Annex II a Special_Conditions_P3_DR (3)

7/30/2019 Annex II a Special_Conditions_P3_DR (3)

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GRANT CONTRACT- EXTERNAL ACTIONS OF THE EUROPEAN COMMUNITY

(the "Contract")

Ministry of Regional Development and Tourism17 Apolodor Street, North Side, Sector 5, Bucharest,Romania, postal code 050741 - ROfiscal code 26369185

acting as Joint Managing Authority for the Joint Operational Programme Romania-Ukraine-Republic of Moldova 2007-2013, ("the Joint Managing Authority")

of the one part,

and

[] / []

[]

[VAT number, for VAT registered beneficiaries],

("the Beneficiary")

of the other part,

(the "Parties")

have agreed as follows:

Special conditions

Article 1 - Purpose

1.1 The purpose of this Contract is the award of a grant by the Joint Managing Authority forthe implementation of the Action entitled [...] ("the Action") described in Annex I. Thegrant is financed from the European Neighbourhood and Partnership Instrument in theframework of the Joint Operational Programme Romania-Ukraine-Republic of Moldova2007 - 2013.

1.2 The Beneficiary shall be awarded the grant on the terms and conditions set out in thisContract, which consists of these special conditions (the "Special Conditions") and the

annexes, which the Beneficiary hereby declares it has noted and accepted. The Contract issigned in accordance with the decision of the Joint Monitoring Committee of the Joint

Special ConditionsPage 1 of 11


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Operational Programme Romania-Ukraine-Republic of Moldova 2007-2013 from [...] toaward a grant to the Action.

1.3 The Beneficiary accepts the grant and undertakes to carry out the Action under its ownresponsibility.

1.4 The beneficiary receives the grant from the Joint Managing Authority and ensures it ismanaged and where appropriate distributed to the partners in accordance with theDescription of the Action (Annex I) and Budget for the Action (Annex III). Beneficiary aloneis responsible to the Joint Managing Authority for the operational and financial progress ofactivities.

Article 2 - Implementation period of the Action

2.1 This Contract shall enter into force on the date when the last of the two Parties signs.

2.2 Implementation of the Action shall begin on:

-the day following that on which the last of the two Parties signs.

2.3 The Action's implementation period, as laid down in Annex I, is .

2.4 The execution period of this Contract shall end at the moment when final payment ispaid by the Joint Managing Authority and in any case at the latest 18 months as from theend of the implementation period as stipulated in art 2.3 above.

Article 3 - Financing the Action

3.1 The total eligible cost of the Action is estimated at , as set out in Annex III.

3.2 The Joint Managing Authority undertakes to finance a maximum of [...] EURO,equivalent to [...] % of the estimated total eligible cost of the Action specified inparagraph 1; the final amount of the eligible costs shall be established in accordancewith Articles 14 and 17 of Annex II.

3.3 Pursuant to Article 14.4 of the Annex II, [...]% (maximum 7%) of the final amount ofdirect eligible costs of the Action established in accordance with Articles 14 and 17 ofthe Annex II, may be claimed by the beneficiary as indirect costs.

3.4 Pursuant to Article 14.6 of Annex II, the Regulation under which this Contract is financed

does not exclude financing of taxes, including VAT, in the case the Beneficiary can showit cannot reclaim.

Article 4 - Narrative and financial reporting and payment arrangements

4.1 Narrative and financial reports shall be produced in support of payment requests, incompliance with Articles 2 and 15.1 of Annex II.

4.2 Payment shall be made in accordance with Article 15 of Annex II. Of the options referredto in Article 15.1, the following shall apply:



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Option 1:

Pre-financing payment:

Forecast final payment:

(subject to the provisions of Annex II):

Option 2:

First instalment of pre-financing (80% of the partof the forecast budget for the first 12 months ofimplementation financed by the Joint ManagingAuthority):

Forecast further instalment(s) of pre-financing(subject to the provisions of Annex II):

Forecast final payment (subject to the provisionsof Annex II):


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Ministry of Regional Development and TourismDirectorate General for European Territorial Cooperation

Bulevardul Libertatii nr. 12040129 Bucuresti, sector 5

Romania

For the Joint Technical Secretariat

Regional Office for Cross border Cooperation Suceava / Iasi

[]

For the Beneficiary

[...]

5.2 The beneficiary shall ensure that the audit firms, which will carry out the verification(s)referred to in Article 15.6 of the General Conditions for the beneficiary/partner(s) located

in the partner states will be appointed without delay after signing the grant contract.

The JMA will inform the beneficiary in due time, after the signature of the contract,regarding the national controller that will carry out the verification of the expenditure ofthe beneficiary/partner located in the Member State.

