are taken into account. In addition, other user obligations may be taken into account.

Payment

The concession agreement, a sample of which is presented in the article, should contain conditions for payments made by the user to the owner during the operation of the property. Enumerations can be provided both during the whole period of use, and during specific intervals. The amount, form, procedure and conditions for payment are established by the parties. This takes into account the provisions of the decision to conclude an agreement.

Form of payment

The concession agreement may provide for deductions:

  1. In a firm amount. They can be paid at a time or periodically to the budget (regional or state).
  2. In the form of a share of revenues or products that are received by the user in the performance of his activities, determined by the terms of the transaction.
  3. In the form of transfer to the grantor in the legal possession of property, which is in the ownership of the concessionaire.

Parties can establish a combination of the above forms of payment.

User rights

The concessionaire, when executing the agreement, has the opportunity:

  1. Dispose of transferred property, in the manner established by the terms of the transaction and considered by the regulatory enactment.
  2. Fulfill obligations both on their own, and with the involvement of other persons. In the second case, the user will be responsible for the actions of third parties as their own.
  3. Use free of charge exclusive rights to products of intellectual labor, received at their own expense in the implementation of established obligations. In this case, the confidentiality rules defined in the agreement must be observed.

Duties

In the process of executing the agreement, the concessionaire must:

  1. To carry out in the specified period the reconstruction or the creation of property and start its operation.
  2. Use the object in the order and objectives specified in the agreement.
  3. To conduct activities determined by the terms of the transaction, and not to suspend / not terminate it without the consent of the owner.
  4. Provide an opportunity to receive relevant services, products and works by consumers in the implementation of specified activities.
  5. Provide customers with the benefits established in the regulatory acts of the Russian Federation, the subjects and the MO, including payment of the benefits received in the manner and in the cases specified in the concession agreement.
  6. Maintain a good condition of the property, perform current and capital repairs at one's own expense, and bear the costs of maintaining material values, unless otherwise provided by the terms of the transaction.

Control by the owner

Supervision over the fulfillment of the conditions of the concession agreement is conducted:

  1. The Government of the Russian Federation or the executive federal body authorized by it.
  2. State structure of regional authority.
  3. The body of territorial self-government.

Realization of control functions is carried out by official representatives of the mentioned institutions having the right of unimpeded access to the object of the agreement, the documentation that relates to the implementation of the activities stipulated in the agreement. The owner controls:

  1. Execution of the established period for the creation / reconstruction.
  2. Investing in activities stipulated by the agreement. These include not only direct creation or reconstruction, but also ensuring compliance of technical and economic parameters.
  3. Doing business.
  4. Operation of the facility in accordance with the goals set in the agreement.

Prohibitions

Representatives of the owner have no right:

  1. Interfere with the activities that the user conducts.
  2. Disclose information that is recognized by the concession agreement as confidential or commercial secret.

The procedure for monitoring the user's compliance with obligations is established by the parties.

Key terms and conditions

The concession agreement contains the following items:

  1. Obligations of the user for reconstruction / creation of property, observance of the period established for this purpose.
  2. Duration of the agreement.
  3. Obligations of the user to conduct the specified activities.
  4. Description and composition of property. This item, among other things, includes technical and economic parameters.
  5. The procedure by which the land plot is provided to the user for the conduct of the relevant activities, the term of signing the lease / sublease agreement of this allotment, if it is necessary for carrying out the specified activities.
  6. Goals and duration of operation of property.
  7. Other material conditions (for example, rules for changing the concession agreement).

Additional items

In the concession agreement, in addition to the above conditions, other types of competition that do not contradict the regulatory acts of the Russian Federation and the competition rules may be established. Additional items can be about:

  1. The procedure for adjusting and fixing tariffs on products, works, services and supplements to them in the conduct of the activities specified by the parties.
  2. The volume of production.
  3. The period of commissioning the reconstructed / created facility into operation with established technical and economic parameters.
  4. The amount of investment in the specified activities.
  5. The obligations of the user to sell products, work, services on the domestic market for the period determined by the terms of the transaction.
  6. Ways to ensure that the concessionaire fulfills the points of the agreement. Here, among other things, activities can be specified for the insurance of the risk of loss / loss or damage to property.
  7. Commitments to sell products, provide services or produce works at regulated tariffs in accordance with the established premiums to them.
  8. Conditions for financing the owner of part of the costs of reconstruction / creation of the object of the agreement, the costs of its operation.
  9. Obligations of the user to provide consumers with the benefits provided for in regulatory enactments, including payment for products, work or services.

Responsibility of the concessionaire

The user is liable to the owner for violations of the requirements established by the terms of the transaction, technical regulations or other mandatory regulatory enactments admitted during the reconstruction / creation of the property. If the damage is caused, the concessor may require the concessionaire to remit it free of charge within a reasonable time. In the event of failure to comply with this condition or with a substantial amount of damage, it is subject to reimbursement. The user is liable for the quality of the property to the owner within the period provided by the agreement, or within 5 years from the date of its transfer (if the period is not established).

Signing, making additions and terminating

The conclusion of an agreement is carried out by organizing and holding a tender, except for cases specified in art. 37 of the normative act under consideration. The registration is carried out according to the standard form established by clause 4 of Article 10. The amendment of the terms of the agreement determined on the basis of the bid is corrected only in cases provided for in Parts 1 and 3 of Art. 20 of the commented normative act. As a basis for making additions, a judicial decision can also be made. The circumstances under which such a decision can be made are provided for in the Civil Code. Termination of the agreement takes place in the following cases:

  1. Expiration of the period of its operation.
  2. Early termination on a court decision.
  3. By agreement of the parties.

Competition

It can be conducted openly or closed. In the first case, applications are accepted from any person, in the second - only from those to whom the invitations were sent. A closed competition is organized if a concession agreement is signed with respect to property, information about which relates to state secrets, as well as of strategic importance in the sphere of ensuring the security and defense capability of the country. The specified information is not subject to publication, including, in the Internet, inclusion in the invitation. During the event, participants are required to comply with the requirements of the law on state secrets. Information on the open competition is subject to publication on the official portal in the Internet. If the MO does not have its own website, the information is placed on the page of the subject of the Russian Federation, within the boundaries of which it is located. Such publication is carried out without collection of payments from the municipal formation. The government can determine the official site, which will host information about the organization and conduct of open competitions.

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