AGREEMENT

Fee Agreement

You are currently viewing:

This Fee Agreement involves

ICA CORP | FEDERAL COMMISSION OF ELECTRICITY

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: AGREEMENT
Date: 6/30/2005
Industry: Construction Services

AGREEMENT, Parties: ica corp , federal commission of electricity

<PAGE>

Exhibit 4.7

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

AMENDMENT AGREEMENT NUMBER 4 (FOUR) TO THE MIXED AGREEMENT OF FINANCED PUBLIC

WORK NUMBER PIF-005/2003, FOR THE RECOGNITION AND PAYMENT OF THE INCREASE IN THE

COST OF STEEL ENTERED INTO BY AND BETWEEN ON THE ONE PART COMISION FEDERAL DE

ELECTRICIDAD (THE FEDERAL COMMISSION OF ELECTRICITY), REPRESENTED BY ENG.

EUGENIO LARIS ALANIS, IN HIS CAPACITY AS DIRECTOR OF FINANCED INVESTMENT

PROJECTS AND ON THE OTHER PART THE COMPANY CONSTRUCTORA INTERNACIONAL DE

INFRAESTRUCTURA, S.A. DE C.V., REPRESENTED BY ENG. LUIS HORCASITAS MANJARREZ, IN

HIS CAPACITY AS LEGAL REPRESENTATIVE, HEREINAFTER REFERRED TO AS THE

"COMMISSION" AND THE "CONTRACTOR", RESPECTIVELY, ACCORDING TO THE FOLLOWING

RECITALS AND CLAUSES:

RECITALS

I. The PARTIES represent:

I.1 That on March 26, 2003, they executed the Mixed Agreement of Financed

Public Work, recorded with the number PIF - 005/2003, legal instrument

that shall hereinafter be referred to as the "Agreement", awarded to

the CONTRACTOR by means of the International Public Bidding Process,

established by Articles 27, paragraph I, 28 and 30, paragraph II, 32,

33 and 45 of the Law of Public Works and Services Related to the Same,

which purpose consists of: the execution of the Civil Works,

Electromechanical Works and Associated Works, supply, engineering,

manufacturing, transportation, installation, testing and start up of

two equipped turbo-generating Units, of 375 MW of nominal power each,

for the fall and expense of specified design and that is detailed in

Section 8 of the Bidding Rules, Works that all together are named

Hydroelectric Project El Cajon, and which principal structures are

located in the Municipalities of La Yesca and Santa Maria del Oro, in

the State of Nayarit of Mexico.

The Works which consist of the Lump-sum Price Activities are described

in detail in Exhibits OE-3, OE-4 and OE-5 of Section 4 of the Bidding

Rules and are to be

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

conducted under the modality of lump-sum, because the portion of the

Works that correspond to the Lump-sum Activities are depicted in detail

in Exhibit OE - 5A of Section 4 of the Bidding Rules and shall be

executed under the base of lump-sum.

I.2 That on July 04, 2003, the PARTIES executed the Amendment Agreement

Number 1 to the Agreement (hereinafter "Amendment Agreement Number 1").

I.3 That the Price of the Agreement that the COMMISSION agreed to pay to

the CONTRACTOR, agreed in Clause 9.1, was agreed to as total payment

for the execution of the Works that correspond to the Lump-Sum

Activities, the lump-sum price of US $ 682,517,584.80 Dollars (Six

Hundred and Eighty Two Million Five Hundred and Seventeen Thousand Five

Hundred and Eighty Four Dollars 80/100 Currency of the United States),

and for the Unit Price Activities, the price of US $ 65,773,072.59

Dollars (Sixty Five Million Seven Hundred and Seventy Three Thousand

Seventy Two Dollars 59/100 Currency of the United States) plus the

corresponding value added tax.

