Dirección de Promoción de Inversiones
Dirección de Promoción de Inversiones
“Decenio de las Personas con Discapacidad en el Perú”
“Año de la Diversificación Productiva y del Fortalecimiento de la Educación”
REPUBLIC OF PERU
SOLE CONCESSION CONTRACT
FOR THE PROVISION OF PUBLIC TELECCOMUNICATIONS SERVICES AND ALLOCATION OF BLOCK …………. OF 698 – 806 MHz BAND NATIONWIDE
August 2015
Important: This is an unofficial translation. In case of divergence between the English and Spanish text, the version in Spanish shall prevail.
SOLE CONCESSION CONTRACT FOR THE PROVISION OF PUBLIC TELECOMMUNICATIONS SERVICES AND ALLOCATION OF BLOCK …………. OF 698 – 806 MHz BAND NATIONWIDE.
This document certifies the Concession Contract for the provision of Public Telecommunications Services, hereinafter "the Contract", entered by the State of the Republic of Peru, through the Ministry of Transportation and Communications, domiciled at Xxxxx Zorritos Xx. 0000, Xxxx 0, whom hereinafter shall be referred to as "the Grantor", represented by Xx. Xxxx Xxxxxx Xxxxx Xxxxxxx, identified with Voter Registration Card No. 08271955, duly authorized by Ministerial Resolution No. ... -2015-MTC/03, and, on the other hand, with RUC No. ........................ ...................................., hereinafter called "the Concessionaire Corporation", domiciled at ........................ ..................................................................... .., ............ ..; represented by Mr. ................................. .., nationality ........................ ................................. identified with............ No. ..........................., duly authorized for using powers registered in (the) the entry (ies) ........................ ..of the Electronic Entry No. ..................... .. of the Registry of Legal Entities of the Registry Office of ......... .., in his capacity ...............................
In this agreement intervene …………………………………………………… (name of awardee of the award), hereinafter “the Awardee”, domiciled at ………………………………………………………………………………, duly represented by ………………………………………………………, identified with ………………………………………………, duly empowered for that purpose through …………………………………………………………………… and; ………………………………………………………………… (name of Operator) , hereinafter “the Operator”, domiciled at ………………………………………… ………………………………………………………, duly represented by …………………………………………………………………………, identified with ……………………………………………………, duly empowered for that purpose through …………………………………………, to guarantee the compliance of its obligations as such.
BACKGROUND:
The Consolidated Text of the Telecommunications Act, approved by Supreme Decree No. 013-93-TCC provides in Article 57 that the radio electric spectrum is a natural resource of limited dimensions which is part of the heritage of the nation; whose use and granting to private use must be made under the conditions provided by the said Act and its General Regulations, Consolidated Text of the General Regulations of the Telecommunications Act, approved by Supreme Decree No. 020-2007-MTC, provides in its Article 199 ° that corresponds to the Ministry of Transportation and Communications the management, allocation, assignment, control and, in general, the concerns to radio electric spectrum.
Article 123 ° of the mentioned General Regulations provides that the granting of the concession and the corresponding spectrum allocations shall be made by public auction of bids, where it is designated in the National Frequency Allocation Plan. Furthermore, Article 159 ° provides that by order of the head of the Ministry it may, in specific cases, instruct other entity conducting the public bidding process and awarding of the bid.
By Ministerial Resolution N° 187-2005-MTC-03, was approved the National Plan of Allocation of Frequencies– NPAF, technical regulatory document that contains the allocation tables of frequencies and the classification of uses of the radio electric spectrum.
Note P51 of the NPAF establishes that the band 698-806 MHz is assigned at primary title for the provision of public telecommunication services, and that the granting of the concession and allocation of spectrum for the exploitation of said services will be made through public bidding.
Note P11A of the NPAF provides that the Holders of allocations in the band 698 – 746 MHz shall migrate to the bands 470 – 608 MHz and 614 – 698 MHz and can use for the transmission analog signals subject to the terms and conditions determined by the Ministry.
By Ministerial Resolution N° 337-2014-MTC/03, published on June 12, 2014, the MTC:
Provided the performance of the Public Bidding to grant the sole concession for the provision of public telecommunications services and allocate the blocks of the 698-806 MHz band nationwide, according to the channeling that the Ministry shall determine and according to the conditions established in the Bid Terms, and;
Entrusted to the Agency for Promotion of Private Investment– ProInversión, the conduction of the tender and the granting of the award, within the legal framework applicable to the processes of promotion of private investment in charge of ProInversión.
By agreeement ProInversión N° 644-1-2014-CPC of the Steering Council of ProInversión adopted in session N° 644 of November 24, 2014, was approved the Plan of Promotion of Private Investment to select the Operators to whom the blocks of the 698-806 MHz will be allocated nationwide, for the provision of public telecommunications services.
By Viceministerial Resolution Nº 661-2014-MTC/03 published on November 09, 2014, the MTC approved the channeling of the band 698-806 MHz Nationwide and provided that the blocks to tender in charge of ProInversión, will be blocks A, B and C:
Block |
Range of Frequencies (MHz) |
|
Outward |
Return |
|
A |
703-718 |
758-773 |
B |
718-733 |
773-788 |
C |
733-748 |
788-803 |
By agreeement of ProInversión N°-2015-CPC, of the Steering Council of ProInversión dated …… …………. 2014 was approved this contract.
Likewise, through minutes of opening of envelopes N° 2 and N °3 and Award, dated ………. ……….. 20…, the Committee granted the award of the bid to Bidder ……………………………………, who submitted the greatest Economic Proposal for block ……… of Bands 698-806MHz as required in the Bid Terms of the referred bid.
By Ministerial Resolution N° . . . . . . .-2015-MTC/03 was authorized Xx. Xxxx Xxxxxx Xxxxx Xxxxxxx, in order that, on behalf of the Ministry of Transportation and Communications, subscribes this contract.
According ot the Bid Terms, the awardee is a Concessionaire Corporation, established according to the laws of the Republic of Peru.
By virtue of the indicated background, the parties agree to enter this contract according to the following terms and conditions:
CLÁUSE 1
DEFINITIONS
Any mention made in this contract to the terms "Clause", “Annex“ or “Appendix”, will be understood referred to clauses, annexes and appendices of this contract, respectively, unless expressly stated to the contrary.
The terms that appear in capital letter and that are not expressly defined in opposite direction in the concession contract; correspond to the definitions contained in the laws and applicable provisions, or to the terms defined in the Bid Terms, or to the terms that are currently used in capital letter. The expressions in singular comprise, in their case, the plural and viceversa.
Unless expressly provided to the contrary contained in this contract, references to "Days" shall be construed made to days other than Saturday, Sunday or holiday in the city of Lima. It is also understood as holidays, days declared holidays for the public sector by provision of the Governmental Authority,. All time references shall be understood effected at the hour of Peru.
Any mention to a specific governmental authority should be understood referred to it, to the successor or its designee to perform the acts referred in this contract or the laws and applicable provisions.
In this contract, the following terms shall have the meaning indicated as follows:
Subscriber: Is any natural or legal person who has entered a contract for the provision of public telecommunications services with the Concessionaire Corporation, independently of the hired modality.
Awardee: Is one of the Shortlisted Bidders that according to the declaration made by the ProInversión Committee, has submitted the highest Economic Proposal in the Bid, in the terms and conditions established in the Bid Terms and is the winner of the bid of block … of the band.
Concession area: is the territory of Peru in which is allowed the provision of the public telecommunications service granted in concession, according to the provisions of the contract.
Allocation: is the administrative act whereby the State, through the Ministry of Transportation and Communications, grants to a person the right of use and commercial exploitation on a certain portion of the radio electric spectrum, within a determined geographical area, for the provision of public telecommunications services, according to the provisions made in the National Plan of Allocation of Frequencies.
Governmental authority: is the officer, body or national, regional, departmental, provincial or municipal institution that according to law, exercises executive, legislative or judicial powers or that belongs to any of the aforementioned governments, authorities or institutions, with jurisdiction on the persons or matters in question.
Band: is jointly referred to blocks A; B and C of the Band 698-806 MHz nationwide, which ranges are the following:
Block 703: 718 MHz and 758:773 MHz (15 + 15 MHz)
Block 718: 733 MHz and 773:788 MHz (15 + 15 MHz)
Block 733: 748 MHz and 788:803 MHz (15 + 15 MHz).
National Local Banks or National Local Insurance Companies: are the entities authorized to issue letters of guarantee for purposes of this bid and that are listed in Appendix 1 of Annex N° 2 of the Bid Terms.
First Category International Banks: are the entities authorized to issue letters of guarantee for purposes of this bid and that are listed in Appendix 2 of Annex N° 2 of the Bid Terms.
Bid Terms: is the document, including its forms, annexes, appendices and circulars, under which terms the bid was developed and that are integrant part of this contract.
Proinversión Committee: Is the committee of ProInversión in Projects of Energy and Hydrocarbons - PRO CONECTIVIDAD, appointed through Supreme Resolution N° 025-2015-EF dated May 31, 2015.
Grantor: is the Peruvian State, acting through the Ministry of Transportation and Communications.
Concession: is the right that grants the State to the Concessionaire Corporation to provide the public telecommunications services, in the terms foreseen in Article 47 of the Consolidated Text of the Law of Telecommunications and Article 159 of its Regulation.
Concessionaire or Concessionaire Corporation: is the awardee, or the legal person constituted by the awardee that, complying withing the requirements foreseen in the Bid Terms, enters this concession contract with the Grantor.
Conditions of Use: is the Consolidated Text of conditions of use of public telecommunications services, approved by resolution of the Steering Council Nº 138-2012-CD/OSIPTEL or regulation that replaces it.
Control of Technical operations: is the control of the technical and operative aspects, in charge of the Operator in the Concessionaire Corporation.
Effective Control: a person has the effective control of another person or is submitted to the control with it, when:
- It has more than 50 percent (50%) of the voting power at the General Meeting of Shareholders or partners or other equivalent body, through direct ownership of the securities representing the share capital, or indirectly, by contract usufruct, pledge, trust, association and the like or any other legal act; or,
- Directly or indirectly it has the power to appoint or remove the majority of the members of the board or equivalent body, allowing to control or exercise a majority of votes at meetings of directors or equivalent bodies, or to govern operational or financial contract under a regulation or contract, whatever its forms; or,
- by any other mechanism or contractual circumstance or not, effectively controls the decision power in the other company.
In addition to the aforementioned and provided it is applicable, for purposes to determine the effective control, shall be taken into account the provisions of CONASEV Resolution N° 090 – 2005 –EF 94.10, is amendments, or replacing regulations.
Dollar or American Dollar or US$: is the currency or monetary sign of legal tender in the United States of America.
Affiliated Company: A company will be considered affiliated to another company if the effective control of those companies is exercised by a same parent company.
Parent Company: Is the company that has the effective control of another. This definition also includes the company that has the effective control of a parent company, as it has been defined, and so on.
Subsidiary Company: Is the company that has effective control of another. This definition also includes the company that has the effective control of a parent company, as it has been defined, and so on.
Related Companies: Are jointly, to each other, the Affiliated Company, the Parent Company and the Subsidiary Company.
Closing Date: Is the day, place and hour when is verified the compliance of the closing acts mentioned in Section 13.4 of the Bid Terms and in Sections 4.1 and 4.2 of Forth Clause of this contract, as well as the subscription of the concession contract.
Date of commencement of operations: Is the date when the Concessionaire Corporations shall begin the provision of their services, which shall occur within 12 months after the closing date, according to the provisions of the concession contract, and prior approval of the Technical Project by the MTC pursuant the Bid Terms, and should communicate in writing the date of commencement of operation to the MTC and to OSIPTEL.
Performance Bond of the concession contract: is the bond obtained by the Concessionaire Corporation and issued by a local national bank, national local insurance company or by a first category International bank, according to the conditions established in the Bid Terms. In this latter case, the Performance Bond of the concession contract must be issued by a national local bank.
Report of evaluation: Is the report that must be prepared by OSIPTEL according to the Methodology of Evaluation in the procedure of renewal of the concession.
Lew of Telecommunications: is the Consolidated Text of the Law of Telecommunications, approved by Supreme Decree N°° 013-93-TCC of April 28, 1993, approved by Supreme Decree N°° 021-93-TCC dated August 5, 1993, and other complementary and related regulations or any regulation that replaces it.
