Exhibit 4.7
FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
AMENDMENT AGREEMENT NUMBER 4 (FOUR) TO THE MIXED AGREEMENT OF FINANCED PUBLIC
WORK NUMBER PIF-005/2003, FOR THE RECOGNITION AND PAYMENT OF THE INCREASE IN THE
COST OF STEEL ENTERED INTO BY AND BETWEEN ON THE ONE PART COMISION FEDERAL DE
ELECTRICIDAD (THE FEDERAL COMMISSION OF ELECTRICITY), REPRESENTED BY ENG.
EUGENIO LARIS ALANIS, IN HIS CAPACITY AS DIRECTOR OF FINANCED INVESTMENT
PROJECTS AND ON THE OTHER PART THE COMPANY CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V., REPRESENTED BY ENG. LUIS HORCASITAS MANJARREZ, IN
HIS CAPACITY AS LEGAL REPRESENTATIVE, HEREINAFTER REFERRED TO AS THE
"COMMISSION" AND THE "CONTRACTOR", RESPECTIVELY, ACCORDING TO THE FOLLOWING
RECITALS AND CLAUSES:
RECITALS
I. The PARTIES represent:
I.1 That on March 26, 2003, they executed the Mixed Agreement of Financed
Public Work, recorded with the number PIF - 005/2003, legal instrument
that shall hereinafter be referred to as the "Agreement", awarded to
the CONTRACTOR by means of the International Public Bidding Process,
established by Articles 27, paragraph I, 28 and 30, paragraph II, 32,
33 and 45 of the Law of Public Works and Services Related to the Same,
which purpose consists of: the execution of the Civil Works,
Electromechanical Works and Associated Works, supply, engineering,
manufacturing, transportation, installation, testing and start up of
two equipped turbo-generating Units, of 375 MW of nominal power each,
for the fall and expense of specified design and that is detailed in
Section 8 of the Bidding Rules, Works that all together are named
Hydroelectric Project El Cajon, and which principal structures are
located in the Municipalities of La Yesca and Santa Maria del Oro, in
the State of Nayarit of Mexico.
The Works which consist of the Lump-sum Price Activities are described
in detail in Exhibits OE-3, OE-4 and OE-5 of Section 4 of the Bidding
Rules and are to be
FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
conducted under the modality of lump-sum, because the portion of the
Works that correspond to the Lump-sum Activities are depicted in detail
in Exhibit OE - 5A of Section 4 of the Bidding Rules and shall be
executed under the base of lump-sum.
I.2 That on July 04, 2003, the PARTIES executed the Amendment Agreement
Number 1 to the Agreement (hereinafter "Amendment Agreement Number 1").
I.3 That the Price of the Agreement that the COMMISSION agreed to pay to
the CONTRACTOR, agreed in Clause 9.1, was agreed to as total payment
for the execution of the Works that correspond to the Lump-Sum
Activities, the lump-sum price of US $ 682,517,584.80 Dollars (Six
Hundred and Eighty Two Million Five Hundred and Seventeen Thousand Five
Hundred and Eighty Four Dollars 80/100 Currency of the United States),
and for the Unit Price Activities, the price of US $ 65,773,072.59
Dollars (Sixty Five Million Seven Hundred and Seventy Three Thousand
Seventy Two Dollars 59/100 Currency of the United States) plus the
corresponding value added tax.
According to that established in the Third Clause of the Amendment
Agreement Number 1 the COMMISSION and the CONTRACTOR agreed to increase
the amount of the Unit Price Activities of the Agreement in the amount
of US $ 5,801,271.26 Dollars (Five Million Eight Hundred and One
Thousand Two Hundred and Seventy One Dollars 26/100 Currency of the
United States) plus the Value Added tax, which represented an increase
of 8.82 % (eight point eighty two per cent) relative to that originally
contracted, thus remaining an accumulated aggregate amount of the
Agreement based in unit prices of US $ 71,574,343.85 Dollars (Seventy
One Million Five Hundred and Seventy Four Thousand Three Hundred and
Forty Three Dollars 85/100 Currency of the United States) plus the
corresponding value added tax, in accordance with the budget of
Additional Works.
