ДОГОВОР / AGREEMENT № ___________________/*
г. _________________ _________________
Joint Stock Company Caspian Pipeline Consortium-R (abbreviated name – JSC CPC-R), hereinafter referred to as the Benefactor, represented by _________, acting by _________ for the one party,
______________ (abbreviated name – _____________) represented by _____________, acting by _____________, hereinafter referred to as the “Recipient”, for the second party,
_____________ (abbreviated name –_____________) represented by ___________, acting by _____________, hereinafter referred to as the “Coordinator” for the third party,
Limited Liability Company ___________ (short name being _________), represented by ________, acting by the ___________, recommended by the Coordinator for participation in this Agreement (Coordinator's Letter 01-30-1300 dd. 09.11.2016), hereinafter referred to as the "Contractor”, for the fourth party,
hereinafter throughout this Agreement the Benefactor, Recipient, Coordinator and Contractor jointly referred to as the Parties and individually as a Party. Whereas:
In accordance with the requirements of the Federal Law dd. August 11, 1995 No. 135-FZ "On Charity and Charity Organizations" the Benefactor intends to provide charity aid in the form of Charitable Donation of monetary funds for fulfillment of the _____________ (hereinafter referred to as the “Facility”), _____________, in the interest of the Recipient to support the educational activities;
the Coordinator’s obligation is to control the Contractor's performance of the _________ (hereinafter referred to as the “Work”) and targeted expenditure of the monetary funds remitted to the Contractor by the Benefactor for the Work performance;
the Recipient’s obligation is to exercise the Customer’s functions in compliance with the current Russian Federation legislation;
the Contractor’s obligation is to perform the Work in the interests of the Recipient;
target purpose of the Facility - ____________;
and assuming that provision by the Benefactor of the said Charitable Donation will facilitate activities in the field of education, the Parties have entered into this agreement (hereinafter - the "Agreement") as follows:
SUBJECT-MATTER OF THE AGREEMENT
The Benefactor undertakes to provide a Charitable Donation in accordance with the procedure and on the terms and conditions set forth by this Agreement, in the form of a transfer to the Contractor of the monetary funds in the amount of _______________, inclusive of all the applicable taxes for the performance by the latter of the Work in the interests of the Recipient. The said amount is not-to-exceed and represents the maximal amount of all payments that the Benefactor undertakes to make as a Charitable Donation of monetary funds for the Work performance. The target purpose of the donation is the construction of the Facility in the interests of the Recipient to support activities in the field of education.
The Contractor undertakes to perform the Work in accordance with the procedure and on the terms and conditions, as set forth by the Agreement and the current legislation of the Russian Federation according to the scope set out in Exhibit 2 hereto ("Task Order for Performance of Work"), and the requirements of regulatory acts in the area of construction, including the potential works that are not explicitly referred to in the Agreement but required for the completion of the construction and normal operation of the Facility as approved by the Parties. Subcontractors may be engaged for the Work performance only subject to a prior written approval of the Benefactor.
The Recipient undertakes to accepted the completed Facility as a capital asset for accounting, commission the Facility into operations and use the Facility only for the purposes as indicated in the Recitals of the Agreement for at least five (5) years after expiry of warranty normal service period of the Facility.
The Coordinator shall confirm and guarantee that qualification-based selection of Contractors was carried out by the Coordinator in accordance with applied norms of Russian Federation legislation and meets the requirements of Key Principles, provisions and requirements of CPC-R Charity Policy to the full extent (Attachment No.7), supervise the Contractor discharging the obligations hereunder, Facility acceptance by the Recipient and ledgering for the accounting purposes, further use of the Facility by the Recipient for the purposes as indicated in the Recitals of the Agreement, as well as provide for timely presenting to the Benefactor of all reporting documents in accordance with the terms and conditions of the Agreement and provide for placing the information on the help rendered by the Benefactor in mass media in accordance with the provisions of the Clauses 3.3.7 and 3.3.8 of the Agreement.