Laws and Applicable Provisions: It is the set of laws that regulate or directly or indirectly affect the concession contract. They include the Constitution of Peru, the rules with the force of law, the supreme decrees, regulations, directives and resolutions as well as any other rule that under the legal system of the Republic of Peru is applicable, which will be mandatory for the parties. They include the provisions set in Section 1.5 of the Bid Terms, as well as others that may be applicable to the provision of public telecommunications service under concession
Likewise, they also include any modification that the referred regulations or provisions might have.
Bid: Is the Special Public Bid conducted by ProInversión and regulated by the Bid Terms.
Use goals: Are the obligations and commitments that must be complied by the Concessionaire Corporation, according to Article 205 of the General Regulation. The use goals are included in Annex Nº 2 of this contract.
Methodology of evaluation: Method to evaluate the compliance of the obligations of the Concessionaire Corporation, according to approval by Supreme Decree N° 036-2010-MTC or regulation that replaces it.
MTC: Is the Ministry of Transportation and Communications.
Economic Proposal: Is the amount of the consideration proposed by the Preshortlisted Bidders to be awarded the block …..of the Band and that, according to Article 55 of the TUO of the Law of Telecommunications, the awardee must cancel pursuant the power to exploit the service granted by the concession term. The value of the Economic Proposal must be equal or higher to the Base Price and must be cancelled according to Section ….of the Bid Terms.
Operator: is the bidder, or in case of consortium, one of its members, that having complied with the preshortlisting requirements according to the Bid Terms, shall have under its charge the provision of the public telecommunications services through the block ……… of the Band.
OSIPTEL: Is the Supervising organism of private investment in telecommunications.
Party: Is, as appropriate, the Grantor or the Concessionaire Corporation.
Parties: are, jointly, the Grantor and the Concessionaire Corporation.
Minimum participation: Is fifty one per cent (51%) of share capital with the right to vote in the Concessionaire Corporations that the Operator must have, should this percentage be kept since the date of incorporation of the Concessionaire and during the concession effectiveness. This obligation shall not be applicable in case the Operator, the Bidder and the Concessionaire Corporation are the same person incorporated in the country.
Person: is any natural or legal person, national or foreign, that can perform legal acts and assume obligations in Peru.
Peru: Is the Republic of Peru, including any division or political subdivision thereof.
Coverage Plan: Is the Technical Proposal of the awardee, contained in Annex N° 5 of this contract, that must be complied by the Concessionaire Corporation, according to the Bid Terms and the concession contract.
Concession term: is the effective term indicated in Clause 6.1 of this contract.
Technical Proposal: Is the declaration of unconditional will, irrevocable and unilateral made by the Concessionaire Corporation, to comply with the Coverage Plan in the terms and conditions detailed in Annex N° 5.
Technical Project: Is the document that must submit the Concessionaires to the MTC, within three (3) months following to the closing date. Said project must contain its respective proposals of execution of the submitted Coverage Plans, and the use goals of the allocated spectrum referred in Annex N° 11 of the Bid Terms.
The MTC has up to two (02) months for the approval of the Technical Project counted since the submission thereof by the Concessionaire Corporation.
Public Network of Telecommunications: Is the network or telecommunication system established and exploited by one or more companies, with the specific purpose to offer telecommunications services to the public.
Registry: is the registry of public telecommunications services, referred in Article 155º and following of the General Regulation.
General Regulation: Is the Consolidated Text of the General Regulation of Law of Telecommunications approved by Supreme Decree Nº 020-2007-MTC and its amendments.
Regulation of OSIPTEL: General Regulation of the Supervising Organism of Private Investment in Telecommunications– OSIPTEL, approved by Supreme Decree Nº 008-2001-PCM and its amendments.
Granted Service: are the public telecommunications services that can be provided through the block ……… of the band and that are described in Clause 5.1 of this contract.
Public Telecommunications Services: Are the public telecommunications services, available for the public in general that will be provided by the Concessionaire Corporation within the Framework of the Law of Telecommunications and other laws and applicable provisions.
Registered service(s): are the telecommunications services granted, registered in the respective registry and for purposes of this contract are embodied in the service of personal Communications (SPC).
Main partner(s): is any person who directly or indirectly, has or is holder, under any title or modality, of ten per cent (10%) or more of the share capital of the Concessionaire Corporation, of the Operator or of the members of the consortium, as appropriate.
Tariff: Is the price that pays the user or subscriber for using a public telecommunications service.
User: Natural or legal person that eventually or permanently, is the subscriber or has access to any public telecommunications service.
CLÁUSE 2
PURPOSE OF THE CONTRACT
2.1 Purpose
This contract is intended to give the Concessionaire Corporation the concession to provide the service granted, within the concession area, subject to the terms and conditions listed below and in accordance with the provisions of the applicable laws and regulations and consequently , to assign the radio electric spectrum corresponding to the block ... of 698-806 MHz Band, nationwide.
The Concessionaire Corporation shall have the exclusivity of use of the block, …….. of the band ……..-…….. MHz nationwide, during the concession term, subject to the compliance of the terms of this contract and the applicable provisions and laws.
For all purposes, the essential conditions of this contract are the following:
(a) The respect to the rules of competence and to the regulations on interconnection, as far as they affect or may affect the rights of other provider corporations of public telecommunications services or of the subscribers or users.
(b) Submission to the fundamental principles of fairness, equal access, neutrality and non-discrimination set out in the applicable laws and regulations, especially in the Law of Telecommunications and its General Regulations.
(c) Adherence to quality standards considered as such in existing standards or those issued by OSIPTEL in the framework of its competence.
(d) The compliance of each one of the commitments assumed by the Concessionaire Corporation in its Technical Proposal (Coverage Plan) foreseen in Annex N° 14 of the Bid Terms and Annex N° 5 of this contract.
(e) Compliance with the obligation to provide access and interconnection to its deployed network to provide services in the block ...... of the Band in favor of the Mobile Virtual Operators (MVO) upon request, in accordance with applicable regulations.
(f) The obligation to assume the costs necessary to carry out the migration of the stations of the Band which authorizations are in force on the closing date, according to the provisions of Ministerial Resolution Nº 337-2014-MTC/03 and to the Bid Terms.
(g) Compliance of the obligation foreseen in Section 1.3.2. of the Bid Terms (Technology) during the concession term.
(h) Compliance of the principle of continuity in the provision of the service, according to the regulation in force.
Compliance of the regulation about ceilings for the allocation of radio electric spectrum.
CLAUSE 3
DECLARATIONS OF THE CONCESSIONAIRE CORPORATION AND THE GRANTOR
3.1 Declarations of the Concessionaire Corporation
The Concessionaire Corporation guarantees the Grantor, on the closing date, the truthfulness of the declarations contained in this clause:
a) That the corporate covenant that includes the bylaws of the Concessionaire Corporation is according to the requirements of the Bid Terms.
That the Concessionaire Corporation is duly authorized and able to assume the obligations it deserves as a result of the execution of this contract, in all circumstances where such authorization is required, by the nature of their activities or by the property , leasing or operation of his property except in cases where the lack of such authorization does not have a material adverse effect on the business or operations established in this instrument, having met all the requirements to enter into this contract and the commitments set out therein.
That it is not necessary the performance of other acts or procedures, by the Concessionaire Corporation, to authorize the subscription and compliance of th obligations that correspond, according to this contract.
c) That neither the Concessionaire Corporation or Operator, or any of its main partners have legal impediment to contract with the Peruvian State. Similarly, neither the Concessionaire Corporation or Operator, or any of its main partners have impediment or are subject to restrictions (by contract, judicial, legislative or otherwise) to assume and fulfill the obligations under the Bid Terms or this contract.
d) That expressly disclaims, unconditional and irrevocable to any diplomatic claim for controversies or conflicts that may arise hereof; the waiver also applies to the operator if it is different from the Concessionaire Corporation.
e) The Concessionaire Corporation must be domiciled in the city of Lima or the Constitutional province of Callao. Both it and the Operator and, if applicable, its related companies are duly incorporated and validly existing companies under the laws of the country or place of incorporation and are duly authorized and able to assume obligations for the exercise of commercial activities, in all jurisdictions in which such authorization is required, both by the nature of their activities, such as ownership, leasing or operation of its property, except in jurisdictions where the lack of such authorization will not have a material adverse effect on its business or operations.
f) That in case it has an Operator with legal status different from the Concessionaire Corporation, the Operator shall have the control of the technical operations of the Concessionaire Corporation.
f) That Annex N° 3 and Annex N° 4 of this contract, include a relation of all the main Partners of the Concessionaire Corporation and of the Operator, as well as information on the shareholding of each main partner, respectively.
g) That there is no misrepresentation or inaccuracy regarding the information it should know or should be aware of, in relation to any of the documents submitted by the Bidder, the Concessionaire Corporation or the Operator, and any of its Related Companies in connection with the bid.
3.2 Declarations of the Grantor
The Grantor guarantees the Concessionaire Corporation, on the closing date, the truthfulness and accuracy of the following declarations:
a) That the MTC is duly authorized, in accordance with applicable laws and regulations, to act on behalf of the Grantor under this contract. Also, the signature, delivery and performance by the Grantor of the commitments referred to therein are included within its powers, shall comply with the applicable laws and regulations and have been duly authorized by the Governmental Authority. No other action or proceeding by the grantor or any other government entity is required to authorize the signing of this contract or to fulfill the obligations of the Grantor contemplated therein. Similarly, the Grantor or its representatives have signed this contract and are duly authorized to this effect.
b) That has complied with all the administrative acts, requirements, demands and obligations to enter into this contract and to give due compliance to its provisions. That among them is granting the concession to the Concessionaire Corporation, provided it complies with the requirements of accrediting the applicable laws and regulations for that purpose, which are collected in the Bid Terms.
c) That, as the Concessionaire and its investors comply with the provisions of the applicable laws and regulations, they may apply to be granted the Legal Stability Contract referred to Legislative Decrees No. 662 and No. 757 and Law No. 27342 and as amended.
d) That there are no existing laws that prevent the Grantor compliance with the obligations under its charge emanating from this contract. Also, there are no actions, suits, proceedings or procedures, ongoing or imminent, before court, arbitral tribunal or governmental authority, which prohibit, oppose or in any way impede the subscription or compliance with the terms of the contract by the Grantor.
e) That the Grantor guarantees the Concessionaire Corporation that: (i) no third party has any right on the block ....... of the allocated Band and (ii) if interference is verified after the provision of the service registered, it will participate in solving them in the framework of its powers.
f) That according to Ministerial Resolution N° 337-2014-MTC/03 published on June 12, 2014, without prejudice of what is established in the Bid Terms, with the purpose to contribute with the migration process, the MTC shall be in charge of the following activities:
f.1) Perform timely technical verifications, to prepare an inventory of the equipment with which are operating the broadcasters in the 698 - 746 MHz band.
f.2) Verify that the migration process is made in good terms and within the terms foreseen, for which it shall make its best efforts for the awardees of blocks of the 698 - 806 MHz band and the holders of the allocations in the band 698 - 746 MHz or the person who carries out the migration process.
Without prejudice of indications made in the previous paragraphs, the Concessionaire Corporation is responsible to make together with the other Concessionaire Corporations of blocks (…..) and (…), all the acts necessary to culminate the migration process according to the provisions of the Bid Terms.