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
I.4 That on September 10, 2003, the PARTIES executed the Amendment
Agreement Number 2 to the Agreement (hereinafter the "Amendment
Agreement Number 2") in accordance with that established in Articles 59
of the Law of Public Works and Services Related to the Same, and 69 and
79 of its Regulations, in order to: (i) under the Sixth Clause of the
Amendment Agreement Number 1, modify the original Execution Schedule
due to the new date for the commencement of the Works that is April 24,
2003; (ii) agree to the disarrangement of the Critical Events Dates
1.1, 1.2, 1.3 and 1.4 established in Exhibit Number 3 of the Agreement,
derived from the modifications to the contractual conditions that have
ruled up to this date according to Clause 13.1 of the Agreement; (iii)
recognize and pay, if applicable, under the modality of unit prices the
Additional Costs related to the modifications of the original Execution
Schedule, as a consequence of the late delivery and under different
conditions to those established in the Bidding Rules and in the
Agreement, of the portals of the deviation tunnels and the access road
to the Site, for causes not imputable to the CONTRACTOR and adjust the
Lump-sum Activities because of the modification to the length of the
deviation tunnels and the reduction of the volume of the cofferdam in
the upstream waters; (iv) approval in the event the COMMISSION decides
their completion, of the payment of the Associated Additional Costs
that derive from the Additional Works of Deviation under the modality
of unitary prices for the building of the deviation tunnels and the
pre-deviation tunnels by the left or right margins; (v) ratify in
accordance with the Seventh Clause of the Amendment Agreement Number 1
that the Critical Event 1.4 of Exhibit 3 of the Agreement ceased to be
a Punishable Critical Event.
In accordance with that established in the Sixth Clause of the
Amendment Agreement Number 2 the COMMISSION and the CONTRACTOR agreed
to increase the original amount of the Lump-sum Activities of the
Agreement, due to the Additional Works of Deviation hereinafter
described, subject to the condition that the COMMISSION decides their
execution:
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
- The increase of resources and extension of the crossing tunnel
equals the amount of US $ 1,810,899.51 Dollars (One Million
Eight Hundred and Ten Thousand Eight Hundred and Ninety Nine
Dollars 51/100 Currency of the United States; plus VAT;
- Pre-deviation by the left bank equals the amount of US $
2,969,437.75 Dollars (Two Million Nine Hundred and Sixty Nine
Thousand Four Hundred and Thirty Seven Dollars 75/100 Currency
of the United States) plus VAT;
- In the event the COMMISSION decides not to execute the
pre-deviation by the left bank, this shall pay for the
"emportalamiento" of said tunnel the amount of $ 338,578.50
Dollars (Three Hundred and Thirty Eight Thousand Five Hundred
and Seventy Eight Dollars 50/100 Currency of the United
States) plus VAT;
- Pre-deviation by the right bank equals the amount of US $
3,533,182.44 Dollars (Three Million Five Hundred and Thirty
Three Thousand One Hundred and Eighty Two Dollars 44/100
Currency of the United States), plus VAT;
- In the event the COMMISSION decides not to execute the
pre-deviation by the right bank, the COMMISSION shall pay for
the construction of the access road, the ramp and
"emportalamiento" of said tunnel the amount of US $
1,662,411.00 Dollars (One Million Six Hundred and Sixty Two
Thousand Four Hundred and Eleven Dollars 00/100 Currency of
the United States) plus VAT.
I.5 That on September 30, 2004, the PARTIES subscribed the Amendment
Agreement Number 3 to the Agreement (hereinafter referred to as
"Amendment Agreement Number 3") according to that established by
Articles 59 of the Law of Public Works and Services Related to the
Same, and 69 and 79 of its Regulations, in order to: (i) Modify the
Execution Schedule of the Amendment Agreement Number 2, according to
that established in the Third Clause and in the last paragraph of the
Fourth Clause of the same Amendment Agreement Number 2, as well as that
contained in Recitals I.6 and II of this Agreement and upon analyzing
the actual geological conditions found at the deviation tunnel No. 1 in
the intersection with the crossing tunnel the
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
activities conducted for the execution of the pre-deviation by the
right bank and the effect on the construction of the baseboard (plinth)
in the river bed, because of Calypso's default, the parties agree to a
new Execution Schedule of the Works that is attached to the Amendment
Agreement Number 3 as Exhibit 5. (ii) Recognize the real amount of the
Associated Additional Costs that derived from the execution of
Additional Works of Deviation, ordered by the commission under the
modality of unitary prices, for the execution of the deviation tunnels
and the pre-deviation tunnel by the right bank, as well as the works
ordered by the commission, for the potential pre-deviation by the left
bank. (iii) Cancel the amounts of the Additional Deviation Works
indicated in Clause Sixth of the amendment Agreement number 2, which
was not necessary to build. (iv) Recognize and pay, if applicable,
under the modality of unitary prices, the affectations in time and cost
for the recovering of the program derived from that indicated in
Recital I.6 and the Recitals of item II of this Agreement. (v) Define
the new Dates of Critical Events 1.3, 1.5, 1.6, 1.12 and 1.13,
established in Exhibit Number 3 of the Agreement, derived from the
modifications to the contractual conditions that prevailed to this
date, according to Clauses 13.3 and 27.3 second paragraph of the
Agreement and that are attached to Amendment Agreement Number 3 as
Exhibit 4, replacing that indicated in Exhibit 3 of the Agreement. (iv)
Precise the average daily yields that the CONTRACTOR, in accordance
with the Execution Schedule, shall execute for each of the materials
that form the rock-fill dam in each of the phases of its construction
process, to comply with the Critical Event 1.9 related to the "final
closure of the deviation tunnels to start the filling of the
reservoir", which date is July 1st., 2006, that are attached to
Amendment Agreement Number 3 Exhibit 6.
