PC-X/HC/4

Preparatory Commission for the	PC-X/HC/4
Organisation for the Prohibition	17 February 1995
of Chemical Weapons	Original: ENGLISH

Tenth Session

(3 - 7 April 1995)

COMMITTEE ON RELATIONS WITH THE HOST COUNTRY

NOTE BY THE EXECUTIVE SECRETARY

REPORT BY THE LEGAL ADVISER ON THE OPCW LABORATORY AND EQUIPMENT STORE TENANCY AGREEMENT

1. At its Eighth Session the Commission took the decision to proceed with establishing the OPCW Laboratory and Equipment Store at the site known as Heulweg 28-30, Rijswijk, subject to the conclusion of satisfactory arrangements between the Commission and the landlord, and authorised the Executive Secretary to prepare with the landlord of the facility a draft rental/lease agreement for signature before the end of 1994 to enable the Secretariat to take up occupation of the facility from the beginning of 1995 (PC-VIII/18, subparagraph 9.3).

2. Pursuant to that decision, a Tenancy Agreement was signed on 23 December 1994 by the Executive Secretary and the owner of the site, Holding Euro-Air Nederland B.V., represented by its General Manager, Mr. N.J. Verloop.

3. The Tenancy Agreement has been structured into one main agreement with six Annexes. The main agreement has thirteen articles dealing with: the Premises, Ownership, Term of the Tenancy Agreement, Guarantee, Termination of the Contract, Headquarters Agreement, Rent, Level of Delivery, Technical Report, Soil Survey, General Terms and Conditions, Entry into Force, and Annexes. The Annexes are the following: Annex 1: General Terms and Conditions; Annex 2: Letter of Guarantee; Annex 3: List of Maintenance and Alterations; Annex 4: Technical Research Report; Annex 5: Soil Survey Report; Annex 6: Inventory of the Premises.

4. The document PC-X/HC/2* contains a condensed explanation of the main features of the Tenancy Agreement. The following elements should be highlighted: duration, including the force majeure clause; Letter of Guarantee; settlement of disputes; level of delivery; entry into force; and the transfer of rights and obligations under the Tenancy Agreement.

5. Attachment 1 to this Note is the Tenancy Agreement for the OPCW Laboratory and Equipment Store, including its Annexes 1, 2 and 3. For the sake of economy, Annex 4 (Technical Research Report) and Annex 5 (Soil Survey Report) have not been attached to this Note, but are available to Member States for perusal. Copies will be provided upon request. These latter two Annexes do not involve any legal rights and obligations for the contracting parties, but were used for reference during the negotiations. They will serve as technical reference material to both parties from the date the Tenancy Agreement enters into force. Annex 6 is also not attached since it will consist of the inventory report, which will be delivered only after the maintenance work referred to in Annex 3 has been carried out by the Lessor.

6. As referred to in paragraph 4 above, the Commission has agreed with the owner of the facility on a Letter of Guarantee. This legal document will be notarised on Monday 20 February 1995.

7. In accordance with the decision of the Commission at its Eighth Session (PC-VIII/18, subparagraph 9.3), the Executive Secretary requests the Committee on Relations with the Host Country to approve the Tenancy Agreement for the OPCW laboratory and Equipment Store (Attachment 1 to this Note) in order to enable the Secretariat to take up occupation of the facility from 1 March 1995.

Attachment 1: Tenancy Agreement for the OPCW Laboratory and Equipment Store.

Attachment 1, Annex 1: General Terms and Conditions.

Attachment 1, Annex 2 (English only): Letter of Guarantee.

Attachment 1, Annex 3 (English only): List of Maintenance and Alterations.

TENANCY AGREEMENT

FOR THE OPCW LABORATORY AND EQUIPMENT STORE

The undersigned Parties:

1. Preparatory Commission for the

Organisation for the Prohibition of Chemical Weapons

Laan van Meerdervoort 51

2517 AE The Hague,

hereinafter called the "Commission"; and

2. Holding Euro-Air Nederland B.V.

having its registered address at Heulweg 13, Rijswijk,

registered in the trade register of The Hague under no. 85359,

hereinafter called the "Lessor",

hereby declare that they have agreed as follows:

Article 1

The Premises

The Lessor, as owner, hereby rents to the Commission, and the Commission hereby rents from the Lessor, upon the terms and conditions set forth herein, the premises (hereinafter, the "Premises"), consisting of the land and certain building and other improvements located thereon, commonly known as Heulweg 28-30, Rijswijk, and legally described in the land registry of the municipality of Rijswijk under Section G No. 260, 248 and 247 (Size 21 a 82 ca). The Commission intends to use the premises as a laboratory and equipment store and has the right to do so with due observance of the local laws and regulations in force.

