“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 JironZorritos No. 1203, Lima 1, whom hereinafter shall be referred to as "the Grantor", represented by Mr. Juan Carlos Mejia Cornejo, 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:
1.1.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.
1.2.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.
1.3.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.
1.4.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.
1.5.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.
1.6.By Ministerial Resolution N° 337-2014-MTC/03, published on June 12, 2014, the MTC:
1.6.1.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;
1.6.2.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.
1.7.By agreeementProInversión 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.
1.8.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
1.9.By agreeement of ProInversión N°-2015-CPC, of the Steering Council of ProInversión dated …… …………. 2014 was approved this contract.
1.10.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.
1.11.By Ministerial Resolution N° ...... -2015-MTC/03 was authorized Mr. Juan Carlos Mejía Cornejo, in order that, on behalf of the Ministry of Transportation and Communications, subscribes this contract.
1.12.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 contractor 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 andis 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 personor 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 signof 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 Textof 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 Organismof 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 embodiedin 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.