CLÁUSE 4
PRIOR OBLIGATIONS TO THE ENTRY INTO FORCE OF THE CONCESSION
4.1 Obligations to comply by the Concessionaire Corporation on the closing date
The Concessionaire Corporation, on the closing date, is subject to the compliance of the following obligations:
a) Payment of the amount offered in Annex Nº 6 of the Bid Terms for the concept of Economic Proposal.
b) Payment of expenses of the bid process to ProInversión, according to the terms indicated in Sections.4.39 and 13.4.1 of the Bid Terms.
c) Delivery of the testimony of the public deed of social constitution and statute, with proof of their registration, in order to prove that: (i) is a corporation duly incorporated under the laws of the Republic of Peru, (ii) it has adopted one of the corporate forms regulated by the General Corporate Law and its corporate object allows the provision of public telecommunications services; and (iii) if the Operator is different from the Concessionaire, the minimum participation of the Operator is contemplated, and the limitation on the free transfer of such minimum participation, among others.
d) Establish in its bylaws an undefined effectiveness term, or at least of twenty two (22) years counted since the closing date. The Concessionaire Corporation is obliged to do not adopt the agreements of reduction of said effectiveness term without the consent of the Grantor.
e) The minimum share capital must be subscribed and paid, according to the provisions of the General Corporate Law, without prejudice of indications made in the following subparagraph.
f) The Concessionaire Corporation shall have fully subscribed the capital indicated above and must have paid in cash at least twenty-five percent (25%) of the nominal value of the share. The balance must be paid before the end of the fifth year of the concession from the date of signature of this contract and shall be credited with the certified photocopy of the accounting entry signed by the general manager of the Concessionaire Corporation.
g) Delivery of legalized copy of documents where is recorded that its competent internal bodies have approved this contract.
h) Delivery of the powers duly registered in the Public Registry of Lima, of the legal representatives of the Concessionaire Corporation and the Operator who subscribe this contract.
i) Accreditation by the Concessionaire Corporation, of the ratification of all the acts performed and documents subscribed by its legal representatives, especially the subscription of this concession contract and any other right or obligation that corresponds according to the Bid Terms, the concession contract or the applicable laws and regulations.
Submission of its Affidavit as well as those of its main partners or shareholders in which they indicate that they own shares with voting rights, representing a percentage equal to or greater than ten percent (10%) of its share capital , which they are not impeded to contract with the Peruvian government or are involved in any limitations set forth in applicable laws and regulations; they have continued to be concessionaires for breach of a concession contract signed with the Peruvian Government under the framework of the Promotion of Private Investment referred in the TUO approved by Supreme Decree No. 059-96-PCM or ; No. 28059, Framework Law of Decentralized Investment Promotion and that are not sanctioned administratively with temporary or permanent disqualification from the exercise of their rights to contract with the state.
In the event that, after the signing of this contract, the falsity of the aforementioned statement is proven, this contract will be terminated, proceeding according to the provisions of Section 18.3 of Clause Eighteenth and implementation of the Performance Bond of the Contract referred to in Section 12.1 of Xxxxxx Xxxxxxx.
k) Delivery of the Performance Bond of the concession contract referred in Section 13.5 of the Bid Terms.
l) Subscription of this contract by the legal representatives of the Concessionaire Corporation.
4.2 Obligations to comply by the Grantor on the Closing Date
Before or simultaneously to the closing date, the Grantor must:
a) Deliver a certified copy of the Ministerial Resolution of the concession granting, copy of the Directorial Resolution of registration in the respective registry of the granted service and, copy of the Directorial Resolution of allocation of block … of the band.
b) Return, by ProInversión, of the Guarantee of Validity, Validity Term and Seriousness of the Proposal referred in Section 8 of the Bid Terms.
c) Subscribe this contract and deliver one copy to the Concessionaire Corporation, duly dated.
d) Deliver, if appropriate, to the Concessionaire Corporation the following:
Copy of Supreme Decree published in the official Gazette El Peruano, under the provisions of Article 4 of Law N° 26885 and Article 2º of Decree Law N° 25570 (modified by Article 6º of Law N° 26438), by virtue of which the Executive Power shall grant to the Concessionaire Corporation the guarantee of the State in support of the declarations and guarantees of the Grantor provided in this contract, and,
A copy of the contract of securities and guarantees duly subscribed by the competent governmental authorities, duly dated, in application of the provisions of the previous subparagraph (i).
4.3 Entry into Force of the Contract
This contract will be in force on the closing date, provided are complied all and each one of the requirements foreseen in the previous Clauses 4.1 and 4.2. Otherwise, it shall be in force when the minutes of closing date is subscribed.
CLÁUSE 5
SCOPE OF THE CONCESSION
Under the present contract, the initial provision of Personal Communications Service is foreseen, required for compliance of the Coverage Plan, as resulting from the Directorial Resolution of its registration in the registry, which is an integral part of this instrument.
For the provision of other public telecommunications services other than considered in the preceding paragraph, the Concessionaire Corporation must have prior registration in the Registry of the Ministry of Transportation and Communications.
The Concessionaire Corporation shall provide the granted services using the technology foreseen in Section 1.3.2. of the Bid Terms, in the terms indicated in the mentioned Section.
Each one of the registered services must be provided by the Concessionaire Corporation according to the terms and conditions established in Sections 1.2.2 and 1.3 of the Bid Terms, those established in this contract and in the applicable laws and regulations; using for that purpose the own infrastructure or of third parties.
WIthin the concession area, in the case the provision of granted services involves an additional area to that foreseen in the Coverage Plan, the Concessionaire Corporation must communicate to the Grantor and to OSIPTEL, the provision of the service in said area until thirty (30) days after the commencement of operations.
5.3 No Exclusivity of the Granted Service
The concession that is granted shall not provide exclusivity to the Concessionaire Corporation to provide the granted services within the concession area.
5.4 Exclusivity of use of the Band
The Concessionaire Corporation has the right to use the block ……. of the 698-806 MHz Band, nationwide, in exclusivity for the provision of the granted services within the Framework of this contract and the applicable laws and regulations.
According to Article 208 of the General Regulation, this right will be subject to the fact that the referred services are comprised in the allocation established in the National Plan of Allocation of Frequencies, and, that, have also the corresponding registration in the Registry of the Ministry of Transportation and Communications, of the services they wish to provide.
CLÁUSE 6
CONCESSION TERM
6.1 Duration of the Concession
Unless the award is settled early or extended in accordance with the provisions of this contract, the term for which the concession is granted is twenty (20) years from the closing date.
6.2 Renewal of the concession term
The Grantor will decide discretionary and giving reasons, whether to renew or not the term of the concession at the request of the Concessionaire Corporation.
The application for renewal of the Concessionaire Corporation shall indicate the mode according to the following:
a) Total renewal: for an additional term of twenty (20) years counted since the termination of the concession term, in which case the request will be submitted no later than two (2) years before the expiration of if; or
b) Gradual renewal: for periods of five (5) additional years and successive to the concession term without the total of the periods of gradual renewal exceed twenty (20) years. The request of gradual renewal will be submitted at one hundred and eighty (180) calendar days before concluding each period of five (5) years. This mechanism of gradual renewal may only be chosen within the first five years of the contract and within the aforementioned term. The first five years will be computed since the closing date.
Once the Concessionaire Corporation has elected a renewal mechanism, it may not use the alternative.
If the Concessionaire Corporation submits the renewal request on the expiration of said terms, the Grantor may dismiss the request as it is out of time.
To request the renewal of the concession term, the Concessionaire Corporation must have complied with all the payments of duties, taxes, canon and contributions referred in Clause 8.17 of this contract.
Procedure of Renewal of the Concession Term
The Grantor, before taking a decision on the renewal application and within thirty (30) calendar days of its submission, shall notify the Concessionaire Corporation to proceed with the publication of the extract of the application for renewal in the Official Gazette "El Peruano" and in a newspaper of national circulation, indicating the period during which persons with a legitimate interest may submit written comments or objections regarding the renewal requested; this period may not exceed thirty (30) days counted from the date of publication of the notice. Also, the Grantor shall notify the Concessionaire Corporation and OSIPTEL, stating:
That has received the renewal request;
That the term during which OSIPTEL shall send to the Grantor and to the Concessionaire Corporation the evaluation report referred in the following subparagraph b), may not be less than thirty (30) nor greater than sixty (60) calendar days since the date of publication of the notice; and,
That, if the Grantor deems convenient, shall fix the date, place and hour of the public hearing in order that the persons that have an true interest may formulate their comments or objections with regard to the requested renewal.
b) Evaluation report. The Grantor shall request to OSIPTEL, its evaluation report, of non binding nature whereby it should be recorded how much has the Concessionaire Corporation complied during the period of five (5) previous years, or during the concession term, according to the request of gradual or total renewal, respectively with the following:
Its payment obligations foreseen in Clause 8.17;
The essential conditions and competence rules established in this contract;
The continuity of the service foreseen in subparagraph b) of Clause 8.7
The provision of the granted service in the cases of emergency or crisis, foreseen in Clause 8.9;
The secret of telecommunications and protection of personal data, foreseen in Clause 8.10;
The provisions and regulations issued by OSIPTEL that are applicable to the Concessionaire Corporation;
The obligations of provision of access and interconnection to the Virtual Mobile Operators; and
The provision of the granted service according to the provisions of this contract, the telecommunications law, the General Regulation and the sectorial regulations.
The observance of the rules on conditions of use and quality of service, as noted in subparagraph (c) of Clause 8.7. and Clause 8.8.
The evaluation of the compliance of these obligations shall be performed by OSIPTEL, using the methodology of evaluation:
OSIPTEL shall send its evaluation report to the Grantor and to the Concessionaire Corporation in the term established in the notice of the Grantor according to subparagraph a) of this clause.
After the evaluation report notice; the Concessionaire Corporation may submit its objections, discharges, comments or any other information that it deems convenient, in a term of twenty (20) calendar days, counted since the referred notice.
The Grantor shall adopt a decision of discretionary nature regarding the renewal of the concession term within thirty (30) following calendar days, counted since the expiration of the term referred in the preceding paragraph. Exceptionally, said term may be extended by the Grantor for thirty (30) calendar days, if were provided the performance of the additional actions that justify them.
6.4 Decision on the Renewal
Gradual Renewal: The Grantor, based, among others, on the evaluation report presented by OSIPTEL and, if necessary, based on the comments or objections in writing or at the public hearing held for that purpose, may decide:
Renew the concession term for an additional period of five (5) years provided the Concessionaire Corporation, has fully complied with its legal and contractual obligations or that, in spite of existing non compliance, they do not justify the partial or total rejection of the renewal.
Renew the concession term, for a period less than five (5) years, if the Concessionaire Corporation would have incurred in breachof its legal or contractual obligations, in such a measure, that do not justify the total rejection of renewal of the concession, but justifies the partial rejection.
Do not renew the concession term, due to the repeated breachof the Concessionaire Corporation of its legal or contractual obligations, or due to the existence of enough evidence that allow to affirm that it may not comply with them in the future.
The determination of breachwill be made using the methodology of evaluation already explained.
The Grantor, before issuing the resolution regarding the inadmissibility of the requested renewal, shall notify the Concessionaire Corporation the facts or legal reasons that support its decision for, in a term of thirty (30) calendar days since its notification, and the Concessionaire Corporation makes the discharges or allegations deemed as convenient and has the additional evidence that is relevant.
b) Total Renewal at long term: The Grantor, based on the evaluation report submitted by OSIPTEL, and if necessary, base don the comments or objections formulated in writing or in the public hearing held for that purpose, may decide to:
Renew the concession term for an additional period of twenty (20) years, provided that the Concessionaire Corporation would have fully complied its legal and contractual obligations at the full satisfaction of the Grantor or that, in spite of existing non compliance, they do not justify the partial or total rejection of the renewal.
Renew the concession term for a period less than twenty (20) years, if the Concessionaire Corporation, would have incurred in breachof its legal or contractual obligations, in such a measure that does not justify the total rejection of the renewal, but justifies the partial rejection of the renewal.
Do not renew the concession term due to the repeated failure of the Concessionaire Corporation of its legal or contractual obligations, or due to the existence of enough evidence that allow to reasonably affirm that it cannot comply with them in the future.
The determination of the breachshall be made using the methodology of evaluation already explained.
The Grantor, before issuing the resolution regarding the inadmissibility of the requested renewal, shall notify the Concessionaire Corporation the facts or arguments that support its decision for, in a term o f thirty (30) calendar days, since said notification, the Concessionaire Corporation can make the discharges or allegations that are convenient and has additional evidence that it deems necessary.
If the concession term expires while the renewal request is under process which is submitted by the Concessionaire Corporation, the concession shall continue in force until said request is solved.
If the term of the concession is not extended, the Grantor may not offer the same concession to a third party on terms more favorable conditions than those that have been previously offered to the Concessionaire.
The Concessionaire Corporation may not participate in the tender, bid or process of the Grantor with the purpose to select the new concessionaire corporation.
The Concessionaire Corporation shall continue providing the registered services, in the same terms and conditions agreed in this contract, in case of non extension of the concession term.