The beneficiary will inform the Joint Managing Authority about the audit firm(s) appointedto carry out the verification(s) referred to in Art 15.6 of the Annex II (name, contact

responsible person, address, phone and fax number). The beneficiary will notify the JMAbefore submitting the request for payment of the first pre-financing. The notificationconcerns all audit companies carrying out the expenditure verification for the beneficiaryand partners.

Article 6 - Annexes

6.1 The following documents are annexed to these Special Conditions and form an integralpart of the contract:

Annex I: Description of the ActionAnnex II: General Conditions applicable to European Union-financed grant contracts for

external Actions

Annex III: Budget for the Action (worksheets 1 and 3)

Annex IV: Contract-award procedures

Annex V: Standard request for payment and financial identification form

Annex VI: Model narrative and financial report

Annex VI-A: Model narrative and financial report

Annex VI-A1: The content of the model narrative and financial report (OPIS)

Annex VI-A2: Model interim narrative reportAnnex VI-A3: Model final narrative report



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Annex VI-A4: Model financial report

Annex VI-B: Model progress report consisting of:

Annex VI-B1: Model interim narrative report

Annex VI-B2: List of documents justifying the progress reported by the project

Annex VI-B3: Procurement progress plan

Annex VI-B4: Financial progress plan

Annex VI-B5: Visibility actions progress plan

Annex VII: Model report of factual findings and terms of reference for an expenditureverification of an EC financed grant contract for external actions

Annex VIII: Model financial guarantee

Annex IX: Standard template for Transfer of Assets Ownership

Annex X: Partnership Agreement between Beneficiary and its Partners

6.2 In the event of conflict between the provisions of the present Special Conditions and anyAnnex thereto, the provisions of the Special Conditions shall take precedence. In theevent of conflict between the provisions of Annex II and those of the other annexes,those of Annex II shall take precedence.

Article 7 - Other specific conditions applying to the Action

7.1 The General Conditions shall be supplemented as follows:

7.1.1 In Articles 1.3, 1.4, 2.1, 2.2, 2.3, 2.5 3.1, 3.2, 4, 5, 6.4, 7.2, 9.1, 9.2, 11.2, 11.3, 11.6,

12.2, 12.3, 12.5, 12.6, 12.7, 13.1, 13.4, 14.3, 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, 15.7,15.8, 15.9, 15.10, 15.11, 16.1, 16.2, 17.1, 17.2, 17.4, 18.1, 18.2, 18.3, 18.4, 18.5,18.7 of the General Conditions all references to the Contracting Authority shall bedeemed to be references to the Joint Managing Authority. In Articles 10 and 11.1 ofGeneral Conditions all references to the Contracting Authority shall be deemed tobe references to the Joint Monitoring Committee.

7.1.2 The beneficiary understands and agrees that the Joint Managing Authority maydelegate tasks related to monitoring of projects implementation to the JointTechnical Secretariat of the Programme. The beneficiary understands and agreesthat, for the sound implementation of the contracts, during the implementationperiod of the project, the Joint Managing Authority may issue general instructions to

the beneficiaries, in line with the contract provisions, with the purpose ofclarification. The beneficiary must answer all written requests from the JointManaging Authority/Joint Technical Secretariat, within the deadline stipulated in therespective request.

7.1.3 The second paragraph of the Article 1.3 shall be supplemented as follows:In duly justified cases the subcontracting limit does not apply to Actions focusedon investment activities, notably to Large Scale Projects.

7.1.4 The last paragraph of Article 1.3 shall be replaced as follows

The Beneficiary alone shall be accountable to the Joint Managing Authority for the

implementation of the Action. It shall undertake that the conditions applicable to itunder Articles 1, 3, 4, 5, 6, 7, 8, 10, 14, 16 and 17 shall also apply to its partners,and those applicable under Articles 1, 3, 4, 5, 6, 7, 8, 10 and 16 to all its



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contractors. In particular, the Beneficiary should undertake that the conditionsapplicable to it under Article 18.5 on the recovery procedure by the EU MemberStates and the Commission shall also apply to its partners. It shall include provisionsto that effect as appropriate in its contracts with them.

7.1.5 Article 2.3 shall be supplemented with the following paragraph:

"A progress report, model provided in Annex VI B, covering every 4 months of theimplementation period of the Action, shall be submitted to the Joint TechnicalSecretariat by e-mail, registered mail/private courier service or by hand-deliveryno later than 30 calendar days after the above period has elapsed. If there is anoverlapping between the dates when the progress report and the interim report orthe final report is due, only the interim or the final report shall be drawn up andsubmitted to the Joint Technical Secretariat."