Article 2

Ownership

Holding Euro-Air Nederland B.V. will be fully liable for any damage caused to the Commission, if before entry into force of this agreement, it is not in a position to demonstrate ownership of the premises subject of this agreement.

Article 3

Term of the Tenancy Agreement

The term of this agreement shall continue for a period of five years unless the Commission exercises its right to renew it. The Commission shall have the automatic option to renew this agreement twice, for a period of five years each. Such renewal term shall commence upon the expiration of the preceding term and shall be subject to all the provisions of this agreement.

Article 4

Guarantee

a. The OPCW Foundation has provided a guarantee to the lessor that it will pay the actual rental cost of the premises up to a maximum of Dfl. 150,000 per year in case the tenancy agreement is not completely fulfilled during the period of three years after the date of entry into force of the tenancy agreement. As security for the Commission's obligations arising from the tenancy agreement, the Commission will present a letter of guarantee, registered at the notary.

b. Lessor guarantees that he/she has obtained permission from the mortgagee to enter into this tenancy agreement.

Article 5

Termination of the contract

a. Without prejudice to paragraph 3 (period of tenancy) herein, the contract shall be terminated in the exceptional case of force majeure or in case the Commission's successor does not accept the rights and obligations of the Commission deriving from the tenancy agreement.

b. In these exceptional cases, the contract will be terminated upon an advance written notice of six months by the Commission or its successor. The Commission and its successor will not be liable for any damage caused by early termination of the contract.

Article 6

Headquarters Agreement

The tenancy agreement shall fully respect all provisions of the Agreement between the Commission and the Kingdom of the Netherlands concerning the Headquarters of the Commission (the "Headquarters Agreement"). After entry into force of the tenancy agreement, and in accordance with Articles 1(h) and 5 of the Headquarters Agreement, the premises shall become part of the Headquarters of the Commission and, inter alia, shall be inviolable.

Article 7

Rent

The total rent is Dfl. 150,000 per annum, excluding BTW (VAT). The rental payment for the first 12 months shall be made in the month this agreement enters into force and subsequent rental payments shall be payable annually from that date. This rental payment will be adjusted annually on the 1st of March in accordance with paragraph 4 of the General Terms and Conditions.

Article 8

Level of delivery

The premises shall be delivered to the Commission in the present condition including the alterations and maintenance that have been indicated in the technical research report of Jac Nieuwenburg b.v. (annexed to this agreement) as well as the others identified by the Commission; maintenance work will have to be carried out by the Lessor in accordance with the requirements of the Commission as stipulated in the List of Maintenance and Alterations (annexed to this agreement). The patch panel cupboards including data cabling, airco units, boilers, racks and fork-lift will remain in the warehouse for use by the Commission or its successor. The level of delivery shall be described in an inventory which shall be signed by both parties and annexed to this agreement as an integral part of it.

Article 9

Technical Report

The technical research report prepared by Jac. Nieuwenburg b.v. is the survey undertaken pursuant to Paragraph 6 of the General Terms and Conditions and shall constitute an annex to, and integral part of, this agreement.

Article 10

Soil Survey

The Soil Survey annexed to this agreement shall constitute an integral part of this agreement.

Article 11

General Terms and Conditions

The General Terms and Conditions annexed to this agreement shall be fully applicable and constitute an integral part of this agreement.

Article 12

Entry into Force

This agreement will enter into force on 1 March 1995, after approval by the Committee on Relations with the Host Country and the legally required permits are issued by the local authorities.

Article 13

Annexes

All annexes to this agreement constitute an integral part of this agreement. The annexes are:

Annex 1. General Terms and Conditions

Annex 2. Letter of Guarantee

Annex 3. List of Maintenance and Alterations

Annex 4. Technical Research Report dated 25 November 1994 by Jac. Nieuwenburg b.v.

Annex 5. Soil survey report

Annex 6. Inventory of the premises, duly signed by both parties.

This agreement consists of 76 pages, including its Annexes 1, 2, 3, 4 and 5, each page initialed by the parties. Done in two copies, in The Hague, this 23 of December 1994. It is understood that Annex 6 will be duly signed by the two parties and will be attached to this agreement as soon as it is available.

For the Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons

___________(signed)_______________

Ian R. Kenyon

Executive Secretary

For Holding Euro-Air Nederland B.V.