6.5 Principles that govern the renewal procedure
The renewal procedure will be subject to the principles regulated in the applicable laws, and especially in Law 27444, Law of General Administrative Procedure, Supreme Decree N° 003-2007-MTC and Supreme Decree N° 036-2010-MTC.
6.6 Suspension of the Concession Term
6.6.1 The concession term may be suspended upon the request of any of the parties, if one or more events occur which are detailed hereinafter:
External war or civil war that prevents the execution of works necessary to implement the Technical Project or the provision of the granted service.
Force majeure or fortuitous event, as defined in Article 1315 of the Civil Code of Peru to prevent the execution of the works necessary to implement the Technical Project or the provision of the granted service. It includes damage to the facilities of the Concessionaire Corporation, for reasons not attributable to it and provided it acted with due diligence, which render impossible the provision of services under the concession.
In the event occurs one or more of the assumptions detailed above, either party may seek the suspension of the concession term, through communication addressed to the other party, within fifteen (15) days from the occurrence and accredited irrefutably the case in which the request is based.
If the Concessionaire Corporation is who invokes the suspension of the concession period, the Grantor shall decide, after hearing the opinion of OSIPTEL, within twenty (20) days of receiving the request for suspension. In case of disagreement, the parties may resort to the dispute settlement mechanisms provided for in Clause 20 of this contract.
The opinion of OSIPTEL referred in the preceding paragraph, must be issued in a term of ten (10) days of the reception of the suspension request.
If field verifications are required to prove the occurrence of the invoked situation, the term for the pronouncement of the Grantor and OSIPTEL will be extended for seven (07) additional days, respectively.
6.6.3 The approval of the suspension request shall involve: (i) the suspension of the concession term and its extension for an equivalent period to that of the suspension; and, (ii) the suspension of the rights and obligations of the parties, during the suspension term.
6.6.4 If the suspension of the concession term as consequence of the occurrence of any of the assumptions indicated in paragraphs a), b) and c) of the preceding Section 6.6.1, exceeds eighteen (18) months, the concession shall expire according to the provisions of subparagraph d) of Section 18.1 of the Eighteenth Clause.
However, after twelve (12) continuous months have elapsed, without said events would have been overcome, the Concessionaire Corporation shall have the right to request the expiration of the concession, according to subparagraph b) of Section 18.1 of the Eighteenth Clause of this contract.
6.6.5 In the event damage has occurred to the facilities of the Concessionaire Corporation, it will be obliged to repair or rebuild, according to a timetable and a work plan proposed by the Concessionaire Corporation itself and approved by the Grantor.
6.6.6 Notwithstanding the provisions of Section 6.6.2, the Concessionaire Corporation shall inform the Grantor in writing about the occurrence of any of the events specified in paragraphs a), b) and c) of Section 6.6.1, within a period of fifteen (15) days from the occurrence thereof or having known the fact, as appropriate, indicating the scope and estimated restriction period for meeting its obligations and proving the occurrence of the cases given.
The Concessionaire Corporation shall use its best efforts to restart the implementation of its obligations in the shortest time possible.
CLÁUSE 7
FEES AND CHARGES
7.1 Right for Granting the concession and Spectrum Allocation
The Concessionaire Corporation will pay a right, for once, for granting the concession, by the deadline established in Section 6.1. according to the Economic Proposal submitted by the awardee of the award of block ..., Annex No. 6 of this contract.
7.2 Scope of Payment
The Concessionaire Corporation is obliged to make royalty payments, canon, fees for commercial exploitation, regulatory contribution, and contribution to the Telecommunications Investment Fund or other charges arising from other concessions, authorizations or in general of the current or future provision of other Public Telecommunications Services, it makes.
CLÁUSE 8
OBLIGATIONS AND RIGHTS OF THE CONCESSIONAIRE CORPORATION
8.1 General Obligations
The obligations of the Concessionaire Corporation are all those derived from the text of this contract, those established in the Law of Telecommunications and its General Regulations and in the applicable laws and regulations.
The Concessionaire Corporation is obliged to inform the Grantor and OSIPTEL of any changes occurring in Annexes No. 3 and No. 4, within thirty (30) days from the occurrence of such a change, allowing for the effect the restrictions laid down in Section 17.2 of Clause 17 of this contract.
The Concessionaire Corporation shall perform all activities necessary activities for the migration of all stations of the holders of authorizations to provide radio broadcasting services operating in the band, whose authorization is in force at the closing date of the tender.
Migration is to change the transmission channel allocated to the holders of authorizations to provide radio broadcasting services on the Band, through other channels that are in the bands 470-608 MHz and 614-698 MHz, as determined by the MTC.
The obligations of migration and the term for its execution are those detailed in Section 1.2.4 of the Bid Terms.
8.2 Beginning of the service given
The Concessionaire Corporation is obliged to begin providing the service granted within a period not exceeding twelve (12) months from the closing date.
The Concessionaire Corporation must also comply to communicate in writing the date of commencement of operation (Section 1.4.36 of the Bid Terms).
This term is not subject to extension, except for the occurrence of:
Any of the assumptions foreseen in Clause 6, the preceding Section 6.6.1 and in accordance with the procedure provided for the suspension of the concession term, indicated in Section 6.6. of the Sixth Clause of this contract; or
When the interconnection is not operative due to causes non attributable to the Concessionaire Corporation; or
For any delay incurred by the Concessionaire Corporation for obtaining the permits, authorizations, licenses and other enabling titles that are necessary to begin the provision of the registered services, provided the Concessionaire Corporation would have complied with the requirements of the applicable laws and regulations for that purpose.
However, it is the responsibility of the Concessionaire Corporation to being the corresponding negotiations for the interconnection with due anticipation, to comply with the provision of the registered services, within the term established in this clause.
For purposes of this contract, it is understood that the provision of the referred granted services begins when following conditions occur:
With the installation, operation and management of said service at least in one district of the concession area; and,
If the Concessionaire Corporation is in the condition to create and receive intelligible data in at least one district of the concession area, using the technology foreseen in Section 1.3.2 of the Bid Terms, and complying withing the Minimum Speed indicated in Section 8.22 of the contract; and,
If the referred service is available to the public in general and is offered as such, concurrently through sale points and advertisements, in at least one district of the concession area.
The Concessionaire Corporation must communicate in writing to the MTC and to OSIPTEL, the date of commencement of operations for the provision of the registered service, before the expiration of the term indicated in the first paragraph of this clause.
The Concessionaire Corporation may, after the closing date and before the approval of the Technical File, make technical tests; which will not be considered as the beginning of the provision of the granted service. For that purpose, it will perform the acts necessary to avoid or reduce interference on other services.
8.2.1. Cleaning of the Band
The Cleaning of the Band will be made in the periods and terms indicated in the Bid Terms. In that sense, within the first six (06) months counted since the closing date, the Concessionaire Corporation must culminate the activities necessary for the migration of the stations identified by the MTC.
8.2.2. Technical Tests of operation of the Band
The Concessionaire Corporation is obliged to the following:
a) Submit to the MTC, within a maximum period of one (01) month from the closing date, a proposal that includes the parameters and corresponding values that would likely consider the operation of the Band to provide the public services granted, depending to the technology (ies) it plans to use.
Perform during a maximum period of six (06) months, counted after expiration of the term indicated in the preceding Section 8.2.1., the technical tests of verification of occupation and operation of the Band, in coordination with the MTC.
c) Within the maximum period of three (03) months since the closing date, the Concessionaire Corporation shall submit to the MTC its Technical Project.
8.3 Coverage Plan and Use Goals
The Concessionaire Corporation is obliged to comply with the Coverage Plan contained in its Technical Proposal, Annex Nº 5 of this contract, and the Use Goals that are included in Annex Nº 2.
The Coverage Plan, contained in the Technical Proposal may be modified at the request of the Concessionaire Corporation provided, it involves major commitments assumed in its Technical Proposal. The modification may apply at any time before the expiration of the deadline for compliance. The request for amendment shall be proposed by the Concessionaire Corporation to the Grantor, who will communicate the acceptance or rejection of the proposal within thirty (30) calendar days following its formulation.
The Concessionaire Corporation shall submit to the Grantor and to OSIPTEL, within the first quarter of each year, the information referred to the progress of the Coverage Plan of the registered services established for the previous immediate year.
The Concessionaire Corporation is obliged to comply with the Coverage Plan contained in Annex Nº 5, using block …corresponding to the Band, and can use own, leased or shared infrastructure.
For the purposes of supervision, for compliance verification of the Coverage Plan using the block ... of the Band, it will be enough the provision of the service in the Populated Centers listed in the Coverage Plan, regardless of a minimum number of stations nor determined network capacity, as provided for in Article 14 of Title I of Supreme Decree 20-98-MTC, as amended.
The supervision of the compliance of the Coverage Plan, contained in the Technical Proposal, corresponds to OSIPTEL.
8.4 Requirements of Service Quality
According to the applicable laws and regulations, the Concessionaire Corporation is obliged to abide by the rules given by OSIPTEL.
8.5 Procedure of Inspection and Control Requirements
From the next day from the closing date, the Concessionaire Corporation shall comply with the reporting requirements and inspection procedures established or to be established by the Grantor and OSIPTEL to monitor compliance with the obligations under this contract within the framework of its powers.
Within three (03) months from the closing date, the Concessionaire Corporation must submit to the Grantor the Technical Project of the registered services by virtue of this contract. The information required for the Technical Project is specified in Annex Nº 7.
The approval of the Technical Project also comprises the granting of the authorizations, permits and licenses in charge of the Grantor necessary for the provision of the registered services, according to its Coverage Plan.
The Grantor has a term of up to two (02) months for the approval of the Technical Project counted from its presentation by the Concessionaire Corporation. Within that period shall formulate and communicate to the Concessionaire Corporation the observations on this project, including comments authorizations, permits and licenses requested. If there are observations, they should be remedied by the Concessionaire Corporation within fifteen (15) days after the notification of the observations. The Grantor has a period of fifteen (15) days to decide on the rectification of the remarks made by the Concessionaire Corporation.
8.7 Provision of Granted Service
Obligation of Service. The Concessionaire Corporation must provide registered services in the concession area, according to the terms of this contract, and the applicable laws and regulations.
Continuity of the Service. The Concessionaire Corporation must comply with the provision of registered services, continuously and uninterruptedly, except as provided in Section 6.6 of this contract, the Concessionaire Corporation (i) can not fail to provide the service and (ii) cannot reduce the provision of it.
The Concessionaire must provide registered services, observing the rules on conditions of use and quality of service rendered or issued in future by OSIPTEL within the framework of its powers.
8.8 Compliance of Conditions of Use
The Concessionaire Corporation shall provide the registered service to users, according to the conditions of use approved of approved in the future by OSIPTEL and other regulations of users.
8.9 Obligations in cases of Emergency, Crisis or Exception Status
The Concessionaire Corporation must observe and comply with the provisions that are applicable to the General Regulations of the System of Communications in Emergency, approved by Supreme Decree Nº 051-2010-MTC and related regulations. Without prejudice of it, and complementarily, the Concessionaire Corporation is obliged to the following:
Emergency with relation to natural disasters: In case of an emergency situation or local crisis, regional or national occur, such as earthquakes, floods, or other similar circumstances that require special attention from the Concessionaire Corporation, it will provide the registered services also taking other actions to support conducive to the solution of the emergency situation. To this effect the Concessionaire Corporation shall coordinate and follow the instructions of the Grantor, additional to those provided in Supreme Decree No. 051-2010-MTC that need to be made.
Emergency related to National Security: In case the emergency is related to aspects of national security, the Concessionaire Corporation shall coordinate with the competent body, according to the applicable laws and regulations and shall provide the registered services according to the instructions of the Grantor or from the competent authority it shall timely indicate.
States of Exception considered in the Constitution and declared according to law: The Concessionaire Corporation will give priority to the transmission of voice and data necessary for the media of National Defense System and Civil Defense System. In case of foreign war, the Security Council and National Defense through the Joint Command of the Armed Forces, will assume direct control of telecommunications services, as well as to issue any operational provisions. To meet these requirements, the Concessionaire Corporation may suspend or restrict part of the registered services, in prior coordination with the Ministry of Transportation and Communications and the aforementioned systems of National and Civil Defense.
