05/06/06 (B353-A) PARTIE 1/ 2 – Exclusif : le projet complet de contrat de concession des installations aéroportuaires entre l’Aéroport de Djibouti et Dubaï Ports international FZE. Ce contrat a été signé en dehors de toutes les formes prévues par la loi, concernant les appels d’offre et la communication. Il s’agit d’une version de travail (avec les annotations des signataires). (En anglais, document communiqué par un aimable lecteur)

_______________________________ Note de l’ARDHD
Nous remercions ce lecteur anonyme qui nous a transmis ce document particulièrement intéressant. Tous les internautes pourront en prendre connaissance et nous adresser leurs commentaires.

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Selon nos informations, la procédure de concession aurait du passer par une offre publique, ouverte à la concurrence et faire l’objet d’une publication officielle. Rien de cela ne semble avoir été respecté …. D’ailleurs le contrat précise au § 15, que les clauses et obligations ne doivent pas être divulguées, ce qui est en contradiction avec les règles du droit public …

De plus ce contrat qui concerne un patrimoine public djiboutien est soumis à la loi anglaise !!!

La question est de savoir quelles sont les participations que Guelleh, sa femme et ses proches ont directement ou indirectement dans Dubaï Ports International FZE ou quel contrat particulier régit le reversement des bénéfices.

N’oublions pas que ce contrat a été signé pour une durée de 20 ans !! Les Djiboutiennes et les Djiboutiens sont engagés sans leur consentement pour une durée de 20 ans et les conditions de rupture anticipée sont très coûteuses. On s’aproche certainement d’un contrat illégal, qualifié de “Léonin”.

Nous lançons un appel aux internautes qui pourraient nous adresser les contrats ou les projets concernant la gestion du Port, Doraleh et la concession de l’encaissement des taxes douanières …

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AEROPORT INTERNATIONAL DE DJIBOUTI
and
DUBAI PORTS INTERNATIONAL FZE

_______________________________________

DRAFT CONCESSION AGREEMENT
_______________________________________

 

THIS CONCESSION AGREEMENT is made on XXXXXXX BETWEEN:

(1) AEROPORT INTERNATIONAL DE DJIBOUTI of BP 204, Republic of Djibouti (the “Owner”); and

(2) DUBAI PORTS INTERNATIONAL FZE, a subsidiary of Dubai Ports Authority, of PO Box 17000, Dubai, United Arab Emirates (“DPI”).

1. DEFINITIONS
In this Agreement the following words have the following meaning:

“Airport” means the Airport at Djibouti including all associated lands, buildings, hangars and other related facilities

“Annual Plan” means the annual plan for any Operating Year as prepared by DPI and determined or agreed in accordance with Clause 4(6).

“Auditors” means the auditors appointed by the Owner which shall be a firm of international auditors agreed in writing by the parties from time to time.

“Commencement Date” means XXXXXXXXX.

“Core Management Team” means the core management team as described in Clause 7.

“DPI’s Capital Account” means the account referred to in Clause 9(3).

“DPI’s Profit Share” has the meaning given in Clause 9(1).

“Financial Controller” means the person to be appointed as the financial controller for the Airport in accordance with Clause 7.

“General Manager” means the person to be appointed as the general manager of the Airport in accordance with Clause 7.

“Management Fee” means the management fee payable by the Owner to DPI in consideration for the performance of the Services in accordance with Clause 8.

“Operating Accounts” means the accounts referred to in Clause 6(1).

“Operating Period” means the period beginning on the Commencement Date and ending upon expiry or earlier termination of this Agreement.

“Operating Year” means each 12 month period during the Operating Period commencing on 1st January in each year, save that the first Operating Year shall begin on the Commencement Date and end on 31st December 2002.

“Owner’s Capital Account” has the meaning given in Clause 9(4).

“Owner’s Profit Share” has the meaning given in Schedule 2.

“Requisite Standard” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from an experienced operator of airports seeking in good faith to comply with its contractual obligations.

“Services” means those services described in Schedule 1.

“Working Days” means days on which banks are generally open for business in Dubai and Djibouti.

