<ПРОЕКТНОЕ СОГЛАШЕНИЕ (РОССИЙСКАЯ ФЕДЕРАЦИЯ: ПРОЕКТ РЕКОНСТРУКЦИИ СИСТЕМЫ ВОДОСНАБЖЕНИЯ И ОХРАНЫ ОКРУЖАЮЩЕЙ СРЕДЫ Г. КАЛИНИНГРАДА) МЕЖДУ ЕВРОПЕЙСКИМ БАНКОМ РЕКОНСТРУКЦИИ И РАЗВИТИЯ, РОССИЙСКОЙ ФЕДЕРАЦИЕЙ И КАЛИНИНГРАДСКИМ МУНИЦИПАЛЬНЫМ ПРЕДПРИЯТИЕМ КОММУНАЛЬНОГО ХОЗЯЙСТВА "ВОДОКАНАЛ"> (operation number 758) [англ.](Заключено в г. Калининграде 04.07.1999)
Operation Number 758
PROJECT AGREEMENT
(RUSSIAN FEDERATION:
KALININGRAD WATER
AND ENVIRONMENTAL SERVICES REHABILITATION PROJECT)
BETWEEN EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
AND
KALININGRAD MUNICIPAL WATER AND WASTE WATER SERVICES
ENTERPRISE
"VODOKANAL" WITH THE RUSSIAN FEDERATION
AS A PARTY FOR SPECIFIED
PURPOSES
(Kaliningrad, 4.VII.1999)
Agreement dated 4 July 1999
among:
(1) the European Bank for Reconstruction and Development (the
"Bank");
(2) the Russian Federation <*> (the "Borrower"); and
--------------------------------
<*> A party for the purposes of
Section 5.01(b) of the Project Agreement only.
(3) Kaliningrad Municipal
Water and Waste Water Services Enterprise "Vodokanal" (the "Project
Entity").
Preamble
(A) Whereas by a loan agreement dated 4 July 1999
between the Borrower and the Bank (the "Loan Agreement"), the Bank has agreed to
make available to the Borrower a loan (the "Loan") on the terms and conditions
set forth in the Loan Agreement, but only on condition that the Project Entity
agrees to undertake such obligations toward the Bank and the Borrower as are set
forth in this Project Agreement;
(B) Whereas by the Subsidiary Loan
Agreement between the Borrower, the Project Entity, the City and the Region, the
proceeds of the Loan will be made available to the Project Entity for the
purposes of carrying out the Project; and
(C) Whereas the Project Entity,
in consideration of the above, has agreed to undertake the obligations set forth
in this Project Agreement.
Now, therefore, the parties hereby agree as
follows:
Article I. STANDARD TERMS AND CONDITIONS;
DEFINITIONS;
HEADINGS
Section 1.01
Incorporation of Standard Terms and
Conditions
All the provisions of the Standard Terms and Conditions dated
February 1999 are hereby incorporated into and made applicable to the Project
Agreement with the same force and effect as if they were fully set forth herein
(said provisions being hereinafter called the Standard Terms and
Conditions).
Section 1.02
Definitions
Wherever used in the Project
Agreement or the Schedule(s) hereto, except where stated otherwise, the terms
defined in the Preamble to the Project Agreement have the respective meanings
ascribed therein, and the terms defined in Loan Agreement and in the Standard
Terms and Conditions have the respective meanings ascribed therein.
Section
1.03
Headings
The headings of Articles and Sections, as well as the
Table of Contents, are inserted for convenience of reference only and shall not
be used to interpret the Project Agreement.
Article II. EXECUTION OF THE
PROJECT
Section 2.01
Project Obligations
The Project Entity shall
carry out the Project. For this purpose, except as the Bank shall otherwise
agree:
(a) all references in Section 4.02 of the Standard Terms and
Conditions to "the Borrower" shall be read as the Project Entity and the
responsibilities set forth therein shall be applied, mutatis mutandis, to the
Project Entity;
(b) the Project Entity shall take or cause to be taken
all additional action necessary to provide adequate funds for the completion of
the Project.