7.1.6 Article 3 shall be supplemented with the following paragraph:

"3.3. The Beneficiary is liable towards the Joint Managing Authority for ensuring thatall its project partners and contractors fulfil their obligations under thiscontract. It is also liable towards the Joint Managing Authority for any

infringements of obligations under this contract by its partners and contractorsin the same way as for its own conduct. In the case of the works contracts, theBeneficiary should undertake all the necessary measures to appoint theEngineer in charge with the supervision of the works before the signature of theworks contract.

7.1.7 Article 4 shall be read as follows:The beneficiary undertakes to take all necessary precautions to avoid conflicts ofinterests and shall inform the JMA, in writing, without delay of any situationconstituting or likely to lead to any such conflict. The Beneficiary shall immediatelytake all necessary measures to neutralize any situation giving rise to a conflict ofinterest and shall take appropriate actions to remedy any negative effects of the

conflict of interest within 30 days from the notification to the JMA.For the purpose of this Grant Contract, the conflict of interest shall mean any situationwhere there is a divergence between the fulfilment of responsibilities under thisGrant Contract by the Parties and the private interest of the persons involved in theContract, which may adversely affect the impartial and objective exercise of thefunctions and responsibilities of any person involved in theimplementation/verification/control or audit of this Contract for reasons involvingfamily, emotional life, political or national affinity, economic interest or any othershared interest with another person."

7.1.8 Article 6.1 shall be read as follows:

" Unless the European Commission agrees or requests otherwise, the Beneficiary musttake all necessary steps to publicise the fact that the European Union has financed orco-financed the Action. Such measures must comply with the Communication andVisibility Manual for EU External Actions laid down and published by the EuropeanCommission, that can be found at:http://ec.europa.eu/europeaid/work/visibility/documents/communication_and_visibility_manual_en.pdfand with the provisions of the Visual Identity Manual of theRomania-Ukraine-Republic of Moldova Joint Operational Programme 2007-2013.The Beneficiary shall submit a communication plan for the approval of the EuropeanCommission and report on its implementation in accordance with Article 2."

7.1.9 Article 7 shall be supplemented as follows:

7.4 The Beneficiary and its partners are responsible for purposeful use of equipmentin the eligible area after the receiving it on the balance of their organisations. In all



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cases the ownership and use of projects results and outcome must be stated in thePartnership Agreement.

7.1.10 The second paragraph of the Article 9.2 shall be supplemented as follows:

In case the Beneficiary fails to properly inform about any of these changes, or the

modifications notified are not in line with contract provisions all consequencesincluding those of financial nature shall be borne by the Beneficiary.

7.1.11 Article 12.3 shall be supplemented with the following paragraph:

"For the purpose of this article, substantial error shall mean any modification whichadversely affects the nature or the implementation of the Action or confers an undulyadvantage to a third party."


"The Parties shall do everything possible to settle amicably any dispute arisingbetween them during implementation of this Contract. To that end, they shallcommunicate their positions and any solution that they consider possible in writing,

and meet each other at either's request. A Party must reply to a request for anamicable settlement within 30 days from the date of receiving the notification.Once this period has expired, or if the attempt to reach amicable settlement has notproduced agreement within 120 days of the first request for an amicable settlement,each Party may notify the other that it considers the procedure to have failed."

7.1.13 The first paragraph of Article 14.4 shall be supplemented as follows:

A fixed percentage not exceeding the percentage laid down in Article 3 of theSpecial Conditions of the total amount of direct eligible costs (excluding taxes) of theAction may be claimed as indirect costs to cover the administrative overheads

incurred by the Beneficiary for the Action, save where the Beneficiary is in receipt ofan operating grant financed from the EU budget. The flat-rate funding in respect ofindirect costs does not need to be supported by accounting documents. However, theJMA reserves the right to request appropriate clarifications (e.g. appliedmethodology, list of expenditure, printouts from the bookkeeping system) will berequired.

7.1.14 Article 14.6 shall be supplemented with the following costs that shall not beconsidered eligible: fines and penalties.


"Where the award procedure or performance of the contract is vitiated by substantialerrors or irregularities or by fraud attributable to the Beneficiary and/or partner(s),the Joint Managing Authority may refuse to make payments or may recover amountsalready paid, in proportion to the seriousness of the errors, irregularities or fraud.The Joint Managing Authority may also suspend payments in cases where there aresuspected or established errors, irregularities or fraud committed by the Beneficiaryor partner(s) in the performance of another contract funded by the general budgetof the European Union or by EDF which are likely to affect the performance of thepresent contract. Suspension shall take effect when the notification is sent by theJoint Managing Authority.


