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THE PRIME MINISTER
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SOCIALIST
REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
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No:
228/2003/QD-TTg
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Hanoi,
November 06th, 2003
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DECISION
ON THE
EXPERI-MENTAL LEASE OF CAI LAN PORT BERTH INFRASTRUCTURE FOR MANAGEMENT AND
EXPLOITATION
THE PRIME MINISTER
Pursuant to
the December 25, 2001 Law on Organization of the Government;
Pursuant to the June 30, 1990 Maritime Code
of Vietnam;
Pursuant to the Prime Minister's Decision
No. 202/1999/QD-TTg of October 12, 1999 approving the overall plan on the
development of Vietnam's seaport system till 2010;
At the proposal of the Ministry of
Communications and Transport (Report No. 3248/TTr-BGTVT of July 30, 2003) and
the opinions of the Ministry of Justice (Official Dispatch No. 628/BTP-PLQT of
September 1, 2003),
With a view to efficiently using Cai Lan
port berth infrastructure; contributing to recovering investment capital and
raising the State's revenue source; helping enterprises to be active and take
self-responsibility in the commercial exploitation of seaports; and laying
grounds for the formulation of legal documents on the mechanisms for investment
in, as well as construction and exploitation of, seaports throughout the
country,
DECIDES:
Chapter
I
GENERAL PROVISIONS
Article 1.- Scope and subjects of application
1. This Decision prescribes principles for the
experimental lease of Cai Lan port berth infrastructure for management and
commercial exploitation.
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Article 2.- Interpretation of terms
In this Decision, the following terms and
phrases shall be construed as follows:
1. "Lease contract" means the document
signed between the lessor and the lessee for the management and exploitation of
Cai Lan port berth infrastructure.
2. "Leased property" means Cai Lan
port berth infrastructure defined in Clause 1, Article 3 of this Decision.
3. "Rental" means the money amount to
be paid in each period by the lessee to the lessor for the right to manage and
exploit Cai Lan port berth infrastructure.
4. "Lease term" means the period
starting from the time when the lessor assigns Cai Lan port berth
infrastructure to the lessee for management and exploitation till the time when
the lessee returns such port berth infrastructure.
5. "Cai Lan port project" means the
investment project on the construction of Cai Lan port, approved by the Prime
Minister in Decision No. 483/QD-TTg of July 25, 1996.
Article 3.- Cai Lan port berth infrastructure
1. Cai Lan port berth infrastructure prescribed
in this Decision includes: port berth No. 5, port berth No. 6, port berth No.
7, port water, offices, warehouses, yards, workshops, water- and
electricity-supply systems, and intra-port roads, which belong to Cai Lan port
project.
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Article 4.- Equipment, machinery and facilities of Cai Lan port
project
1. All cargo-handling equipment, ashore cargo
transportation means; waste-gathering and -treating barges, towing ships and
other equipment already invested under Cai Lan port project are the property
capital assigned by the State.
2. The Ministry of Finance shall assign the
property capital defined in Clause 1 of this Article to Quang Ninh port under
Vietnam National Shipping Lines according to current regulations.
3. Quang Ninh port shall have to manage, exploit
and preserve its assigned capital and assets according to regulations.
Chapter
II
HIRING AND LEASING CAI LAN PORT BERTH INFRASTRUCTURE
Article 5.- Contract on the lease of Cai Lan port berth
infrastructure for management and exploitation
1. The hire and lease of Cai Lan port berth
infrastructure shall be effected through a lease contract.
2. The lease contract must ensure the major
principles prescribed in Article 9, Article 10 and Article 11 and be approved
by the competent agency defined in Article 8 of this Decision.
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1. To assign Vietnam Maritime Bureau under the
Ministry of Communications and Transport, which is the owner's representative,
to act as the lessor to sign the lease contract with the lessee.
2. Vietnam Maritime Bureau shall, in the
capacity as the lessor, have the following tasks and powers:
a/ To lease the property according to the lease
contract and relevant law provisions;
b/ To manage rentals paid by the lessee and
remit them into the State budget;
c/ To inspect and supervise the management,
exploitation, repair and maintenance of the leased property by the lessee in
order to ensure that such property is used for the right purposes and according
to its technical properties as prescribed;
d/ To inspect and supervise the application of
measures to ensure maritime safety, prevent and fight fires and explosions and
prevent environmental pollution according to law provisions by the lessee;
e/ To carry out the irregular repair of Cai Lan
port berth infrastructure and perform other tasks falling beyond the lessee's
responsibility;
f/ To be permitted to use a part of the rentals
for the performance of tasks to be done by the lessor according to the Finance
Ministry's regulations;
g/ To consider and satisfy the lessee's need for
the renovation or expansion of the leased property's items according to law
provisions;
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Article 7.- The lessee
1. To designate Quang Ninh port under Vietnam
National Shipping Lines to act as the lessee for the management and
exploitation of the leased property and sign the lease contract with the
lessor.
2. The lessee, which is Quang Ninh port, shall
have the following tasks and powers:
a/ To manage and exploit the leased property in
strict accordance with the lease contract and relevant law provisions;
b/ To pay rentals as prescribed in the lease
contract;
c/ Not to change the technical properties of Cai
Lan port berth infrastructure without the lessor's written consent;
d/ To carry out the periodical repair and
regular maintenance of Cai Lan port berth infrastructure;
e/ To dredge and maintain the water in front of
berths already leased in order to ensure its depth as announced by competent
agencies;
f/ To apply measures to ensure maritime safety,
prevent and fight fires and explosions and prevent environmental pollution;
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h/ To employ to the utmost local labor in the
course of management and exploitation of Cai Lan port berth;
i/ To be allowed to register and publicize its
trademark for the exploitation of the leased property;
j/ To be allowed to collect charges for service
provision according to law provisions;
k/ To be allowed to additionally invest in
equipment, machinery and facilities in order to raise the exploitation
efficiency. In cases where the equipment and/or machinery are affixed to, or
cause changes in, Cai Lan port berth infrastructure, the investment thereon
must be approved in writing by the lessor and carried out according to current
regulations on construction and investment management;
l/ To exercise other rights and fulfill other
obligations according to law provisions.
Article 8.- Agency approving the lease contract
The Ministry of Finance shall be the agency that
approves the lease contract after obtaining written agreement of the Ministry
of Communications and Transport.
Chapter
III
MAJOR PRINCIPLES OF THE LEASE CONTRACT
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1. The grounds for calculating the rental shall
include the following elements:
a/ The capital invested in the construction of
Cai Lan port berth infrastructure, which are settled by the time the works are
put into use, taking into account the lease term, capital-borrowing term, grace
period, loan interest rate and the repair and maintenance of Cai Lan port berth
infrastructure;
b/ Geographical advantages of the port berth as
well as practical situation of the market during the performance of the lease
contract;
c/ The assurance of the State budget capital
recovery percentage and the lessee's profits from the commercial exploitation
of the port berth.
2. The rental shall be specified in the lease
contract.
3. The rental shall be adjusted once every 05
years or in cases where market price fluctuation or inflation rate is recorded
at 10% or more in a year.
Article 10.- Payment mode and term
The payment mode and term shall be specifically
decided in the lease contract.
Article 11.- Lease term
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Article 12.- Adjustment of the lease contract
During the lease term, the lease contract may be
adjusted but in compliance with the principles defined in Article 9, Article 10
and Article 11 of this Decision.
The Ministry of Finance shall assume the prime
responsibility for, and coordinate with the Ministry of Communications and
Transport in, stipulating the order and procedures for adjustment of the lease
contract.
Chapter
IV
IMPLEMENTATION ORGANIZATION
Article 13.- Responsibilities of concerned agencies
1. The Ministry of Communications and Transport
a/ To inspect and supervise the experimentation;
b/ Annually, to assume the prime responsibility
for, and coordinate with the Ministry of Finance, the Ministry of Planning and
Investment, the People's Committee of Quang Ninh province and concerned
agencies in, evaluating and reporting on the experimentation results to the
Prime Minister.
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d/ The Ministry of Communications and Transport
shall, basing itself on the experimentation situation, assume the prime
responsibility for, and coordinate with the Ministry of Finance and concerned
agencies in, taking initiative in evaluating and reporting on the
experimentation results to the Prime Minister. If the experimentation's
purposes and requirements are attained, to report thereon to the Prime Minister
for the latter to consider the termination of the experimentation and permit
the application of this Decision to other seaports.
In cases where the experimentation fails to
achieve its purposes and requirements, to report thereon to the Prime Minister
for the latter to consider and decide on the suspension of the experimentation
and the application of appropriate measures so as to efficiently manage and
exploit Cai Lan port berth infrastructure.
e/ To direct Vietnam Maritime Bureau to perform
the State management functions at the seaport with a view to creating
conditions for the fruitful experimentation.
2. The Ministry of Finance:
a/ To inspect and supervise the payment and
settlement of amounts paid under the lease contract already approved;
b/ To guide the lessor and the lessee to perform
payment operations according to this Decision and other relevant law
provisions;
c/ To perform other tasks prescribed in this
Decision.
3. The Ministry of Planning and Investment:
To coordinate with the Ministry of Finance and
the Ministry of Communications and Transport in synthesizing and evaluating the
economic efficiency of the lease, including the repayment of borrowed capital
according to regulations.
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To coordinate with the Ministry of
Communications and Transport, the Ministry of Finance and concerned agencies in
supervising the lease process, to create all favorable conditions for the
lessee and the lessor so as to obtain good results in the management and
exploitation of the infrastructure, equipment and facilities of Cai Lan port
project.
5. Vietnam National Shipping Lines:
To direct and support Quang Ninh port to
strictly comply with the provisions of this Decision.
Article 14.- Implementation effect
This Decision takes effect 15 days after its
publication in the Official Gazette.
The termination of the experimentation shall be
reported by the Ministry of Communications and Transport to the Prime Minister
for consideration and decision according to Item d, Clause 1, Article 13 of
this Decision.
Article 15.- Implementation responsibility
The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government, the presidents of the People's Committees of Quang Ninh province as
well as concerned provinces and centrally-run cities, the director of Vietnam
Maritime Bureau, the chairman of the Management Board and the general director
of Vietnam National Shipping Lines, the director of Quang Ninh port, the heads
of concerned agencies, units and individuals shall have to implement this
Decision.
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER
Nguyen Tan Dung