Senegal - Dakar Fishing Port Project : Loan 1405 - Project Agreement - Conformed

CONFORMED COPY LOAN NUMBER 1405 T-SE PROJECT AGREEMENT (Dakar Fishing Port Project) between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT and PORT AUTONOME DE DAKAR Dated June 7, 1977 PROJECT AGREEMENT AGREEMENT, dated June 7, 1977, between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT (hereinafter called the Bank) and PORT AUTONOME DE DAKAR (hereinafter called PAD). WHEREAS (A) by the Loan Agreement of even date herewith be- tween the Republic of Senegal (hereinafter called the Borrower) and the Bank, the Bank has agreed to make available to the Bor- rower an amount in various currencies equivalent to six million dollars ($6,ooo,ooo), on the terms and conditions set forth in the Loan Agreement, but only on condition that PAD agree to under- take such obligations toward the Bank as hereinafter set forth; (B) by a subsidiary loan agreement between the Borrower and PAD, part of the proceeds of the loan provided for under the Loan Agreement will be made available to PAD on the terms and conditions therein set forth; and WHEREAS PAD, in consideration of the Bank's entering into the Loan Agreement with the Borrower, has agreed to undertake the obligations hereinafter set forth; NOW THEREFORE the parties hereto hereby agree as follows: -2- ARTICLE I Definitions Section 1.01. Wherever used in this Agreement, unless the context shall otherwise require, the several terms defined in the Loan Agreement, the Preamble to this Agreement and the General Conditions (as so defined) have the respective meanings therein set forth. - 3 - ARTICLE II Execution of the Project Section 2.01. PAD shall carry out Parts I, II and III A of the Project described in Schedule 2 to the Loan Agreement with due diligence and efficiency and in conformity with appropriate administrative, financial and engineering practices. Section 2.02. In order to assist PAD in (i) the supervision and control of the civil works under Part I of the Project, (ii) the implementation of Part II of the Project, and (iii) the carrying out of the study included under Part III of the Project, PAD shall employ engineering, management, accounting and tariff consultants and experts in such number and with such qualifica- tions, experience and terms and conditions of employment as shall be satisfactory to the Bank. Section 2.03. Except as the Bank shall otherwise agree, contracts for the purchase of goods or for civil works to be financed out of the proceeds of the Loan shall be procured in accordance with the provisions of Schedule 1 to this Agreement. Section 2.04. (a) PAD undertakes to insure, or make adequate provision for the insurance of, the imported goods to be financed out of the proceeds of the Loan relent to it by the Borrower against hazards incident to the acquisition, transportation and delivery thereof to the place of use or installation, and for such insurance any indemnity shall be payable in a currency freely usable by PAD to replace or repair such goods. (b) Except as the Bank may otherwise agree, PAD shall cause all goods and services financed out of the proceeds of the Loan relent to it by the Borrover to be used exclusively for the Proj- ect. Section 2.05. (a) PAD shall furnish to the Bank, promptly upon their preparation, the plans, specifications, reports, contract documents and construction and procurement schedules for the Project, and any material modifications thereof or addi- tions thereto, in such detail as the Bank shall reasonably request. (b) PAD: (i) shall maintain records adequate to record the progress of the Project (including the cost thereof) and to iden- tify the goods and services financed out of the proceeds of the Loan relent to it by the Borrower, and to disclose the use thereof in the Project; (ii) shall, without limitation upon the provisions of paragraph (c) of this Section, enable the Bank's representatives to visit the facilities and construction sites included in the Project and to examine the goods financed out of such proceeds and any relevant records and documents; and (iii) shall furnish to the Bank all such information as the Bank shall reasonably request concerning the Project, the expenditure of the proceeds of the Loan so relent to it and the goods and services financed out of such proceeds. (c) PAD shall enable the Bank's representatives to examine all installations, sites, works, buildings, property and equipment of PAD and any relevant records and documents. Section 2.06. PAD shall duly perform all its obligations under the Subsidiary Loan Agreement. Except as the Bank shall otherwise agree, PAD shall not take or concur in any action which would have the effect of amending, abrogating, assigning or waiv- ing the Subsidiary Loan Agreement or any