Concession agreement: essence, application, conditions, preparation, order of conclusion, introduction of changes, parties, examples. Concession agreement in respect of the object of municipal property

The use of concession agreements helps to increase the investment attractiveness of the domestic economy, the quality of services provided, the work performed and products. Within the framework of contracts, more efficient use of resources is carried out.

The essence of the concession agreement

Within the framework of the transaction, one participant undertakes to reconstruct or create real estate, the ownership right to which belongs or will belong to another entity. The concession agreement with respect to the object of municipal property provides that the user will conduct activities related to the exploitation of material values. In this case, the owner undertakes to transfer the rights to use and own them for a period determined by the participants. The concession agreement on the object of municipal property contains elements of different contracts. Accordingly, the rules of the Civil Code apply to contracts, the components of which are present in the document, unless the other is based on its content or is not established by law.

Reconstruction

The Concessionaire under the concession agreement assumes the obligation to carry out certain activities. They can be used to create or reconstruct real estate. For example, an agreement may provide for such activities as:

1. Reorganization based on the introduction of new technology.
2. Automation and mechanization of production.
3. Modernization and replacement of physically and morally worn out equipment.
4. Change the functional or technological properties of the object or its individual components.
5. Other measures that improve the operational characteristics of fixed assets.

Nuances

The object of the agreement, which is subject to reconstruction, at the time of the conclusion of the transaction should be owned and free from the rights of others. It is not allowed to transfer a pledge or alienation by the user of the material values that he has received. It is forbidden to change the purpose of the object. The user can extract income and produce products during the operation of fixed assets. They are his property, unless otherwise stipulated in the contract. The risk of accidental damage or loss of fixed assets is borne by the concessionaire, unless otherwise specified in the agreement. The contract may impose an obligation to insure material values at one's own expense.

Structure of the OS

The concession agreement with respect to the object of municipal property may involve the transfer to use of tangible assets that form a single whole with the main asset or will be operated for the general purpose to conduct the activities specified by the parties to the transaction. In this case, the contract includes their composition and description, the term and purpose of use. The contract also prescribes the procedure for returning them to the owner upon termination of the agreement. Within the framework of the transaction, additional obligations for the user may be established. They are determined by mutual consent of the participants, who draw up the concession agreement. Examples of such duties: the modernization of worn out equipment, the replacement of production lines, another improvement in performance. Material values acquired or created in the course of carrying out activities and not being OS, become the property of the user, unless another is established in the contract. Exceptional rights to products of intellectual labor, which are received by the concessionaire for their own funds during the implementation of the concession agreement, belong to another participant in the transaction. Subjects can establish and other rule.

Costs

Users of material values bear the costs of fulfilling obligations under contracts. The concession agreements in Russia often include an item that assumes that part of the costs of reconstruction / creation of the OS can be assumed by the owner. The amount of costs should in this case be indicated in the announcement of the tender or in the decision to sign the contract (if the competition is not held), and also directly in the contract itself.

check in

The rights given to the user for exploitation and possession of material values provided by the owner are encumbrances. Accordingly, they must be registered in accordance with the procedure established by law. The procedure for the created object of the agreement is carried out simultaneously with the state registration of the property of the concessor on this property.

Categories of wealth

The legislation lists the OS, the transfer of which may be formalized as a concession agreement. Examples of material values - structures that are part of:

1. Roads and networks of engineering communication of transport infrastructure. The last, among other things, include overpasses, checkpoints, car parks, bridges, tunnels and so on.
2. Objects of railway transport.
3. River and sea ports, including their hydraulic engineering structures, engineering and production infrastructures.
4. Pipeline transportation facilities.
5. Aerodromes, buildings intended for landing, take-off, parking, moving aircraft.
6. Objects of engineering and industrial infrastructure of airports.
7. Hydraulic engineering structures.
8. Objects for the production, distribution, transmission of heat and electricity.
9. Systems of communal infrastructure.
10. Objects of education, culture, health, sports, etc.
11. Underground and other public transport.
12. Objects designed for medical, tourist, medical and preventive activities, recreation.

Additional Features

The object of the agreement and other property that is not in municipal / state ownership can be intended for operation by common purpose, maintaining the agreed activities and ensuring a single production process. In this case, the owner of the OS has the right to sign with the user a civil law contract that determines the features of their provision. However, in doing so, the owner must relate the emergence of duties and rights on it with the relations under the concession agreement.

Participants in the transaction

The legislation defines the following parties to the concession agreement:

1. The government or executive federal authority, the structure of regional or local government. These institutions act as owners (concludents).
2. An individual entrepreneur, a foreign or domestic commercial company, or 2 or more legal entities operating in accordance with a contract of simple partnership. The said entities are concessionaires (users).

Legislation allows for the change of persons in a transaction. It is carried out by assignment of the right of claim or the transfer of debt with the consent of the owner at the time the object of the agreement is put into operation. The user can not transfer his rights to the transaction as collateral. The transfer of duties and legal capabilities of the concessionaire-legal entity when it is reorganized to another company is made when the organization that emerged meets the requirements specified in the decision to enter into an agreement.

