1 framework agreement between government implementing agencies and social capitalists
Framework agreement, also known as investment agreement. Social investors in Ppp projects are generally selected by the government through bidding. According to the Bidding Law of People's Republic of China (PRC), the social investors of the winning bidder shall sign a framework agreement within 30 days from the date of issuance of the bid-winning notice. The signatories of the agreement are generally the executive agencies representing the government and the social capital party that won the bid. The main content is to clarify the core rights and obligations of the government and social capitalists in ppp projects, as well as to confirm the contents and processes of bidding for ppp projects, arrange follow-up work, arrange future PPP contracts, and discuss the contents that cannot be reflected in PPP contracts. For social capital, it can lock in the investment right of the project and the main support conditions of the government; For the government, it can play a role in locking the responsibility of social capital investment and construction.
2 Shareholders' Agreement of the Project Company
According to China's current ppp project company policy, the winning social capitalist should form a project company with the government funder * * * to implement the construction and operation of ppp projects. The shareholder agreement of Ppp project company is generally signed by the project participants as shareholders to establish a long-term and binding contractual relationship between shareholders. Shareholders' agreements usually include the following main clauses: preconditions, establishment and financing of the project company, business scope of the project company, shareholders' rights, shareholders' commitment to perform the PPP project contract, shareholders' business plan, equity transfer, composition of shareholders' general meeting, board of directors and board of supervisors and their terms of reference, dividend distribution, default, termination and post-termination treatment mechanism, force majeure, applicable law and dispute settlement.
In some ppp projects, the content of shareholders' agreement can also be reflected in the articles of association of the project company.
Different from the investment agreement of ordinary investment projects, the shareholders of ppp projects are more complicated, including both state-owned platform shareholders representing the interests of the government and consortium members (such as design, construction, procurement, operation, investment, etc.). Who won the bid for the PPP project? The transactions of the project company are mainly related transactions (such as design, construction, procurement, operation, investment, etc. ) with the above shareholders and their related parties, as well as the purpose, capital contribution and investment of shareholders joining the project company.
3 ppp contract between implementing agency and project company
PPP project contract is an agreement signed between the project implementation agency and the project company, which stipulates the main contents of project cooperation and the basic rights and obligations of both parties. Its purpose is to allocate the project risk reasonably between the project implementation organization and social capital, clarify the relationship between the rights and obligations of both parties, ensure that both parties can claim their rights reasonably according to the contract, correctly perform their obligations, and ensure the smooth implementation of the project throughout the life cycle. PPP project contract is the core of the whole PPP project contract system, and it is also the basis of its project performance contract and other contracts.
4 Project Company's performance contract for implementing ppp project
(1) Project contract. The project company can exist as a financing entity and a project manager, or it can be the main body mainly engaged in project construction and operation. The project company may entrust part or all of the design, procurement and construction work to the engineering contractor, sign the project contract, or complete the design, procurement and construction tasks by itself (epc general contracting).
(2) Operation service contract. According to the different operation contents of ppp project and the management ability of the project company, the project company can also outsource all or part of the operation and maintenance of the project to experienced operators, and sign an operation service contract with them after obtaining the consent of the government in advance (or according to the PPP project contract). However, the operation and maintenance obligations of the project company agreed in the PPP project contract are not exempted or alleviated because the project company subcontracts all or part of the operation and maintenance affairs to other operators.
5ppp project financing contract
Project financing is an important part of ppp model, the basis and premise for social capital or project companies to complete project construction, and also the most concerned issue of the government. Because social capital only accounts for a small part of the project investment, the smooth implementation of PPP projects depends on whether the financing conditions can be realized, so the general PPP project contract takes financing delivery as a necessary clause of the contract. Therefore, the financing scheme of social capital, the loan contract under the financing scheme, its effective conditions and key clauses, especially the setting of the intervention clause of the financier, are important prerequisites for the project company to obtain the concession. Moreover, there are a wide range of financing methods and channels at present, such as the loan contract system between the project company and the borrower, the financing mortgage contract between the project company and the borrower based on the project income right, or the financing contract signed between the major shareholder or actual controller of the project company and the borrower.
6 Other contracts
1, insurance contract
Because PPP projects usually have large capital scale and long life cycle, project companies and other relevant participants responsible for project implementation usually need to insure different types of risks at different stages of project financing, construction and operation. The types of insurance that may usually be involved include cargo transportation insurance, construction engineering insurance, professional protection insurance for design or other professional services, indirect loss insurance, third party liability insurance, political risk insurance, etc. In PPP projects, the government will generally make corresponding requirements for insurance agreements: mainly including the need for social capital to continue to insure and the need to submit insurance certificates to the government; The insured shall be the government or its designated institution; Insurance companies need to agree to give up some key rights, including subrogation and deduction. The change of insurance contract requires the prior consent of the government.
2, supervision contract
The project company is the main body of PPP project management and risk taking, and the owner of PPP project, and has the right to entrust the supervision unit to perform the supervision task.
In PPP projects, the government has two roles. One is that the government, as the purchaser of public goods or services, forms an equal civil subject relationship with the project company based on the PPP project contract, and exercises rights and performs obligations according to the agreement in the PPP project contract. The other is that as a manager of public affairs, he has the obligation to provide the public with high-quality and reasonably priced public products and services, and undertake the planning, procurement and commitment of PPP projects. Therefore, in order to better understand the progress of the PPP project and ensure that the project can be performed according to the contract, the government can plan and manage the implementation of the PPP project, and it is stipulated in the PPP contract that the government should choose the supervision unit according to law. And before the establishment of the project company, the owner of PPP project is the government, and the government, as the main body of PPP project implementation, has the right to choose the supervision unit.
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