The Parties are seeking to have the charity aid provided using legal procedures of its provision, in an impartial and favorable manner with use of lawful mechanisms of its implementation and in order to meet the needs of the Recipient.
Cost estimate of the Charitable Donation is given in Exhibit 1, which constitutes an integral part of the Agreement.
The Task Order for performance of Work was approved by the Recipient and the Contractor and is presented in Exhibit 2, which constitutes an integral part hereof.
The Coordinator shall arrange for the acceptance of the executed Work and Facility by the Recipient. Work delivery and acceptance of the Facility shall be formalized by the Recipient and the Contractor signing and the Coordinator endorsing the completed Work Delivery/Acceptance Act as per form KS 2 and Act of acceptance of completed Facility, per form presented in Exhibit 6 to the Agreement (hereinafter - Completed Facility Acceptance Act). The Coordinator shall provide to the Benefactor or an appointed representative thereof copies of Work Delivery/Acceptance Acts, Completed Facility Acceptance Act, documents confirming the Contractor's warranty obligations, as well as the documents confirming booking of the Facility with the Recipient for the accounting purposes within Twenty (20) calendar days from the signature date of the Completed Facility Acceptance Act. Meanwhile, the Recipient and Coordinator undertake to provide any other documentation related to the Charitable Donation upon the request of the Benefactor or its representative.
The Contractor undertakes to provide to the Recipient all documentation required for operation and warranty maintenance of the Facility within Fifteen (15) calendar days from the signature date of the Completed Facility Acceptance Act.
The Contractor undertakes to commence the work from the Agreement execution date, complete the Work in accordance with Attachment 4 and deliver the completed Facility in accordance with Section 6 of the Agreement within 3 months of the signature date of the Agreement.
The Recipient undertakes to commission the Facility within Thirty (30) calendar days after the signature date of the Completed Facility Acceptance Act, and to submit to the Benefactor copies of confirming documentation within Ten (10) business days after the commissioning date of the Facility.
The Agreement shall become effective on the date of its signature by the Parties, and remains effective until the completely discharge by the Parties of their obligations assumed under the Agreement, and shall be terminated no earlier than in Five (5) years after expiry of the warranty period of normal operation of the Facility according to Clauses 1.3 and 3.3.6 of the Agreement.
Conditions of the Charitable Donation Use
The Recipient undertakes accept the Facility as a capital asset for accounting and to maintain separate accounting of all transactions related to the Facility.
Monetary funds received from the Benefactor must be used for the Facility construction, performance of all required works and other actions required for the Facility construction. If the monetary funds constituting the Charitable Donation are used in violation of the target purpose stipulated by the Agreement, the Contractor must on the Benefactor's request return to the Benefactor monetary funds in the amount equal to the amount used in violation of the said target purpose.
The Contractor, the Coordinator and the Recipient shall bear joint responsibility for the timing and quality of completion of Work in accordance with the Agreement. The Benefactor shall bear no responsibility for timing and quality of the Work performed by the Contractor and shall only be responsible for payment under Clauses 1.1, 3.1.1, and 4.1 of the Agreement.
The Benefactor and its authorized representative shall have the right to audit and assess any documentation of the Contractor, the Coordinator and the Recipient related to the Charitable Donation under the Agreement. The Contractor, the Coordinator and the Recipient must keep all such documentation and provide access thereto for the Benefactor or its authorized representative within no less than Five (5) years from the date of the Agreement completion (termination).
Rights and Responsibilities of the Parties
In pursuance of the terms and conditions of the Agreement the Benefactor undertakes to:
Make the Charitable Donation in the form of transfer of monetary funds to the Contractor in the amount set out in Clause 1.1 of the Agreement, for the purposes set forth by the Recitals of the Agreement.
Upon written request, provide to Coordinator copies of payment documents confirming payment to Contractor for the performed Work.
