Professional Documents
Culture Documents
Authored by:
2008
i
Acknowledgment
The completion of this work has entailed a lot of time, work, and dedication.
Nonetheless, witnessing this work bloom from a few words into an array of
chapters has been most fulfilling. I thank the Almighty One for lighting my path
towards this achievement.
Truly, this work would not have been completed on my own, if not for the
help of other wonderful individuals, who, in addition to their patience, have spared
a few moments of their precious time and have shared unquestionable brilliance in
their respective fields. This work, more than being my own, is equally theirs. To
the following I most graciously submit my whole-hearted gratitude:
Abstract
Models for privatization have been structured in order to address the national
policy of privatizing State-owned enterprises, as demonstrated by the past
administrations. A case of contracting with private companies where the
concessionaire acts as a mere agent for the public utility calls an extensive
examination on its legal consequences. When the provision of water services, a
public utility, was privatized by the government, is it legal for the government thru
the MWSS to award it to a private entity through a regular contractual
arrangement instead of the usual award of franchise? When the government
contracts-out the operation of MWSS through a concession agreement, are the
concessionaires considered as the public utilities themselves or mere agents of the
principal public utility, MWSS? Consequently, is a concession agreement
compatible with the law on agency? What are the legal consequences when the
concessionaires are considered as public utilities themselves?
After extensive research, the author finds, in accord with law and
jurisprudence, that a franchise or a certificate of public convenience or certificate
of public convenience and necessity are not at all times required for the operation
of the MWSS Concessionaires. First, the MWSS Charter allows it. Second, the
National Water Crisis Act has allowed the President to privatize the MWSS without
any restriction. Lastly, the Concession Agreements would allow the model to fall
under the exceptions provided under the Public Service Act. Moreover, the
Supreme Court held in the case of Albano v. Reyes that franchises issued by
Congress are not required before each and every public utility may operate. In
addition, waiting for a legislative franchise to be passed in order for a public utility
to operate will require unreasonable amount of time.
The author also concludes that the concessionaires cannot be considered as
agents under the MWSS Concessionaire Agreements. An agency agreement is
incompatible with contracting-out the functions of a public utility because the
agents, as operators, must be personally liable under public utility regulations even
if they act within the authority vested by the principal. Consequently, as public
utilities themselves, the concessionaires are personally bound by public utility
regulations. Thus, each of the concessionaires is mandated by jurisprudence to set
its rate of return to 12% of the present market value of its assets actually devoted to
public service. They are not allowed to charge income taxes paid as part of
operating expenses as held in the 2002 and 2003 cases of Republic v. Manila
Electric Company. They are also subject to the requirements, conditions, and
consequences provided in Section 11, Article 12 of the 1987 Philippine
Constitution. They are subject to the Commission on Audit’s authority to audit
public utilities. Lastly, the concessionaires are also within the purview of Sections
17 and 18 of Article 12 of the 1987 Philippine Constitution pertaining to public
utility take-over and industry nationalization, respectively.
iv
TABLE OF CONTENTS
D. Methodology ------------------------------------------------------------ 7
-- Antoine de Saint-Exupery,
From Wind, Sand and Stars, 1939
1
Chapter 1
Introduction
with private companies where the concessionaire acts as a mere agent for the public
System (“MWSS”) and its concessionaires. Manila Water Inc. (“Manila Water”) is
one of the two concession companies operating Manila’s privatized water and
public utility, it is but mandatory that the contract be scrutinized by all legal means
so as not to circumvent the spirit behind each and every law that aims to protect the
people and promote public good. Such is the case as regards public services. As an
emphasis, it must be noted that public interest should not be abrogated. It is the
promotion of public good, and not the interest of the few that matters.
On December 6, 1995, President Fidel Ramos signed Executive Order No. 286,
Executive Order No. 311 authorized MWSS to enter into arrangements that will
2
result in the involvement of the private sector in any or all segments of MWSS'
operations. It was December of that year when the President finally approved the
Concession Agreements with Manila Water and Maynilad (collectively called the
operations.
Article 2.1. Grant of Concession. On the terms and subject to the conditions set
forth herein, MWSS hereby grants to the Concessionaire, as contractor to perform
certain functions and as agent for the exercise of rights and powers under the
Charter, the sole right to manage, operate, repair, decommission and refurbish the
Facilities in the Service Area, including the right to bill and collect water and
sewerage services supplied in the Service Area (the “Concession”). …
…
Article 7.2. Easements, Eminent Domain, Right of Way and Similar Powers.
MWSS hereby appoints the Concessionaire as its agent and representative, for
purposes of, among others, Section 3 (K) of the Charter in its name, place and
stead, to apply for and exercise its easement, eminent domain, right of way and
similar rights and powers given to MWSS under its Charter in connection with
infrastructure projects and works undertaken relating to the Concession by the
Concessionaire in the Service Area pursuant to this Agreement. The
Concessionaire shall be solely responsible for the payment of any compensation to
third parties occasioned by the exercise of such rights and powers.
However, on June 29, 2006, a legal issue was raised regarding this type of
concession agreement when water advocates and some lawmakers, led by the
Freedom from Debt Coalition (“FDC”), filed a special civil action for certiorari and
prohibition with prayer for issuance of preliminary injunction and application for
temporary restraining order. The petition sought to invalidate the MWSS Board of
as agents of MWSS, on the basis that, under the law, the two Metro Manila water
concessionaires are in fact public utilities and not mere contractors and agents of
are mere agents and contractors poses three negative effects on the public: 1
they should have been allowed under the 12 percent limitation on profit
margin of public utilities. This cap on rate of return is stated under Section
12 of the MWSS Charter. The impact of this can be easily seen in Manila
Water that would walk away with P281 million. This is the monetary
of the allowable 12% for public utilities for the year 1999 alone.
1
“FDC to Ask SC Invalidate MWSS Board Resolution,” Freedom from Debt Coalition Press
Statement, June 27, 2006.
4
taxes to their consumers. This means that Manila Water and Maynilad add
Regulatory Office (“RO”) stood by what the law prescribed, water rates in
3. Lastly, having been stripped of their public utility character, the two water
utilities may invoke this in refusing to extend any service to anyone within
This study aims to address the issues posed by the FDC regarding investments
1. When the provision of water services, a public utility, was privatized by the
award of franchise?
on agency?
