Annex N 7 of the Bid Terms
Republic of Peru
ANNEX N° 7 OF THE BID TERMS
Concession Contract
“System of Supply of Liquefied Petroleum Gas for Lima and Callao”
(Fourth version)
May 25, 2015
Important: This is an unofficial translation. In case of divergence between the English and Spanish text, the version in Spanish shall prevail.
INDEX
CLÁUSES
FIRST CLAUSE .- GENERAL PROVISIONS AND DEFINITIONS 3
SECOND CLAUSE.- PURPOSE AND TERM OF THE CONTRACT 14
THIRD CLAUSE.- CHARACTERISTICS OF THE SYSTEM OF SUPPLY OF THE LPG. 15
FOURTH CLAUSE.- DECLARATIONS OF THE PARTIES 17
FIFTH CLAUSE .- LANDS, ROUTES, EASEMENTS AND COMMERCIAL OPERATION 20
SIXTH CLAUSE.- OBLIGATIONS AND RIGHTS OF THE GRANTOR 22
SEVENTH CLAUSE .- OBLIGATIONS AND RIGHTS OF THE CONCESSIONAIRE CORPORATION 22
EIGTH CLAUSE.- GUARANTEES GRANTED BY THE CONCESSIONAIRE CORPORATION 26
NINTH CLAUSE.- REORGANIZATION OF THE CONCESSIONAIRE CORPORATION AND ASSIGNMENT OF CONTRACT POSITION 27
TENTH CLAUSE .- CONTRACTS WITH SUPPLIERS 28
ELEVENTH CLAUSE - PROTECTION TO THE ENVIRONMENT AND TO THE CULTURAL HERITAGE 28
TWELFTH CLAUSE - REGIME OF REMUNERATION OF THE COST OF SERVICE AND TARIFFS 29
THIRTEENTH CLAUSE - REGIME OF INSURANCES 38
FORTEENTH CLAUSE - PENALTIES 41
FIFTEENTH CLAUSE- FORCE MAJEURE 43
SIXTEENTH CLAUSE .- SETTLEMENT OF DISPUTES 46
SEVENTEENTH CLAUSE - SUSPENSION OF THE CONTRACT TERMS 50
EIGHTEENTH CLAUSE .- TERMINATION OF THE CONCESSION 51
NINETEENTH CLAUSE - FINANCING OF PROJECT AND GUARANTEES IN FAVOR OF ALLOWED CREDITORS 59
TWENTIEETH CLAUSE- ECONOMIC-FINANCIAL BALANCE 63
TWENTY FIRST CLAUSE .- OTHER PROVISIONS 65
ANNEXES
ANNEX 1 TECHNICAL CHARACTERISTICS AND CONDITIONS FOR THE DESIGN, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE SYSTEM OF SUPPLY OF THE LPG 69
ANNEX 2 PROCEDURE OF TESTS FOR THE COMMERCIAL COMMISSIONING OF THE SYSTEM OF SUPPLY OF THE LPG 77
ANNEX 3 CONDITIONS OF DELIVERY OF THE LAND FOR THE STORAGE AND DISPATCH PLANT 80
ANNEX 4 PENALTIES 82
ANNEX 5 PERFORMANCE BOND 83
ANNEX 6 COMPLEMENTARY PERFORMANCE BOND 84
ANNEX 7 ECONOMIC PROPOSAL 85
ANNEX 8 TRUST 86
ANNEX 9 RESERVE OF CAPACITY OF TELECOMMUNICATIONS IN FAVOR OF THE STATE 87
ANNEX 10 RULES FOR THE SERVICE OF TRANSPORTATION AND DISPATCH 90
ANNEX 11 TRANSPARENCE 98
ANNEX 12 GUIDELINES TO INCORPORATE FOR THE HIRING OF THE SUPERVISOR OF THE EXECUTION OF WORKS OF THE SYSTEM OF SUPPLY OF THE LPG 99
ANNEX 13 SCHEDULE OF EXECUTION OF WORKS 104
BOOT ContraCt OF CONCESSION OF THE SYSTEM OF SUPPLY OF LIQUEFIED PETROLEUM GAS FOR LIMA AND CALLAO
Known all men by these presents the BOOT Contract of concession for the design, financing, construction, operation, maintenance, exploitation of the concession assets, and transfer to the Peruvian State at the end of the concession term of the System of Supply of Liquefied Petroleum Gas for Lima and Callao (hereinafter, the “Contract”), between the Peruvian State (the “Grantor”), acting through the Ministry of Energy and Mines, domiciled at Av. Las Artes Nº 260, Lima 41, Peru, duly represented by [•], empowered through Supreme Resolution Nº [•]-2015-EM, and the other party the [•], domiciled at [•] that proceeds duly represented by [•], empowered for said purposes through powers granted according to the Bid Terms (hereinafter, the “Concessionaire Corporation”)
Intervenes in the contract [•] (the Shortlisted Operator), that is a Corporation duly incorporated and existing according to the laws [•], domiciled at [•] that proceeds duly represented by [•], empowered through powers granted according to the Bid Terms, to guarantee, where applicable, the provisions of Clauses 4.1.1., 4.1.2., 4.1.3., 4.1.4., 4.1.5., 4.1.6., and to jointly assume with the Concessionaire Corporation the obligations resulting from the technical operations, according to the provisions of subparagraph b) of Clause 7.7.1.