2. APPOINTMENT OF DPI

The Owner hereby appoints DPI to perform, and DPI agrees to perform, the Services during the Operating Period upon and subject to the terms and conditions of this Agreement.

3. OBLIGATIONS OF THE OWNER

(1) The Owner shall, where it is reasonably able, assist any DPI representative visiting Djibouti to gain such access to any premises and personnel, as is necessary for the performance of the Services.

(2) The Owner shall provide DPI with timely and unrestricted access to information in the possession of the Owner and to which access is reasonably required in order to provide the Services.

(3) The Owner shall arrange for the issue of any appropriate (including long-term) visa (and such other permits and/or licences that are required) from the relevant authorities in Djibouti permitting any visiting staff of DPI travelling in furtherance of the obligations of DPI under this Agreement, and each member of the Core Management Team to carry out his task in Djibouti.

(4) The Owner shall obtain and shall maintain through the term of this Agreement any and all licences, permits and authorities to enable DPI to perform its obligations as set out in this Agreement. In the event of a failure by the Owner to comply with this Clause 3(4), this Agreement shall be capable of termination by DPI pursuant to Clause 17(2).

(5) The Owner shall indemnify, hold harmless and defend DPI in respect of any claims, liabilities, fines, judgements or otherwise incurred by DPI as a result of the Owner’s failure to comply with Clause 3(4).

4. SERVICES

(1) DPI shall during the Operating Period have the exclusive right and authority to manage and to direct and supervise the operation of the Airport. DPI shall undertake all such acts and things as are within the scope of the Services except that, whenever it is provided that legislative approval of the Owner or international organization is required, no authority is given to DPI to do the relevant act or thing unless such approval is obtained.

(2) The Owner shall not interfere with any acts or things within DPI’s authority done by DPI to manage and direct and supervise the management of the Airport. The Owner shall have access to all parts of the Airport so long as such access does not unreasonably interfere with Airport operations.

(3) The authority conferred on DPI to manage, direct and supervise the operation of the Airport pursuant to the terms of this Agreement shall not entitle it, without the prior approval of the Owner, to:-

(a) make any loan;

(b) borrow or raise any money other than normal credit obtained from suppliers in the ordinary course of business;

(c) enter into any agreement or arrangement which imposes a liability in excess of that specified in the relevant Annual Plan in any Operating Year; or

(d) conduct in the Airport any other activity or business other than as contemplated in the relevant Annual Plan.

(4) DPI shall prepare and submit to the Owner a strategic development plan for the operation and development of the Airport. The parties shall use all reasonable endeavours to agree the strategic development plan as soon as possible. The plan shall be submitted not sooner than 6 months after commencement of the contract.

(5) Prior to the commencement of each Operating Year (other than the first Operating Year), DPI shall submit to the Owner its annual plan for that Operating Year which shall include:-

 

(a) annual budget, being a detailed revenue and expenditure budget for that Operating Year and which shall include the budgeted sales, budgeted gross operating profit and budgeted adjusted gross operating profit for that Operating Year;
(b) special annual budgets, being detailed budgets of expenditure to be incurred in that Operating Year on, respectively (i) capital expenditure; and (ii) repairs and maintenance;
(c) annual cash flow, being a projection of monthly cash flow for that Operating Year; and
(d) proposed staffing levels, for which DPI shall be solely responsible for deciding staffing, without interference from the Owners.

(6) The Owner shall notify DPI within 30 days of receiving the annual plan if it approves or disapproves the capital expenditure budget. If no notice is given within the 30 day period the Owner shall be deemed to have accepted the capital expenditure budget in the form submitted. If the Owner notifies DPI within the 30 day period of its non-approval of any part of the submitted capital expenditure budget it shall provide reasonable details of the reason for its non-approval and the parties shall discuss in good faith amendments to, and endeavour to agree, the capital expenditure budget. The annual plan as so determined or agreed shall become the “Annual Plan”.

(7) DPI shall manage and operate the Airport in each Operating Year (except the first Operating Year) in accordance with the Annual Plan for that Operating Year (subject to any changes to the same that may be approved from time to time by the Owner and DPI). If, by the commencement of an Operating Year, the parties have not agreed the capital expenditure budget for that Operating Year, DPI shall operate in accordance with the agreed capital expenditure budget for the previous Operating Year until such time as the capital expenditure budget is agreed.