8.10 Secrecy of Telecommunications and Protection of Personal Data
Obligation to safeguard the secrecy of telecommunications and protection of personal data. The Concessionaire Corporation will establish reasonable procedures and measures to protect the secrecy of telecommunications and maintain the confidentiality of personal information of subscribers or users, related to their businesses. The Concessionaire Corporation shall be subject to the provisions of Ministerial Resolution No. 111-2009-MTC/03, as amended and related regulations. It shall also send to the Grantor an annual report on measures and procedures to be established, and must submit such report by February 15 each year, beginning the year after the commencement of the provision of each registered service.
Scope of the obligation of secrecy and protection of personal data. The Concessionaire Corporation shall safeguard the secrecy of telecommunications and maintain the confidentiality of personal information related to their users obtained in the course of business, unless (i) the prior consent in writing by the subscriber or user, or (ii) a specific court order. It will also be subject to the provisions of Ministerial Resolution No. 111-2009-MTC / 03, rules that replace or supplement it.
Includes the obligations foreseen in X.X. 1182 enacted on July 27, 2015, regulation that regulates the use of data derived from the telecommunications for the identification, location and geolocation of communication equipment.
National Security. The Concessionaire Corporation must comply with the provisions of the laws and applicable provisions and the General Regulation to safeguard the secrecy of telecommunications, under the interest of national security.
Measures of compliance. The Concessionary Company shall comply with the inspection procedures and with the information requirements established or to be established by the Grantor, in relation to the measures contained in paragraphs (a), (b) and (c) above. If the Grantor considers that the Concessionaire does not comply with the obligation to protect the secrecy of telecommunications or maintain the confidentiality of personal information about their subscribers, or if Licensor believes the measures or procedures instituted by the Concessionaire are insufficient, the Grantor shall grant reasonable time to the Concessionaire to improve the measures taken, the expiry of which persist unsuitability thereof, the Grantor may establish measures and procedures. These measures shall apply without prejudice to the right of the grantor to impose administrative sanctions for breach of the rules to protect the secrecy of telecommunications or for the protection of personal information.
The Concessionaire Corporation shall comply with the inspection procedures and with the information requirements established or to be established by the Grantor, in relation to the measures contained in paragraphs (a), (b) and (c) above. If the Grantor considers that the Concessionaire Corporation does not comply with the obligation to protect the secrecy of telecommunications or does not maintain the confidentiality of personal information about their subscribers, or if the Grantor believes the measures or procedures instituted by the Concessionaire Corporation are insufficient, the Grantor shall grant reasonable time to the Concessionaire Corporation to improve the measures taken, the expiry of which, if the unsuitability persist thereof, the Grantor may establish the appropriate measures and procedures. These measures shall apply without prejudice to the right of the Grantor to impose administrative sanctions for breach of the rules to protect the secrecy of telecommunications or for the protection of personal information.
The provisions of paragraphs (a), (b) and c) above do not limit the fulfillment of reporting requirements by the Grantor and OSIPTEL to meet, according to their skills, their inspection functions and supervision.
8.11 Requirements of assistance to subscribers
General Provision. The Concessionaire Corporation shall establish and maintain information services and free and efficient assistance, to its subscribers and users, through at least two (02) telephone numbers free of cost, with the purpose to guide them and attend them in answering of inquiries, attention of claims and troubleshooting report. Likewise, said assistance must be provided compulsorily through a portal Web.
Solution of claims and conflicts. The Concessionaire Corporation shall establish an efficient procedure for the solution of claims and conflicts with its subscribers, according to the provisions contained in the Law of Telecommunications and its General Regulation, the Regulation of OSIPTEL and other regulations that on the matter shall approve OSIPTEL.
Requirements of Minimum Assistance. The Concessionaire Corporation shall provide minimum the following assistance services to users:
Access to public services of emergency established or to be established, free of charge, from all the terminal equipment of subscribers.
Access to any other assistance service that the Concessionaire Corporation is obliged to provide, in compliance of the laws and applicable provisions that establish so, provided that the provision of said assistance service is for the benefit of public interest.
8.12 Cooperatin with other providers of public telecommunications services
The Concessionaire Corporation is obliged to cooperate with other providers of public telecommunications services to the extent so required by the applicable laws and regulations.
The Concessionaire Corporation is entitled to receive reciprocal treatment in its relations with other operators, in accordance with the provisions of this Clause.
In particular, the Concessionaire Corporation will allow the interconnection of other Public Telecommunications Services, according to the provisions of Clause 10.
8.13 Obligation not to cause interference and not to use telecommunications equipment of second use
The Concessionary Corporation is obliged not to cause interference to other concessionaires in Public Telecommunications Services. In this regard it must take appropriate technical measures, such as the calibration of its equipment, the use of band pass filters if necessary, power control transmission, segmentation of heating system, installing a base station, to avoid the emission or reception spurious signals or electromagnetic noise, affecting the provision of the service or of third parties, among other measures.
On the other hand, it cannot install equipment and/or second use devices, except in cases of internal transfers or in cases authorized by the Grantor by order of the competent body.
8.14 Archiving and Reporting Requirements
The Concessionaire Corporation shall establish and maintain adequate registries to allow the supervision and compliance of the terms of this contract.
The Grantor and OSIPTEL, each in matters within their competence, may request the Concessionaire Corporation the submission of periodic reports, statistics and other data regarding their activities and operations, the same to be served within the time requested. Notwithstanding the foregoing, the Concessionaire Corporation shall submit the information that these agencies require to analyze and resolve specific cases.
The Grantor and OSIPTEL may publish the information received, except for confidential information, qualified as such in accordance with the laws of matter.
The Grantor and OSIPTEL are entitled to inspect or instruct third authorized parties to review the records, files and other data of the Concessionaire Corporation, to monitor and enforce the terms of this Contract.
8.15 Transfer of knowledge and technical capacity
During the three (3) first years of the term of this contract, the Concessionaire Corporation agrees to acquire technical knowledge to ensure the Peruvian State adequate provision of services granted during the term of the concession and the fulfillment of each and every one of the obligations assumed by it under this contract; for which if the operator has legal status different to the Concessionaire Corporation, it shall sign with the former, technology transfer agreements and knowledge that allow unlimited and irrevocable access to all technology, brands, patents, "know-how" and other technical and industrial property issues.
The transfer of technical information can be made by technology transfer contracts involving the payment of fees. Notwithstanding the provisions of Clause 8.5, the Operator may specify that the Concessionaire will have knowledge and free access to the technical information provided.
8.16 Segurity of External Plant
The Concessionaire Corporation states to know the obligation to observe the technical and legal provisions of the Electricity Sub Sector, regarding safety and electrical hazards, including the National Electrical Code (Ministerial Resolution No. 366-2001-EM-VME) and Applicable laws and provisions to installations requiring physical media for the service.
It also recognizes the obligation to guarantee the security in the installation and maintenance of infrastructure.
The Concessionaire Corporation must comply with the payment of any duty, fee for commercial exploitation, in return for canon, contributions, and any other amount established by the applicable laws and regulations.
8.18 Mortgage Of the Right of Concession
The Concessionaire Corporation is entitled to grant in mortgage its concession right, pursuant to Law No. 26885, Law of Incentives for Infrastructure Works Concessions and Public Services and applicable laws and provisions. The application for approval of mortgage constitution, the constitution of the guarantee and the respective extrajudicial execution shall be governed by the following procedure:
8.18.1 The Concessionaire Corporation may establish mortgage on its Concession right, provided it has the prior approval of the Grantor. For this purpose, the Concessionaire Corporation must submit a written request for authorization to the Grantor, with a copy to OSIPTEL, together with the draft mortgage Contract and its annexes.
8.18.2 The OSIPTEL shall issue an opinion within a period of ten (10) days following the date of receipt of the request for authorization submitted by the Concessionaire and shall forward to the Grantor. The Grantor shall issue its opinion within fifteen (15) days following the date of receipt of that application. The application will be rejected if did not foresee that the concession may be transferred only to those who fulfill the preshortlisting requirements established in the Bid Terms and with the requirements of the General Regulations for the present case.
8.18.3 After submission of the application with the requirements of this clause, and within fifteen (15) days without the Grantor issues an opinion or, having it requested an extension for a similar period, without either issuing an opinion; it is understood that the application of the Concessionaire Corporation has been authorized by the Grantor, provided that OSIPTEL has issued an opinion on the term foreseen in the preceding section.
8.19 Extrajudicial execution of mortgage
Mortgage execution will be made following the principles and mechanisms established for the execution of mortgage in this clause, procedure of execution that will be included in the corresponding mortgage contract.
The procedure of mortgage execution of the concession must be made under the direction of the Grantor and with the participation of OSIPTEL and will be mandatorily governed by the following rules:
8.19.1 The decision of creditor (s) to exercise their right to foreclose the mortgage of the concession made in their favor, and breach of obligations that would have incurred the Concessionaire motivating this decision shall be communicated in writing to the Grantor, to the Concessionaire Corporation, to OSIPTEL in a reliable way, and with an anticipation not less than fifteen (15) days prior to the exercise of any action or adjustment of measures that could jeopardize, either directly or indirectly the concession.
8.19.2 From that time and confirmed the breach, (i) The Grantor shall not declare the termination of the contract and will be obliged to immediately start with the coordination of the case with OSIPTEL and with the creditor (s) in order to designate the legal person, under the same terms set forth in the concession Contract and remuneration to be agreed with the creditor(s) will act as controller and will be temporarily in charge of the operation of the concession during the time that requires the replacement of the Concessionaire Corporation referred to in the following points, and (ii) No act of the Concessionaire Corporation may suspend the procedure of foreclosure, unable to make it to various acts different from payment of the unfulfilled obligations, which hinder or prevent foreclosure. The Concessionaire Corporation agrees and undertakes unconditionally, irrevocably and expressly, under responsibility, to bring in any case no action, claim, complaint, claim or request for precautionary measures of some kind that have intended to affect, interrupt, suspend, hinder, impede or weaken the legal effects and the application of the procedure of foreclosure established in this clause, and the appointment of the controller and the new Concessionaire Corporation.
8.19.3 For this purpose, OSIPTEL or creditor (s) may propose to the Grantor to qualified operators who comply with the parameters set out in the Bid Terms to be concessionaire. The best qualified Operator shall be appointed as controller by the Grantor and will be temporarily in charge of operating the concession in that capacity. From that moment, the controller will replace the Concessionaire Corporation, in order that the transfer to a new Concessionaire is carried out as efficiently as possible, the transfer in favor of the controller shall be perfected by the Grantor within maximum thirty (30) calendar days.
The controller shall be liable for any act or omission which prevents, delays or hinders the transfer of the concession under the new Concessionaire Corporation, as well as the damage it may cause to the Grantor, creditors, users and/or third parties.
Once the concession is under the transient operation of the controller, the Grantor and OSIPTEL, shall coordinate with (the) creditor (s), the full text of the call and the basis of the selection procedure of the new Concessionaire Corporation, respecting the substantive guidelines contained in the bidding Terms, in particular concerning the general characteristics of the concession, the Technical Proposal, the conditions and requirements that were established for the Operator who was part of the Concessionaire Corporation, respectively Society. These terms must be approved by the Grantor with favorable opinion of OSIPTEL, who shall issue it within a period not exceeding ten (10) calendar days.
8.19.5 Approved the text of the call and the basis of the selection procedure for the transfer of the concession, the Grantor, in coordination with OSIPTEL, must process the established procedure. The granting of the award, may not occur at a later date of one hundred eighty (180) calendar days from the time they are reported to the Grantor the decision to foreclose, unless, under the circumstances of the case, the process of this procedure demands a longer period, in which case the extension established by the Grantor shall apply.
Granted the award, as established in the text of the bases approved by the Grantor, and as stated in this Clause, the measure must be notified in writing both to the controller and to the creditor (s). From the time indicated, the controller shall be obliged to initiate the coordination of the case, in order that the transition of the operation of the concession is carried out as efficiently as possible. The final replacement of the Concessionaire for the awardee of the bid, must be improved within a period not to exceed thirty (30) calendar days from the date on which the award was granted under the sole responsibility of the latter regarding the issues that are within its jurisdiction.