According to that provided for in the Third Clause of the Amendment
Agreement Number 3 the PARTIES agree and acknowledge to increase the
original amount of the portion of the unitary prices of the agreement
for the Associated Additional Works that derived from the execution of
the following Additional Deviation Works ordered by the COMMISSION and
that were effectively executed:
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
(i) Extension of the crossing tunnel from the connection of tunnel
1 to tunnel 2 (sic) the amount of this Additional work equals
the amount of US$ 261,145.08 (Two Hundred and Sixty One
Thousand One Hundred and Forty Five Dollars 08/100 Currency of
the United States) plus VAT.
(ii) The execution of the pre-deviation by the right bank, the
amount of this Additional Deviation Work equals the amount of
$ 1,457,047.88 US (One Million Four Hundred and Fifty Seven
Thousand Forty Seven Dollars 88/100 Currency of the United
States) plus VAT.
In accordance with the above, an increase is presented with respect to
the original amount of the Price of the Agreement in the portion
related to the Catalog of Unitary Prices, in the amount of $
1,718,192.96 Dollars (One Million Seven Hundred and Eighteen Thousand
One Hundred and Ninety Two Dollars 96/100 Currency of the United
States), which represents a 2.61 % (two point sixty one per cent) of
increase with respect to the original amount of the Price of the
Agreement in the portion related to Unitary Prices and a 11.43 %
(eleven point forty three per cent) accumulated with respect to the
original amount of the Price of the Agreement in the portion related to
Unitary Prices, as a result the total amount of the portion regarding
the Unitary Prices of the Agreement, in the amount of US $
73,292,536.81 Dollars (Seventy Three Million Two Hundred and Ninety Two
Thousand Five Hundred and Thirty Six Dollars 81/100 Currency of the
United States) plus VAT.
I.6 That Clause 11 "Adjustment of Costs" of the Agreement provides as
follows:
The COMMISSION and the CONTRACTOR acknowledge that the portion of the
works covered by the Agreement under the modality of payment of unitary
prices,
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
this is, the Activities at Unitary Prices, shall not be subject to the
adjustment of costs established in the Law of Public Works and Services
Related to the Same and its Regulations because the quotation for such
works derives from the basic elements of cost valued in Dollars, and
therefore the CONTRACTOR expressly waives the right to adjustment of
costs to the price of the aforementioned works. Said works shall only
be subject to adjustment of costs in accordance with the guidelines
issued, if applicable, by the Ministry of the Comptrollership and
Administrative Development, in accordance with that established in
Article 59 of the Law of Public Works and Services Related to the Same.
The COMMISSION and the CONTRACTOR acknowledge that portion of the works
covered by the Agreement under the modality of lump-sum price, this is
the Lump-sum Activities, shall only be subject to costs adjustments in
accordance with the guidelines issued, if such is the case, by the
Ministry of the Comptroller and Administrative Development, in
accordance with that established in Article 59 of the Law of Public
Works and Services Related to the Same.
I.7 Article 59 of the Law of Public Works and Services Related to the same
provides in its third, fourth, fifth and sixth paragraph, as follows:
The lump-sum agreements or the portion of the mixed ones of this kind
shall not be modified in their amount or term, nor shall they be
subject to any adjustment of costs.
However, in the event that following the awarding of a lump-sum
agreement or the portion of the mixed ones of this kind, economic
circumstances of general nature may arise without the responsibility of
the parties and therefore they could not have been subject matter of
consideration in the tender that served as basis for the awarding of
the correspondent agreement; such as, among others: fluctuations in the
exchange rate or changes in the national or international prices that
result in the direct increase or reduction in the costs of the raw
materials necessary for the
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
works not yet executed in accordance with the originally agreed
schedule; the agencies and entities shall recognize the increases or
request reductions.
The provisions of the above paragraph shall be governed by the
guidelines issued by the Comptrollership; same that shall consider,
among other matters, the mechanisms available to the PARTIES to face
these situations.
Once the potential modifications to the corresponding agreement are
determined, the timely execution of the agreements shall be the
responsibility of the corresponding agency or entity.
I.8 On May 21, 2004, the Ministry of Public Office published in the
Official Gazette of the Federation, the Order that provides the
guidelines to conduct the review and adjustment of the price of Steel
in the agreements and orders formalized under the Public Works Laws and
Services Related to the Same, and the Acquisitions, Leases and Services
of the Public Sector and its Regulations (hereinafter the
"Guidelines"), same that became effective on the day following its
publication and for a term of six months as of the date in which they
became effective, to be applicable only for purposes of recognizing the
change in the price of Steel in the relevant participation that
corresponds to this concept regarding the total amount of the
agreement. The adjustments shall be calculated as of the month of
November 2003 regarding works not yet executed, according to the
current Execution Schedule or, in the event of delay not attributable
to the CONTRACTOR, with respect to the agreed upon schedule.