3. What are the legal consequences when the concessionaires are considered as
Every business is affected with a public interest to some extent and consequently is
so peculiarly affected with a public interest that they have been subjected to far-
“public utilities.”2
There is a need to address the issues on economic reform vis-à-vis the need
to provide quality public services to the people. The issue is compounded with the
necessity to address the profitability of public services for people who intend to
invest in the public utility sector. Obviously, there can be no privatization without
the participation of the private sector. Given the pressure from the International
2
HERMAN HENRY TRACHSEL, PUBLIC UTILITY REGULATION 3 (1947).
6
coat the public service business in order to attract investors from the private sector.
contracting agreements would entail an analysis of the legal aspects involved and
the possible legal implications upon the determination of their validity. In a country
where its own government has been a chronic nullifier of its own contracts, a
economic disaster.
On the other hand, the law must reign supreme amidst the clamor to bend
rationality for the sake of saving the economy. The public good must still prevail.
The main issue is the applicability of the law. However, as an afterthought, there
also need not be a bending of the law to accommodate the economy where there is
continues its policy of devolving its functions. The determination of whether or not
the functions of MWSS will clarify the requirements in getting into the business of
sector. Upon the determination of the issues posed, an investor would be well-
informed about the possible legal consequences one might encounter. Whether the
resolution of the issues posed be in the affirmative or in the negative, this is all but
a win-win situation where the government clarifies the legal implications of the
business and the investors being equipped with the right information in order to
weigh the pros and cons of the investment, allowing a more plausible and sound
business judgment. This approach is more in line with the long term plans of the
decision would reverse what has been agreed upon in a concession agreement by
Concession Agreements. This is plain exercise by the State of its police power with
the view of regulating businesses involving public interest and public services.
Methodology
The author, in endeavoring to address the issues posed in the objectives of the
study, has conducted research in the library by using the Supreme Court Report
Annotated, the Philippine Reports, and other books available on the topic of public
Internet research was also conducted with the use of the Ateneo de Manila
among others. Also, the website of the Supreme Court of the Philippines has been
The website of the Metropolitan Waterworks and Sewerage System (“MWSS”) has
proved to be very helpful. The website of the Freedom from Debt Coalition was
very useful in pointing the issues raised against the MWSS Concession
Agreements. Among the other websites visited were those of the World Bank, the
and the MWSS Board of Trustees also proved to be very helpful in giving light to
the answers that will address the issues in this study. Interviews with Certified
Public Accountants were conducted in order to enlighten the author about the
Agreements. Professors from the Ateneo Law School were also interviewed in
order to get their opinions about the issues posed in this study. The author also tried
circumstances,3 the author was unable to conduct interview with anyone from the
OGCC.
The study focuses on the legality of principal-agent contracted out operations in the
water public utility sector, particularly the Concession Agreements between MWSS
and its concessionaires Manila Water and Maynilad, as this is the only contract of
such character in the Philippine public utility sector. The study does not question
MWSS Concession Agreements and does not cover other forms of agreement with
other local water districts in the Philippines. It does not aim to cover other forms of
MWSS, which is said to be the principal public utility, and the performance of
MWSS operations without the grant of a legislative franchise. Thus, the study is
limited on the issues posed in the objectives of this study. The consequences
pertained in objective number three (3) shall be limited to the application of the
12% cap on the rate of return, the application of the Republic v. Manila Electric
3
It was the OGCC’s outing when the author went to its office.
10
nationalization of industries.
The next chapter shall dwell on defining a public utility, which up to this
relationship between private companies and public companies when the latter
contracts out its functions to the former, in providing service to the general public.
public utility.
operation of a public utility. It also dwells on a discussion about the legality of non-
procurement of a franchise.
Finally, Chapter 6 shall delve on the analysis of the MWSS model for
11
privatization and the issues questioning its legality. The author aims to give an
Chapter 2
Privatization in General
gateway for investors to the Asian market. It is also a favorable base for Asia-
Pacific expansion programs. The large workforce is skilled and well educated.
foreign capital and technology to supplement local resources. Its affiliation with the
into the large ASEAN Free Trade Area (“AFTA”), which constitutes a large
for more than 40 percent of world trade. It has a ready supply of highly skilled and
From the foregoing, it can be gleaned that the Philippines has the potential
to be a hotspot for both regional and global investors. Presently, the Philippines
sustains fiscal adequacy and economic growth through economic reforms, bilateral
agreements with other nations, and overall structural adjustment reforms. One of
4
Doing Business in the Philippines, Makati City: Pricepowerhousecoopers, 2002.
13
countries. Privatization became more attractive with increasing evidence that many
SOEs are loss-makers rather than revenue generators. Studies by the Work Bank
utilities and transportation, and to dispose of waste, has been quite limited in most
contracting with private organizations to help provide services that public agencies
firstly for fiscal deficit and secondly for free-market economy reasons.7
5
JOSEPH PROKOPENKO, MANAGEMENT FOR PRIVATIZATION: LESSONS FROM
INDUSTRY & PUBLIC SERVICE 3 (1995).
6
Id., at 18.
7
MATSUSHIRO KAGAMI, PRIVATIZATION, DEREGULATION, & INSTITUTIONAL
FRAMEWORK 1 (1999).
14
addressing the need for the elimination of non-performing assets and in providing
better services to the people. Several modes of privatization may be entered by the
on the peculiar circumstances that the parties may consider in each case.
The World Bank surveys the nationwide trend towards privatization which
has been observed since the late 1970s. They highlight the huge scale of the
transfer of assets involved and the enormous potential for such liberalization in
o First, the program must be politically desirable in the sense that the political
leadership must see benefits for itself and its own constituents.
8
MICHAEL POLLITT, A Survey of the Liberalization of Public Enterprises in the UK since 1979,
in MATSUSHIRO KAGAMI, PRIVATIZATION, DEREGULATION, & INSTITUTIONAL
FRAMEWORK 129 (1999).
15
o Third, there must be political credibility such that losers will be compensated
the national state in providing needed services for modernizing sectors of the
technologies has promoted reforms in terms of reducing entry costs, creating new
the peculiar needs of the government. Some countries would privatize some SOEs
in order to satisfy the International Monetary Fund (IMF), the World Bank and
regional development banks in their effort towards the attainment of their overall
On the other hand, there are also domestic challenges that would push
9
Emelyn C. Cabanda, Privatization Reforms in the Philippines: Evidence from Utility and Airline
Sectors, available online URL http://www.aasianst.org/absts/2005abst/Southeast/se-179.htm
(Accessed 30 May 2007).
16
following:11
2. In both advanced and developing countries, there has been growing public
grown rapidly over the past two decades, increased participation of the private
water, housing, utilities and transportation, and to dispose of waste, has been
4. Throughout the world it has become evident that many state enterprises have
10
PROKOPENKO, supra note 5, at 5.