According to previously established procedure, the awardee of the bid will be acknowledged by the Grantor as new Concessionaire Corporation. To that end, the new Concessionaire Corporation shall entirely replace in its contractual position to the original Concessionaire Corporation, being subject to the terms of the initial contract, for its remaining life term. The Grantor hereby agrees, expressly and irrevocably, the assignment of the contractual position of the first Concessionaire Corporation, according to the terms stipulated in this clause. Consequently, the new Concessionaire Corporation shall have the rights conferred by this contract and shall assume the same obligations thereof.
8.20 Applicable Tax Regime
The Concessionaire Corporation is subject to national, regional and municipal tax legislation in force for the concession and must comply with all the obligations of a tax nature that corresponds to the exercise of its activity.
Also, the Concessionaire Corporation can access the tax benefits that the regulations provide, while complying with the procedures, requirements and conditions outlined therein.
8.21 Obligation of dissemination and advertising Business plans
According to what is stated in Section 1.3.5 of the Bid Terms, the times that the advertising of the Concessionaire mentions or references to any kind of speed is made should include information on the minimum speed and/or Average Speed of each plan offered in the media and commercial advertising used to promote the sale of services provided using......... block. from the Band; highlighting these speeds relative to peak velocity.
8.22 Obligations of Minimum Speed
The obligations of minimum Speedy are those indicate in Section 1.2.3. of the Bid Terms.
8.23 Obligation to provide access and interconnection to the Mobile Virtual Operators
The Concessionaire Corporation is obliged to provide access and interconnection to the Mobile Virtual Operators enabled by the MTC that request it, according to the provisions of the applicable laws and regulations.
CLAUSE 9
GENERAL TARIFF REGIME
The Concessionaire Corporation undertakes to set tariffs of registered service in strict accordance with the laws that, concerning the purpose, has issued or issues OSIPTEL. In this sense, the Concessionaire Corporation may freely determine the rates for telecommunications services rendered, provided they comply with the tariff system established by OSIPTEL.
Depending on the type of service and in case the tariffs set by the Concessionaire Corporation for the provision of the registered service, were above the corresponding to the application of the provisions of OSIPTEL, the Concessionaire Corporation shall be required to comply with the measures dictated by OSIPTEL in each case.
OSIPTEL may choose not to setting ceiling rates due to the competition between enterprises, a reasonable rate is guaranteed for the benefit of the user.
Also, it is agreed that, in accordance with applicable laws and regulations, the Concessionaire Corporation will not receive a less favorable tariff to other operators of the Public Telecommunications Services with which it competes.
CLAUSE 10
INTERCONNECTION
The Concessionaire Corporation has during the period of the concession, the right and the obligation to interconnect with other networks of Public Telecommunications Services, in accordance with this contract, the Fundamental Technical Plan for Signage and other basic technical plans of the National Telecommunications Plan, the principles of neutrality, non-discrimination and equality of access and the terms and conditions agreed between the Operators and the provisions of the applicable laws and regulations.
CLAUSE 11
RULES OF COMPETENCE
11.1 General Provisions
The Concessionaire Corporation is committed to do not make directly or indirectly or distort free and fair competence.
11.2 General Prohibition to make Crossed Subsidies
The Concessionaire Corporation undertakes to do not make cross subsidies between different telecommunications services it provides considering the provisions of the sectorial rules of free competition.
11.3 Regulations applicable to Separated Accounting
The Concessionaire Corporation shall be subject to the specific provisions on separate accounting issued by the competent authority under the applicable laws and regulations.
11.4 Non Discriminatory Treatment
In the provision of the registered service, the Concessionaire Corporation will not discriminate or shall have unjustified preference for other suppliers of public telecommunications services, considering the provisions of the rules on free competition.
As stated above, the Concessionaire Corporation shall not be discriminated against or preferred unjustifiably by other Operators of Public Telecommunications Services.
11.5 Supervision and Compliance
The Grantor and OSIPTEL shall be entitled to request the Concessionaire Corporation to submit periodical reports, statistics and other information, as well as to inspect itself or through a third party, the facilities of the Concessionaire Corporation, its files and records and other data and request any additional information to monitor and enforce the terms of this clause. OSIPTEL has the right to take corrective, protective, preventive and punitive measures, in the form of resolutions and mandates, in accordance with applicable laws and regulations.
CLÁUSE 12
GUARANTEES
12.1 Delivery of the Performance Bond of the Contract
In order to ensure compliance with each and every one of the obligations of the Concessionaire Corporation set forth in this contract, including the payment of penalties and administrative sanctions; the latter shall deliver to the Grantor on the closing date a Performance Bond of the contract which must be unconditional, irrevocable, without benefit of excussio or division and automatically enforceable, according to the model set out in Annex No. 1, which shall remain in force, in recognition of its successive renewals, from the Closing Date until the first quarter after the expiration of the tenth (10) year period of the concession. The Performance Bond of the contract will be issued for an amount equivalent to 10% of the Base Price and maintained by that amount from the closing date until it is established to the satisfaction of the MTC the compliance of the Coverage Plan. Thereafter, the Concessionaire Corporation may request the reduction of the Performance Bond of the contract to an amount of ..................... and 00/100 US Dollars (US $ ..................).
If the damages caused by the breach of the terms and conditions of this contract by the Concessionaire Corporation, exceeds the amount of the Performance Bond of the contract, the Grantor shall execute such guarantee without prejudice to his right to take the actions necessary to recover other damages.
The Performance Bond may be executed by the Grantor in whole or in part, once identified the commission of a breach of all or any of the obligations of the contract, as long as it has not been remedied by the Concessionaire Corporation within the time granted for this purpose. Exempted from this provision those failures that generate full resolution of contract provided in Clause 18.2, case in which Grantor shall automatically execute the guarantee. In case of partial execution of the Performance Bond of the concession contract, the Concessionaire Corporation shall return the Performance Bond of the concession contract to the amount specified in subparagraph a) of Section 12.1 of this Clause. If the Concessionaire does not restitute the Performance Bond of the concession contract in the amount and conditions listed above, within twenty (20) calendar days from the date on which the partial execution of the same was carried out , the Grantor, by written notice to that effect, shall declare terminated the contract and the concession expired on the date of such notification.
If the Performance Bond of the contract is issued for a lesser term to the compliance of the Coverage Plan, the Concessionaire Corporation shall provide the Grantor the renewal of it before it expires. Otherwise, the Grantor, in order to preserve the warranty, may request its execution, even if there is no breach different from the non-renewal of the guarantee. In the previous case, if the Concessionaire Corporation meets to properly renew the Performance Bond of the contract, the Grantor shall immediately return to the Concessionaire Corporation, the amount executed. If the Concessionaire Corporation does not renew the Performance Bond in the amount and conditions listed above, within twenty (20) calendar days from the date on which the execution of it was done, the Grantor, by written communication to that effect, shall declare terminated the contract and the concession expired on the date of such notification.
The Grantor shall execute the guarantee referred to in this clause, if the Concessionaire Corporation fails to comply with the agreed commitments assumed in this contract. Before the execution of the guarantee, the Grantor shall issue a simple written notice to the Concessionaire Corporation, indicating the failure incurred and its intention to enforce the security.
The guarantee must have a minimum annual period of validity and be renewed annually during the period specified in subparagraph a) of this Clause.
CLÁUSE 13
INTERNATIONAL OBLIGATIONS
13.1 International Classification of the Concessionaire Corporation
The Concessionaire Corporation shall have the status of recognized operating agency for the purposes set out in the Annex of the Constitution of the International Telecommunication Union, and may participate in the Sectors of the Union in accordance with Article 19 (No. 229 and following) of the International Telecommunication Convention, Geneva 1992.
CLÁUSE 14
AUTHORIZATIONS, PERMITS AND LICENSES
14.1 Approval of Equipment and Terminal Devices
The Concessionaire Corporation must obtain certificates of approval required for the sale, lease, distribution, use and operation of equipment and terminal telecommunications equipment, according to the Law of Telecommunications and its General Regulations, the Specific Rules for Certification of Equipment and Telecommunications Devices, approved by Supreme Decree No. 001-2006-MTC, in accordance with applicable laws and regulations.
14.2 Granting of Permits
The MTC has the power to verify in accordance with applicable laws and regulations: (i) that the equipment and installed devices have the certificates of approval, (ii) compliance of installation thereof and to adopt measures and actions that apply, and (iii) proper standardization and approval of telecommunications equipment and apparatus.
14.3 Other Permits and Licenses
The Concessionaire Corporation shall obtain from the government authorities, the necessary licenses and permits, including building permits and other than telecommunications, to build, implement, modify and remove installations and structures for the provision of the registered service, according to applicable laws and provisions.
14.4 Technical Inspections
In order to verify compliance with the characteristics and technical operation standards provided for in this contract and the applicable laws and regulations, the MTC and OSIPTEL may carry out the necessary technical inspections within the scope of its powers, at the beginning of the provision the service when they deem it convenient.
CLÁUSE 15
FORCED EASEMENTS AND EXPROPRIATIONS IN FAVOR OF THE CONCESSIONAIRE CORPORATION
Upon request, duly justified, of the Concessionaire Corporation and, because of public necessity and utility, the Grantor shall make the necessary arrangements with the competent authorities in order that is imposed forced easements or expropriations are made in favor of the Concessionaire Corporation, on the property or buildings owned or private use necessary to enable it to adequately fulfill the obligations assumed by this contract. The imposition of easements referred in this clause will be executed in accordance with the provisions of the Regulation of forced easements for the provision of public services and teleservices of Telecommunications, approved by Supreme Decree No. 005-2006- MTC.
The payment of fair compensation and compensation in case of expropriation and easement, will be borne by the Concessionaire Corporation.
CLÁUSE 16
USE OF RADIO ELECTRIC SPECTRUM
The public registered services will be provided using the block …………….. of the 698-806 MHz Band nationwide.
In the case of Public Telecommunications Services, additional to the registered services under this contract, the Concessionaire Corporations will provide them using the block assigned of the Band 698-806 MHz nationwide, as provided in Section 5.4 of Clause 5.
CLÁUSE 17
LIMITATIONS REGARDING THE ASSIGNMENT OF THE CONCESSION, CONTRACTUAL POSITION; CONTROL TRANSFER
17.1 Limitations of transfer and others
The Concessionaire Corporation may not transfer or carry out the transfer of the contractual position, assignment of obligations, encumber, lease, usufruct, in whole or in part, under any title, its right to the concession and/or to the spectrum allocation made under this contract and/or process that precedes it, and/or the rights, interests or obligations that result from it or arising from the Registry, within the first five (5) year period of the concession, counted from the closing date, under resolution sanctioning of the granted concession.
After that period, the Concessionaire may perform acts of disposition indicated with the prior written consent of the Grantor, and with the prior opinion of OSIPTEL. OSIPTEL will issue the opinion referred to in the scope of its jurisdiction, within ten (10) days of receiving the request. Such authorization shall not be denied without just and reasonable cause, according to the provisions of Policy Guidelines of Opening to the Market of Telecommunications, approved by Supreme Decree No. 020-98-MTC and provided that the new holder fulfills at least with preshortlisting requirements established in the Bid Terms. It will also be subject to the rules laid down in the General Regulations.
The MTC as a representative of the Grantor may assign any government entity the contractual position under this contract or any of the rights, interests or obligations inherent in it, in which case and already, the Concessionaire Corporation gives his irrevocable accordance with the assignment.
Shareholding and Limitation of Transfer
During the first five (5) years of the concession term, counted since the closing date, the Operator must maintain the property of at least fifty one per cent (51%) of the shares or representative shares of the share capital and with the right to vote of the Concessionaire Corporation.
After terminating the period of restriction on transfer of shares, the Grantor may authorize the transfer of shares of the minimum participation of the Operator in the Concessionaire Corporation, at its request, to another Operator who meets the same technical and financial requirements and comply with the requirements in the tender.
Control of Technical Operations
During the first five (5) years of the concession, counted from the closing date, the Concessionaire Corporation will ensure that the Operator exercises control of the technical operations of the Concessionaire Corporation.
Under the definitions of Control Technical Operations, effective control and Minimum Participation established herein, to set any event of default of its obligations and limitations listed in this subparagraph, shall be considered grounds for termination of contract being empowered the Grantor to revert the concession
The Concessionaire Corporation, with the prior written approval of Grantor, may subcontract with third parties the performance of any or all of the activities included in the provision of granted services, concerning the concession, anywhere within the concession area, in the same conditions as stipulated in the concession contract.
