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FOR DISCUSSION PURPOSES ONLY
We have been provided with a copy of the Property Management Agreement between NII DAR and Sistema-Hals dated 17 October 2006.
Under the Property Management Agreement NII DAR transferred to Sistema-Hals the Bukhvostova 12/11 Buildings and Land Plot 1 for property management purposes. NII DAR acts as the beneficiary under the Property Management Agreement, which means that all the rights and obligations as well as all the proceeds resulting from the property management belong to NII DAR.
The Property Management Agreement is entered into for a term of five years, and is subject to automatic renewal unless one of the parties sends a termination notice to the other.
The Property Management Agreement contains all material terms and conditions required by Russian legislation. However, under Article 1017 of the Civil Code, transfer of real estate into property management is subject to state registration in accordance with the same procedure as that governing the transfer of the right of ownership of this property. According to Extract LP1 and the Bukhvostova 12/11 Buildings Extracts, the Property Management Agreement was not duly registered. Under Russian law an unregistered Property Management Agreement is void.
Moreover, as we mentioned above, if NII DAR performs so-called mobilization activities and the Bukhvostova 12/11 Buildings are buildings used for such mobilization activities, NII DAR cannot dispose of the Bukhvostova 12/11 Buildings or land rights to Land Plot 1.
Various types of construction activities, including renovation and repair works, can be carried out in Russia only on the basis of a construction permit. According to the Town-Planning Code, a construction permit is a document proving the compliance of the project (design) documentation with the requirements of the town-planning map of the land plot and entitling the customer to carry out specified construction, reconstruction and overhaul works. The construction permit can be issued only to a person that has ownership, lease or use rights to the land plot on which the construction will be carried out.
There are two main conditions for the issuance of a construction permit to a developer prescribed by the Town-Planning Code:
The project (design) documentation (“proektnaya dokumentatsiya”) consists of texts and maps (layouts) which determine the architectural, functional-technological, construction and engineering solutions for the facilities to be constructed. The project documentation should include inter alia architectural solutions; construction and volumetric-planning solutions; data on engineering equipment, utilities networks and technological solutions; a construction action (management) plan; design estimate documentation; a list of environmental protection and fire safety measures; and other information and materials.
The project documentation can be prepared for separate construction stages. It must, however, be prepared by individuals or legal entities that are duly licensed to conduct such activities in Russia. Furthermore, the project documentation is subject to approval by the licensed customer (zakazschik) once there is a positive result of the state expert examination of this documentation.
The project documentation, as well as the results of engineering surveys are subject to a state expert examination. The results of engineering surveys may be submitted for state review before or simultaneously with the delivery of the project documentation.
The state expert examination of the project documentation is an assessment of the compliance of the project documentation with sanitary and epidemiological requirements; environmental requirements; fire, industrial, nuclear and radiation safety requirements; and other types of requirements; as well as compliance with the results of the engineering surveys, other norms and standards.
The result of the state expert examination of the project documentation is an opinion of the authorized state and municipal authorities and organizations on the compliance or non-compliance of the project documentation with applicable norms, standards and requirements, as well as with the results of engineering surveys, and also on the compliance of the results of engineering surveys with the respective necessary requirements.
Valid rights to the land plot for construction, together with a positive state expert opinion on the project documentation, are the main bases for obtaining the construction permit.
Construction permits remain effective for a fixed period of time. That period is set during the state expert review process on the basis of construction norms which estimate ideal construction schedules for various types of works and buildings. The typical term for a large development is two to three years. If construction continues beyond this term, this is a ground for termination of a construction permit unless it has not otherwise been extended at least 60 days before its expiry.
According to the Town-Planning Code, construction permits may be issued for separate stages of the construction process if a developer makes such request. In reality, given the complexity and length of the construction permit procedure, some local authorities allow certain types of work to proceed on an informal basis before the construction permit is issued. Such work may include site preparation, on-site and off-site utility installation, and erection of temporary facilities. However, there is always a risk of sanctions including penalties for unauthorized construction works carried out before the relevant construction permit is obtained.
A newly built facility is to be put into operation by the state commission upon completion of the necessary construction works. The state commission issues a permit on putting the newly built facility into operation (the facility operation permit). In accordance with Article 55 of the Town-Planning Code, a facility operation permit is a document confirming that the construction has been duly completed in accordance with the construction permit as well as with other permits, design documentation and construction rules. The newly constructed facility cannot be used until it is state- commissioned.