11
Id.
17
not only been inefficient and unproductive, but have been “loss-makers”,
draining the state treasury of scarce financial resources by incurring deficits and
requiring subsidies.
5. A long period of worldwide recession during the late 1980s and early 1990s has
burden of expanding services and infrastructure alone. The same situation has
assistance.
the World Bank indicate that by the beginning of the 1980s, SOEs in developing
payback periods;
or cheap services for political reasons, preventing the SOEs from recovering
Inefficiencies in SOEs arose not only from the lack of competition but also
from the absence of checks and balances inherent in private ownership: the
efficiency, the pressures that capital markets exert on companies to allocate scarce
resources economically and to operate within “hard budget” constraints, and the
pressures that managers who are responsible to shareholders and directors exert on
14
PROKOPENKO, supra note 5, at 7.
19
Less intervention from state or government in market mechanism has become the
main economic philosophy and has been pursued in the different corners of the
Advantages
o Improved services;
o Temporary asset sales income to the government (which helps reducing fiscal
deficits).
Disadvantages
15
KAGAMI, supra note 7, at 2.
16
Id.
20
Philippines under Presidential Decree No. 202917, but it was only under the Aquino
Constitution specifically provides that the State recognizes the indispensable role of
the private sector, encourages private enterprise, and provides incentives to needed
investments.19
Presidential Decree No. 2029 provides that “It is recognized that private
enterprise shall play the primary role in undertaking desirable economic activities,
17
Presidential Decree No. 2029, entitled “Defining Government-Owned or Controlled Corporations
(GOCCs) And Identifying Their Role in National Development,” gave the statutory definition of
GOCCs and the privileges and exceptions afforded to such corporations in line with the
government’s privatization policies. It was signed into law and effective on 04 February 1986.
18
Proclaiming and Launching a Program for the Expeditious Disposition and Privatization of
Certain Government Corporations and/or the Assets Thereof, and Creating a Committee on
Privatization and the Asset Privatization Trust, Proclamation No. 50 (1986).
19
PHIL. CONST. art II, §20.
21
also the policy of the State to encourage the participation of and to avoid
competition with private enterprise in economic activities. For this purpose, the
areas of operation appropriate for the government corporate form shall be defined.”
Under Proclamation No. 50, it was provided, as a state policy, that the State shall
promote privatization through orderly, coordinated and efficient program for the
The solution to the severe power shortages arose largely out of the
20
ShyAnne T. Juan, Analyzing the Philippine Privatization Policy & its Implication on Human
Rights Violations, Juris Doctor, Ateneo de Manila University (2006).
22
starting with “fast-track” projects. Executive Order No. 215, promulgated in 1987,
laid the basis for the entry of the private sector into power generation, which had
been a monopoly of the National Power Corporation (“NPC”), while Republic Act
The Declaration of Policy under Republic Act No. 6957,22 enacted in July 9,
1990, provides that, “It is the declared policy of the State to recognize the
indispensable role of the private sector as the main engine for national growth and
private resources for the purpose.” The law provided for two modes of private
hereby authorized to enter into contract with any duly prequalified private
21
Benjamin S. Austria, Development of the Energy Industry in the Philippines, available online
URL www.adb.org/Documents/Conference/CAREC/Energy/chap11.pdf (Accessed May 30, 2007).
22
Republic Act No. 6957 entitled, “An Act Authorizing the Financing, Construction, Operation, and
Maintenance of Infrastructure Projects By the Private Sector, and For the Other Purposes.”
23
forth.”
The foregoing law was amended by Republic Act No. 7718 in May 5, 1994.
the “build-and-transfer scheme” provided in Republic Act No. 6957, such as Build-
and Rehabilitate-own-and-operate.
Through the BOT approach, the Government was not only able to mobilize
projects over a shorter period of time. Hard currency financing included export
credit agencies, commercial bank debt, and equity from sponsors and investors.
Domestic capital was mobilized through the stock market. Domestic credit was
available as dollar debt from local banks, peso debt from insurance companies
and/or commercial paper market, and peso financing from local banks for peso
industry and created Republic Act No. 7925, otherwise known as the Public
playing ground for all companies. The Act was defined as the new legal, policy,
23
Austria, supra note 21.
24
Act covers all telecommunications entities, protects users' rights, increases the roll-
out period from five to three years, enforces the deregulation of value-added
facilities by 1998.25
Included in the first wave of privatization were the surrendered and sequestered
assets from the friends and relatives of deposed president Ferdinand Marcos.
Government ended up funding all these operations at a loss. With the country at
Government, in its dire need of cash, decided to cut its losses and resell these
companies.
o The Second wave included the privatization of the power sector and the
24
MCI WorldCom, Quantum DDB Philippines Inc. Brand Review, April 15, 1999.
25
IT Action Agenda for the 21st Century, The Dynamics of the Information Technology Industry in
the Philippines, National Information Technology Council, October 1997, available online URL
http://www.neda.gov.ph/IT21/IT21Final%20Text%20(Web).htm (Accessed December 9, 1999).
26
Lauro Ortile, Privatization in the Philippines, available online URL
www.adb.org/Documents/Conference/CAREC/Energy/chap15.pdf (Accessed May 30, 2007).
25
o The Third wave is what the country is experiencing at present – housing, health,
postal services, and pension funds. These are very delicate areas, so now the
services.
(GOCCs) that were fully privatized, 29 partially privatized, and 25 are in the
On the basis of the Medium Term Philippine Development Plan for 2001-
power, and water is encouraged through partial or total cost recovery from user
competition and at the same time ensures public welfare, safety, and environmental
operations and management mainly to the private sector. In line with this, the
infrastructure projects, creating and enhancing the framework for private sector
27
Cabanda, supra note 9.