FIRST CLAUSE.- GENERAL PROVISIONS
1.1. The contract results from the promotion process which has led PROINVERSIÓN under the Organic Law which regulates the activities of hydrocarbons in the country (Act No. 26221), which TUO was approved by Supreme Decree No. 042-2005-EM, the law creating the system of Hydrocarbons and Energy Security and the Energy Social Inclusion Energy Fund (Law 29852), its Regulations approved by Supreme Decree No. 021-2012-EM and its modifications; Regulation of Transportation of Hydrocarbons by Ducts, approved by Supreme Decree No. 081-2007-EM, Regulation of Commercialization of Liquefied Petroleum Gas, approved by Supreme Decree No. 01-94-EM, Supreme Decree No. 005- 2014-EM, the Consolidated Text of the rules with the force of law governing the granting in concession to the private sector in public infrastructure and public services, approved by Supreme Decree No. 059-96-PCM (TUO) and its Regulation approved by Supreme Decree No. 060-96-PCM, the Legislative Decree approving the Framework Law on Public - Private Partnerships for the creation of productive employment and lays down rules for speeding up the process of promoting private investment, approved by Legislative Decree No. 1012 and its regulations approved by Supreme Decree No. 127-2014-EF, and other applicable laws and rules and following acts:
a) The Official Letter N° 1452-2010-MEM/SEG, of the Ministry of Energy and Mines by which was requested to PROINVERSIÓN to incorporate in the process of promotion of private investment the project “System of Supply of LPG for Lima and Callao”.
b) Supreme Resolution Nº 094-2010-EF, published on September 9, 2010, that ratified the agreement of the Steering Council of PROINVERSIÓN, adopted in its meeting dated August 11, 2010, by which it was agreed to incorporate to the respective process of promotion of private investment the project “System of Supply of LPG for Lima and Callao” (hereinafter the System of Supply of LPG), under the mechanisms established in Legislative Decree N° 1012, el TUO and its regulation, approved by Supreme Decrees Nos. 059-96-PCM and 060-96-PCM, respectively and its amendments; and entrusts the Committee of PROINVERSIÓN in Projects of Telecommunications, Energy and Hydrocarbons PRO CONECTIVIDAD the conduction of the process and, ratifies the agreement of the Steering Council of PROINVERSIÓN adopted in its meeting dated August 19, 2010, that approves the Plan of Promotion that will govern the bid.
c) The Official Letter N° 241-2014-MEM/VME dated December 30, 2014, by which it is informed to PROINVERSION the Report 185-2014-MEM/DGH that considers the guidelines to modify the technical characteristics of the System of Supply of LPG.
d) Supreme Decree N° […] prioritizing by the State as part of the infrastructure of energy security the System of Supply of LPG, and the remuneration of said infrastructure through SISE charges.
e) According to Article 27 of the regulation, the Supreme Resolution Nº [•]-2015-EM has been issued, dated [•], that grants the concession, approves the contract and appoints the officer who shall subscribe the contract in representation of the Grantor.
1.2. The contract has been drawn up and subscribed according to the internal law of Peru; and its content, execution and other consequences resulting from it will be governed according to it.
1.3. Without prejudice of the multiplicity of activities and services in which its purpose is divided, the contract is of unit nature and replies to a single cause.
The system of supply of LPG that is subject matter of the contract is governed by the principles of open access, continuity, regularity and non-discrimination.
1.4. In the contract:
a) The terms indicated in capital letters whether used in singular or plural, shall have the meanings indicated in Clause 1.5.
b) The terms that begin with capital letter, whether used in singular or plural, which are not defined in Clause 1.5 or other sections of the contract, shall have the meanings attributed in the Bid Terms or the Regulation and other applicable laws, or correspond to the terms that generally are used with capital letters.
c) Any reference made in the contract to “clause” or “annex” should be understood made to clauses or annexes of the contract, unless express indication to the contrary.
d) The titles have been included to systematize the exposition and should not be considered as a part of it that limits or extends its content or to determine the rights and obligations of the parties.
e) The terms in singular shall include the same terms in plural and vice versa. The terms in masculine include the feminine and viceversa.