According to that established in the Third Clause of the Amendment

Agreement Number 1 the COMMISSION and the CONTRACTOR agreed to increase

the amount of the Unit Price Activities of the Agreement in the amount

of US $ 5,801,271.26 Dollars (Five Million Eight Hundred and One

Thousand Two Hundred and Seventy One Dollars 26/100 Currency of the

United States) plus the Value Added tax, which represented an increase

of 8.82 % (eight point eighty two per cent) relative to that originally

contracted, thus remaining an accumulated aggregate amount of the

Agreement based in unit prices of US $ 71,574,343.85 Dollars (Seventy

One Million Five Hundred and Seventy Four Thousand Three Hundred and

Forty Three Dollars 85/100 Currency of the United States) plus the

corresponding value added tax, in accordance with the budget of

Additional Works.

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

I.4 That on September 10, 2003, the PARTIES executed the Amendment

Agreement Number 2 to the Agreement (hereinafter the "Amendment

Agreement Number 2") in accordance with that established in Articles 59

of the Law of Public Works and Services Related to the Same, and 69 and

79 of its Regulations, in order to: (i) under the Sixth Clause of the

Amendment Agreement Number 1, modify the original Execution Schedule

due to the new date for the commencement of the Works that is April 24,

2003; (ii) agree to the disarrangement of the Critical Events Dates

1.1, 1.2, 1.3 and 1.4 established in Exhibit Number 3 of the Agreement,

derived from the modifications to the contractual conditions that have

ruled up to this date according to Clause 13.1 of the Agreement; (iii)

recognize and pay, if applicable, under the modality of unit prices the

Additional Costs related to the modifications of the original Execution

Schedule, as a consequence of the late delivery and under different

conditions to those established in the Bidding Rules and in the

Agreement, of the portals of the deviation tunnels and the access road

to the Site, for causes not imputable to the CONTRACTOR and adjust the

Lump-sum Activities because of the modification to the length of the

deviation tunnels and the reduction of the volume of the cofferdam in

the upstream waters; (iv) approval in the event the COMMISSION decides

their completion, of the payment of the Associated Additional Costs

that derive from the Additional Works of Deviation under the modality

of unitary prices for the building of the deviation tunnels and the

pre-deviation tunnels by the left or right margins; (v) ratify in

accordance with the Seventh Clause of the Amendment Agreement Number 1

that the Critical Event 1.4 of Exhibit 3 of the Agreement ceased to be

a Punishable Critical Event.

In accordance with that established in the Sixth Clause of the

Amendment Agreement Number 2 the COMMISSION and the CONTRACTOR agreed

to increase the original amount of the Lump-sum Activities of the

Agreement, due to the Additional Works of Deviation hereinafter

described, subject to the condition that the COMMISSION decides their

execution:

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

- The increase of resources and extension of the crossing tunnel

equals the amount of US $ 1,810,899.51 Dollars (One Million

Eight Hundred and Ten Thousand Eight Hundred and Ninety Nine

Dollars 51/100 Currency of the United States; plus VAT;

- Pre-deviation by the left bank equals the amount of US $

2,969,437.75 Dollars (Two Million Nine Hundred and Sixty Nine

Thousand Four Hundred and Thirty Seven Dollars 75/100 Currency

of the United States) plus VAT;

- In the event the COMMISSION decides not to execute the

pre-deviation by the left bank, this shall pay for the

"emportalamiento" of said tunnel the amount of $ 338,578.50

Dollars (Three Hundred and Thirty Eight Thousand Five Hundred

and Seventy Eight Dollars 50/100 Currency of the United

States) plus VAT;

- Pre-deviation by the right bank equals the amount of US $

3,533,182.44 Dollars (Three Million Five Hundred and Thirty

Three Thousand One Hundred and Eighty Two Dollars 44/100

Currency of the United States), plus VAT;

- In the event the COMMISSION decides not to execute the

pre-deviation by the right bank, the COMMISSION shall pay for

the construction of the access road, the ramp and

"emportalamiento" of said tunnel the amount of US $

1,662,411.00 Dollars (One Million Six Hundred and Sixty Two

Thousand Four Hundred and Eleven Dollars 00/100 Currency of

the United States) plus VAT.