For purposes of the Guidelines it is understood by "Steel" the
different presentations of the aforementioned metal, among others,
slabs, rolled-shape, extrusive angles, corrugated bar, rustles, etc.
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
Said Order in its first three paragraphs of the portion of the
considerations establishes that as of December 2003 the price of the
Steel in its several presentations has been increasing constantly and
unforeseeable in the market ranging such increases from 20 % to 50 %.
That such event has had an impact on the public works agreements under
completion in which the raw material of Steel and its different
presentations represents at least 10 % of the total amount of related
operations and contracts not being this a limitation because in
accordance with official communication UNAOPSPF/309/BM/1460/2004 said
10 % is only enunciatively in the consideration, thus the
entrepreneurial chambers, suppliers and contractors, as well as the
governmental agencies and Entities involved in the problematic filed a
petition to the Ministry of Public Office stressing the need of
establishing the correspondent guidelines and normative mechanisms to
face this situation in order to prevent cancellations of projects,
rescissions or early termination of the corresponding transactions and
agreements.
I.9 The Ministry of Public Office (SFP), by means of Official Communication
Number UNAOPSPF/309/BM/0769/2004, dated July 26, 2004, answered the
doubts set out by the CONTRACTOR, by means of its communication dated
July 5, 2004, derived from the interpretation and application of the
Guidelines.
I.10 On August 9, 2004, the CONTRACTOR notified the COMMISSION its request
for review and adjustment of the price of Steel, to which it attaches
the valid and unquestionable documentation that identifies the relative
participation of Steel regarding the total amount of the Agreement, the
objective elements that were considered for its determination, as well
as the identification of the executed portion of the Works as of
November 2003, in accordance with that established in provision
Eleventh, paragraph 1) of the Guidelines.
I.11 The Ministry of the Public Office, by means of official communication
Number UNAOPSPF/309/BM/0884/2004 dated September 7, 2004, responded to
the new
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
doubts filed by the CONTRACTOR, by official communication dated
September 1, 2004, which also have an influence in the application and
interpretation of the Guidelines.
1.12 The Ministry of the Public Office, by means of official communication
number UNAOPSPF/309/BM/1460 dated December 13, 2004, responded to the
consultation filed by the COMMISSION, by means of official
communications numbers DPIF/510/2004 and BGD Number 364/2004 dated
October 25, 2004 and December 7, 2004, respectively, arising out of the
interpretation and application of the Guidelines.
I.13 That they (sic) recognize that the Agreement, as it refers to the price
of Steel is within the assumptions mentioned in item First of the
guidelines in paragraphs: b) Mixed Agreements in the portion related to
lump-sum; c) Unitary Prices Agreements formalized in foreign currency.
These shall include the Mixed Agreements when the portion of unitary
(sic) has been agreed upon in foreign currency and this includes Steel.
I.14 The Agreement and this Agreement are regulated by the Law of Public
Works and Services Related to the same, its Regulations and other
federal laws that result applicable, in accordance with Clauses 11 and
31.1 of the Agreement.
I.15 That as of the submission of the petition of the CONTRACTOR, the
PARTIES have met to review and conciliate, as possible, the
documentation presented and the CONTRACTOR, where applicable, has
completed the information requested by the COMMISSION.
I.16 That in the Third Memorandum of Clarifications to the Agreement, in the
second paragraphs of item "SOLE" it reads:
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
"With reference to the first paragraph of Clause 9.3 of the Agreement
("Variations in the Works, Additional Works") the PARTIES clarify that
the increase amount of the Price of the Agreement that is established
in one or more amendment agreements that result from the application of
the Guidelines and from the request for the adjustment of the price of
the Steel, shall be computed as additional work for purposes of the
maximum amount of increases to the price to which item 10 of the First
Memorandum of Clarifications refers to.
The PARTIES also clarify that such one or more amendment agreements,
shall expressly establish the percentage that represents the agreed
upon Price increase of the Agreement and that, only for purposes of
that provided for in item 10 of the First Memorandum of Clarifications,
such increase shall be allocated to the Price of the Agreement in the
portion related to Unitary Prices".
I.17 The PARTIES declare that for this Agreement for the portion of the
Agreement at unitary prices the amount of the Steel was determined in
accordance with the procedure established in the eleventh guideline,
paragraph II, subparagraph B) of the Guidelines, determining the
participation of Steel considering within the price of Steel the direct
and indirect costs, financing, profit and additional charges, in the
percentages indicated in Exhibit 12 of the Agreement. For the portion
of the Agreement at lump-sum the amount of participation of Steel was
determined in accordance with the procedure established in item
eleventh of the guidelines, paragraph II, subparagraph A), considering
only the value of the Steel at direct cost of the raw material plus the
financing cost, and deflation element "i" considering the one of the
date of delivery of the work.