The Concessionaire Corporation may, without requiring prior authorization of the Grantor, outsource administrative activities related to the provision of granted service, such as logistics services, collections, commercial attention of subscribers or users, among others of the same nature and the installation, maintenance and provision of infrastructure.
Subcontracting does not relieve the Concessionaire Corporation of compliance with obligations under this contract or established in the rules that apply
CLÁUSE 18
EXPIRATION OF THE CONCESSION
18.1 Expiration of the Concession
The concession will expire and, therefore, will have no effect, in any of the following cases:
For expiration of the concession term established in Clause 6.1, unless that said term has been renewed according to Clause 6.2.
By agreement of the parties, entered in writing.
By termination according to the grounds foreseen in Clause 18.2.
For impossibility to continue providing the granted services, according to Clause 6.6.4 of this contract.
If, the Operator reduces its participation in the share capital of the Concessionaire Corporation below the minimum participation, before the fifth year counted since the closing date, without having the authorization referred in Clause 17.2.
If the Concessionaire Corporation is dissolved before the expiration of the duration of the contract or, if applicable, the term of the renewal.
18.2 Termination of the Contract
The resolution render void the contract by the existence of a ground occurring after its conclusion. The Grantor may terminate this contract with the Concessionaire Corporation, in the following cases:
If the Concessionaire Corporation incurs in any of the grounds of termination foreseen in the General Regulation;
Breach of the obligations assumed in the Technical Proposal;
If the Concessionaire Corporation fails to comply with any of the Essential Conditions established in subparagraph a), b) of Clause 2.2 and in opinion of OSIPTEL, said breach considers the termination of this contract; or before the breach of the Essential Conditions established in subparagraphs e), f), g) and h) of Clause 2.2. of this contract;
If the Concessionaire Corporation fails to comply with the provisions of Clauses 8.2, and 8.17 of this contract; within the framework of the provisions set in the General Regulation;
If the Concessionaire Corporation does not timely renew the Performance Bond of the contract, according to Xxxxxx 12 of this contract;
If the Concessionaire Corporation has been declared in liquidation;
If it is proven that any of the declarations contained in Clause 3.1 has been false or inaccurate, from the time they were expressed.
If the Concessionaire Corporation assigns, in whole or in part, the rights of interest and obligations assumed by this contract, without observing the provisions of Clause 17 thereof;
If the Concessionaire Corporation does not comply to submit the Technical Project to the Grantor, in the term established in Clause 8.6. of this contract, or if does not comply to submit the correction of each one of the observations formulated by the Grantor, within the term established in Clause 8.6 of the contract;
If the Concessionaire Corporation does not comply with the use goals of the spectrum, that appears as Annex No. 2 of this contract;
If after subscribing the contract it is proved the falsehood of the declaration detailed in subparagraph j) of Section 4.1 of the Forth Clause of the contract;
Upon decision of the Grantor: due to reasons of public interest duly supported, the Grantor may terminate the concession through prior written notification to the Concessionaire Corporation, with an anticipation not less than six (6) months of the term foreseen for the termination;
For cancellation of the registration of the whole granted services, at any time of the concession term.
For breach of the obligations established in this contract under sanction of express termination.
18.3 General Procedure of Termination of the Contract
The termination of the contract according to Clause 18.2, will be formalized through a resolution issued by the Grantor, using the following procedure:
Notification. Before issuing a resolution declaring the termination of the contract in accordance with Section 18.2, the Grantor will give the Concessionaire Corporation a term, to remedy the underlying ground of the resolution, not less than ninety (90) calendar days, under penalty to initiate the resolution process. After this requirement is fulfilled if there is no correction, it shall publish a notice in the official gazette "El Peruano" and send a notice to the Concessionaire Corporation and to OSIPTEL indicating:
That it is proposed to issue a resolution, establishing its scope and its effects;
The reasons for issuing such proposed resolution;
The period within which the Concessionaire Corporation or third parties with an interest, may submit written comments or objections to the proposed resolution. This period shall not be less than thirty (30) calendar days from the date of publication of the notice;
OSIPTEL shall send to the Grantor and the Concessionaire Corporation its report and opinion on the proposed resolution, within a period of not less than thirty (30) calendar days from the date of publication of the notice; and
The date, time and place for the hearing at which the Concessionaire Corporation, OSIPTEL and any third party with a legitimate interest may make comments or objections. That day may not be less than thirty (30) calendar days from the deadline for submitting comments or objections in writing.
Hearing and Decision. On the date fixed in the notice, the Grantor will conduct a public hearing during which the Concessionaire Corporation, OSIPTEL and those third parties who have a legitimate interest and have submitted comments or objections which the Grantor has previously qualified as relevant, will be entitled to be heard. The resolution of the Grantor will be issued no later than sixty (60) calendar days after the public hearing.
18.4 Termination of Full Right
The procedure foreseen in Section 18.3, will not be applicable if the termination of the contract occurs by operation of law, in the following assumptions of Section 18.2:
When it obeys to breach foreseen in subparagraph a), according to the provisions of the General Regulation.
When it obeys to the breachof the obligations contained in subparagraphs b) and c), in which case the termination will occur under the provisions of Article 1430 of the Civil Code, when the Grantor communicates to the Concessionaire Corporation that it wants to make valid the resolutory clause.
18.5 Consequences of expiration of the concession
The expiration of the concession shall automatically operate without any act or later declaration in this sense.
In case of expiration of the concession and if it is necessary to ensure the continuity of service, the Concessionaire Corporation undertakes to continue providing the registered services, under the same terms and conditions provided in this contract, for a term that will be fixed by the Grantor.
18.6 Cancellation of Registry
The cancellation of the registration for each registered service is subject to the provisions foreseen in Article 158º of the General Regulation.
PENALTIES AND ADMINISTRATIVE SANCTIONS
19.1 Independence of Penalties of any Administrative Sanction
Failure to comply with the obligations assumed by the Concessionaire Corporation under this contract that is not classified as an administrative offense shall be punished by conventional agreed penalty. To be typified as an administrative offense, the corresponding administrative sanction applies.
There may not be imposed, successively or simultaneously, a conventional penalty and an administrative penalty, in accordance with applicable laws and regulations, in cases where is observed the identity of the subject, of the fact and its foundation.
Administrative sanctions may be challenged by contentious-administrative process established by Law No. 27584, or legislation replacing it. In the case of conventional penalties, the imposition of the same can only be questioned by arbitration in accordance with the provisions of Clause 20 of this contract.
19.2 Breach subject to administrative sanction
The following non compliances are subject to administrative sanction:
Breach of Use goals
The breach of the use goals will be duly sanctioned by the Grantor, according to the applicable laws and regulations.
Breachof the Coverage Plan
The breach of the coverage of the service foreseen in Section 8.3 of the Eighth Clause will be sanctioned by OSIPTEL, according to its sanctioning provisions.
Breach of the Requirements of Quality of Service
The breach of the requirements of quality of service will be sanctioned by OSIPTEL, according to the applicable provisions and according to Section 8.4 of this contract.
Breach of the information to Users and Subscribers
The breach of the delivery of information to users and subscribers, outlined in Section 1.3.5 of the Bid Term will be sanctioned by OSIPTEL, according to the applicable regulations.
Breach of the Conditions of Use
The breach of the conditions of use will be sanctioned by OSIPTEL, according to the applicable regulations.
Other breach foreseen in the applicable laws and provisions
The breach of the obligations classified as administrative offense in the applicable laws and provisions.
19.3 Breach subject to penalties
Breach of Minimum Speed
The breach of the minimum Speedy established in Section 8.22 of the contract will be penalized by the MTC, prior supervision reporto f OSIPTEL, according to the following:
First breach, for each selected populated center: 10 tax units.
Second breach in the same populated center:
Tax units.
Subsequent breach, in the same populated center:
150 tax units for each breach
b) Penalty for Termination of the Contract
If the Grantor terminates the contract for any of the reasons provided in Clause 18.2, with the exception of that contained in the subparagraph ll) of this section, the Concessionaire Corporation shall pay a penalty equal to ... .. (2) percentage of the amount paid, and it will be communicated through Circular.
If a cancellation of registration in the Registry of Public Telecommunications Services additional to the service occurs ................................................., For breach by the Concessionaire Corporation of commencement of the provision of service, it applies the provisions in Section 22.02 of Ministerial Resolution No. 568-2007-MTC / 03.
c) For breach in the payment of the dividend liability of share capital
The partial fulfillment of payment of dividend liabilities of share capital provided in subparagraph f) of Section 4.1 of the Fourth Clause will be penalized by the MTC at the rate of ..................... .. and 00/100 US Dollars (US $ ............... ..) per year in the still existing dividends liabilities, initiated from the sixth year of the closing date of the concession contract.
d) For breach in the obligations related to migration
If the Concessionaire Corporation fails to comply with the essential condition laid down in subparagraph f) of Clause 2.2, in addition to the execution of the Letter of Guarantee Compliance of migration activities it will be penalized with three percent (3%) of the Base Price.
e) For late or defective breach of the surplus radio electric spectrum reversion
(e.1) If the Concessionaire Corporation exceeds for causes attributable to it, the deadline for the reversal of the radio electric spectrum that exceeds the limits established on the filing date of the financial proposal; It will be penalized with the amount of ....................................
(e.2) If the Concessionaire Corporation, after the maximum term of reversion, continues using totally or partially the radio electric spectrum that was reverted; will be penalized with the amount of ….
19.4 Procedure of Application of Penalties
Before imposing any contractual penalties established in this section, the Grantor shall notify in writing to the Concessionaire Corporation stating: (i) the reasons for the imposition of a penalty; and (ii) the period within which the Concessionaire may submit their arguments in writing, within not less than thirty (30) calendar days from the date of notification. After this period, with the accompanying release, or not, the Grantor shall impose if applicable, the corresponding penalty, supporting in writing, the reasons why it has been imposed.
19.5 Damages
The penalties mentioned in the previous subparagraphs of Clause Nineteenth shall be without prejudice to the obligation of the Concessionaire Corporation to respond eventually by direct damages caused to the Grantor, resulting from the breach, in accordance with the provisions of the Civil Code.
19.6 Destination of payments for the concept of sanctions
The amounts for the concept of penalties will be paid to the MTC and the amounts resulting from the concept of administrative sanctions will be paid to the entity that imposed the administrative sanction.
19.7 Guarantee of payment of penalties and administrative sanctions
The lack of payment of any of the penalties or administrative offenses indicated in this clause, is covered with the Performance Bond of the contract foreseen in the Twelfth Clause.
SETTLEMENT OF DISPUTES
20.1 Applicable laws and provisions
The parties have negotiated, drafted and signed the contract in accordance with the applicable laws and regulations, included in Section 1.5 of the Bid Terms. Therefore, they say that the content, execution, conflicts and other consequences arising from it are governed by those rules, the same as the parties declare to know and follow.
Consequently, the Concessionaire Corporation irrevocably and unconditionally waives any diplomatic claim in connection with this contract.
20.2 Controversies between the parties
Any dispute arising in connection with the execution of this contract, including its interpretation and any aspect of its existence, validity or termination, except for those matters related to the exercise of powers or functions of government authorities, will be amicably resolved by the parties, within fifteen (15) days from a party notifies the other in writing of the existence of the conflict of uncertainty of legal significance. Also in the direct negotiation stage the parties may agree to the intervention of a neutral third party, called conciliator, who shall be appointed by the parties directly or by delegation by the mediation center chosen by mutual agreement. The conciliator will propose a formula for solution of disputes, which, if accepted partially or totally by the parties, will produce legal effects of a transaction. If the parties fail to reach a satisfactory agreement, they unconditionally submit to arbitration, in the case of non-technical controversies, as provided in Sections 1 and 2 of Article 73 of Legislative Decree No. 1071. If there are Technical Disputes, they shall be submitted to arbitration of consciousness, as provided in Section 3 of Article 57 and 73 of the indicated Legislative Decree. The rules for both types of arbitration are as described below.
If the parties do not agree, within direct negotiation, on whether the dispute or controversy is a Non-Technical Controversy or Technical Controversy, or if the conflict has components of Technical Controversy and Non-Technical Controversy in this case, such dispute or uncertainty shall be considered a Non-Technical Controversy and shall be resolved according to arbitration under the law.