1.5 By virtue of the aforementioned, it has been agreed to conclude the contract under the following terms and conditions:
DEFINITIONS
Allowed Creditors:
The concept of Allowed Creditors is only applicable for the assumptions of Guaranteed Debt. For said purpose, the Allowed Creditor shall be:
(i) Any multilateral credit institution from which the State of the Republic of Peru is member,
(ii) Any institution or any governmental agency of any country with which the State of the Republic of Peru keeps diplomatic relations,
(iii) Any financial institution appointed as first category foreign bank in the Circular N° 003-2015-BCRP, issued by the Central Reserve Bank of Peru, or any other circular that modifies it or replaces it. Also are included the financial institutions (banking or not banking) that are subsidiaries of said banks, as far as they comply with the requirements of shareholding participation indicated in the circular.
(iv) Any other International financial institution that has a risk classification not less than the classification of the Peruvian sovereign debt corresponding to foreign currency of long term, assigned by an International risk classifying entity that qualifies the Republic of Peru.
(v) Any national financial institution with a local risk classification not less than “A”, which evaluation has been made by a national risk classifying company duly authorized by the Superintendence of Securities Market (SSM).
(vi) all institutional investors thus considered by legal regulations in force in Peru or in their country of origin (such as Pension Fund Administrators - AFP, insurance companies and mutual funds) that directly or indirectly acquire any security issued by (i) the Concessionaire Corporation, or (ii) a trust estate, investment funds or securitization company to acquire rights and/or assets under the Concession contract.
(vii) Any natural or legal person who acquires directly or indirectly any transferable security or debt instrument issued by the Concessionaire Corporation through public or private offer, or through a trust estate, investment funds or securitization company in Peru or abroad.
Only for the case of structuring of this kind of operations, we may consider that the agent, trustee or representative of the bondholders that act in representation of future persons that will acquire said values or instruments, shall temporarily have the qualification of Allowed Creditor, for this purpose they must comply, as appropriate, the requirements indicated in the preceding Sections (i) to (vi).
The Allowed Creditors should not have economic link with the Concessionaire Corporation, according to Resolution CONASEV N° 090-2005-EF-94.10, modified by Resolution CONASEV N° 005-2006-EF/94.10, or the regulation that replaces it.
For cases of subparagraphs (i) to (v), to be considered Allowed Creditor, it should have said condition on the date of subscription of its respective financing contract.
If the case of securities, the Allowed Creditors shall be represented by the representative of the bondholders (as established in Article 87 of the Securities Market Law and Article 325 of the Corporations Act).
In case of syndicated loans, the Allowed Creditors may be represented by an Administrator Agent and/or the Security Agent. For such purposes, it is considered:
“Security Agent”: in the case of syndicated loans, their administration requires a specialized person in that role. The Security Agent is a bank (the structuring itself or one of the banks that make up the union), whose role will be to manage contracts guarantees that the Concessionaire Corporation has granted in support of credit, execute guarantees by order and account of banks, and recover the amounts of execution to be distributed among the banks.
“Administrative Agent”: in the case of syndicated loans, their administration requires a specialized person in that role. The Administrative Agent will be a bank (the structuring itself or one of the Banks that make up the union), whose role will be to manage and make the follow-up to the compliance of the obligations and commitments established in the syndicated credit contract by the Concessionaire Corporation.
The Allowed Creditors must have the authorization of the Grantor to credit that condition.
Minutes of Evidence
Shall have the meaning indicated in Clause 5.3 and Annex 2.
Award
Is the declaration made by the Committee appointing the awardee of the bid, who submitted the best proposal for the execution of the System of Supply of LPG, according to indications of the Bid Terms.
Awardee
It is the bidder favored with the award.
Year of Operation
It is the period of twelve (12) months, within the contract term, in which the service is provided. The first year of operation begins on the date of commercial commissioning.
Year of Calculation
It is the calendar year. For purposes of this contract the available days in a year of calculation may not exceed three hundred and sixty five (365) days.
Governmental Authority
It is any competent authority, judicial, legislative, political or administrative of Peru, empowered according to the applicable laws to issue, interpret and/or apply the regulations or decisions, general or particular, with mandatory effects for those submitted to their scope.
Bid Terms
Is the document, including its forms, annexes, appendices and circulars, that establishes the terms under which the bid was developed and that is part of the contract. In case of divergence in the interpretation of the contract, shall prevail the order of priority indicated in Clause 21 of the contract.
Concession Assets
It is the set of real and personal property, such as: rights (including the concession granted to the Concessionaire Corporation and easements and rights of way generally required to obtain the right of way, according to what is stated in the Regulation), piping, equipment, accessories and generally all works, equipment and facilities provided by the Concessionaire Corporation under the terms of the Regulation and the contract to provide the Service. According to their nature, piping, and equipment and accessories of the compressor stations, pumping stations and regulation stations and storage infrastructure Security, the office facilities are movable, in accordance with Article 886 ° of the Civil Code. Within the Assets of the Concession are considered including all rights to the operating system, software, know-how and their respective licenses and permits used by the Concessionaire Corporation in the Exploitation of the Concession Assets. The Assets of the Concession are subject to the provisions of Article 30 of the TUO, as amended by Article 1 of Supreme Decree No. 054-97-PCM.