(8) DPI shall manage and operate the Airport in the first Operating Year in accordance with the Owner’s annual plan for the calendar year 2002 as adjusted by agreement between the Owner and DPI.

(9) The Owners confirm and warrant that, with effect from 1st October 2001, that they have not and will not enter into any other agreements or contracts for use of the Airport infrastructure or for the provision of airport / aerospace related services without the express written agreement of DPI. In the event of any breach of this warranty, DPI has the right to immediately terminate such contracts or agreements, and the Owner will fully indemnify DPI in respect of such actions.

(10) The Owners confirm and warrant that no additional staff have been hired (or transferred from part-time to full-time status) by the Airport after 1st October 2001; the Owners further warrant that no additional staff will be hired (or transferred from part-time to full-time status) before the Commencement Date, without the written agreement of DPI. The Owners confirm and warrant that no increases in salaries, benefits or allowances and no promotions have been made by the Airport after 1st October 2001; the Owners further warrant that no increases in salaries, benefits or allowances and no promotions will be made before the Commencement Date, without the written agreement of DPI. Finally, the Owners warrant that no loans (or extensions of existing loans) have been made to staff after 1st October 2001; the Owners further warrant that no new loans (or extensions of existing loans) will be made to staff before the Commencement Date, without the written agreement of DPI. In the event of any breach of the warranties contained in this section, DPI has the right to immediately terminate or reverse such actions, and the Owner will fully indemnify DPI in respect of such actions.

(11) DPI has the right to divest, at a fair or agreed market value, any assets or operations under the control of the Airport which are not core airport or air navigation activities, and which do not add value to the services provided by the Airport. The Government of Djibouti is to be given right of first refusal on the acquisition of these assets at the agreed price.

(12) DPI has the right to sub-contract passenger and cargo handling services management to a third party, and DPI will be responsible for the payment of any related management fees. Any full-time staff seconded to work in Djibouti shall be treated the same manner as DPI appointed staff, and their full costs will be borne by the Airport. Any other consulting or sub-contracting fees or salaries shall be borne by the Airport, with the agreement of the Owners.

(13) The Owners confirm and warrant that any civil service employees of the Airport not required by the Airport will be immediately transferred to other Government departments, without future cost to the Airport or DPI. Any civil servants remaining with the Airport will have their contracts transferred to become employees of the Airport, with similar employment terms and benefits as other Airport employees.

(14) The Owners confirm and warrant on behalf of the Government of Djibouti that government-imposed taxes, duties and other levies on the Airport will not be increased over year 2000 levels for the first 5 years of the contract, and that no back-taxes or levies have been or will be made by the Government against the Airport. In future years, taxes, duties and other levies will not be increased at a rate higher than that applied to other similar government entities.

5. ACCOUNTING AND REPORTING

(1) DPI shall provide to the Owner during the Operating Period accounting services (according to International Accounting Standards) which shall include the maintenance of accounting books and records at the Airport reflecting all current and other transactions (whether operating or otherwise) relating to the Airport and establishment of written accounting policies and control procedures relating to the business of the Airport.

(2) DPI shall submit to the Owner in respect of the Operating Period:-

(a) within 15 Working Days after the end of the period beginning on the Commencement Date and ending three calendar months thereafter, and of each subsequent three month period during the Operating Period, a balance sheet as at the end of that period and an operating profit and loss statement covering sales and operating expenses for that period and for the Operating Year so far as elapsed to the end of that period; and

(b) within 120 days after the end of each Operating Year, a detailed financial statement for that Operating Year audited and certified by the Auditors and which shall consist of a balance sheet as at the end of that Operating Year, a profit and loss statement for that Operating Year, and a certificate prepared in accordance with Clause 8(3) as to the Management Fee payable to DPI in respect of that Operating Year.

(3) The Owner shall at all reasonable times have full and unrestricted access to and right to make copies of all accounting and other books and records of the Airport.