We understand that IRT has not obtained a construction permit yet. However, according to the documents provided for our review IRT has started the process of preparing the project documentation.
We were provided with several agreements concluded by IRT with respect to preparing the documents in order to work out the design and receive the construction permit.
We were provided with the following documents with respect to Technopark’s construction and preparation of the planning design. Some were addressed to IRT, others - to NII DAR.
There are three main roles in the construction process in Russia:
investor – the entity financing the project, which usually becomes the registered owner of the newly constructed property, and in this case, IRT acts as the investor in Technopark’s construction (co-investor – a legal entity financing the project in the part proportional to the part of the constructed property which the co-investor wants to acquire into ownership, and in this case the co-investor is not determined yet);
customer (“zakazschik,” “zakazschik-zastroyschik,” “customer-developer”) – the licensed legal entity ordering and subsequently accepting construction works and services under a contract with a general or other contractor, and in this case, IRT also performs the customer-developer functions; and
contractor (general contractor) – a licensed professional contractor appointed to carry out all or part of the construction works necessary to complete the project; in this case the general contractor has not been chosen yet.
Under Russian law, a customer has certain specific statutory duties to carry out that are linked to obtaining initial permissions, to supervision and to completion of construction. The main obligation of the customer is to conclude a construction contract with a contractor and supervise the performance of the construction/reconstruction works, as well as to accept the results of the works performed by the contractor. It is possible to outsource the functions of the customer to a licensed consultant who will perform the necessary duties of the “zakazchik” in the construction project.
As mentioned above, the principal role of the customer in a real estate development project consists in accepting the construction works from the contractors (general contractors), supervising the performance of construction works, and assuming the responsibility of investor for the works accepted from the general contractor. The customer therefore needs to be a suitably qualified professional in the field of construction. Thus, Russian law provides for the licensing of customer-developer functions and various kinds of liability for conducting licensable activities without a license.
We were not provided with the customer agreement with regard to Technopark.
However, on 25 April 2005 NII DAR and Sistema-Hals entered into Customer Agreement No. 009-069-62/05 with regard to the part of Technopark’s territory (Land Plot 1). On 17 October 2005 NII DAR, Sistema-Hals and IRT entered into the Agreement on Substitution of a Party under the Customer Agreement. According to the wording NII DAR transferred its rights and obligations under the Customer Agreement to IRT. However, according to the nature of the relationships between NII DAR, Sistema-Hals and IRT, we assume that there is a misprint in the Agreement on Substitution of a Party under the Customer Agreement and IRT should have received rights and obligations of Sistema-Hals as a customer-developer. This assumption was verbally confirmed by Sergey Pevnitsky. However, under current wording of the Agreement on Substitution of a Party under the Customer Agreement IRT assigns Sistema-Hals to perform the customer’s functions on the pre-project stage of the construction.
The Customer Agreement is in fact a services agreement for the performance of pre-project and other similar activities. The main details of the Customer Agreement are summarized below:
Deadline for obtaining an act of permitted use for the Land Plot
To be specified in an additional agreement.
5% of the expenses on the performance of the obligations under the Customer Agreement.
No permits were obtained.
Pursuant to the Customer Agreement, Sistema-Hals undertakes to perform the pre-project stage of construction and takes on the following obligations:
The stages and time limits for performance of the obligations will be determined by a calendar-based plan. According to verbal information of Sergey Pevnitsky, these terms have not been determined yet.
NII DAR can unilaterally terminate the Customer Agreement if:
Applicable legislation envisages mandatory licensing of construction activities. We have been provided with (i) licenses confirming that IRT is entitled to perform design and construction of Technopark and (ii) license confirming that LLC Format-100 can perform design activity regarding the Technopark Project. We summarize details of these construction licenses in the table below. .
1st Bukhvostova 3
Based on the documents and information made available to us, we understand that construction of the Bukhvostova 3 Objects (as defined below) is to be performed together with the construction of Technopark under the same town-planning documentation.
The customer-developer of the Buchvostova 3 Objects is LLC Investitsionni Reserv (as defined below), which should possess, inter alia, valid rights to the land plot where it is organizing construction in order to be able to perform its activities.
According to Letter of the Companies, LLC Investitsionni Reserv is an affiliated company of IRT. However, since the scope of our due diligence was limited, we did not request any documents allowing us to independently confirm this statement.