______________(signed)_____________

Mr N.J. Verloop

Annex 1

GENERAL TERMS AND CONDITIONS

FOR TENANCY AGREEMENTS SIGNED ON BEHALF OF THE

PREPARATORY COMMISSION FOR THE ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS

1. The premises

The exact description of the premises to be rented under the tenancy agreement will include the land registry-number.

2. Parties

Parties to the tenancy agreement:

The Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons, (hereinafter referred to as "the Commission"), represented by the Executive Secretary. and

the owner of the facility (hereinafter referred to as "the Lessor").

3. Period of tenancy

The tenancy agreement will last 5 years with 2 x 5 option years. Six months before the expiry of the tenancy agreement, the Commission can notify its non-renewal of the contract. Although the Lessor states that he will not sell the premises during the period of the Tenancy Agreement he is allowed in exceptional cases to sell after written approval by the Commission within a reasonable period of time. In case the Lessor sells the premises, or any part of it, the Commission has a preferential right to purchase.

4. Rent

If it is agreed in the tenancy agreement that the rent will be raised periodically, the increase will take place on the basis of:

the CBS consumer index figures for family consumption. The increase will be charged at:

100% of the indexation amount up to 3% indexation, plus

50% of the indexation amount between 3% up to and including 4.5% indexation.

0% of any indexation amount over 4.5% indexation.

5. Taxation

Within the scope of its official functions the Commission is exempted from taxation, including the user tax levied on tenants. The lessor will be responsible to pay any taxes levied upon the owner of the premises.

6. Survey of the premises

A survey will be undertaken by a professional building consultant to inspect the condition of the premises. The survey should verify, inter alia, whether the premises can be used for the purpose intended by the Commission and whether it meets the requirements for licenses, approval, exemptions and the like which the Commission will need to obtain in order to conduct its activities in the premises, including those requirements stipulated in the local environmental protection legislation. The survey shall constitute an annex to, and integral part of, the tenancy agreement.

7. Succession

a. When the Commission ceases to exist, the rights and obligations regarding the tenancy agreement shall be transferred to the Commission's successor unless the successor decides otherwise.

b. The Commission will not be liable for any damage caused by its succession.

8. Confidentiality

a. The lessor, or his/her employees, shall not use any information acquired or developed in the course of the tenancy agreement for any purpose not authorised by the Commission.

b. The lessor shall be liable for any breach of confidentiality or any indirect disclosure concerning confidential information which could hamper the interests of the Commission. The extent of such liability shall be directly proportional to the extent of the damage caused.

9. Delivery of the premises

a. If the premises are not available on the agreed date on which the tenancy agreement is to commence, due to the fact that the premises are not ready on time, the previous tenant has not vacated the rented/leased property on time or the lessor has not obtained the licenses from the competent authority for which the lessor, is responsible, the Commission will be exempt from payment of rent or amounts for additional supplies and services until the date on which the premises is made available. The Commission's other commitments and the agreed terms of the rent will be postponed accordingly. If possible, the lessor will inform the Commission of any likely delay at least a month in advance.

b. The premises have to be in a condition of maintenance acceptable to the Commission at the date the tenancy agreement enters into force. The first yearly service as referred to in paragraph 10 c has been carried out by the Lessor before the tenancy agreement enters into force. The premises, including any furnishings and equipment, will be described in an inventory which will be signed by both parties and which will constitute an annex to, and integral part of, the tenancy agreement. The condition of the premises will be as agreed between the parties and stated in the inventory.

10. Improvements, changes, and repairs

a. The Commission is authorised to make changes or improvements of a structural nature to the premises and to inform the lessor accordingly in writing before the changes or improvements are made.

b. The lessor can only make changes or improvements to the premises upon prior written approval of the Commission. If the lessor wants to raise the rent due to the improvements/changes, prior written agreement between the lessor and the Commission is needed before the changes are made.

c. The Commission shall take every precaution to prevent damage to the premises, especially in case of storm, snow or frost, and will take steps to prevent the freezing of water pipes and radiators and will see to it that rain gutters, drainpipes, chimneys, ventilation ducts, water heaters, boilers, fire hydrant boosters, etc., are serviced yearly at the Commission's expense. The Commission will keep the premises adequately heated and ventilated to avoid condensation and other moisture damage. In addition, the Commission shall be responsible for the emptying of grease traps, the cleaning and unblocking of cesspits, gutters and all drains/sewers of the premises up to the municipal main sewers.