Pursuant to the terms and conditions of the Agreement the Benefactor shall have the right to:
Request at any time from the Coordinator extraordinary submission of the Contractor's statements related to the use of the Charitable Donation in the KS-3 form.
If necessary, assign an independent organization to exercise, on behalf of the Benefactor, an independent control over expenditure of the monetary funds for the Work performance by the Contractor, inter alia, inspections of the compliance with the construction processes and technologies; meanwhile, no later than twenty one (21) days after the execution date of the Agreement, disclose to the other Parties the details of the persons authorized to exercise such control (hereinafter – the "Authorized Representative").
Refuse to pay for the Work completed by the Contractor or suspend the transfer of monetary funds to the Contractor's account in the event of:
Absence of the report of an authorized representative of the Benefactor, confirming the scope of the work performed by the Contractor under clause 3.2.2;
Contractor's failure to meet the deadlines for the performance of any of the Work milestones (completion of less than Ninety (90) per cent of the declared Work scope under the milestone) in accordance with the Work Schedule (Exhibit 4 to the Agreement);
Noncompliance of the Work performed with the Task Order for performance of Work (Exhibit 2 to the Agreement).
Demand cancellation of the Charitable Donation and unilaterally refuse to discharge obligations under the Agreement in the event of Contractor's use of the monetary funds allocated for the Work performance in violation of their target purpose set out in the Recitals of the Agreement, or amendment of the target purpose of the Charitable Donation, as well as in the event of a delay in the completion of the Facility construction for more than Two (2) months, regardless of the reasons for such a delay.
Suspend the Work in case the Contractor fails to meet requirements for safe execution of Work set out in Clause 3.5.13 of the Agreement, as well as in case of failure to adhere to work performance rules.
Suspend the Work in case of failure to meet or presence of claims concerning correctness of adhering to construction processes and procedure, and deviation from the design. The Benefactor is entitled in such case to hold at its discretion a third party expert review at Contractor's expense for the purpose of receiving a formal opinion of an independent expert.
Suspend the Work in case of violation of the requirements to maintenance of as-built documentation, technical supervision logs, and any other documentation that is mandatory during construction work performance.
In the event of a breach or non-performance of obligations under the Agreement on behalf of the Contractor:
Execute an act and withhold an amount of zero point one (0.1) percent of the Agreement value per each identified occurrence.
The Work shall be suspended for the time period required for coordination of this procedure for and method of elimination of the violations, and shall be resumed only subject to a Benefactor's consent, whereas the Work stoppage period shall not impact the completion date of the Work in accordance with the Agreement.
Send to a self-regulating organization the information on violation by a member of this self-regulating organization of the requirements of standards and rules when performing the works for the purposes of taking disciplinary actions against the member of the self-regulating organization according to Articles 9, 10 of Federal Law No. 315-FZ dated 01.12.2007 "On Self-Regulating Organizations", Article 55.14, 55.15 of the Town Planning Code of the Russian Federation.
Should the Work be completed by the Contractor with deviations from the terms and conditions of the Agreement impairing the result of the Work performance, or other defects making the Facility unfit for use, the Benefactor may, at its own discretion, demand from the Contractor either to eliminate the defects within the specified time limit free of charge, or reduce proportionally the price of the Work, or reimburse for the expenses for elimination of the defects.
In the event of the Contractor's failure to meet the deadlines for the performance of any Work milestone set forth by the Work Schedule (See Exhibit 4), deadline for the delivery of the Facility or as-built documentation for the Facility, to demand from the Contractor payment of liquidated damages in the amount of zero point zero one (0.01) percent of Agreement price per each day of delay.
Under the terms and conditions of the Agreement the Coordinator undertakes to:
Exercise control over the expenditure of the monetary funds allocated for the Contractor's Work performance to achieve the goals set forth by the Recitals of the Agreement.
Review, upon completion of the Work, the Contractor's statements related to the application of the monetary funds allocated for the Work performance in accordance with KS-3 form and forward the copies of the reviewed statements to the Benefactor with a written confirmation of compliance/non-compliance of the Contractor's application of the monetary funds with the terms and conditions of the Agreement.