According to documents and information made available to us LLC Investitsionni Reserv has not yet obtained the rights to the Bukhvostova 3 Land Plot (as defined below). Pursuant to Letter of the Companies, LLC Investitsionni Reserv is acquiring the four tennis courts, hockey pitch, basketball court, nine other open-air sport structures and metal fence located on the Bukhvostova 3 Land Plot in order to obtain the rights to the Bukhvostova 3 Land Plot. However, we were not provided with documents to independently confirm this statement.
Therefore, we provide a limited analysis of the current status of the Bukhvostova 3 Land Plot and Planned Construction.
In this section we examine the rights to the land plot located at 1st Ulitsa Bukhvostova 3.
NII DAR leases the Bukhvostova 3 Land Plot under the land lease agreement between NII DAR and the Moscow Land Committee dated 27 June 1996 (the “Bukhvostova 3 Land Lease”). The land lease term expires on 30 September 2019.
Pursuant to the Bukhvostova 3 Land Lease, it was made on the basis of Decree of the Prefect of the East Administrative Circuit of Moscow No. 1453 dated 30 September 1994 (“Decree 1453”). Decree 1453 specifies that the land lease right was to be granted for operation of the buildings and structures in accordance with the statutory type of activity.
Further to Decree 1453, the Bukhvostova 3 Land Lease was registered by the Moscow Land Committee (and therefore became effective) on 27 July 1996.
In the Russian Federation the registration of rights to land plots in the Property Register as an official procedure was introduced starting 14 December 1998. Since the Bukhvostova 3 Land Lease was concluded in 1996, it was not state registered.
We note that the permitted use of the Bukhvostova 3 Land Plot is for use/exploitation of buildings and structures of sport and health designation. Violation of the permitted use obligation may be a ground for termination of the Bukhvostova 3 Land Lease.
We were provided with Resolution of the Federal Arbitrazh Court No. KG-А40/9784-05 dated 13 October 2005 (“Resolution of FAC”) on the claim of Moscow Land Department to NII DAR on termination of the Bukhvostova 3 Land Lease. The Moscow Land Department demanded to terminate the Bukhvostova 3 Land Lease because NII DAR had violated the permitted use obligation with respect to the Bukhvostova 3 Land Plot, and transferred the right to Building 1 without notification of the Moscow Land Department, which materially violated the conditions of the Bukhvostova 3 Land Lease. According to the Resolution of FAC (a) the right to Building 1 was transferred to Federal State Unitary Exploitation Enterprise “VPK-Service” (“FGUEP“VPK-Service””) under a Resolution of the Ministry of the Federal Property; and (b) the violation of the permitted use obligation with respect to the Bukhvostova 3 Land Plot was not proved by the Moscow Land Committee. Consequently, the claim was dismissed. The analysis of the dispute is provided in the “Litigation” Section of this Report.
According to the Bukhvostova 3 Land Lease, one building, four tennis courts, one hockey pitch, one basketball court, nine other open-air sport structures and one metal fence are located on Bukhvostova 3 Land Plot.
According to Certificate on State Registration of the Right issued by the Main Department of the Federal Registration Service for Moscow on 10 January 2001 Series 77 HH No. 046655, possesses a building with a total area of 4821.3 sq.m. located at 1st Ulitsa Bukhvostova, 3, Cadastre No. 77-03-03025-24000980, Conditional No. 91714 (“Building 1”) belongs to FGUEP “VPK-Service” by the so-called right of economic jurisdiction, which is a type of property rights granted with respect to state-owned assets and which allows possession and limited use of the respective property object. According to the documents, it appears that Building 1 is located on the Bukhvostova 3 Land Plot.
Pursuant to Resolution of the Ministry of the Property Relations of the Russian Federation (“Ministry of Federal Property”) No. 2540-p dated 9 June 2003 “On Involvement of the Federal Real Estate Located at 1st Ulitsa Bukhvostova 3 in Economical Turn-Round”(“Resolution 2540”), the Ministry of Federal Property accepted the proposal of FGUEP “VPK-Service” to perform new construction on the part of the land plot (“New Building”) and to reconstruct Building 1 (“Bukhvostova 3 Objects”).