26
by the price system in the push for equitable growth. Private enterprise nurtures
to reduce the cost of doing business and permit even microenterprises and SMEs to
world markets. Other bottlenecks to investments are being removed. High electric
power rates are taken care of by the privatization of power generation under the
Electric Industry Reform Act of 2001 which, after nine years, was finally enacted
into law under the Macapagal-Arroyo administration. The government, at both the
National Food Authority (NFA) is also being pursued. Private sector participation
is being sought in the rail transportation sector while privatization in the water
sector is also being further pursued. Financing policies in the water and in rural
27
public sector.
will improve the turnaround time of shipment and cargoes while rationalized rates
will reflect the cost of providing the service. Executive Order No. 59 is being
consultation with the private sector to liberalize port management policies and
Foreign air carriers are also being encouraged to operate in the Philippines under
bilateral agreements and in accordance with existing laws to ensure that adequate
and affordable international air services are provided. A comprehensive strategy for
formulated.
regulators), which shall have jurisdiction over all ports. Commercial decision-
for the privatization of individual ports or groups of ports. The government pursues
the amendment of the PPA charter to address, among other things, the dual role of
28
Chapter 3
The Public Utility
Most of the SOEs being privatized are in the nature of public utilities such as those
addition to defining the nature of a public utility, the author discusses the role of
the private sector in the privatization of public utilities vis-à-vis the importance of
There is no set of formula that can be used to distinguish a public utility from other
business undertakings. No definition has been formulated that will include all the
businesses which have been classed as public utilities and at the same time exclude
all of those that are not generally considered as such.28 The courts have recognized
a broad distinction between what are considered as private business and business
that is “affected with a public interest.” There has been, however, considerable
characteristics of a business are that bring it within the scope of businesses affected
28
TRACHSEL, supra note 2, at 3.
29
Id. at 4.
30
to regulation as a public utility, only when and to the extent that the business of
such corporation becomes devoted to a public use.30 The business and operations of
a public utility are imbued with public interest. In a very real sense, a public utility
indispensable to the interest of the general public. For this reason, a public utility
greater good. Privatization of public resources injects new value into public assets
investment and/or management for water supply and wastewater treatment, there is
30
North Negros Sugar Co. v. Serafin Hidalgo, 63 Phil. 664, 688 (1936).
31
Wood, Randall S., The Privatization of Public Utilities: What are the Gains? Why the Popular
Opposition? (2004).
31
a need of attractive contracts for the private sector. These attractive contracts
should be comparable with the other opportunities available for the private sector.32
risks for the private sector are multifold, as the recovery of tariffs is sometimes a
political issue and there may not be enough judicial help to recover the charges or
to terminate the services to the communities.33 Not only are they exposed to public
and labor protest, but more importantly, they are bound by a contract (whether a
concession, franchise, or other form of contract) and the law, that straps on their
shoulders the big responsibility of providing adequate and quality public service to
business. Behind the risks lies the opportunity to gain big profits, considering the
big number of clientele that have no choice but to avail their services. Since public
utilities are usually monopolies, such as the provision of water, sewerage services,
brought about by fiscal inadequacy and pressure from different international credit
will always be around the corner. Such offers, with the promise of an enormous
32
Mushtaq Ahmed Memon, Public-Private Partnerships for Urban Water Supply and Wastewater
Treatment: An overview of the concept of PPP and its applications for urban water, available
online URL www.iges.or.jp/kitakyushu/mtgs/seminars/theme/ppp/4.%20Analysis.pdf (Accessed
May 30, 2007).
33
Id.
32
number of clientele and guaranteed return of investments, are simply too good to
ignore, business-wise.
In nearly all developing countries, central or local governments are contracting with
private organizations to help provide services that public agencies cannot offer
efficiently or effectively.34
Significant private sector participation will require a change in the role and
functions of the public sector, from the sole provider and operator to a partner, or to
are insufficient incentives to ensure that public investments meet the test of
economic efficiency for the provision of services. Evidence from other countries
mechanisms, the private sector can play an effective role in meeting financing
needs and ensuring quality in terms of both investment and operations of urban
infrastructure.36
34
PROKOPENKO, supra note 5, at 6.
35
Bruce Murray, Opening Remarks, during the Forum on Private Sector Participation in Public
Utilities, Beijing 2002.
36
Id.
33
partnerships can take many forms, depending upon the exact allocation of risks and
responsibilities. Given that the host authorities are willing to accept private
the hoped-for benefits can in principle be achieved regardless of the entry mode of
telephone companies have been privatized in Latin America and parts of Europe
and Central Asia but much less in other regions. Overall, divestitures of
government assets have in the past been slightly more important than greenfield
projects, and much of the recent decline in investment can be explained by the
within this sector has held up better, averaging US$ 19 billion in each of the past
which offers mobile phone services and has sidestepped many of the constraints
The energy sector has seen the largest number of projects over the period
prominently. Once again, Latin American countries have been more prone to
privatize state assets while Asian countries have mostly invited greenfield ventures
in the form of independent power producers (IPPs) to satisfy their growing energy
demands. In electricity, 70 per cent of all investment has gone into generation
alone, with another 13 per cent going into integrated utilities or some combination
privatization.39
The transport sector represents only 16 per cent of total investment but 27
per cent of projects. One half of this investment has gone into toll roads, with the
concessions are by far the most important form of PPP in this sector, owing partly
to the political sensitivity of transferring public assets to the private sector. In the
of existing roads rather than the construction of new networks. Divestitures have
been rare and have mostly occurred in China where minority stakes were sold in
construction.
In the water and sewerage sector, the relative scarcity of projects stems
from both host government reticence and a lack of investor interest. Fears of a
39
Id. at 10.
35
political backlash against private ownership and the relatively greater role played
by sub-national governments have dampened enthusiasm for PPPs. The top eight
projects account for one half of all investment and the top two (Aguas Argentinas
and Manila Water and Wastewater) represented almost one third of total
investment. As in the transport sector, concessions are the most popular form of
Nevertheless, there have been some failures in PPPs. The reasons that PPPs
have sometimes performed below expectations vary from case to case. However,
one commonly heard complaint from host governments is that investors have
services. One commonly heard complaint from enterprises is that public authorities
have failed to provide an environment in which they can provide their services
according to sound commercial principles. The latter problem often manifests itself
as a lack of willingness by public authorities to accept the social and political cost
of private operators’ measures to boost productivity and set tariffs at market levels.
Also, PPP contracts have often been poorly written, weakly enforced (often against
the background of generally weak legal frameworks in the host country) and
consequence, private investors have often had to shoulder not only the commercial
risk of utilities projects, but for example also political risks (e.g. resistance from the
public and incumbent operators) that would most commonly have been borne by
40
Id. at 11.
36
Auctions are being used to dispose of thousands of small businesses in Central and
Eastern Europe and to offer shares in medium-sized and large SOEs in the Russian
Federation and in Latin American countries. Reformers argue that the auction
process has many advantages. First, it is a familiar, simple, open, and transparent
method for shifting resources from sellers to buyers. Second, it avoids the complex
problems of valuation because the auction determines the price buyers are willing
to pay. Third, the auction ensures that property is sold to those who value it most
and who have financial resources to develop and use it effectively. Fourth, the
auction allows buyers to determine the most efficient private use of the property.