I.18 That on February 9 of the current year, the CONTRACTOR filed a writ of
"complaint" before the Unit for Acquisition Standards, Public Works,
Services, and Federal Patrimony of the Ministry of the Public Office,
in order to initiate the administrative procedure of conciliation
provided for in articles 89, 90 and 91 of the
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
Law of Public Works and Services Related to the Same, by being in
disagreement with the criteria that have been applied to this date in
order not to recognize the adjustments in the costs of Steel in the
portion related to lump-sum that is determined from the sale price of
the Agreement, that is to say, including direct cost, indirect cost,
financing, profit and additional charges, as well as the application of
deflactor "i" that may correspond on the date of adjustment.
II. The COMMISSION declared that:
II.1 It agrees and acknowledges the right of the CONTRACTOR to adjust the
price of Steel in the Agreement, due to the increases the same was
subject to, both in the portion related to the lump-sum activities, as
well as in the portion related to unitary prices activities, following
the procedure that is outlined in the Guidelines determining the need
to modify the Agreement, and therefore the execution of the Amendment
Agreement (hereinafter referred to as the "Amendment Agreement") based
on the following:
II.2 It has determined the need to recognize the payment to the CONTRACTOR
due to the increase in the price of the Steel, since the Ministry of
the Public Office issued the Order that establishes the guidelines to
carry out the review to and adjustment of the price of Steel in the
agreements and orders executed under the laws of Public Works and
Services Related to the Same, and the Acquisitions, Leases and Services
of the Public Sector and its Regulations, as a consequence of the
increase in the price of the Steel, and that have affected in a direct
manner the cost of the Works executed and that shall continue to have
an impact on the Works pending to be executed.
II.3 Its legal representative has sufficient powers and authority to bind
the COMMISSION in terms of this Amendment Agreement, being the same
evidenced according to that provided for in Recital I.F of the
Agreement.
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
II.4 It also justifies the execution of this Amendment Agreement, in addition
to the reasons exposed in the preceding recitals, based on the technical
opinion that is attached to this Amendment Agreement as Exhibit 1
III. The CONTRACTOR declares that:
III.1 Its representative has sufficient powers and authority to bind the
CONTRACTOR under the terms of this Amendment Agreement, as it appears in
public deed number 158,595 granted before Mister Jesus Castro Figueroa,
Notary Public Number 38 of the Federal District, dated September 6, 2003,
recorded with the Public Registry of Commerce of the Federal District
under commercial folio number 299,934 on February 26, 2003, same powers
that to this date have not been modified, restricted or revoked in any
manner whatsoever.
III.2 The amount of adjustment of the price of Steel of the lump-sum agreement,
should be determined as of the sale price of the Agreement, this is,
including direct cost, indirect cost, financing, profit and additional
charges, as well as to apply the deflactor "i" of the adjustment date,
inasmuch as the recognition of the COMMISSION according to official
communication number UNAOPSPF/309/BM/1460/2004, dated December 13, 2004,
the adjustment of the costs because of the increase of the price of Steel
in this agreement in the lump-sum portion is as of the cost plus the
financing and considering deflactor "i" which corresponds to the date of
delivery of the works, and therefore the CONTRACTOR will make use of all
the legal instances available to it in order to obtain the total
recognition of the concepts that were not subject to recognition and
payment of this Amendment Agreement.
Therefore, the PARTIES agree to the execution of this Amendment Agreement for
the recognition and payment, by attributing its cost to the portion of the price
of the agreement
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
at unitary prices, the increase in the cost of Steel, determined for the portion
of lump-sum as of the direct cost of steel and its financing, and in the portion
corresponding to the unitary prices as of the direct cost, plus the indirect
cost, financing, profit and additional charges, abiding to such effects to the
procedures established in the Guidelines published in the Official Gazette of
the Federation on May 21, 2004, as well as in the clarifications that have as
well an effect in the application or interpretation of the guidelines issued by
the Ministry of the Public Office, by means of official communications numbers
UNAOPSPF/309/BM/0769/2004 dated July 26, 2004, Number UNAOPSPF/309/BM/0884/2004
dated December 13, 2004 and the written request that for such purposes was filed
by the CONTRACTOR and that was conciliated as much as possible with the
COMMISSION.