Resolution 2540 states that (i) the Bukhvostova 3 Objects have to be put into operation in December 2008; (ii) FGUEP “VPK-Service” has to provide the Ministry of Federal Property with a copy of the minutes of the tender committee on consideration of tender participants’ applications on investment to the Bukhvostova 3 Objects; (iii) parties under an investment agreement have to perform an obligation to transfer 31% of the Bukhvostova 3 Objects’ total area into the ownership of the Russian Federation (to be transferred to FGUP “VPK-Service”) and 69% of the Bukhvostova 3 Objects’ total area into the ownership of an investor; (iv) investments of an investor under the investment agreement have to amount to RUR 700,000,000 (appr. EUR 18,918,919); (v) the rights to the Bukhvostova 3 Land Plot has to be established in accordance with the Russian legislation after documentation of the rights to the Bukhvostova 3 Objects.
According to Protocol of the Tender Commission No. 1/03 dated 11 August 2003 LLC Investitsionni Reserv was recognized as the winner of the tender, having offered the highest purchase price and having accomplished the conditions of the tender.
We were not provided with sufficient documents to confirm that the tender procedure was fully observed (publication of notice about the tender, application to participate in the tender, etc.). If the tender was performed with violations of the procedure established by law, it may be invalidated through court. However, in addition to the presence of the above-mentioned formal grounds for such invalidation, it must be demonstrated that the alleged violations are so substantial, that they were decisive for the outcome of the tender.
On the basis of the tender results, FGUEP “VPK-Service” and LLC Investitsionni Reserv entered into Investment Agreement No. 1 dated 19 August 2003 (“Investment Agreement 1”).
According to the documents provided, FGUEP “VPK-Service” was consolidated with Federal State Unitary Enterprise“FT-Center” (“FGUP “FT-Center””), and the rights and obligations of FGUEP “VPK-Service” under the Investment Agreement were transferred to FGUP “FT-Center” in 2006.
In accordance with the Resolution of the Ministry of Federal Property “On approval of extension of the term of fulfillment of the investment agreement No. 1 dated 25 December 2003”, FGUP “FT-Center” and LLC Investitsionni Reserv concluded Additional Agreement No. 1 dated 26 February 2008 to Investment Agreement 1 in order (i) to replace FGUEP “VPK-Service” with FGUP “FT-Center” as a party under Investment Agreement 1; and (ii) to prolong the term of performance of Investment Agreements 1.
The subject of Investment Agreement 1 is the construction of a multifunctional complex with sport and recreation structures and underground parking with a total area of no less that 45,000 sq.m., including 8,000 sq.m. of sport structures, through the reconstruction of Building 1.
Under Investment Agreement 1, FGUP “FT-Center” invests the rights to Building 1, and LLC Investitsionni Reserv invests the Rouble equivalent of USD 26,000,000. The amount of the investments may be changed under an additional agreement.
After the acceptance of a Facility Operation Permit, the Russian Federation and LLC Investitsionni Reserv shall share the ownership right to the Bukhvostova 3 Objects as follows:
LLC Investitsionni Reserv has a pre-emptive right to purchase the share of the Russian Federation in Building 1.
2007 – 31 December 2011.
Main Obligations of FGUP “FT-Center”
Main Obligations of LLC Investitsionni Reserv
Stages of performance of Investment Agreement 1
Transfer of the rights under Investment Agreement 1
LLC Investitsionni Reserv is entitled to transfer the rights under Investment Agreement 1.
FGUP “FT-Center” is entitled to terminate Investment Agreement 1 unilaterally if LLC Investitsionni Reserv is in breach of:
According to the Letter of the Companies since the Bukhvostova 3 Land Plot borders with Land Plot 1 IRT and LLC Investitsionni Reserv decided to cooperate in the collaborative performance of the investment projects. As part of cooperation IRT and LLC Investitsionni Reserv entered into an agreement No. IRT-IR-1/08 dated 9 January 2008 (“Agreement No. IRT-IR-1/08”). IRT commenced to perform its obligations under Agreement No. IRT-IR-1/08 which is described in Section “Technopark. Planned Construction” of this Report.
Under Agreement No. IRT-IR-1/08 IRT is obliged on its behalf or on behalf of LLC Investitsionni Reserv and at the expense of LLC Investitsionii Reserv to perform de facto and de jure activities concerning the territory planning of the Bukhvostova 3 Land Plot including, but not limited to:
From the date of signature until the fulfillment of all obligations under Agreement No. IRT-IR-1/08.
Main obligations of IRT
Main obligations of LLC Investitsionni Reserv
0.5% of the cost of the concept in the part attributable to the Bukhvostova 3 Land Plot including the cost of the design works.
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