"The Beneficiary will allow the European Commission, the European Anti-FraudOffice, the European Court of Auditors and any controller or external auditor



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authorised by the Joint Managing Authority carrying out verifications as required perArticle 15.6 and per Articles 37 and 39 of Commission Regulation (EC) No 951/2007to verify, by examining the documents and to make copies thereof or by means of on-the-spot checks, the implementation of the Action and conduct a full audit, ifnecessary, on the basis of supporting documents for the accounts, accountingdocuments and any other document relevant to the financing of the Action. Theseinspections may take place up to 7 years after the payment of the balance, asindicated in article 45 of the above-mentioned EC Regulation.

Furthermore, the Beneficiary will allow the European Anti-Fraud Office and anycontroller or external auditor authorised by the Joint Managing Authority carrying outverifications as required per Article 15.6 and per Articles 37 and 39 of CommissionRegulation (EC) No 951/2007 to carry out checks and verification on the spot inaccordance with the procedures set out in the European Community legislation forthe protection of the financial interests of the European Communities against fraudand other irregularities.

To this end, the Beneficiary undertake to give appropriate access to staff or agents of

the European Commission, of the European Anti-Fraud Office and of the EuropeanCourt of Auditors as well as to any controller or external auditor authorised by theJMA carrying out verifications as required per Article 15.6 and per Articles 37 and 39of Commission Regulation (EC) No 951/2007 to the sites and locations at which theAction is implemented, including its information systems, as well as all documentsand databases concerning the technical and financial management of the Action andto take all steps to facilitate their work. Access given to agents of the EuropeanCommission, European Anti-Fraud Office and the European Court of Auditors and toany controller or external auditor authorised by the Joint Managing Authoritycarrying out verifications as required per Article 15.6 and per Articles 37 and 39 ofCommission Regulation (EC) No 951/2007 shall be on the basis of confidentiality

with respect to third parties, without prejudice to the obligations of public law towhich they are subject. Documents must be easily accessible and filed so as tofacilitate their examination and the Beneficiary and its partners must inform theJoint Managing Authority of their precise location.

The Beneficiary guarantees that the rights of the European Commission, of theEuropean Anti-Fraud Office and of the European Court of Auditors as well as of anycontroller or external auditor authorised by the Joint Managing Authority carrying outverifications as required per Article 15.6 and per Articles 37 and 39 of CommissionRegulation (EC) No 951/2007 to carry out audits, checks and verification will beequally applicable, under the same conditions and according to the same rules asthose set out in this Article 16, to the Beneficiary's partners and contractors. Where apartner or contractor is an international organisation, any verification agreementconcluded between such organisation and the European Commission applies."

In case of irregularities identified following a control or an audit within thetimeframe defined above in paragraph 1, the JMA will make out recovery orders tothe beneficiary and/or partner(s).

7.1.17 Article 16.3 shall be supplemented with the following paragraphs:

These documents might be drafted in the national language. However, the JMAreserves the right to ask for translation of certain documents, if necessary.

7.1.18 Article 18 shall be supplemented with the following paragraphs:

"18.7 Where the Joint Managing Authority is unable to recover the debt within oneyear of issuing the recovery order and the recovery relates to a claim against a



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beneficiary or partner established in an EU member State, the EU member State inwhich the beneficiary or partner is established shall pay the amount owing to theJoint Managing Authority and claim it back from the beneficiary or partner.

Where the Joint Managing Authority is unable to recover the debt within one year ofthe issuing of the recovery order and the recovery relates to a claim against abeneficiary or a partner established in a partner country, the Joint Managing

Authority shall refer the case to the European Commission, which, on the basis of acomplete file, shall take over the task of recovering the amounts owing from thebeneficiary or partner established in the partner country or directly from thenational authorities of that country.

7.2 The following derogations from the General Conditions shall apply:

7.2.1 Article 8.1 shall be replaced as follows:

If the Commission or the Joint Managing Authority/Joint Technical Secretariatcarries out an interim or ex post evaluation or a monitoring mission, the Beneficiary

shall undertake to provide it and/or the persons authorised by it with any documentor information which will assist with the evaluation or monitoring mission, and grantthem the access rights described in Article 16.2.

7.2.2 The second paragraph of Article 9.1. shall be replaced as follows:

"If an amendment is requested by the Beneficiary, it must submit that request to theJoint Technical Secretariat/Joint Managing Authority at least 45 days before the dateon which the amendment should enter into force, unless there are specialcircumstances duly substantiated by the Beneficiary and accepted by the JointManaging Authority.