I.5 That on September 30, 2004, the PARTIES subscribed the Amendment

Agreement Number 3 to the Agreement (hereinafter referred to as

"Amendment Agreement Number 3") according to that established by

Articles 59 of the Law of Public Works and Services Related to the

Same, and 69 and 79 of its Regulations, in order to: (i) Modify the

Execution Schedule of the Amendment Agreement Number 2, according to

that established in the Third Clause and in the last paragraph of the

Fourth Clause of the same Amendment Agreement Number 2, as well as that

contained in Recitals I.6 and II of this Agreement and upon analyzing

the actual geological conditions found at the deviation tunnel No. 1 in

the intersection with the crossing tunnel the

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

activities conducted for the execution of the pre-deviation by the

right bank and the effect on the construction of the baseboard (plinth)

in the river bed, because of Calypso's default, the parties agree to a

new Execution Schedule of the Works that is attached to the Amendment

Agreement Number 3 as Exhibit 5. (ii) Recognize the real amount of the

Associated Additional Costs that derived from the execution of

Additional Works of Deviation, ordered by the commission under the

modality of unitary prices, for the execution of the deviation tunnels

and the pre-deviation tunnel by the right bank, as well as the works

ordered by the commission, for the potential pre-deviation by the left

bank. (iii) Cancel the amounts of the Additional Deviation Works

indicated in Clause Sixth of the amendment Agreement number 2, which

was not necessary to build. (iv) Recognize and pay, if applicable,

under the modality of unitary prices, the affectations in time and cost

for the recovering of the program derived from that indicated in

Recital I.6 and the Recitals of item II of this Agreement. (v) Define

the new Dates of Critical Events 1.3, 1.5, 1.6, 1.12 and 1.13,

established in Exhibit Number 3 of the Agreement, derived from the

modifications to the contractual conditions that prevailed to this

date, according to Clauses 13.3 and 27.3 second paragraph of the

Agreement and that are attached to Amendment Agreement Number 3 as

Exhibit 4, replacing that indicated in Exhibit 3 of the Agreement. (iv)

Precise the average daily yields that the CONTRACTOR, in accordance

with the Execution Schedule, shall execute for each of the materials

that form the rock-fill dam in each of the phases of its construction

process, to comply with the Critical Event 1.9 related to the "final

closure of the deviation tunnels to start the filling of the

reservoir", which date is July 1st., 2006, that are attached to

Amendment Agreement Number 3 Exhibit 6.

According to that provided for in the Third Clause of the Amendment

Agreement Number 3 the PARTIES agree and acknowledge to increase the

original amount of the portion of the unitary prices of the agreement

for the Associated Additional Works that derived from the execution of

the following Additional Deviation Works ordered by the COMMISSION and

that were effectively executed:

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

(i) Extension of the crossing tunnel from the connection of tunnel

1 to tunnel 2 (sic) the amount of this Additional work equals

the amount of US$ 261,145.08 (Two Hundred and Sixty One

Thousand One Hundred and Forty Five Dollars 08/100 Currency of

the United States) plus VAT.

(ii) The execution of the pre-deviation by the right bank, the

amount of this Additional Deviation Work equals the amount of

$ 1,457,047.88 US (One Million Four Hundred and Fifty Seven

Thousand Forty Seven Dollars 88/100 Currency of the United

States) plus VAT.

In accordance with the above, an increase is presented with respect to

the original amount of the Price of the Agreement in the portion

related to the Catalog of Unitary Prices, in the amount of $

1,718,192.96 Dollars (One Million Seven Hundred and Eighteen Thousand

One Hundred and Ninety Two Dollars 96/100 Currency of the United

States), which represents a 2.61 % (two point sixty one per cent) of

increase with respect to the original amount of the Price of the

Agreement in the portion related to Unitary Prices and a 11.43 %

(eleven point forty three per cent) accumulated with respect to the

original amount of the Price of the Agreement in the portion related to

Unitary Prices, as a result the total amount of the portion regarding

the Unitary Prices of the Agreement, in the amount of US $

73,292,536.81 Dollars (Seventy Three Million Two Hundred and Ninety Two

Thousand Five Hundred and Thirty Six Dollars 81/100 Currency of the

United States) plus VAT.