Section 2.02
Subsidiary Loan Agreement
The Project
Entity shall duly perform all its obligations under the Subsidiary Loan
Agreement and any Co-Financing Agreements to which the Project Entity is a
party. Except as the Bank shall otherwise agree, the Project Entity shall not
take or concur in any action that would have the effect of amending, abrogating,
assigning or waiving the Subsidiary Loan Agreement or any provisions thereof,
save for any amendments of a non-material nature of which the Bank has been
given prior written notice (and, without prejudice to the generality of the
foregoing, amendments relating to Article III(a)(i) to (iii) of the Loan
Agreement are agreed to be material for this purpose).
Section
2.03
Procurement
For the purposes of Section 4.03 of the Standard Terms
and Conditions, the following provisions shall, except as the Bank shall
otherwise agree, govern procurement of goods, works and services required for
the Project and to be financed out of the proceeds of the Loan:
(a)
Goods, works and services (excluding consultants" services, which are included
within subsection (c) below) shall be procured through open tendering.
(b) For purposes of subsection (a), above, the procedures for open tendering,
are set out in Chapter 3 of the EBRD Procurement Policies and Rules.
(c)
Consultants to be employed by the Project Entity to assist in the carrying out
the Project shall be selected in accordance with the procedures set out in
Chapter 5 of the EBRD Procurement Rules.
(d) All contracts shall be
subject to the review procedures set out in Annex 1 to the EBRD Procurement
Policies and Rules.
Section 2.04
Management Contractor
(a) In order
to assist in the implementation of the Project, the Project Entity shall, unless
otherwise agreed with the Bank, employ and use the Management Contractor to
carry out conceptual design of the Project, the procurement of goods, works and
services for the Project, and to assume responsibility for contract
administration, progress monitoring and cost control. The qualifications,
experience and terms of reference of the Management Contractor shall be
satisfactory to the Bank and in the Project Entity"s procurement of the
Management Contractor, the Project Entity shall follow the procurement rules of
the relevant funding agencies.
(b) The Project Entity shall provide,
without charge, to any consultants engaged to assist in matters relating to the
Project or the operations of the Project Entity, including the Management
Contractor and the Lenders Agent, all facilities and support necessary for the
carrying out of their functions, including office space, telecommunication
facilities and transportation, as well as all documents, materials, and other
information as may be relevant to their work.
Section 2.05
Contract
Administration and Monitoring Unit
In order to monitor performance of the
Management Contractor and administer procurement, the Project Entity shall
establish and at all times during execution of the Project operate a Contract
Administration and Monitoring Unit ("CAMU") with adequate resources and suitably
qualified personnel, under terms of reference acceptable to the
Bank.
Section 2.06
Corporate Development Plan and Corporate
Partner
Unless the Bank shall otherwise agree, the Project Entity
shall:
(a) not later than 12 months after the date of the Project
Agreement enter into an agreement in form and substance satisfactory to the Bank
with a corporate partner acceptable to the Bank and the Borrower, appointing
such corporate partner to assist the Project Entity in reviewing the Project
Entity"s activities and developing and implementing the Corporate Development
Plan;
(b) not later than 6 months after the date of the effectiveness of
the agreement with the Corporate Partner referred to in Section 2.06(a) of the
Project Agreement and with the assistance of the Corporate Partner, adopt and
thereafter implement a corporate development plan which will integrate the key
development activities necessary for transforming the Project Entity into a cost
effective and competitive utility company, which shall be in form and substance
satisfactory to the Bank and which shall include targets in respect of, amongst
other things, the following:
(i) autonomous: the strengthening of the
ability of the Project Entity to function as an autonomous and financially
accountable legal entity;
(ii) budget control: the Project Entity to
establish an accounting and management information system enabling it to
exercise appropriate budget control;
(iii) tariff collection rate: the
Project Entity to increase the tariff collection rate in accordance with Section
3.03(e) of the Project Agreement;
(iv) cash collection rate: the Project
Entity to ensure that the cash collection rate is in accordance with Section
3.03(f) of the Project Agreement;
(v) account receivables: the Project
Entity to reduce account receivables;
(vi) efficiency: the Project Entity
to improve operational and financial efficiency; and
(vii) tariffs -
general: the Project Entity to work with the City and the Region as necessary to
ensure a tariff system for water and waste water services based on the principle
of full cost recovery for all consumer categories is in place by the start of
the year 2003 as provided in the Presidential Decree on Russian Housing Reform
(No. 425 of 28 April 1997).
