Decision No. 228/2003/QĐ-TTg On Pilot Leasing Management and Exploitation of Cái Lân Port Infrastructure

 Pursuant to …;

Regarding the pilot leasing management and exploitation of Cai Lan Port Bridge Infrastructure

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PRIME MINISTER

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Vietnam Maritime Code dated June 30, 1990;

Pursuant to Decision No. 202/1999/QĐ-TTg dated October 12, 1999 of the Prime Minister approving the overall planning for the development of Vietnam's seaport system until 2010;

Considering the proposal of the Ministry of Transport (Report No. 3248/TTr-BGTVT dated July 30, 2003) and the opinion of the Ministry of Justice (Letter No. 628/BTP-PLQT dated September 1, 2003),

In order to effectively utilize the infrastructure of the Cai Lan Port Bridge; contribute to recovering investment capital and increasing state revenue; create initiative and self-responsibility for enterprises in port business operations; serve as a basis for developing legal regulations on investment, construction, and port exploitation mechanisms nationwide,

DECISION:

Chapter 1:
GENERAL PROVISIONS

Article 1. Scope and Applicability

1. This Decision stipulates the principles for implementing the pilot leasing of Cai Lan Port Bridge infrastructure for management and exploitation.

2. This Decision applies to the lessor, lessee, and other organizations and individuals related to the management and exploitation of Cai Lan Port Bridge infrastructure.

Article 2. Interpretation of Terms

In this Decision, the following terms shall be understood as follows:

1. "Lease Contract" is the document signed between the lessor and lessee for managing and exploiting the Cai Lan Port Bridge infrastructure.

2. "Leased Property" is the Cai Lan Port Bridge infrastructure defined in Clause 1 of Article 3 of this Decision.

3. "Lease Fee" is the amount of money that the lessee must pay to the lessor during each period to have the right to manage and exploit the Cai Lan Port Bridge infrastructure.

4. "Lease Term" is the duration starting from when the lessor transfers the Cai Lan Port Bridge infrastructure to the lessee for management and exploitation until the time the lessee returns the infrastructure.

5. "Cai Lan Port Project" is the investment project for constructing the Cai Lan Port approved by the Prime Minister in Decision No. 483/QĐ-TTg dated July 25, 1996.

Article 3. Cai Lan Port Bridge Infrastructure

1. The Cai Lan Port Bridge infrastructure specified in this Decision includes: Pier 5, Pier 6, Pier 7, the water area in front of the port, office buildings, warehouses, workshops, electrical and water systems, and internal roads within the Cai Lan Port Project.

2. The Cai Lan Port Bridge infrastructure was constructed with state budget funds and belongs to the ownership of the State, represented by the Vietnam Maritime Administration.

Article 4. Equipment, Machinery, and Means Belonging to the Cai Lan Port Project

1. All equipment for cargo handling, land-based cargo transportation means, garbage collection and treatment vessels, tugboats, and other facilities invested according to the Cai Lan Port Project are state assets assigned.

2. The Ministry of Finance shall implement the assignment of the assets mentioned in Clause 1 of this Article to the Quang Ninh Port under the Vietnam Maritime Corporation in accordance with current regulations.

3. The Quang Ninh Port has the responsibility to manage, exploit, and maintain the assigned capital and assets in accordance with regulations.

Chapter 2:
LEASING AND LESSING OF CAI LAN PORT BRIDGE INFRASTRUCTURE

Article 5. Lease Contract for Managing and Exploiting Cai Lan Port Bridge Infrastructure

1. The leasing and lessing of Cai Lan Port Bridge infrastructure shall be carried out through the Lease Contract.

2. The Lease Contract must comply with the main principles stipulated in Articles 9, 10, and 11 and be approved by the competent authority in accordance with Article 8 of this Decision.

Article 6. The Lessor

1. The Vietnam Maritime Administration under the Ministry of Transport shall act as the representative of the owner to enter into the Lease Contract with the Lessee.

2. As the Lessor, the Vietnam Maritime Administration shall have the following duties and rights:

a) Organize the implementation of leasing assets according to the Lease Contract and relevant laws;

b) Manage the lease payment made by the Lessee for submission to the state budget;

c) Inspect and supervise the management, exploitation, repair, and maintenance of leased assets by the Lessee to ensure proper use in accordance with their technical specifications as prescribed;

d) Inspect and supervise the Lessee's implementation of measures to ensure maritime safety, fire prevention, and environmental protection in accordance with relevant laws;

đ) Carry out emergency repairs on the infrastructure of the Cai Lan wharf and other tasks not within the responsibility of the Lessee;

e) Be entitled to use part of the lease payment to perform tasks assigned to the Lessor as stipulated by the Ministry of Finance;

g) In case the Lessee needs to renovate or expand parts of the leased asset, the Lessor shall consider and resolve it in accordance with the law;

h) Perform other rights and obligations of the owner as prescribed by law.

Article 7. The Lessee

1. Designate the Quang Ninh Wharf under the Vietnam Shipping Corporation as the Lessee to manage and exploit the leased asset, and sign the Lease Contract with the Lessor.

2. The Lessee, which is the Quang Ninh Wharf, shall have the following duties and rights:

a) Organize the management and exploitation of the leased asset in accordance with the Lease Contract and relevant laws;

b) Pay the lease fee as stipulated in the Lease Contract;

c) Not change the technical characteristics of the Cai Lan wharf infrastructure without the written consent of the Lessor;

d) Implement regular repairs and continuous maintenance of the Cai Lan wharf infrastructure;

đ) Carry out dredging and maintenance of the water area before the leased wharf to ensure sufficient depth as announced by the competent authority;

e) Implement measures to ensure maritime safety, fire prevention, and environmental protection;

g) Ensure that the leased asset is not lost, damaged, or malfunctioning;

h) Maximize the use of local labor in managing and exploiting the Cai Lan wharf;

i) Have the right to register and publicly announce its brand in the exploitation of the leased asset;

k) Collect fees when providing services in accordance with the law;

l) Receive additional machinery, equipment, and means to increase the efficiency of exploitation. In cases where the equipment is attached to the Cai Lan wharf infrastructure or changes the Cai Lan wharf infrastructure, written approval from the Lessor is required and must comply with current regulations on investment and construction management;

m) Perform other rights and obligations as prescribed by law.

Article 8. Approval Authority for the Lease Contract

The Ministry of Finance is the authority to approve the Lease Contract after receiving a written agreement from the Ministry of Transport.

Chapter 3:
PRINCIPLES OF THE LEASE CONTRACT

Article 9. Lease Fee

1. The basis for calculating the lease fee includes the following factors:

a) The capital invested in constructing the Cai Lan wharf infrastructure, settled up to the time the project is put into use, taking into account the lease period, loan period, grace period, interest rate on loans, and the repair, maintenance, and upkeep of the Cai Lan wharf infrastructure;

b) The geographical advantage of the wharf and the actual market conditions during the implementation of the Lease Contract;

c) Ensuring the recovery ratio of state budget capital and ensuring profitability for the Lessee in operating the wharf.

2. The lease fee is specifically defined in the Lease Contract.

3. The lease fee will be adjusted every five years or in case of market fluctuations or inflation rates of 10% or more per year.

Article 10. Payment methods and payment deadlines

Payment methods and payment deadlines shall be specifically determined in the Lease Contract.

Article 11. Lease Term

The lease term shall be implemented according to the Lease Contract, with a maximum duration of twenty-five years, starting from the date when the leased property is handed over to the Lessee under the Lease Contract.

Article 12. Amendment of the Lease Contract

During the lease term, the lease contract may be amended but must comply with the principles stipulated in Articles 9, 10, and 11 of this Decision.

The Ministry of Finance shall take the lead and coordinate with the Ministry of Transport to prescribe the procedures and formalities for amending the lease contract.

Chapter 4:
IMPLEMENTATION

Article 13. Responsibilities of Relevant Authorities

1. The Ministry of Transport:

a) Inspect and supervise the implementation of the pilot program;

b) Annually, the Ministry of Transport shall take the lead and coordinate with the Ministry of Finance, the Ministry of Planning and Investment, the People's Committee of Quang Ninh Province, and relevant authorities to organize the evaluation of the pilot program's results and report to the Prime Minister.

c) In the course of implementing the pilot program, if any issues arise, the Minister of Transport shall have the responsibility to examine and resolve them within their authority, and report to the Prime Minister for examination and resolution of issues exceeding their authority.

d) Based on the situation of the pilot program's implementation, the Ministry of Transport shall take the lead and coordinate with the Ministry of Finance and relevant authorities to proactively evaluate the results and report to the Prime Minister. If the pilot program has achieved its objectives and requirements, it shall report to the Prime Minister for consideration to conclude the pilot program and allow the provisions of this Decision to apply to other seaports.

In case the pilot program does not achieve its objectives and requirements, it shall report to the Prime Minister for consideration and decision to suspend the pilot program and appropriate measures to effectively manage and operate the infrastructure of the Cai Lan Seaport.

e) Direct the Vietnam Maritime Administration to perform state management functions at the seaport to facilitate the successful implementation of the pilot program.

2. Ministry of Finance:

a) Inspect and supervise the settlement of payments made according to the approved Lease Contract;

b) Guide the Lessor and Lessee to implement payment procedures in accordance with this Decision and other relevant laws.

c) Perform other tasks prescribed in this Decision.

3. The Ministry of Planning and Investment:

Coordinate with the Ministry of Finance and the Ministry of Transport to aggregate and assess the economic efficiency of leasing, including debt repayment as stipulated.

4. People's Committee of Quang Ninh Province:

Coordinate with the Ministry of Transport, the Ministry of Finance, and relevant authorities to monitor the leasing process, create favorable conditions for both the Lessor and Lessee to effectively manage and operate the infrastructure and equipment of the Cai Lan Seaport Project.

5. Vietnam Maritime Corporation:

Direct and support Quang Ninh Port to comply with the provisions of this Decision.

Article 14. Effective Date

The Standard Measurement Quality Control Department shall be responsible for organizing and guiding the implementation of the Regulations adopted herein.

The conclusion of the pilot program will be reported by the Ministry of Transport to the Prime Minister for consideration and decision in accordance with Clause d, Article 13 of this Decision.

Article 15. Responsibility for Implementation

Ministers, Heads of Ministries equivalent to Ministries, Heads of Government Agencies, Chairman of the People's Committee of Quang Ninh Province and related provinces and cities, Director of the Vietnam Maritime Administration, Chairman of the Board of Directors, General Director of Vietnam Maritime Corporation, Director of Quang Ninh Port, and Heads of related agencies, units, and individuals are responsible for enforcing this Decision./.