I.6 That Clause 11 "Adjustment of Costs" of the Agreement provides as

follows:

The COMMISSION and the CONTRACTOR acknowledge that the portion of the

works covered by the Agreement under the modality of payment of unitary

prices,

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

this is, the Activities at Unitary Prices, shall not be subject to the

adjustment of costs established in the Law of Public Works and Services

Related to the Same and its Regulations because the quotation for such

works derives from the basic elements of cost valued in Dollars, and

therefore the CONTRACTOR expressly waives the right to adjustment of

costs to the price of the aforementioned works. Said works shall only

be subject to adjustment of costs in accordance with the guidelines

issued, if applicable, by the Ministry of the Comptrollership and

Administrative Development, in accordance with that established in

Article 59 of the Law of Public Works and Services Related to the Same.

The COMMISSION and the CONTRACTOR acknowledge that portion of the works

covered by the Agreement under the modality of lump-sum price, this is

the Lump-sum Activities, shall only be subject to costs adjustments in

accordance with the guidelines issued, if such is the case, by the

Ministry of the Comptroller and Administrative Development, in

accordance with that established in Article 59 of the Law of Public

Works and Services Related to the Same.

I.7 Article 59 of the Law of Public Works and Services Related to the same

provides in its third, fourth, fifth and sixth paragraph, as follows:

The lump-sum agreements or the portion of the mixed ones of this kind

shall not be modified in their amount or term, nor shall they be

subject to any adjustment of costs.

However, in the event that following the awarding of a lump-sum

agreement or the portion of the mixed ones of this kind, economic

circumstances of general nature may arise without the responsibility of

the parties and therefore they could not have been subject matter of

consideration in the tender that served as basis for the awarding of

the correspondent agreement; such as, among others: fluctuations in the

exchange rate or changes in the national or international prices that

result in the direct increase or reduction in the costs of the raw

materials necessary for the

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

works not yet executed in accordance with the originally agreed

schedule; the agencies and entities shall recognize the increases or

request reductions.

The provisions of the above paragraph shall be governed by the

guidelines issued by the Comptrollership; same that shall consider,

among other matters, the mechanisms available to the PARTIES to face

these situations.

Once the potential modifications to the corresponding agreement are

determined, the timely execution of the agreements shall be the

responsibility of the corresponding agency or entity.

I.8 On May 21, 2004, the Ministry of Public Office published in the

Official Gazette of the Federation, the Order that provides the

guidelines to conduct the review and adjustment of the price of Steel

in the agreements and orders formalized under the Public Works Laws and

Services Related to the Same, and the Acquisitions, Leases and Services

of the Public Sector and its Regulations (hereinafter the

"Guidelines"), same that became effective on the day following its

publication and for a term of six months as of the date in which they

became effective, to be applicable only for purposes of recognizing the

change in the price of Steel in the relevant participation that

corresponds to this concept regarding the total amount of the

agreement. The adjustments shall be calculated as of the month of

November 2003 regarding works not yet executed, according to the

current Execution Schedule or, in the event of delay not attributable

to the CONTRACTOR, with respect to the agreed upon schedule.

For purposes of the Guidelines it is understood by "Steel" the

different presentations of the aforementioned metal, among others,

slabs, rolled-shape, extrusive angles, corrugated bar, rustles, etc.

<PAGE>

FEDERAL COMMISSION OF ELECTRICITY

AGREEMENT NUM. PIF-005/2003

CONTRACT NUM. 4 (FOUR)

Said Order in its first three paragraphs of the portion of the

considerations establishes that as of December 2003 the price of the

Steel in its several presentations has been increasing constantly and

unforeseeable in the market ranging such increases from 20 % to 50 %.

That such event has had an impact on the public works agreements under

completion in which the raw material of Steel and its different

presentations represents at least 10 % of the total amount of related

operations and contracts not being this a limitation because in

accordance with official communication UNAOPSPF/309/BM/1460/2004 said

10 % is only enunciatively in the consideration, thus the

entrepreneurial chambers, suppliers and contractors, as well as the

governmental agencies and Entities involved in the problematic filed a

petition to the Ministry of Public Office stressing the need of

establishing the correspondent guidelines and normative mechani

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates