ADVOKS GLOBAL · KENYA
Public Private Partnerships Act
2. Interpretation
Edition: 2022-12-31 · In force
2. Interpretation
In this Act, unless the context otherwise requires—"affordability" means that—(a)the financial commitments to be incurred by a contracting authority in terms of a project agreement are sustainable and do not impose an unreasonable burden to the contracting authority and may be met by funds—(i)designated within the existing budget of the contracting authority for its function for which the agreement relates; and;(ii)assigned to the contracting authority in accordance with its relevant future budgetary allocation; and(b)the cost of delivering a facility or service in relation to the project by the contracting authority does not impose an unreasonable financial burden on the end users;"Cabinet Secretary" means the Cabinet Secretary responsible for matters relating to finance;"Committee" means the Public Private Partnership Committee established under section 6;"concession" means a contractual licence formalized by a project agreement, which may be linked to a separate interest or right over real property, with or without a fee to Government, entitling a person who is granted the licence to make use of the specified infrastructure or undertake a project and to charge user fees, receive availability payments or both such fees and payments during the term of the concession;"contracting authority", means—(a)at the national government level, a state department, agency or state corporation which intends to have its functions undertaken by a private party; or(b)at the county government level, the county government or county corporation which intends to have its functions undertaken by a private party;"contracting authority's property" includes all movable and immovable property belonging to the contracting authority and the intellectual property rights vested in the contracting authority;"Directorate" means the Directorate of Public Private Partnerships established under section 15;“feasibility study” means a study undertaken to explore the technical, financial, legal, social and environmental feasibility of undertaking an infrastructure or development facility as a public private partnership;"financial close" means the date when all conditions precedent required to be met to achieve first draw down on Senior Debt under a project agreement are met, as specified under a project agreement;"Fund" means the Public Private Partnership Project Facilitation Fund established under section 81;"local content" means the added value brought to the Kenyan economy from project-related activities by way of local distribution of accruing benefits including through the procurement of locally available workforce, services and supplies and systematic development of national capacity and capabilities;"private party" means a party that enters into a project agreement with a contracting authority and is responsible for undertaking a project on behalf of the contracting authority under this Act;"privately-initiated proposal" means a proposal that is originated by a private party without the involvement of a contracting authority and may include information that enables the complete evaluation of the proposal as if it were a bid;"project" means the design, construction, development or operation of a new infrastructure, asset or facility or the rehabilitation, modernization, expansion, operation or management of an existing infrastructure, asset or facility;"project agreement" means a contract concluded between a contracting authority and a private party and includes any ancillary agreement entered into by the parties in relation to an agreement;"project company" means a special purpose vehicle company incorporated by a successful bidder for the purpose of undertaking a project in accordance with a project agreement executed by the parties;"Public Debt Management Office" means the Public Debt Management Office established by section 62(1) of the Public Finance Management Act (Cap. 412A);"public private partnership" means a contractual arrangement between a contracting authority and a private party under which a private party—(a)undertakes to perform a public function or provide a service on behalf of the contracting authority;(b)receives a benefit for performing a public function by way of—(i)compensation from a public fund;(ii)charges or fees collected by the private party from users or consumers of a service provided to them; or(iii)a combination of such compensation and such charges or fees;(c)is generally liable for risks arising from the performance of the function in accordance with the terms of the project agreement; and(d)transfers the facility to the contracting authority;"transaction advisor” means a person who has the appropriate skill and experience to assist and advise the contracting authority or the Directorate on matters related to a public private partnership;"user fee" means the rate, toll, fee, or other charge imposed for the use of all or part of an infrastructure or development facility or service; and"value for money" means that the undertaking of a public function of the contracting authority by a private party under a public private partnership results in a net benefit accruing to that contracting authority defined in terms of cost, price, quality, quantity, timeliness or risk transfer.