Provide assistance to the Recipient and Contractor in all administrative matters related to the Facility construction, inter alia, in respect of obtaining all permits required for the construction and commissioning of the Facility.
Furnish, at the request of the Benefactor, an extraordinary Progress Report in the format set out in Exhibit 3 to the Agreement, as well as the Work Delivery/Acceptance Acts, issued in accordance with KS-2 Form, signed by the Recipient and the Contractor, and certified by the Coordinator.
Update the Facility entry in Municipal Property Register within Twenty (20) calendar days from the signature date of the Completed Facility Acceptance Act.
Ensure municipal ownership of the Facility and booking the Facility by the Recipient, as well as maintaining the Facility fully fit for operation by the Recipient for at least Five (5) years upon the expiry of the guarantee period of normal operation of the Facility. The Coordinator and Recipient may not lease out the Facility, dispose of or use the Facility for the purposes other than those stated in the Recitals of the Agreement, without a Benefactor's approval in writing obtained within the above period.
Inform the regional population of the purposes and objectives of the Charitable Donation and the Facility construction progress through newspapers and official website, as well as through the district mass media. The Coordinator shall provide to the Benefactor copies of press releases, video and photo materials on use of the Charitable Donation on electronic media at no extra cost for the Benefactor. Text of press releases should be approved by the Benefactor in advance.
Organize a solemn ceremony of delivery of the Facility to the Recipient with participation of the Benefactor, Coordinator, Contractor, and Recipient, mass media within Fifteen (15) calendar days after the signature date of the Facility Commissioning Report. The Coordinator shall agree the date of such a ceremony with the Benefactor in advance. There should be a plaque installed on the Facility stating that the Facility was constructed at the expense of Charitable Donation provided by the Benefactor.
Under the terms and conditions of the Agreement the Recipient undertakes to:
Within one (1) day from the signature date of the Agreement, deliver to the Contractor, with execution of an act, for the period of construction of the Facility, a construction site that is fit for the Work performance. For the purposes of this Agreement such a construction site shall be the site intended for facility construction.
Deliver to the Contractor, within One (1) day after signature of the Agreement, the design documentation related to the Facility, and Detailed Design Documentation with necessary approvals. Provision of improperly executed or incomplete documentation by the Recipient shall be treated as a failure to provide it.
Deliver to the Contractor within One (1) day after signature of the Agreement, the copies of documents evidencing the Recipient's rights of use of the above land plot and Work performance in the land plot.
Exercise the organization of the construction management and provide for the construction supervision.
Exercise control over the compliance of the scopes and quality of the Work completed and submitted for payment by the Contractor.
Issue to the Contractor a power of attorney to exercise the Customer's powers in pursuance of Clause 3.5.6 of the Agreement.
Verify the Work Delivery/Acceptance Acts and follow up the corresponding amendments of the defects set out in the acts.
Conduct the accounting of the scopes and price of the poor quality Work and expenses for elimination of the defects.
Monitor fire safety, industrial safety, rational use of the territory, environment protection, landscaped areas, and land utilization protection in the course of the Work performance by the Contractor.
Establish the Acceptance Commission for the acceptance of the Constructed Facility, and to organize functioning of such a commission. Perform the procedure for acceptance of the Constructed Facility, and sign the applicable Constructed Facility Acceptance Act.
Ensure commissioning of the Facility within Thirty (30) days after the signature date of the Constructed Facility Acceptance Act.
Ensure municipal ownership of the Facility and booking the Facility by the Recipient for at least Five (5) years after expiry of warranty normal service period of the Facility.
Maintain the Facility fully operational for at least Five (5) years after expiry of warranty normal service period of the Facility.
Not to lease the Facility, dispose of or use the Facility for the purposes other than those stated in the Recitals of the Agreement, without a Benefactor's approval in writing, for at least Five (5) years after expiry of warranty normal service period of the Facility, and for Five (5) years upon its completion.