Fifth, it allows market prices rather than political privilege to guide the allocation
of state assets.
A step beyond concessions is the full privatization of utilities' assets, which brings
41
Id. at 32.
42
PROKOPENKO, supra note 5, at 13.
43
Id. at 14.
37
with it both the benefits provided by the assumption of full commercial risk and the
regional water authorities in England and Wales in 1989 is the most prominent
example of this approach. The British government's decision to sell these assets
program the water authorities needed to undertake to meet the European Union's
structure, and the existence of highly developed local capital markets. While
successful in many respects, the privatization in England and Wales has been
criticized for leading to rapid and substantial increases in tariffs and an absence of
during 1997.44
In many countries, the government simply sells all or part of its ownership
state enterprises include: direct sale and stock offerings; management or employee
o Direct sale and stock offerings – The government of Argentina, for example,
has sold power plants that account for more than half of the country’s thermal
44
David Haarmeyer & Ashoka Mody, Private Capital in Water and Sanitation, available online
URL http://www.worldbank.org/fandd/english/0397/articles/0100397.htm (Accessed 01 June 2007).
38
Singapore, the Government privatized Telecom IPO, electric and gas utilities
Singaporeans who were required to hold shares for a specified period. The
objective was to increase the shareholding position of adult citizens from about
14 to 30 per cent and to give them a sense of ownership and interest in the
o Liquidation – Using this approach, the state sells physical assets belonging to
SOEs usually turn to this method when a state company cannot be sold in its
entirety or when some assets have value but the company as a whole does not.
Romania, as well as some Asian countries, are using “mass privatization” that
d. breaking up SOEs into divisions, some of which are divested while others
45
PROKOPENKO, supra note 5, at 18.
40
In nearly all developing countries, central or local governments are contracting with
private organizations to help provide services that public agencies cannot offer
contracts. These kinds of contracts will be further discussed in the next chapter.
Build-operate-transfer agreements
contractors finances the project, accomplishes the construction, and operates the
new facility for some specified length of time after which it is expected to transfer
As for traditional independent power projects, the cash flows for BOT
46
David L. Seader, The United States’ Experience with Outsourcing, Privatization and Public-
Private Partnerships, available online URL www.ncppp.org (Accessed 02 May 2007).
41
construction risk exists, the absence of market risk--and, hence, the relative
structured with more debt than full-utility concessions, whose cash flows may be
less predictable. Also, construction risks can be mitigated when a discrete facility
already generating cash flows is taken over for expansion by the private sector.
There was the case of the 20-year BOT contract in Johor, Malaysia that covers
responsibility for operating an existing treatment water plant and financing its
expansion. As a result of the attractive cash flow profile of the project, the state
local finance at reasonable rates, financing for the $284 million project was raised
transfer (BOT) contracts for specific water supply/treatment projects and full-utility
contrast, all facets of the system, especially distribution to consumers, become the
47
Haarmeyer & Mody, supra note 44.
42
capital.48
Joint Ventures
The public and private sectors jointly finance, own and operate a project to provide
Others
Besides the traditional spectrum of partnerships, there have been other ways in
which private sector resources have been incorporated into government programs.
For example, vouchers have been successfully used in the food stamp program,
where private grocers provide eligible families with foodstuffs and get payment
from the federal government in reimbursement for the stamps that the families use
for the purchases. Similar voucher programs have been used in subsidized housing
organizations provide social welfare, health, shelter, education, training and other
48
Id.
49
THOMSEN, supra note 37, at 6.
50
Seader, supra note 46, at 8.
43
services at the behest of government.51 In the Philippines, for example, the Catholic
Church has played an important role in supplementing the public education system
Other religious groups run hospitals and health clinics and provide social services
The shift in public policy over the last two decades away from state ownership and
state responsibility for the provision of services, to private ownership and private
provision with enhanced state regulation, is sometimes described as the rise of the
hand’ of the market being supplemented by the ‘visible hand’ of regulators.54 The
role of the public sector has gradually transformed from owner, planner and
market competition and safeguarder of public interests.55 In this regime the state
ceases to be directly concerned with the provision of goods and services and
51
Id.
52
PROKOPENKO, supra note 5, at 23.
53
G. Majone, From the Positive to the Regulatory State: Causes and Consequences of Changes in
the Mode of Governance’, 17 JOURNAL OF PUBLIC POLICY 139-67 (1997).
54
P.M. JACKSON & C. PRICE, PRIVATIZATION AND REGULATION – A REVIEW OF THE
ISSUES (1994).
55
Martinjin Kuit, Igor Mayer, & Martin de Jong, (Re)Designing Regulatory Regime for Utility
Sector (2004).
44
consumers from monopoly abuse. In cases where markets are oligopolistic or even
dominant position, the creation of cartels and in other ways to protect consumers
working conditions, product quality, the environment, health and safety and the
like.57
regulatory regime. The regulatory regime is used to monitor, and to a certain extent
control, the strategic behavior of producers, suppliers and others, under market
relevant public values such as safety and quality of utility production, products and
services.58
should concentrate on, as well as making sure the services are delivered by the
56
Paul Cook, Colin Kirkpatrick, Martin Minogue, and David Parker, Competition, Regulation, and
Regulatory Governance in Developing Countries: An Overview of the Research Issues 3 (2003).
57
Id. at 2.
58
Kuit, Mayer, & de Jong, supra note 55, at 2.
45
selling the country down the river, as long as these profits are earned through
services provided in a timely and adequate manner to help the growth of the
economy. The regulatory body should formulate ground rules at the outset. And
the regulatory body should also make sure that the investors do not take unfair
advantage of the host country just because the country needs the capital and the
expertise.59
Regulation by the state can take many forms, from regulating employment
terms, to health and safety legislation, to food safety, to regulating the environment,
to regulating specific industries, and so on. In recent years with the privatization of
(ii) Ensure the right amount of investment and regulate natural monopoly
(iii) Provide efficient protection for other public policies and public interests
such as universal service and access to these vital public or private services,
and so forth.
effects of regulation on the economy are related to the degree of ‘regulatory risk’
created. Whereas competitive, unregulated markets are associated with the normal
businesses fearful of current and future regulatory decisions. Where regulatory risk
return leading to a higher cost of capital. The higher the cost of capital, the lower
will be the rate of investment.62 Where regulatory risk becomes very high private
investment may even collapse. Lower income economies with poorly developed
with high regulatory risk.63 This is an important reason for the study of regulation
62
J, L. Guasch & R.W. Hahn, The Costs and Benefits of Regulation: Implications for Developing
Countries, 14 WORLD BANK RESEARCH OBSERVER 1, 137-58 (1999).