7.2.3 The first paragraph of Article 9.2. shall be replaced as follows:

"However, where the amendment to the Budget or Description of the Action does notaffect the basic purpose of the Action and the financial impact is limited to a transferbetween items within the same main budget heading including cancellation orintroduction of an item, or a transfer between main budget headings of the totalproject budget involving a variation of 15% or less of the amount originally entered(or as modified by addendum) in relation to each concerned main heading for eligiblecosts, the Beneficiary may amend the budget and inform in writing in 10 workingdaysthe Joint Managing Authority via the Joint Technical Secretariat accordingly.This method may not be used to amend the headings for administrative costs or thecontingency reserve."


"The implementation period of the Action is laid down in Article 2 of the SpecialConditions. The Beneficiary must inform the Joint Technical Secretariat without delayof any circumstances likely to hamper or delay the implementation of the Action. Injustified cases, the Beneficiary may request an extension of the Action'simplementation period no later than 45 calendar days before it ends. The requestmust be accompanied by all the supporting evidence needed for its appraisal. Finaldecision on such requests is a subject of approval by the Joint ManagingAuthority.


If a Party believes that the Contract can no longer be executed effectively orappropriately, it shall consult the other Party. Failing agreement on a solution, either



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Party may terminate the Contract by serving two months' written notice, withoutbeing required to pay compensation. The Beneficiary must obtain the agreement ofall partners involved in the Action, before submitting the written notice.


"A report on the verification of the Actions expenditure, conforming to the model inAnnex VII, produced by a designated controller in case of a Beneficiary or partnerslocated in Romania or by an approved auditor who meets the specific conditions ofthe Terms of Reference for the expenditure verification in case of a Beneficiary orpartners located in Ukraine or the Republic of Moldova, shall be attached to:

- any request for further pre-financing payments;

- any final report

The Beneficiary and its partners shall have different auditors/controllers for eachpartner. Thus the Beneficiary will submit to the JMA the report for consolidatedexpenditure verification with all the factual findings from all auditors/controllers,conforming to the model in Annex VII. Each individual report will be attached to it asan annex.

The auditor/controller examines whether the costs declared by the Beneficiary andits partners are real, accurately recorded and eligible in accordance with theContract, as well as the revenue of the Action and issues an expenditure verificationreport conforming to the model in Annex VII.

The Beneficiary and its partners grant the auditor/controller all access rightsmentioned in Article 16.2.

The expenditure verification report accompanying a request for payment of thebalance covers all expenditures not covered by any previous expenditure verificationreport.

Based on the consolidated expenditure verification report conforming to the model inAnnex VII, the Joint Managing Authority determines the total amount of eligibleexpenditure and the amount of Joint Managing Authority contribution, according tothe provisions in article 3.2. of Special Conditions. The total sum of pre-financingunder the Contract is deducted from the total amount of Joint Managing Authoritycontribution to establish the payable balance (clearance).

7.3. Article 1 General Principles of Annex IV Contract Award Proceduresis supplementedby the following phrases:

Tendering procedures at the level of action depend on the nationality of the

beneficiary (lead partner) or of the partner launching the tender. The Joint

Managing Authority and/or Joint Technical Secretariat reserves the right to comment

the tender process and documentation.

Beneficiaries (lead partners) and partners based in Romania (except Non-

Governmental Organisations):

The contract procedures have been described in detail in the Romanian PublicProcurement Law and will be strictly adhered to the following conditions:

All supplies and materials purchased under contracts financed under the RegulationNo 1638/2006 of the European Parliament and of the Council shall originate in theCommunity or a country eligible named in Annex to this Regulation.



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The Joint Managing Authority and/or Joint Technical Secretariat reserves the right toparticipate in all meetings of tender selection committees as non-voting observers.

The European Commission, the European Unions Court of Auditors and the JointManaging Authority reserve the right to check, at any time, the conformity of theProgramme funds' commitment and disbursement with the rules.

Beneficiaries (lead partners) and partners based in Republic of Moldova and Ukraine,

and Romanian Non-Governmental Organisations, have to comply with PracticalGuide to Contract Procedures for EC external actions applicable at the moment of

the launch of the relevant procurement procedure by the Beneficiary or partner.

Done in English in four originals: two originals being for the Joint Managing Authority, oneoriginal being for the Joint Technical Secretariat, and one/two1 original(s) being for theBeneficiary.

For the Beneficiary For the Joint Managing Authority

Name Name

Title Title

Signature Signature

Date Date

1 When needed by the beneficiary for opening a bank account or for tax exemptions, one

supplementary original will be signed, based on a previous request to the JMA on behalf of thebeneficiary.


Annex II a Special_Conditions_P3_DR (3)

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