In pursuance of the terms and conditions of the Agreement the Contractor undertakes to:
Use the monetary funds, allocated for the Work performance, only in accordance with the procedure set forth by the Agreement, and for the purposes set out in the Recitals of the Agreement.
Upon completion of each Work milestone, forward to the Coordinator the reports on application of the monetary funds allocated for the Work performance in accordance with KS-3 Form, and provide the Benefactor and Coordinator with access to review the financial, accounting, and other documentation evidencing the application of the monetary funds.
Complete all the Work related to the Facility according to proper quality standard, within the scopes and time limits set out in the Agreement, deliver the Facility to the Recipient within the time limit in such a condition that ensures normal operation of the Facility.
Deliver materials, equipment, products, structural elements, construction machinery required for the Work performance, as approved by the Parties in advance, and carry out unloading and storage. Materials, equipment, products must be new, not used previously, meeting technical documentation, international and state standards.
The Contractor undertakes to purchase equipment, materials, semi-finished products required for the Work performance in accordance with the Schedule for procurement of equipment, materials, semi-finished products for the Work performance (Exhibit 5 to the Agreement) and submit the required financial statements related to expenditure of the monetary funds in accordance with clause 4.2 of the Agreement. Any changes in such equipment, materials or semi-finished products shall be subject to a prior written approval of the Benefactor.
Carry out construction supervision in the scope set forth by effective legislation requirements.
Ensure, if necessary, timely introduction of amendments to the detailed design and design documentation on behalf of the Benefactor, on the basis of a power of attorney, in accordance with the procedure set forth by Clause 5.13.
The Contractor undertakes to assume responsibility to the Recipient for improper Work performance by engaged subcontractors, for coordination of their activities, and undertakes to ensure the proper performance by subcontractors of their portions of the Work. Meanwhile, the Benefactor shall not be liable under subcontracts executed by the Contractor.
The Contractor undertakes to coordinate with the Benefactor, Recipient, and Coordinator, the subcontractors scheduled for engagement in connection with the Work performance under the Agreement within at least Thirty (30) calendar days prior to commencement of the works/services/supplies of products under subcontractor agreements. The total scope of the Work (by aggregate value) of all subcontractors engaged by the Contractor shall not exceed Fifty (50) per cent of Agreement price.
Provide security for the Facility under construction, materials, equipment, construction machinery as well as other property and structures on the land plot within the limits of the construction site until completion of construction and acceptance of the completed Facility by the Recipient.
The Contractor shall also be obliged to ensure:
Work performance in full compliance with the Agreement, Design Documentation, Detailed Design Documentation, provisions of normative legal acts in the area of urban planning activities, applicable environmental protection requirements;
Proper quality of the materials used, the compliance with their technical documentation and international and state standards, or, as an exceptional case, technical specifications;
Quality of performance of all the Work in compliance with the technical documentation, current norms and technical specifications;
Elimination in a timely manner of the shortcomings and defects revealed during acceptance of the Work or during the warranty period of standard operation of the Facility; time limit for elimination of shortcomings and defects shall not exceed Three (3) days; in the event of replacement of equipment/materials with a longer lead time, or works with performance time in excess of Three (3) days, the time limit for elimination of shortcomings and defects shall be agreed in advance, prior to identification thereof, by and between the Contractor and Recipient, with a simultaneous distribution of the information among other two Parties to the Agreement;
Uninterrupted functioning of the utilities and equipment in the course of normal operation of the Facility during the guarantee period.
The Contractor shall be liable for correct and proper geodesic marking-out of the construction site of the Facility with reference to primary points, lines and levels, correctness of the level positions, dimensions and relatedness.
The Contractor shall erect all temporary structures required for storage of the materials and equipment and for Work performance under the Agreement, with the use of its own resources on the account of the costs of the Work set out in the Agreement in accordance with the construction rules and regulations.