63
B. LEVY & P. SPILLER, REGULATIONS, INSTITUTIONS AND COMMITMENT (1996).
47
the form of administration that the regulation takes. Regulatory instruments are the
tools and techniques that the regulator uses in the pursuit of effective regulation. In
particular, utility regulators will be concerned with the setting of prices and/or
profits in the regulated business and with the quality of service. Although various
differences exist in the precise instruments used, the approach to price and profit
regulation tends to take one of three general forms, namely cost of service
(i) The open systems model emphasizes the risk taking and innovating
(ii) The rational goal model pictures the regulator as goal oriented and
competitive.
(iii) The internal process model is in line with the traditional regulatory regimes
(iv) The human relations model assumes that organizations and people are
64
Cook, Kirkpatrick, Minogue, and Parker, supra note 56, at 15.
65
Id. at 16.
66
Kuit, Mayer, & de Jong, supra note 55, at 4.
48
(v) The legislative policy making model: this model portrays the regulator as an
information. The regulator has to interact with the market parties to get this
market information.
(vi) The regulation by information model: in this model the regulator provides
conflicts.
In appraising the regulatory governance, there are six criteria used by the
the crucial dividing line between (a) Government and Ministries and the
regulatory agency and (b) the corresponding division between policy issues
67
Jon Stern, Private Interest v. Public Good: Governance Dimensions of Regulatory Frameworks
for Private Infrastructure Development, during the proceedings of an ADB/OECD Seminar, Geneva
1998.
49
(ii) Autonomy. This refers to the question of the degree of independence of the
(iii) Participation. The key point under this heading is that all relevant parties
regulatory process.
(iv) Accountability. The accountability criteria has been used to cover formal
accountability and legal requirements, e.g. to the law courts and the
informal accountability.
firms and consumers all need to have confidence that the regulators will
the game" and a belief that the rules of the game will not suddenly change
and undermine the basis under which investment decisions have previously
been made.
51
Chapter 4
Relationships Between the Public Utility and the Private Companies
in Contracting Out the Performance of Public Service
From the previous chapters, the author has provided a broad overview about
privatizing public utilities. As discussed, there are many modes wherein a public
In this chapter, the author will focus on a less broad mode of privatization –
contracting out the performance of public service to private companies. How is this
mode of privatization really done? Usually, a franchise is required for the operation
of a public utility. This is the traditional mode of contracting out public service
However, there are other equally valid modes of contracting out public service. The
evolved, as the granting of permission for the operation of a public utility devolves
Section 11, Article XII of the 1987 Constitution (adopted from Sec. 5, Art. XIV of
public utility and in requiring such franchise the operator must meet the necessary
52
“Franchises issued by Congress are not required before each and every public
utility may operate. Thus, the law has granted certain administrative agencies the
power to grant licenses for or to authorize the operation of certain public utilities.”
licenses for, or to authorize the operation of certain public utilities. With the
the legislature, and towards the approval of the practice by the courts. It is generally
recognized that a franchise may be derived indirectly from the state through a duly
designated agency, and to this extent, the power to grant franchises has frequently
pursuance of this, it has been held that privileges conferred by grant by local
68
Albano v. Reyes, 175 SCRA 264, 271 (1989).
53
though the grant had been made by an act of the Legislature. The trend of modem
legislation is to vest the Public Service Commissioner69 with the power to regulate
and control the operation of public services under reasonable rules and regulations,
and as a general rule, courts will not interfere with the exercise of that discretion
that no public service shall operate in the Philippines without possessing a valid
necessity," as the case may be, to the effect that the operation of said service and
the authorization to do business will promote the public interests in a proper and
of the Public Service Act is to allow the state to regulate, supervise, and control
private businesses imbued with public interest as termed “public services” such as
those involving any common carrier, railroad, street railway, traction railway, sub-
69
The Public Service Commissioners used to sit on the Public Service Commission created under
Commonwealth Act No. 146.
70
Philippine Airlines, Inc. v. Civil Aeronautics Board and Grand International Airways, 270 SCRA
538, 550 (1997).
71
Public Service Act, Commonwealth Act No. 146 [CA 146] (1936).
54
way motor vehicle, either for freight or passenger, or both with or without fixed
route and whether may be its classification, freight or carrier service of any class,
express service, steamboat or steamship line, pontines, ferries, and water craft,
railways, marine repair shop, warehouse, wharf or dock, ice plant, ice-refrigeration
plant, canal, irrigation system, gas, electric light, heat and power water supply and
The Public Service Commission was supposed to take care of all “public
services” since 1913. Its task was to make sure private entities rendering public
service (usually the public utilities) render safe, adequate and satisfactory services
to the public regulating entry and rate-setting. However, separate regulators for
Commission in 1927 and the Civil Aeronautics Board (now Air Transportation
transportation. In 1971, PSC was abolished and sectoral regulatory bodies were
72
CA 146, §13 (b).
73
Ledivina V. Cariño, Regulatory Governance in the Philippines Lessons for Policy and
Institutional Reform, available online URL www.competition-
regulation.org.uk/conferences/mcr05/carino.pdf (Accessed July 21, 2007).
55
Public Service Commission was abolished. The same Reorganization Plan, under
Part X, Art. III (8), created three different boards, to wit: Board of Transportation,
Service Commission and the Civil Aeronautics Board.” In view of the said
On the other hand, the Public Service Act further provides that public
entities or corporations.75 This provision of the law strengthens the argument that
the law’s intention is only to require private businesses involved in public services
service are usually governed by their own charters, and such can be considered as
74
CA 146, note 1, available online URL
www.erc.gov.ph/pdf/960_CA%20146%20Public%20Service%20Commission%20Act.pdf
(Accessed July 21, 2007)
75
CA 146, §13 (a)
56
but not when the operator is a GOCC, which already has a its own charter as
All public utilities are public services but the converse is not true. Whether one is a
that by nature a shipyard is not a public utility, reiterated the definition of a public
76
JG Summit Holdings, Inc. v. Court of Appeals, 412 SCRA 10, 20-21 (2003).
57
The fact that a business is affected with public interest does not imply that it
is under a duty to serve the public. While the business may be regulated for public
good, the regulation cannot justify the classification of a purely private enterprise
as a public utility. The legislature cannot, by its mere declaration, make something
a public utility which is not in fact such; and a private business operated under
private contracts with selected customers and not devoted to public use cannot, by
utility, since that would be taking private property for public use without just
compensation, which cannot be done consistently with the due process clause.77 It
may be pointed out that all public utilities are public services but the converse is
not true. This is so because the term “public utility” connotes public use and service
to the public.