Furthermore, the PARTIES agree to the execution of this Amendment Agreement in
accordance with that provided for in articles 59 of the Law of Public Works and
Services Related to the Same, 69 and 79 of its Regulations and other legal
standards and provisions that are applicable and in the Guidelines and
particularly item fifteenth that establishes that in all applicable cases the
respective amendment agreement to the agreements mentioned in the first item of
the guidelines of the Order, shall be executed in writing, the same (parties)
grant and undertake the following
CLAUSES
FIRST.- Based upon that established in the Recitals of this Amendment Agreement,
the PARTIES agree to modify, assigning its cost to the portion of the price of
the agreement at unitary prices the amount of the Price of the Agreement by the
application of the Guidelines to effect the review and adjustment of the price
of Steel in the Agreement, both for the Lump-Sum Activities as for the Unitary
Prices Activities, resulting in an amount equal to $ 43,061,607.78 Dollars
(Forty Three Million Sixty One Thousand Six Hundred and Seven Dollars 78/100
Currency of the United States of America) plus the Value Added Tax hereinafter
VAT, in accordance with the documents that are detailed in Exhibit 2 of
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
this Amendment Agreement. Inasmuch as such amount is added as additional work
according to the Third Memorandum of Clarifications to the Agreement, the total
amount of the portion at Unitary Prices of the Agreement equals consequently the
amount of $116,354,144.59 Dollars (One Hundred and Sixteen Million, Three
Hundred and Fifty Four Thousand, One Hundred and Forty Four Dollars 59/100
Currency of the United States of America) plus VAT which represents a 65.47%
(sixty five point forty seven per cent) of increase with respect to the original
amount of the Price of the Agreement in the portion related to Unitary Prices
and an increase of 76.90% (Seventy Six point Ninety per cent) accumulated with
respect to the original amount of the Price of the Contract in the portion
related to Unitary Prices, which represents an increase to the total amount of
the Agreement, of $50,581,072.00 Dollars (Fifty Million Five Hundred and Eighty
One Thousand and Seventy Two Dollars 00/100 Currency of the United States of
America) plus VAT, equivalent to 6.76%.
SECOND.- According to Exhibit 6 of this Amendment Agreement, the amount
disbursed from December 1, 2003 to March 31, 2005 is equal to $23,269,611.95
Dollars (Twenty Three Million Two Hundred and Sixty Nine Thousand Six Hundred
and Eleven Dollars 95/100 Currency of the United States of America) plus VAT,
and the amount pending to execute from April 1st., 2005 to August, 2007 is
$19,791,995.83 Dollars (Nineteen Million Seven Hundred and Ninety One Thousand
Nine Hundred and Ninety Five Dollars 83/100 Currency of the United States of
America) plus VAT, said amounts are integrated as follows:
From December 1st. 2003 to March 31st. 2005
Lump-sum Civil Work and Related $ 7,324,470.74 US Dollars, plus VAT.
Lump-sum Electromechanical Work $ 10,310,979.95 US Dollars, plus VAT.
Unitary Price Civil Work and Related $ 5,382,526.41 US Dollars, plus VAT.
Therefore, from April 1st. 2005 to August, 2007.
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
Lump-sum Civil Work and Related $ 12,697,580.10 US Dollars, plus VAT.
Lump-sum Electromechanical Work $ 5,801,373.74 US Dollars, plus VAT.
Unitary Price Civil Work and Related $ 812,571.16 US Dollars, plus VAT.
The PARTIES agree that the amounts corresponding to the recognition of the
increase in the cost of Steel, both in the Lump-sum Activities as well as in the
Unitary Prices they shall abide to that established in Clauses 1.1
"Definitions", "Date of Payment of the Agreement" and 6.6 corresponding to
"Payment of Price of the Agreement or of the Value of Termination"
THIRD.- The preparation and review of the adjustment research of the price of
the Steel and the determination of the amounts mentioned in the FIRST Clause,
was made in accordance with that established in the Guidelines issued by the
Ministry of the Public Office, published at the Official Gazette of the
Federation on May 21, 2004 and in its clarifying official communications
UNAOPSPF/309/BM/0769/2004 dated July 26, 2004, Number UNAOPSPF/309/BM/0884/2004
dated September 7, 2004 (sic) AOPSPF/309/BM/1460/2004 dated December 13, 2004.
The amount established in the First Clause of this Agreement was determined for
the value of the work pending of execution as of December, 2003, applying the
prices index published monthly by the Bank of Mexico corresponding to the period
of November 2003 to November 2004, as established by the ELEVENTH Guideline,
section II, paragraph A), item 3.
The PARTIES agree that the Execution Schedule that was taken as grounds for the
determination of the amount for the increase of the price of Steel corresponds
to the Amendment Agreement Number 3.