In the course of the Work performance, the Contractor shall be obliged to ensure strict observance at the construction site of the required measures for fire safety, industrial safety, and occupational safety, rational use of natural resources and land, environmental protection; and install lighting.
Work organization and performance shall be carried out subject to observance of the health and safety legislation of the Russian Federation, as well as other normative legal acts set forth by the List of Types of Normative Legal Acts adopted by the Decree of the Government of the Russian Federation dated 23.05. 2000 No. 399 "On Normative Legal Acts Containing Government Regulatory Requirements to Occupational Safety":
Construction Rules and Regulations, Codes of Practice for Design and Construction;
Inter-industrial and industry-specific rules and standard instructions on occupational safety, adopted by federal executive authorities in accordance with the established procedure;
State standards of Occupational Safety Standards System adopted by State Committee of the Russian Federation for Standardization and Metrology or State Construction Authority of Russia;
Safety rules, safety instructions;
State sanitary-epidemiological rules and standards, hygienic standards, sanitation rules and standards adopted by the Ministry of Health of the Russian Federation.
In the event of deployment of the methods for performance of the Work, materials, structures, machinery, tools, inventory, production accessories, equipment or motor vehicles, which are not covered by the current norms and rules of safe performance of the Work, it is necessary to apply corresponding normative legal acts of the subjects of the Russian Federation on occupational safety, and production and industry-specific normative documents of the organization (occupational safety standards, labor protection regulations) should be used.
The Contractor shall maintain technically sound state of construction machinery, tools, production accessories, collective protective equipment for protection of the workers.
During the Work performance, all Contractor's personnel should wear personal protection equipment in accordance with the occupational safety and health requirements to each type of the Work performed. All the people at the construction site shall be obliged to wear hard hats. Only workers wearing hard hats and other necessary personal protection equipment are permitted to the performance of the Work.
The Contractor also undertakes to:
Obtain, if necessary, state supervisory bodies' approval of the procedure for the Work performance at the Facility and ensure the compliance therewith at the construction site;
Ensure ongoing maintenance and cleaning of the construction site and the adjacent territory in proper manner on a daily basis during the Work performance and after completion of the Work;
Within One (1) day after the signature date of the Act of acceptance of the Facility, delivered as an upgrade project, remove from the construction site and immediately adjacent area of the Facility, the construction machinery, equipment, inventory, tools, construction materials, temporary structures, as well as other property of the Contractor and construction debris.
Notify the Parties in writing about the readiness of the Facility within One (1) business day after completion of the Work.
The Contractor undertakes to promptly notify the Coordinator and Recipient, and suspend the Work until the receipt of instructions from the Coordinator and/or Recipient, in the event of identification of:
Potentially adverse for the Recipient consequences of its instructions regarding the method of the Work performance;
Violations of rules of fire safety, industrial safety, occupational safety, rational use of natural resources and land, environmental protection, vegetation and soil protection;
Other circumstances threatening people's lives, fitness or durability of the Work results, or preventing the completion of the Work within the established time limit.
The Contractor shall be obliged to deliver to the Recipient all documents required for commissioning of the Facility in accordance with the current legislation of the Russian Federation. In the event of identification of any defects in the documentation preventing the commissioning of the Facility by the Recipient, the Contractor shall be obliged to eliminate such defects at its own expense and within the time limit specified by the Recipient.
For the performance of the Work related to exposure of the underground utilities in accordance with Clause 1.2 of the Agreement, the Contractor shall engage an operating organization, or the Contractor shall perform such Work independently upon approval and under supervision of the operating organization.
In the event of Recipient's failure to fulfill its obligations set out in Clauses 3.4.1 - 3.4.3 of the Agreement that, as a consequence, resulted in a delay of the Work performance, the Contractor shall be entitled for the extension of the construction time for the same period and shall not be liable for the delay in commissioning of the Facility. Meanwhile, the Parties shall take all the measures necessary to avoid the arising of additional expenses.
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