6. OPERATING ACCOUNTS

(1) The Owner has the following current accounts:
DPI may also open deposit account(s) in the name of the Owner. These accounts which are used only for matters relating to the Airport, are referred to as the “Operating Accounts”.

(2) The parties shall designate each member of the Core Management Team as signatories to the Operating Accounts.

(3) Any amounts owed by the Government of Djibouti to the Owner for services rendered in respect of the Airport shall be paid into the Operating Accounts.

(4) DPI shall (save as otherwise provided in this Agreement) at all times throughout the Operating Period ensure that all monies received directly or indirectly from the operation of or otherwise relating to the Airport are promptly paid into the Operating Accounts.

(5) If at any time during the Operating Period the funds in the Operating Accounts are insufficient to make when due and payable any of the payments referred to in Clause 6(7) below, the Owner shall pay into the Operating Accounts such additional funds as may be needed for such purpose within 30 days after being notified in writing by DPI of the relevant insufficiency with full details thereof.

(6) The Operating Accounts, and all monies from time to time therein or credited thereto, shall at all times remain the property of the Owner. No funds credited to the Operating Accounts shall be withdrawn by the Owner except in accordance with Clause 9(4) below.

(7) DPI will also have the right to withdraw funds from the Operating Accounts but only for the following purposes:-

(a) constituting and maintaining petty cash banks for the operation of the Airport;

(b) paying such operating expenses as are reasonably required to operate the Airport so long as, save with the prior approval of the Owner, no payment so made shall have the effect of making the total of all payments in respect of any particular head of operating expenses in the relevant Annual Plan exceed 110 per cent of the figure for that head in such Annual Plan; and

(c) paying the Management Fee in accordance with Clauses 8(2) and (3) and DPI’s Profit Share in accordance with Clause 9(3) below.

(8) Provided that DPI has notified the Owner of the need for additional funding pursuant to Clause 6(3) and provided that DPI properly withdraws funds from the Operating Accounts in accordance with the provisions of Clause 6(6), should such cheque drawn on the Operating Accounts not be honoured, the Owner shall indemnify, hold harmless and defend DPI in respect of any claims, liabilities, fines, judgments or otherwise incurred by DPI as a consequence of such cheque being dishonoured.

7. CORE MANAGEMENT TEAM

(1) The Core Management Team (which shall consist of a general manager (the “General Manager”) and a financial controller (the “Financial Controller”) and such other personnel as DPI may, from time to time, determine and shall be responsible for the overall direction of the management of the Airport in accordance with this Agreement and with the terms of each Annual Plan. The sole duties of the General Manager shall be to manage the Airport and other government / DPI contracts as agreed by the parties. The sole duties of the Financial Controller shall be management of financial matters relating to the Airport and other government / DPI contracts as agreed by the parties. The Owner shall execute a general power of attorney in favour of the General Manager conferring on the General Manager authority to exercise his powers for the performance of his duties under this Agreement.

(2) The Owner may at any time refer to DPI any concern or issue relating to any member of the Core Management Team and DPI shall determine what action, if any, shall be taken in relation to such member. Notwithstanding the foregoing, in the event that any member of the Core Management Team brings any claim against DPI as a consequence of the Owner terminating or suspending his or her employment without due cause, the Owner shall indemnify and hold harmless DPI from and against such claim.

(3) DPI will be solely responsible for the selection and recruitment of the Core Management Team. Prior to the employment by the Owner of each member of the Core Management Team, DPI shall submit details of its chosen candidate to the Owner for approval. DPI may assign members of the Port Autonome International de Djibouti (PAID) Core Management Team to fill these roles at the Airport, in which case PAID will pay all salaries and benefits, and invoice the Airport in respect of time spent on Airport matters.

(4) The Core Management Team shall be employed either by the Owner or DPI and seconded to the Owner (as determined by DPI) under terms and conditions agreed between DPI and the Owner. DPI shall be entitled to a recruitment fee and expenses for this purpose.

(5) The Owner shall provide to such members of the Core Management Team as DPI deem appropriate in-country benefits, (as determined by DPI) with effect from their respective dates of arrival in, to their respective dates of departure from, Djibouti.