d. The following shall be at the expense of the Lessor:

i. maintenance, repair and renovation of structural parts of the premises, such as foundations, pillars, beams, concrete floors, roofs, terraces, structural walls, outer walls;

ii. maintenance, repairs and renovation of staircases, stairs, sewers, drains, gutters, outer casings of windows and doors, and the like. In respect of sewers, the condition set out in 10(c) hereof shall be applicable;

iii. replacement of parts and renovation of installations such as central heating installations and fire hydrant boosters;

iv. exterior paint work.

e. For works other than those specified under (c) and (d) above, minor repairs under the amount of Dfl. 400 will be paid for by the Commission; all other repairs and other works on the structure of the premises or the basic installations (water, electrical wiring, etc.), including the repair of any hidden defects, shall be paid for by the lessor.

f. The Parties will determine the procedure for inspecting the premises and the work schedule before such repairs or other works take place.

g. Advertisements. The lessor has no right to make use of the roof, outer walls, gardens and grounds of the leased premises for (illuminated) advertisements, signs and the like, whether for himself, for the Commission or for third parties.

11. Security

The Commission has the right to make whatever improvements or alterations it deems necessary to reinforce the security of the premises.

12. Costs

a. Costs of water, gas, electricity and other general utilities, including garbage collection and sewer system, will be paid by the Commission. The subscriptions will be made in the name of the Commission.

b. Other charges levied on real estate pertaining to the owner rather than the user, such as district drainage charges, will be paid by the lessor. It is understood that additional charges levied as a consequence of the specific use made by the Commission of the real estate will be covered by the Commission.

c. Insurance premiums for the structure of the premises according to the regulations applicable will be paid by the Lessor. Other insurance premiums will be covered by the Commission.

d. Insurance premiums for all other insurance deemed necessary by the Commission to cover the premises and its contents will be paid by the Commission.

13. Surrender of the premises

a. Upon expiration or termination of the tenancy agreement, the Commission will surrender the premises to the Lessor in a condition equivalent to that described in the inventory, taking into account normal wear and tear. Normal wear and tear is for the account of the lessor.

b. Any improvements or alterations made to the premises at the Commission's expense to which the Lessor gave his consent in writing shall be reimbursed to the Commission by the Lessor when the Commission surrenders the premises.

c. Outstanding charges for electricity, gas, water, telephone, and indemnification for possible damage done to the premises, incomplete inventory or necessary cleaning costs will be paid by the Commission.

14. Settlement of disputes

Without prejudice to the privileges and immunities of the Commission or its successor, any private law dispute between the parties or third parties will have to be settled amicably and in cooperation with the Host Country.

15. Amendments

At the request of either Party, the tenancy agreement may be amended by mutual consent at any time. Such consent shall be notified to the other party in writing and sent by registered mail.

16. Special conditions

The tenancy agreement shall be drafted in English as the single valid version.

English only

Annex 3

List of Maintenance and Alterations

The following maintenance and alterations will be carried out by the lessor of the premises located at Heulweg 28-30, Rijswijk, prior to delivery of the premises to the Commission.

Observations as indicated in the Technical Report by Jac. Nieuwenburg b.v. dated 25 November 1994

3.1 Boiler room

Some valves should be checked and serviced.

Boilers should be surveyed and serviced

3.2 Radiator group

Radiator in room 1.011 should be replaced

3.3 Radiators

3 changes in the installation made in the past have been performed

inadequately and should be revised.

2 radiators should be replaced because of their size

3.5 Isolation of the ducting

Is not available and should be provided

4.2 Pantry

Local kitchen ventilation is not available and should be provided

4.3 Ventilation general

Ventilation beyond repair, should be removed

7.1 Fire fighting equipment

Sound, but should be checked on a regular basis in conjunction with the

Fire-Brigade.

8. Cold water ducting

Some damaged ductwork should be replaced

9. Hot water supply

One boiler, Daalderop, type Duo 80/250 has to be replaced

11. Sewer system

Provide 4 inspection wells in the connections to the main sewer system

12.1 Illumination

Inadequate, costly, worn out, has to be replaced

13.2 Facade

Has to be cleaned

13.3 Windows

Inadequate window locks, have to be replaced

13.4 Internal walls

In one spot there is some damage due to non-professional building

activity, should be repaired.

13.5 Wall finishes

Some tiled walls should be cleaned and lime film removed.

Old burned spot in canteen should be repaired

13.8 Roof

In minor condition, survey by specialist necessary. (before contractors

start fitting ventilators, ducts, etc. BB) incl. 10% repairs.

13.9 Surroundings

Parking area in front of the building shows some caved in area, which

will fill during heavy rain. Should be levelled.

Dated 13 December 1994

Bram Boerkoel, Building Adviser

- - - o - - -