Validity

When determining the period during which the concession agreement with respect to the object of municipal property will be effective, the following shall be taken into account:

1. Time required to create / upgrade the OS.
2. The volume of investments for the implementation of the activities specified by the parties to the transaction and the period of their payback.
3. Other obligations of the user under the contract.

Payment

The concession agreement with respect to the object of municipal property determines the amount of the amount that the user is obliged to transfer during the lifetime of the material values transferred to him. Payments can be established both throughout the specified period, and separate time intervals. The amount of payment, its form, rules and terms of payment are determined by the parties to the transaction. The legislation provides for several options for the repayment of monetary obligations:

1. A solid amount. It can be paid at a time or periodically to a budget fund of the appropriate level.
2. The share of revenues or products received by the user when performing the activities specified in the transaction.
3. Transfer of ownership rights to the property belonging to the concessionaire to the concessor.

Participants in a transaction may set up mixed forms of payment.

User rights

The concession agreement with respect to the object of municipal property establishes the following legal possibilities:

1. Dispose of material values according to the rules defined in the federal legislation and the contract.
2. To fulfill the terms of the concession agreement independently or with the involvement of outside parties. In this case, the user will be responsible for the actions of outside subjects as their own.
3. Use free of charge under the rules defined in the contract, subject to confidentiality conditions, exclusive rights to products of intellectual labor obtained when the terms of the agreement are fulfilled at their own expense, in order to conduct the activities specified by the parties.

Obligations of the user

In the process of carrying out the activities stipulated in the concession agreement, the concessionaire shall:

1. Conduct in the terms established by the contract the reconstruction or creation of the OS and start its operation.
2. Use material values in order and according to the rules defined by the transaction.
3. To carry out the activities stipulated in the agreement, not to suspend and not to terminate it without the consent of the owner.
4. Provide for the execution of the contract the possibility of obtaining services, products and works by consumers.
5. Provide customers / customers with the benefits established in the federal legislation, other regulations, in the cases and under the rules specified in the transaction.
6. Maintain an operating state of the OS, perform current and capital repairs at one's own expense, bear other expenses for the maintenance of material assets, unless otherwise specified in the contract.

The main points of the contract

The most important stage of the transaction is the preparation of a concession agreement. It involves the coordination of all the key points of the contract. The preparation of the concession agreement includes, among other things, determining the amount and form of payment for operating the OS, the rules under which it will be made. In the contract, in addition, the following items should be present:

1. Obligations of the user for the reconstruction or creation of the OS, observance of the agreed terms, the performance of the established activities.
2. Period of validity of the agreement.
3. Composition and description of the object. This paragraph, among other things, indicates the technical and economic characteristics of the OS.
4. Rules for the provision of land that will be used to conduct the specified activities, the term of signing the lease / sublease contract (if necessary).
5. Goals and duration of the operating period of the OS.
6. Other material conditions specified in the federal legislation.

Additionally

The concession agreement with respect to the object of municipal property may also include clauses on:

1. Volumes of production in the conduct of the activities specified in the transaction.
2. Rules for the establishment and adjustment of tariffs (prices) for work performed, products manufactured, services provided, as well as surcharges to the cost when conducting the specified activities.
3. Volumes of investment in the reconstruction / creation of the facility agreement.
4. Other items not prohibited by law.

An Important Moment

Legislation establishes a certain procedure for concluding a concession agreement. It is formalized as part of the competition. The document is drawn up according to the standard form, including the mandatory items listed above. Amendments to the concession agreement are made by agreement of the participants. At the same time, the adjustment of the items determined in accordance with the tender offer is allowed only in exceptional cases established by law. The amendment of the agreement may also be carried out by a court decision on the grounds stipulated in the Civil Code.

Termination of the contract

It occurs in the following cases:

1. End of the deadline.
2. By agreement of the participants.
3. By the tribunal's decision.

After termination of the agreement, the user is obliged to transfer the property to the owner, unless otherwise provided by the contract or law. Material values must be in the same condition as stipulated in the contract. Return of property is carried out with registration of the transfer certificate.

Termination of the contract on the judicial decision

Termination of the agreement is allowed at the request of one of the parties in the presence of violations of its points by another participant. As the bases other circumstances can act also. Significant violations of the terms of the agreement include:

1. Non-compliance with the terms of reconstruction / creation of the OS.
2. The exploitation of material values for purposes that are not stipulated in the agreement.
3. Violation of the OS usage rules.
4. Non-fulfillment by the concessionaire of obligations to conduct the activities specified by the parties to the transaction.
5. Suspension or termination of activities specified in the contract.
6. Non-fulfillment or improper performance of obligations relating to the provision of works, products and services to consumers.

Guarantees

In the conduct of activities specified by the parties to the agreement, the user has the right to protect their interests, in accordance with constitutional provisions, international treaties, federal legislation and other regulatory enactments. In particular, he can rely on compensation for losses that arose as a result of illegal actions by state, local and regional authorities, as well as officials of these structures. Responsibility of the perpetrators comes in accordance with the current legislation.