A public utility requires a franchise, aside from a certificate of public necessity and
convenience, for its operation, while a public service which is not a public utility
flows from the enforced indeterminacy of the market for the service provided by a
77
Id. at 22.
58
public utility.78
the Philippines whenever the Commission finds that the operation of the public
service proposed will promote the public interests in a proper and suitable manner,
which courts and legal writers have drafted. Some statutes use the terms
"convenience and necessity" while others use only the words "public convenience."
The terms "convenience and necessity", if used together in a statute, are usually
held not to be separable, but are construed together. Both words modify each other
additional requirement but to modify and qualify what might otherwise be taken as
the strict significance of the word necessity. Public convenience and necessity
exists when the proposed facility will meet a reasonable want of the public and
supply, a need which the existing facilities do not adequately afford. It does not
78
NOLI C. DIAZ, TRANSPORTATION LAWS NOTES AND CASES 225 (2006).
79
Id. at 236.
59
authorization to a public service entity to operate, does not in any way modify the
nature of such certification, or the requirements for the issuance of the same. It is
the law which determines the requisites for the issuance of such certification, and
not the title indicating the certificate. 80 In other words, there is no more distinction
necessity.
certificate of public necessity and convenience, for its operation, while a public
convenience. All these requirements aim to regulate the business of a public utility
preceding topics, such businesses are imbued with public interest – thereby being
the rule that entities engaged in public service must procure a certificate of public
80
Philippine Airlines, Inc. v. Civil Aeronautics Board and Grand International Airways, 270 SCRA
538, 553 (1997).
60
warehouses; vehicles drawn by animals and bancas moved by oar or sail, and
tugboats and lighters; airships within the Philippines except as regards the fixing of
their maximum rates on freight and passengers; radio companies except with
respect to the fixing of rates; and public services owned or operated by any
With respect to the last exception, it is worth noting that there are several
modes when private entities intervene with the operation of public utilities by the
State, while the ownership of the public utilities remain with the State. This
situation causes the confusion on whether or not these private entities are also
exempted from the requirement imposed by the Public Service Act. Given the
ruling in Albano v. Reyes81 that the operation of a public utility does not necessarily
require a franchise and that the law has granted certain administrative agencies the
power to grant licenses for or to authorize the operation of certain public utilities, it
is safe to conclude that the contracts entered into by the private operator and the
government entity engaged in public service or public utility are equivalent to the
authorization by the State for the private entity to operate a public utility. These
81
Albano v. Reyes, 175 SCRA 264, 271 (1989).
61
Service Contracts82
The public sector retains the greatest degree of control over its services and
facilities when the private sector participates through a service contract. In service
as garbage pick up, billing and collection, janitorial services, etc. By allowing the
competition into a previously monopoly-driven area. The public can benefit from
along with private firms for the right to a service contract in a method called
“managed competition.” The existing employees submit a proposal the same as the
private providers, and they are evaluated on the same basis. This method is fraught
with difficulties and is often challenged by the private sector as inherently unfair,
process.
Management Contracts
82
Seader, supra note 46.
62
private partner operates a publicly owned facility under contract with the
the private operator is responsible for all aspects of operations and maintenance as
improved service and efficiency, but this option is still on the public end of the
spectrum as the private sector does not have a financial stake in the facility or
service, but rather is merely providing it. There are dozens of water and sewage
treatment plants in the U.S. that are operated on this basis, as well as hundreds of
services and facilities in all parts of the public sector, from education to sanitation
to public works. Some U.S. cities outsource their entire public works functions to
private service companies. This type of service provision is limited more by the
quadrant of the city to four separate private companies. In three phases, the
contractors are responsible for undertaking a census of the users and installing
meters, billing and collecting tariffs, and rehabilitating the system. They are paid
fixed fees by the government. Once the system is financially and operationally in
peso in December 1994 caused serious financial strain--since operator fees and
back.84
The private operator manages the services for a period (often five to fifteen years)
and is responsible for maintaining and renewing the facilities according to the
terms of the contract. In this capacity, it takes charge of all personnel and existing
assets but is not responsible for financing new facilities. The public authority
remains responsible for all new investment and compliance to existing norms. The
Guinea, a West African nation with a low per capita income, has achieved
solid improvements in its water systems under a lease contract with a private
operator. A subsidy arrangement was used to ease the transition to higher tariffs.
Recently, however, coordination problems with the government have resulted from
lack of clarity in the allocation of commercial risks. The high tariffs have also
Management and lease contracts have one major shortcoming: they do not
84
Haarmeyer & Mody, supra note 44.
85
THOMSEN, supra note 37.
86
Haarmeyer & Mody, supra note 44.
87
Id.
64
Concession
exclusive rights to operate, maintain and manage the entire system for an extended
period of time. The basic system is still owned by the public, but the private
placed on the private firm are contained in a concession agreement that details all
concession in effect. The concessionaire sets the rates for the service under the
provided, a concession arrangement will not work. For the rights to operate the
system and reap the profits from such operations, the private firm may be required
to pay an initial and/or annual concession fee to the government, and to commit to
certain levels of investment over the course of the concession period. The
concession yields total operational responsibility to the private consortium for the
length of the concession without transferring or selling the assets. The U.S
concession with a private consortium to upgrade, rehabilitate, and extend the entire
country's sewerage system. Although the estimated $2.8 billion contract was
88
Seader, supra note 46.
65
awarded in 1993, progress has been slow, primarily because of significant public
and commercial backlash from tariff collection and tariff increases. Malaysia's
experience points to the unique risk allocation issues raised by private provision of
retail sanitation services in instances where these services have never been centrally
provided before, the legal right to cut off service for nonpayment is absent, and
New World, a Hong Kong (China) based development company took over
condition that tariffs could not be increased. New World increased the income by
year, the government and New World invited Lyonnaise des Eaux to help them
improve water quality. Based on the negotiations, the concession contract, which
was not put to commercial tender, was signed in 1985 and runs for 25 years till
2010.90
construction risk. In addition, over time, an established utility can benefit from both
89
Haarmeyer & Mody, supra note 44.
90
Id.
66
horizontally, from a diversified asset base. By creating a more robust balance sheet,
these revenues may permit the utility to obtain financing internally as well as to use
91
Id.