Section 2.07
Environmental
Covenants
Without limiting the generality of Sections 4.02(a), 4.04(a)(iii),
and 5.02(c)(iii) of the Standard Terms and Conditions, the Project Entity
shall:
(a) Environment - general: carry out the Project in accordance
with the environmental regulations and standards in effect from time to time in
the jurisdiction in which the Project is located;
(b) Environment - first
year: develop within the period of one year from the signing of the Project
Agreement, a programme to achieve compliance with Russian, HELCOM and European
Union environmental standards, with details and timeframe to be agreed with the
Bank, and implement such programme in accordance with such timeframe; and
(c) Sludge Disposal: develop and agree with the Bank a programme to address the
issue of sludge disposal.
Section 2.08
Reporting Frequency and
Submission Requirements
(a) Annual environmental report: As soon as
available but, in any event, within 60 days after the end of each FY, the
Project Entity shall furnish to the Bank a report, in form and scope
satisfactory to the Bank, on environmental, health and safety issues arising in
relation to the Project during such FY, including:
(i) the status of
compliance with the Environmental Standards, including an update on permit
status and any incidents of non-compliance, fines, results of inspection
reports, and remedial action relating thereto;
(ii) copies of significant
information on environmental matters submitted by the Project Entity to the
environmental regulatory authorities; and
(iii) a summary of the health
and safety records, including accident rate and any related initiatives
implemented or planned during the reporting period.
(b) Incident
reporting: Immediately upon the occurrence of any incident or accident, relating
to the Project Entity or the Project, likely to have a material adverse effect
on the environment, health or safety, the Project Entity shall give the Bank
notice thereof by facsimile transmission or telex specifying the nature of such
incident or accident and any steps the Project Entity is taking to remedy the
same. Without limiting the generality of the foregoing, an incident or accident
is likely to have a material adverse effect on the environment, health or safety
if:
(i) any applicable law requires notification of such incident or
accident to any governmental authority;
(ii) such incident or accident
involves fatality or multiple serious injuries requiring hospitalisation;
or
(iii) has become public knowledge whether through media coverage or
otherwise.
(c) Quarterly reports: The periodic Project reports referred
to in Section 4.04(a)(iv) of the Standard Terms and Conditions shall be
submitted by the Project Entity quarterly, within thirty (30) days after the end
of the period being reported on, until the Project has been completed. Such
reports shall include the following specific features:
(i) the following
general information:
(1) the physical progress
accomplished in the
implementation of the Project to the date of
report and during
the reporting period;
(2) actual or
expected difficulties or delays in the
implementation of the
Project and their effect on the
implementation schedule, and
the actual steps taken or planned
to overcome the difficulties and
avoid delays;
(3) expected changes in the completion date
of the
Project;
(4) key personnel changes in the
staff of the Project
Entity, the CAMU and the Manager
Contractor;
(5) matters that may affect the Project cost;
and
(6) any development or activity likely to affect
the
economic viability of any part of the Project;
(ii)
financial statements showing details of the expenditures incurred under each
part of the Project and the drawdowns from the Loan, together with a statement
showing:
(1) original cost estimates;
(2) revised
cost estimates, if any, with reasons for
changes;
(3) original estimated expenditures to date;
(4) reasons for
variations of (3) above from actual
expenditures; and
(5) estimated expenditure for remaining quarters of the
year;
(iii) a brief statement of the status of compliance with each of
the covenants of the Project Agreement.
(d) Semi-annual reports: the
Project Entity shall submit semi-annual reports on implementation of the
Corporate Development Plan. Such reports shall be submitted within 30 days after
the end of the 6 month period being reported on and shall include information on
the targets listed at (i) to (vii) of Section 2.06(b) of the Project
Agreement.
Article III. FINANCIAL AND OPERATIONAL COVENANTS
Section
3.01
Financial Records and Reports
(a) The Project Entity shall maintain
procedures, records and accounts adequate to reflect in accordance with
internationally accepted accounting standards the operations and financial
condition of the Project Entity and its subsidiaries, if any, and adequate to
monitor and record the progress of the Project (including its costs and the
benefits to be derived from it).
(b) The Project Entity shall:
(i)
have its records, accounts and financial statements (balance sheets, statements
of income and expenses and related statements), and the records, and financial
statements of its subsidiaries:
(A) for each FY until and
including the FY in which the
Effective Date falls, the Project
Entity shall ensure that
independent auditors acceptable to the
Bank review all
relevant records, accounts and financial
statements in order
to give documentary evidence, in