provision thereof. Section 2.07. PAD shall take all such action as shall be necessary to acquire as and when needed all such land and rights in respect of land as shall be required for the construction (and operation) of the facilities included in the Project and shall furnish to the Bank, promptly after such acquisition, evidence satisfactory to the Bank that such land and rights in respect of land are available for purposes related to the Project. Section 2.08. (a) PAD shall, at the request of the Bank, exchange views with the Bank with regard to the progress of the Project, the performance of its obligations under this Agreement and under the Subsidiary Loan Agreement, and other matters relating to the purposes of the Loan. (b) PAD shall promptly inform the Bank of any condition which interferes, or threatens to interfere, with the progress of the Project, the accomplishment of the purposes of the Loan, or the performance by PAD of its obligations under this Agreement and under the Subsidiary Loan Agreement. - 6 - ARTICLE III Management and Operations of PAD Section 3.01. PAD shall at all times manage its affairs, plan the development of its properties and facilities and maintain its financial position in accordance with appropriate adminis5rative, financial, engineering and port management practices under the supervision of experienced and competent management; and shall cause its plant, equipment, properties and facilities to be main- tained and operated and all necessary renewals and repairs thereto to be made, all in accordance with appropriate administrative, financial, engineering and port management practices. Section 3.02. PAD shall maintain with responsible insurers, or make other provision satisfactory to the Bank for, insurance against such risks and in such amounts as shall be consistent with appropriate practice. Section 3.03. PAD shall take all steps necessary to maintain and renew all rights, powers, privileges and franchises which are necessary or useful in the conduct of its business. Section 3.04. Except in the normal course of business, PAD shall not, without prior consultation with the Bank, sell, transfer, distribute or otherwise dispose of any of its property or assets which shall be required for the efficient conduct of its operations. Section 3.05. PAD shall implement a plan satisfactory to the Bank for the resettlement of the persons engaged in small- scale trade activities in the port-zone who will be displaced under the port zoning plan. - 8 - ARTICLE IV Financial Covenants Section 4.01. PAD shall maintain records adequate to reflect in accordance with consistently maintained appropriate accounting practices its operations and financial condition. Section 4.02. PAD shall: (i) have its accounts and financial statements (balance sheets, statements of income and expenses and related statements) for each fiscal year audited, in accordance with appropriate auditing principles consistently applied, by independent auditors acceptable to the Bank; (ii) furnish to the Bank as soon as available, but in any case not later than six months after the end of each such year, (A) certified copies of its financial statements for such year as so audited and (B) the report of such audit by said auditors, of such scope and in such detail as the Bank shall have reasonably requested; and (iii) furnish to the Bank such other information concerning the accounts and financial statements of PAD and the audit thereof as the Bank shall from time to time reasonably request. Section 4.03. (a) Except as the Bank shall otherwise agree, PAD shall take or cause to be taken from time to time all action within its power (including the introduction and implemen- tation of revised tariffs and rates in consultation with the Bank) as shall be nece--sary or required on its part to produce revenues sufficient: (i) to cover (A) the operating expenses of PAD (including adequate provision for depreciation and maintenance) and taxes, 9 if any, and (B) debt service; and (ii) to yield an annual return of not less than 6% for its fiscal year 1976/1977, 5.5% for each of its fiscal years from fiscal year 1977/1978 through the fiscal year during which the Project shall have been completed, and 4.75% for each of its following fiscal years, on the average net value of PAD's fixed assets in operation. (b) For the purposes of paragraph (a) above: (i) the term "debt service" shall mean the aggregate amount of amortization (including sinking fund pay- ment, if any), interest and other charges on debt; (ii) the annual return shall be calculated by dividing PAD's net operating income for the fiscal year in question by one-half of the sum of the net value of PAD's fixed assets in operation at the beginning and at the end of that year; (iii) the term "net operating