The rules of procedure applicable to the arbitration shall those of the national arbitration center chosen by the parties, as provided in the last paragraph of this Section, and whose rules, are submitted unconditionally, being extra application, the Legislative Decree No. 1071, General Arbitration Act including its amendments, and its extensions or any other related rules to replace it. The arbitrators will be empowered to fill any vacuum in respect of the said law.
The arbitration shall be held in the city of Lima and will be conducted in Spanish language. The settlement of disputes will be made according to the Peruvian applicable laws.
The arbitration will lead a panel of three (3) arbitrators, each party shall appoint one arbitrator. The third arbitrator, who shall chair the Tribunal, appointed by agreement of the other two arbitrators selected by the parties. If a party fails to appoint its arbitrator within ten (10) days after notification of the order of appointment, it shall be deemed to have waived to its right and the arbitrator shall be appointed by the arbitration center selected, at the request of either party. If the two arbitrators appointed fail to agree on the appointment of the third arbitrator within ten (10) days following the date of appointment of the second arbitrator, the third arbitrator shall be appointed upon the request of either party, by the arbitration center chosen.
The parties agree that the award issued by the Arbitral Tribunal shall be final and conclusive and with the effect of res judicata. Consequently, the parties waive to appeals, appeal or any other appeal contesting the arbitration decision and declare that it be binding, definitive compliance and immediate execution unless specifically provided in the grounds that are given in Articles 62 ° and 63 of Legislative Decree No. 1071, as applicable.
All expenses incurred in resolving the dispute submitted to arbitration, including the fees of the arbitrators involved in the resolution of it will be covered by the losing party. The same rule applies if the defendant or counterclaim acknowledges the claim of the plaintiff or counterclaimant. Also shall bear the costs the counterclaimant complaining who desists from the claim. If the procedure ends without a decision on the merits of the claims, by reason of settlement or conciliation, those expenses will be covered in equal parts by the plaintiff and the defendant. Also, if the award partially favored the positions of the parties, the Arbitral Tribunal shall decide the distribution of these expenditures. Excluded from the provisions of this clause are the costs and expenses such as advisory fees, or other internal costs that are attributable to a party individually.
Without prejudice to the provisions of the preceding paragraphs, the parties may agree to submit their disputes to an arbitration center different to the National and International Arbitration Center of the Chamber of Commerce of Lima. Failing agreement between the parties, the arbitration will be submitted to the Centre of National and International Arbitration of the Chamber of Commerce of Lima.
20.3 Controversies with other service providers
All disputes arising with other operators of public telecommunications services and that deal with not arbitral matters or whose resolution is the exclusive competence of OSIPTEL will be subject to the procedure established in the General Rules for Dispute Settlement in the administrative via of OSIPTEL or regulations that modify, substitute or complement it.
Regarding other materials or those referable to arbitration, the Concessionaire Corporation expressly declares in advance its willingness to submit to arbitration any dispute between it and another operator Public Telecommunications Services, on the same terms expressed in the previous clause. If the other operators of public telecommunications services do not accept the arbitration shall apply the rules contained in the Regulation OSIPTEL and the General Rules for the Settlement of Disputes in the administrative via of OSIPTEL or regulations that modify, substitute or supplement it.
CLAUSE 21
RULES OF INTERPRETATION
This contract is subject to the following rules of interpretation:
In case of divergence in the interpretation of this contract, the parties shall follow the following order of priority to solve said situation:
The Contract;
Circulars; and
The Bid Terms
This contract is constructed according its own clauses, circulars, Bid Terms and the applicable laws and regulations.
The annexes of this contract will be integrant part thereof.
The contract is subscribed only in Spanish language. If there is any difference between the translation of the contract and this, shall prevail the text of the contract in Spanish. The translations of this contract will not be considered for purposes of its interpretation.
The terms established will be computed in days, months or years as appropriate.
The titles contained in the contract only comply with a purpose of identification of issues and should not be considered as part of the contract, to limit or extend its content or to determine the rights or obligations of the parties.
The terms in singular shall consider the same terms in plural and viceversa. The terms in masculine shall consider the feminine and viceversa.
The use of disjunction "or" in an enumeration shall be understood to comprise in exclusive manner to any element of such a list.
The use of the conjunction "and" in an enumeration shall be understood as comprising all elements of that list.
The Grantor reserves the right to interpret this contract, the circulars and the Bid Terms. The resulting interpretation is binding and mandatory for the parties.
CLAUSE 22
FINAL PROVISIONS
22.1 Contract currency
As permitted by Article 1237 ° of the Peruvian Civil Code, each and every one of the payments under this contract, with the exception of fees and charges referred in Section 7, to be made in the currency of legal tender in Peru, will be made in Dollars of the United States of America, hereinafter called the "Contract currency".
Currency Conversion of the Contract. If for any reason the government or an administrative or judicial authority issues a provision, order or judgment in connection with this contract, in which orders payment of sums in a currency other than the currency of the contract, the party benefited by the order or judgment immediately after receiving all the payments under the order or judgment and converted into the corresponding currency of the contract, is entitled to receive the sums in the currency of the contract, necessary to compensate for the loss resulting from the devaluation of the currency in which it has expressed the order or judgment against the currency of the contract, between the date of the respective order or judgment and the actual payment date.
Exchange rate. For purposes of this clause, the conversion of sums to the currency of the contract will be made at the exchange rate of sale that the Superintendence of Banking and Insurance and AFP publishes in the official Gazette “El Peruano”, on the day of verification of the respective payment.
22.2 Notices
Unless otherwise provided in the contract, all notices, summons, requests, demands and other communications caused or permitted under this contract shall be in writing and shall be validly made if they have the respective delivery receipt or if they are sent by mail, courier or fax, upon verification of receipt by post or complete transmission confirmation issued by the recipient system of the respective communication, to the following addresses:
If is addressed to the Grantor:
Name: Ministry of Transportation and Communications
Address: Jr. Zorritos Nº 1203, Lima 1
Attention: General Direction of Concessions and Communications
Fax: 000-0000
Email: . . . . . @xxx.xxx.xx
If is addressed to the Concessionaire Corporation:
Name: …………………………………………………………………………
Address: …………………………………………………………………………
Attention: …………………………………………………………………………
Fax: …………………………………………………………………………
Email: . . . . . . .@ . . . . . .
If is addressed to OSIPTEL:
Name: Supervising Organism of Private Investment in Telecommunications, OSIPTEL
Address: Xxxxx xx xx Xxxxx 000, Xxx Xxxxx, Xxxx,
Attention: General Management
Fax: 0000000
Email: . . . . . . .@xxxxxxx.xxx.xx
If is addressed to the Operator:
Name: …………………………………………………………………………
Address: …………………………………………………………………………
Attention: …………………………………………………………………………
Fax: …………………………………………………………………………
Email: . . . . . . .@ . . . . . .
Or to any other address or person appointed in writing by the parties.
22. 3 Waiver
The waiver of rights under this contract shall be effective only if done in writing and with due notice to the other party. If at any time one of the parties renounces or ceases to exercise a specific right embodied in this contract, such conduct shall not be considered as a permanent waiver to assert the same right or any other throughout the duration of this waiver.
Changes and clarifications to this contract, including those that the Concessionaire Corporation may propose at the suggestion of financial institutions, will only be valid if agreed in writing and signed by representatives with enough power of the parties and meet the relevant requirements of laws and applicable provisions.
22.4 Partial Invalidity
If any term or provision of this contract is considered invalid or unenforceable by a competent authority or person, such invalidity shall be construed narrowly and shall not affect the validity of any other provision of this contract.
22.5 Modifications of the contract
The parties may agree in writing to modify this contract, subject to the applicable laws and regulations. The Grantor shall inform OSIPTEL the amendments to the contract.
22.6 Automatic adjustment of the contract
The parties declare that the contract will be adjusted as of right and automatically to the general rules issued by the Peruvian State.
22.7 Public Deed
Upon request of any of the parties, this contract will be submitted to public deed. The cost of this procedure will be in charge of the Concessionaire Corporation.
In witness whereof, the parties have signed and delivered five (5) copies of this contract, on . . . . . . . . . . . . . . . .20...
Grantor: Ministry of Transportation and Communications
Name:
Position:
Signature of Representative of Grantor:
___________________________________
Concessionaire Corporation:
Name:
Position:
Signature of Representative of Concessionaire
____________________________
Operator: ……………………………………………………………………………
Name: ………………………………………………………………………………
Position: ………………………………………………………………………………
Signature of Representative of Operator
____________________________
Awardee: ………………………………………………………………………
Name: ………………………………………………………………………………
Position: ………………………………………………………………………………
Signature of Representative of Awardee
____________________________
ANNEXES
ANNEX Nº1
PERFORMANCE BOND LETTER OF THE CONTRACT
ANNEX Nº 2
USE GOALS OF RADIO ELECTRIC SPECTRUM
ANNEX Nº 3
RELATION OF MAIN PARTNERS
ANNEX Nº 4
RELATION OF PARENT COMPANIES OF MAIN PARTNERS
ANNEX Nº 5
TECHNICAL PROPOSAL
ANNEX Nº 6
ECONOMIIC PROPOSAL
ANNEX Nº 7
INFORMATION REQUIRED FOR THE PROFILE OF THE TECHNICAL PROJECT
ANNEX Nº 8
BID TERMS
ANNEX Nº 1
PERFORMANCE BOND OF THE CONTRACT
BLOCK __ OF BAND
ANNEX N°2
USE GOALS OF RADIO ELECTRIC SPECTRUM
BLOCK …….OF BAND
ANNEX Nº 3
LIST OF MAIN PARTNERS
BLOCK …..OF BAND
1. General Data
a. Name:…………………………………………………………………………
b. Place of incorporation:…………………………………………………………
x. Xxxx of incorporation: ………….………………………………………………
d. Social domicile:………………………………………………………………….
e. Data of registration, if appropriate:……………………………
2. Share capital:………………………………………………………………………….......
3. Share or capital shares of the Concessionaire Corporation
a. Number:…………………………………………………………………………..
b. Class: ……………………………………………………………………………..
c. Nominal value:……………………………………………………………...........
d. Percentage in capital of the Concessionaire Corporation: …………………...
ANNEX Nº 4
LIST OF PARENT COMPANIES OF MAIN PARTNERS
BLOCK ……..OF BAND
1. General Data
Name: ………………………………………………………………………………
Place of incorporation: ………………………………………………………………..
Date of incorporation: ………………………………………………………………
Social domicile: ………………………………………………………………………
Data of registration, if appropriate: …………………………………
2. Share Capital: ……………………………………………………………………………
3. Participation in share capital of Main Partner
Direct Participation:
(i) Number of shares, participations or capital shares:
………………………………………………………………………………
(ii) Nominal value of each share, participation or capital share:
………………………………………………………………………………
Indirect Participation
(i) Number of shares, participations or capital shares:
………………………………………………………………………………..……
(ii) Nominal value of each share, participation or capital shares:
……..………………………………………………………………………………
(iii) Related companies through which is maintained the participation:
……………………………………………………………………………………
TECHNICAL PROPOSAL
BLOCK …..OF BAND
ANNEX Nº 6
ECONOMIC PROPOSAL
BLOCK ……..OF BAND
INFORMATION REQUIRED FOR THE PROFILE OF THE TECHNICAL PROJECT
BLOCK …...OF BAND
Detailed description of the technical and operative characteristics of the system to install, including:
Technology to be used
Description and operation of the system to implement
Switching system, transport, access and network management, specifying its operation and equipment to be used, specifying the quantity, trademark, model and functions of each equipment in the mentioned systems
Diagram of connectivity of equipment to be used in the systems to implement
Location of switching exchanges
Enclose technical characteristics to be used
Fill the annexes of technical information Publisher in the web site of the MTC, according to service to provide, as appropriate. It is recommended to also enclose the files in informatics mean in MSWORD and/or EXCELL formats.
Terms and schedules for the installation of the equipment and commencement of the service.
Coverage Plan.
Indicate use goals of radio electric spectrum.
Note: Those radio electric stations located within the obstacle limitation surfaces of an airport or aerodrome are subject to legal restrictions on ownership; therefore, they also require authorization from the Directorate General of Air Transport (DGAT), as established in the Law and Regulation of Civil Aviation.
ANNEX Nº 8
BID TERMS
60
Sole Concession Contract – 698-806 MHz band nationwide