1. The partnership agreement shall be the agreement for consideration set forth in Article 3, paragraph 1, clause eee).
2. In public-private partnership agreements, the operating revenue of the economic operator derives from the fee granted by the granting authority and/or any other form of economic consideration received by such economic operator, including in the form of direct income from the operation of the service for external users. The partnership agreement can be used by the granting administrations for any type of public work.
3. In the public-private partnership agreement, the transfer of the risk to the economic operator results in allocating to the latter, in addition to the construction risk, the risk of availability or, in cases of profitable activity towards third parties, the risk of demand of the services provided, for the operating period of the work as defined, respectively, by Article 3, paragraph 1, clauses aaa), bbb) and ccc). The content of the agreement is determined between the parties in such a way that the recovery of the investments made and costs incurred by the economic operator to perform the work or provide the service depends on the actual provision of the service or possibility to use the work, or by the volume of the services provided with respect to demand, and in any case, by compliance with the contracted quality levels, provided that the evaluation occurs ex ante. The public-private partnership agreement shall also regulate the risks which impact the consideration, deriving from acts not attributable to the economic operator.
4. With respect to the availability of the work or demand for services, the contracting authority can choose to pay a fee to the economic operator that is proportionally reduced or cancelled during periods of reduced or unavailability of the work, as well as reduced or lack of services. If the reduced or unavailability of the work or service is attributable to the operator, such variations of the fee must in any case be capable of significantly impacting the current net value of the overall investments, costs and revenue of the economic operator.
5. The contracting authority can also choose, in the case of the availability of the work or demand for the service, that a different economic benefit be paid, as long as agreed upon ex ante, or it can allow remuneration for the service to be exploited directly by the economic operator, who therefore assumes the risk of negative fluctuations in market demand for such service.
6. The financial-economic equilibrium, as defined in Article 3, paragraph 1, clause fff), represents the premise for the proper allocation of the risks set forth in paragraph 3. For the sole purposes of achieving the above equilibrium, at the time of the tender the contracting authority can also establish a price consisting of a public contribution or in the transfer of real property that no longer fulfill public interest functions. A contribution can consist of a right of enjoyment, whose use is instrumental and technically related to the work to be awarded as a concession. The manner in which the real property can be used shall be determined by the contracting authority and shall be one of the premises that determines the financial-economic equilibrium of the concession. Regardless, any payment of the price, added to the value of any public guarantees or additional financing mechanisms borne by the public administration, cannot exceed forty-nine percent of the cost of the overall investment, inclusive of any financial costs.
7. The provisions of Article 165, paragraphs 3, 4 and 5 of this Code shall apply.
8. The type of contract set forth in paragraph 1 shall include project financing, building and operating concessions, the concession of services, the financial leasing of public works, availability contracts and any other procedure to realize as a partnership works or services having the characteristics set forth in the above paragraphs.