income" shall mean the difference between: (A) gross operating revenue accruing from PAD's services, and (B) operating, maintenance and administrative ex- penses, including adequate provision for depreciation, and income taxes, if any, but excluding interest and other charges on debt; and - 10 - (iv) the term "net value of PAD's fixed assets in operation" means the gross book value of such assets less the amount of accumulated depreciation, both as valued from time to time in accordance with Section 4.05 of this Agreement. Section 4.04. In carrying out Part II of the Project, PAD shall, with the assistance of the consultants and experts employed pursuant to Section 2.02 of this Agreement and not later than July 1, 1978 or such other date as the Bank may agree, introduce and thereafter maintain (i) an analytical accounting system, (ii) a new cost-related tariff structure acceptable to the Bank, and (iii) a new ad valorem tariff system, acceptable to the Bank and PAD, for fishing traffic. Section 4.05. In view of determining appropriate tariffs, and for the purposes of Section 4.03 of this Agreement, PAD shall, in accordance with consistently maintained appropriate methods of valuation acceptable to the Bank and in consultation with the Bank, revalue by June 30, 1978 or such other date as shall be agreed with the Bank its fixed assets in operation during its fiscal year 1977-1978 and thereafter revalue such as- sets at intervals not exceeding five years, such intervals to be determined in consultation with the Bank. Section 4.06. (a) Except as the Bank shall otherwise agree, PAD shall take all steps necessary to maintain for each of its fiscal years a working ratio of not more than 60% through its fiscal year 1979/1980 and 55% thereafter. - 11 - (b) For the purposes of this Section, the term "working ratio" means the sum of the operating, maintenance and administra- tive expenses, excluding depreciation, taxes (if any), interest and other charges on debt (if any), and surplus cash to be deposited with the Borrower's treasury, accountable to the fiscal year in question, divided by the gross operating revenues accountable to the same fiscal year. Section 4.07. Except as the Bank shall otherwise agree, PAD shall not incur any debt if its net revenues for the fiscal year next preceding such incurrence or for a later twelve- month period ended prior to such incurrence, whichever amount is the greater, shall be less than 1.5 times the maximum debt service requirements on all debt (including the debt to be incurred) in any succeeding fiscal year. For the purposes of this Section: (i) debt shall be deemed to be incurred on the date of execution and delivery of a loan agreement providing for such debt or, in the case of a guarantee of debt, on the date of execution and delivery of the agree- ment providing for such guarantee but only to the extent that the guaranteed debt shall be outstand- ing; (ii) the term "net revenues" means gross revenues from operations adjusted to take account of PAD's tariffs in effect at the time of incurrence of the debt even though they were not in effect during the twelve consecutive months to which such revenues relate, less operating, administrative - 12 - and overhead expenses, including adequate maintenance expenses and provisions for taxes, if any, but be- fore provision for depreciation, interest and other charges on debt; (iii) the term "debt service requirements" means the ag- gregate amunt of amortization (including sinking fund payments, if any), interest and other charges on debt; and (iv) whenever it shall be necessary to value in the cur- rency of the Borrower debt payable in another cur- rency, such valuation shall be made on the basis of the rate of exchange at which such other currency is obtainable by PAD, at the time such valuation is made, for the purposes of servicing such debt or, if such other currency is not so obtainable, at the rate of exchange that will be reasonably determined by the Bank. Section 4.08. PAD shall take all necessary measures to reduce its current receivables to a level satisfactory to the Bank. Section 4.09. During the implementation of the Project, PAD shall consult with the Bank prior to making any expendi- tures, or commitments for expenditures, for fixed or capital assets (including major renewals and replacements of assets), other than those included in the Project, if such investments exceed an annual average of CFAF500,000,000. - 13 - ARTICLE V Effective Date; Termination; Cancellation and Suspension Section 5.01. This Agreement shall come into force and effect on the date upon which the Loan Agreement becomes effective. Section 5.02. (a) This Agreement and all obligations of the Bank and of PAD thereunder shall terminate on the earlier of the following two dates: (i) the date