16
FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
FOURTH.- The PARTIES agree to leave out as a pending matter to be discussed and
included in a future Agreement, if applicable, the amount of adjustment in the
price of Steel of the portion of the agreement at lump-sum, that is determined
as of the price of sale of the Agreement, this is, including direct and indirect
cost, financing, profit and additional charges, (that) in opinion of the
CONTRACTOR shall be taken into consideration in order to determine the amount of
adjustment of the costs of Steel, considering that mentioned in the Guidelines
and the aforementioned clarifying official communications that were not subject
of recognition and payment of this Amendment Agreement, as well as to apply
deflactor "i" that corresponds to the date of adjustment, inasmuch as the
recognition of the COMMISSION to the adjustment of costs due to the increase in
the price of Steel in this Amendment Agreement in the portion of lump-sum is as
of the direct cost without the cost of transportation mentioned in Exhibit OE -4
plus financing and considering deflactor "i" as the one corresponding to the
delivery date of the work. Therefore, the CONTRACTOR sets out and the COMMISSION
agrees that the execution of this Amendment Agreement does not imply nor it may
be interpreted as a waiver to exercise its rights before the corresponding legal
instances in order to obtain the above mentioned full recognition, regarding the
concepts that were not subject to the adjustment of costs in this Amendment
Agreement.
For this purposes, and in order to conciliate its disputes with the COMMISSION,
the CONTRACTOR filed for the conciliatory administrative procedure as mentioned
in Recital I.18 of the Chapter of Recitals of this Amendment Agreement.
FIFTH. - The increase to the amount of the Agreement mentioned in the FIRST
Clause of the Amendment Agreement does not include the eventual adjustments to
the price of Steel of the Electromechanical Equipment in Exhibit 5 of this
Amendment Agreement, of which there is no developed design as to this date. The
corresponding evaluation of the adjustment of the price of Steel in these
equipments shall be made at the moment when these designs are available under
the Guidelines issued by the Ministry of the Public Office published in the
Official Gazette of the Federation on May 21, 2004, its clarifying official
17
FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
communications and the resolution that may be reached on the matters currently
at issue mentioned in the FOURTH Clause of this Amendment Agreement.
Once the information and resolutions pending to conduct the pending evaluation
mentioned hereunder and in the FOURTH Clause is available, the PARTIES agree to
confront them within a term not to exceed 60 days following its delivery by the
CONTRACTOR, who shall include them in the Monthly Advance Report of the month
following the one in which such conciliation is made.
SIXTH. - The PARTIES recognize that this Amendment Agreement do not include the
additional and extraordinary works related to the Unitary Prices Activities and
that to obtain the adjustment of the price of Steel that may correspond to them,
the resulting updating factor obtained for the portion of Unitary Prices and
included in Exhibit 7 shall be applied to them according to their term of
execution. For such purposes it is agreed that the adjustments referred to in
this Clause shall be made according to the procedures and criteria contained in
this document and the Guidelines issued for such purpose by the S.F.P. and the
later clarifications.
SEVENTH. - The amount mentioned in the FIRST Clause shall have the treatment
referred to in the Third Memorandum of Clarifications to the Agreement, in the
second paragraph of its "SOLE" item:
"With reference to the first paragraph of Clause 9.3 of the Agreement
("Variations in the Works, Additional Works"), the PARTIES hereby clarify that
the amount of increase in the Price of the Agreement that is established in one
or more amendment agreements that may result from the application of the
Guidelines and from the request of adjustment of the price of Steel, shall be
computed as additional work for purposes of the maximum amount of increases to
the price to which reference is made in item 10 of the First Memorandum of
Clarifications.
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
The PARTIES also clarify that said amendment agreement or agreements, shall
expressly mention the percentage that represents the increase to the Price of
the Agreement agreed upon and that, only for the effects provided for in item 10
of the First Memorandum of Clarifications, such increase shall be attributed to
the Price of the Agreement in the portion related to Unitary Prices".
EIGHT. - The monthly advances of the amount of the increase to the price of
Steel covered by this Amendment Agreement that may correspond to the works
executed and to be executed in accordance with the current Execution Schedule,
shall have the same recognition treatment and form of payment as those
established in the Agreement for the Lump-sum and the Unitary Prices Activities,
according to Clauses 9.2, 10.1 and 13.4. The COMMISSION shall recognize them in
an independent manner according to Exhibit 14 of the Agreement and the First,
Second and Third Memorandum of Clarifications to the Agreement, that is to say,
as if it was an event of recognition of advances in the construction contained
in the economic form OE - 11B.
The Monthly Advances Report to which Clause 13.4 of the Agreement refers to and
item 4 of the First Memorandum of Clarifications due to the adjustment of the
costs of Steel, may be made on a monthly basis through advance reports submitted
every two weeks in an independent manner to the Monthly Advances Report in the
construction, and according to the result of the calculation of Exhibit 2.
NINTH. - The PARTIES agree that the amount of the Compliance Guarantee granted
by the CONTRACTOR for an amount equivalent to ten percent (10%) of the amount
of the authorized investment for the third fiscal year, is sufficient to
guarantee the due, proper and absolute fulfillment by the CONTRACTOR of all its
obligations derived from the Agreement and this Amendment Agreement for the
current fiscal year.