on which the Loan Agreement shall terminate in accordance with its terms; or (ii) a date 20 years after the date of this Agreement. (b) If the Loan Agreement terminates in accordance with its terms before the date specified in paragraph (a) (ii) of this Section, the Bank shall promptly notify PAD of this event. Section 5.03. All the provisions of this Agreement shall con- tinue in full force and effect notwithstanding any cancellation or suspension under the Loan Agreement. - 14 - ARTICLE VI Miscellaneous Provisions Section 6.01. Any notice or request required or permitted to be given or made under this Agreement and any agreement between the parties contemplated by this Agreement shall be in writing. Such notice or request shall be deemed to have been duly given or made when it shall be delivered by hand or by mail, telegram, cable, telex or radiogram to the party to which it is required or permitted to be given or made at such party's address hereinafter specified or at such other address as such party shall have desig- nated by notice to the party giving such notice or making such re- quest. The addresses so specified are: For the Bank: International Bank for Reconstruction and Development 1818 H Street, N.W. Washington, D.C. 20433 United States of America Cable address: Telex: INTBAFRAD 440098 (ITT) Washington, D.C. 248423 (RCA) or 64145 (wUl) For PAD: Port Autonome de Dakar B.P. 3195 Dakar Republic of Senegal Cable address: Telex: PORCOMER 4o6 - 15 - Section 6.02. Any action required or permitted to be taken, and any documents required or permitted to be executed, under this Agreement on behalf of PAD may be taken or executed by the Director of PAD or such other person or persons as the Director of PAD shall designate in writing. Section 6.03. PAD shall furnish to the Bank sufficient evidence of the authority and the authenticated specimen signature of the person or persons who will, on behalf of PAD, take any action or execute any documents required or permitted to be taken or executed by PAD pursuant to any of the provisions of this Agreement. Section 6.04. This Agreement may be executed in several coun- terparts, each of which shall be an original, and all collectively but one instrument. - 16 - IN WITNESS WHEREOF, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Agree- ment to be signed in their respective names in the District of Columbia, United States of America, as of the day and year first above written. INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT By /s/ Roger Chaufournier Regional Vice President Western Africa PORT AUTONOME DE DAKAR By /s / Andrg Coulbary Authorized Representative - 17 - SCHEDULE 1 Procurement A. International Competitive Bidding 1. Contracts for civil works shall be procured in accordance with procedures consistent with those set forth in Part A of the "Guidelines for Procurement under World Bank Loans and IDA Credits" published by the Bank in August 1975 (hereinafter called the Guidelines), on the basis of international competitive bidding. 2. (i) Bidders for the works included in Part I of the Project shall be prequalified as described in paragraph 1.3 of Part A of the Guidelines. Bidders shall be prequalified on the basis of five separate lots corresponding to each one of the individual Parts I A through E of the Project. (ii) Prequalified bidders shall be invited to (A) tender separately for each one of the five lots referred to in subparagraph (i) above, and (B) tender globally for all the lots for which they have been prequalified. (iii) If more than one bidder shall have been selected for carrying out Part I of the Project, PAD shall afford such bidders the opportunity to enter into arrangements under which the bidder selected for the carrying out of Part I A of the Project shall take the - 19 - (b) After bids have been received and evaluated, PAD shall, before a final decision on the award is made, inform the Bank of the name of the bidder to which it intends to award the contract and shall furnish to the Bank, in sufficient time for its review, a detailed report on the evaluation and comparison of the bids received, and such other information as the Bank shall reasonably request. The Bank shall, if it determines that the intended award would be inconsistent with the Guidelines or this Schedule, promptly inform the Borrower and PAD and state the reasons for such determination. (c) The terms and conditions of the contract shall not, with- out the Bank's concurrence, materially differ from those on which bids were asked or prequalification invited. (d) Two conformed copies of the contract shall be furnished to the Bank promptly after its execution and prior to the submis- sion to the Bank of the first application for withdrawal of funds from the Loan Account in respect of such contract.