TENTH. - Attached to this Amendment Agreement as exhibit 8 the
documentation identified as follows:
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FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
1. Resolution that establishes the guidelines to conduct the review and
adjustment of the price of Steel, published by the Ministry of the Public Office
in the Official Gazette of the Federation on May 21, 2004
2. Official communication of the Ministry of the Public Office Number
UNAOPSPF/309/BM/0769/2004 dated July 26, 2004
3. Official communication of the Ministry of the Public Office Number
UNAOPSPF/309/BM/0884/2004 dated September 7, 2004
4. Official communication of the Ministry of the Public Office Number
AOPSPF/309/BM/1460/2004 dated December 13, 2004
5. Indexes of Banco de Mexico (Mexico's Central Bank) for the considered Steels
6. Exchange rate Peso / Dollar issued by the Banco de Mexico
7. Homologation conciliated for the adjustment of costs
8. Exhibit OT - 7, General Schedule of the Project, of the portion of lump-sum
of the Electromechanical Work of the Agreement 3 (three)
9. Exhibit OT - 14A, calendarized Schedule for the use of the most significant
materials and equipment of permanent installation of the Agreement 3 (three)
10. Exhibit OT - 11A, Schedule of monthly amounts for the portion of Unitary
Prices of the concepts of Civil Works of the Agreement 3 (three)
11. Calendarized Schedule of disbursements of the portion at Unitary Prices of
the monthly usage of the materials and equipments of permanent installation of
the Agreement 3 (three)
12. Weight and Valuation of Steel of the electromechanical equipment included in
the Agreement 4
13. Official communication of the Ministry of the Public Office Number
AOPSPF/309/BM/0799/2004 dated August 9, 2004
14. Writ of complaint before the Standards Unit of Acquisitions, Public Works,
Services, and Federal Patrimony of the Ministry of the Public Office, in order
to initiate the administrative procedure of conciliation provided for in
articles 89, 90 and 91 of the Law of Public Works and Services Related to the
Same
20
FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
ELEVENTH. - The execution of this Agreement does not represent a waiver to the
rights available to the CONTRACTOR, derived from the execution of the works in
the terms established in the Bidding Rules, in the Agreement, in the First,
Second and Third Memorandum of Clarifications, in the Amendment Agreements
numbers 1, 2 and 3 and the increase of the price of Steel nor of any other
situation prior to the execution of this Amendment Agreement.
TWELFTH. - The PARTIES agree that according to that mentioned in Clause 24.1.c
of the Agreement it shall be reviewed by means of the actualization of the
research of risks made on the account and on behalf of the CONTRACTOR, and if
applicable, it shall modify the minimum Liability limits agreed to by the
CONTRACTOR AS required under Clause 24.1 c, of the Agreement.
THIRTEENTH. - The PARTIES agree that, except for that expressly provided for in
this Amendment Agreement, the rest of the Clauses that are made a part of the
Agreement and its Amendment Agreements are mandatory, and they shall rule in
full force and effect.
The terms used with capital letters in this document shall have the same meaning
as the one given to them in Clause 1.1 of the Agreement and in the First, Second
and Third Amendment Agreements, the Resolution and its clarification official
communications issued by the Ministry of the Public Office, except as otherwise
expressly specified in this Amendment Agreement.
IN WITNESS OF THE ABOVE, the PARTIES execute and grant, through their legally
authorized representatives, this Amendment Agreement, in six counterparts
equally valid, in Mexico City, Federal District, on March 31st., 2005.
By the "COMMISSION" By the "CONTRACTOR"
21
FEDERAL COMMISSION OF ELECTRICITY
AGREEMENT NUM. PIF-005/2003
CONTRACT NUM. 4 (FOUR)
- ----------------------------------- ------------------------------------
MR. EUGENIO LARIS ALANIS MR. LUIS HORCASITAS MANJARREZ
MANAGER OF PROJECTS OF LEGAL REPRESENTATIVE
FINANCES INVESTMENTS
EXHIBITS:
1. Technical report
2. Calculation of the review and adjustment of the price of Steel in
the Civil Works, Related Works and Electromechanical Works.
3. Exhibit OE - 11, Program of monthly amounts for the portion of
lump-sum for Mechanical, Electric, Civil Works and Related Works
Concepts of Agreement 3 (three)
4. Exhibit OE - 13, Calendarized Schedule of expenses of the portion of
Lump-Sum of monthly use of the materials and equipment of permanent
installation of the Agreement 3 (three)
5. List of electromechanical equipment pending to be evaluated in its
content of Steel
6. Monthly amount derived from the adjustment of the price of Steel
according to the Execution Schedule
7. Factors of Adjustment of Costs obtained according to the Guidelines
8. Documentation related to the Adjustment of costs.
22