67
Chapter 5
Foregoing the Requirement of a Franchise for the Performance of
Public Service by a Private Company in the Operations of MWSS
From the previous chapter, which treats a public utility in a general manner, the
author, in this chapter, focuses on the water public utility, particularly that which
discussions show that, at least in the Philippine setting, it is legal for the MWSS
“Franchises issued by Congress are not required before each and every public
utility may operate. Thus, the law has granted certain administrative agencies the
power to grant licenses for or to authorize the operation of certain public utilities.”
licenses for, or to authorize the operation of certain public utilities. With the
the legislature, and towards the approval of the practice by the courts. It is generally
92
Albano v. Reyes, 175 SCRA 264, 271 (1989).
69
recognized that a franchise may be derived indirectly from the state through a duly
designated agency, and to this extent, the power to grant franchises has frequently
pursuance of this, it has been held that privileges conferred by grant by local
grant the means by which a public utility may operate. A public utility may operate
11 of Article 12 provides:
clear that they neither have a franchise nor any certificate that grants them the
operation of a public utility, MWSS in particular. Hence, the means by which they
93
Philippine Airlines, Inc. v. Civil Aeronautics Board and Grand International Airways, 270 SCRA
538, 550 (1997).
70
are granted the authority to operate has been narrowed down, as per Section 11
discussions below explain such other forms of authorization that will justify the
This law was enacted on June 19, 1971. It created a government corporation to be
known as the Metropolitan Waterworks and Sewerage System. It’s declared policy
states that the proper operation and maintenance of waterworks system (the
potable water for domestic and other purposes and the proper operation and
maintenance of sewerage systems are essential public services because they are
vital to public health and safety. It is therefore declared a policy of the State that the
The System has jurisdiction, supervision and control over all waterworks
and sewerage system in the territory comprising the cities of Manila, Pasay,
Quezon, Cavite and Caloocan, and the municipalities of Antipolo, Cainta, Las
Pasig, Pateros, San Juan, San Mateo, Taguig, Taytay, all of Rizal Province, the
and Valenzuela.
The following powers, attributes, and functions were granted the system:94
a. To exist and have continuous succession under its corporate name for a term of
fifty (50) years from and after the date of the approval of the MWSS Charter,
notwithstanding any provision of law to the contrary: Provided, however, That at
the end of the said period, the System shall automatically continue to exist for
another fifty (50) years, unless otherwise provided by law;
b. To prescribe its by-law;
c. To adopt and use a seal and alter it at its pleasure;
d. To sue and be sued;
e. To establish the basic and broad policies and goals of the System;
f. To construct, maintain, and operate dams, reservoirs, conduits, aqueducts, tunnels,
purification plants, water mains, pipes, fire hydrants, pumping stations,
machineries and other waterworks for the purpose of supplying water to the
inhabitants of its territory, for domestic and other purposes; and to purify, regulate
and control the use, as well as prevent the wastage of water;
g. To construct, maintain, and operate such sanitary sewerages as may be necessary
for the proper sanitation and other uses of the cities and towns comprising the
System;
h. To fix periodically water rates and sewerage service fees as the System may deem
just and equitable in accordance with the standards outlined in Section 12 of the
MWSS Charter;
i. To construct, develop, maintain and operate such artesian wells and springs as
may be needed in its operation within its territory;
j. To acquire, purchase, hold, transfer, sell, lease, rent, mortgage, encumber, and
otherwise dispose of real and personal property, including rights and franchises,
consistent with the purpose for which the System is created and reasonably
required for the transaction of the lawful business of the same;
k. To construct works across, over, through and/or alongside, any stream, water-
course, canal, ditch, flume, street, avenue, highway or railway, whether public or
private, as the location of said works may require: Provided, That, such works be
constructed in such manner as to afford security to life and property and so as not
to obstruct traffic: Provided, further, That the stream, water-course, canal, ditch,
flume, street, avenue, highway or railway so crossed or intersected be restored
without unnecessary delay to its former state. Any person or entity whose right
may be prejudice by said works shall not obstruct the same; however, he shall be
given reasonable notice before the construction and shall be paid just
compensation. The System shall likewise have the right to locate, construct and
maintain such works on, over and/or through any street, avenue, or highway and
land and/or real rights of the Republic of the Philippines or any of its branches,
agencies and political subdivisions upon due notice to the office, or entity
94
MWSS Charter, Republic Act No. 6234, § 3 (1971).
72
concerned, subject solely to the condition that the street, avenue, or highway in
which said works are constructed be restored without unnecessary delay to its
former state unless otherwise agreed upon by the System and the office or entity
concerned;
l. To exercise the right of eminent domain for the purpose for which the System is
created;
m. To contract indebtedness in any currency and issue bonds to finance projects now
authorized for the National Waterworks and Sewerage Authority under existing
laws and as may hereafter be expressly authorized by law with the approval of the
President of the Philippines upon the recommendation of the Secretary of the
Finance;
n. To approve, regulate, and supervise the establishment, operation and maintenance
of waterworks and deepwells within its jurisdiction operated for commercial,
industrial and governmental purposes and to fix just and equitable rates or fees
that may be charged to customers thereof;
o. To assist in the establishment, operation and maintenance of waterworks and
sewerage systems within its jurisdiction under cooperative basis;
p. To approve and regulate the establishment and construction of waterworks and
sewerage systems in privately owned subdivisions within its jurisdiction;
q. To have exclusive and sole right to test, mount, dismount and remount water
meters within its jurisdiction;
r. To render annual reports to the President of the Philippines and the Presiding
Officers of the two Houses of Congress not later than January thirty-first of every
year.
industrial and governmental purposes and to fix just and equitable rates or fees that
transfer, sell, lease, rent, mortgage, encumber, and otherwise dispose of real and
personal property, including rights and franchises, consistent with the purpose for
which the System is created and reasonably required for the transaction of the
convenience and necessity because it now depends on the System how they will
nature according to the case of Albano v. Reyes. Entering into a contract with
in order to produce huge revenues for the government. Aside from the revenues to
be reaped, the government is virtually stripped of all the liabilities by the privatized
SOE including loans from banks and other financial institutions. In addition to that,
then Secretary of Public Works and Highways (DPWH) Vigilar, was the water
crisis being experienced by the country. Although nobody was really aware of this
fact, the President has anticipated that crisis after the earlier power crisis was
74
resolved. Through “Water Summits”, the public was made aware of the decades-
old problem of 50% “Non-Revenue Water”. This means that 50% of water coming
from the System goes to leaks, illegal connections, and other wasteful operations.
The President wanted the public to become aware of problems like this because the
people need to know that reforms are badly needed in this sector. This gave the
In February 1995, the National Water Crisis Act96 was being pushed by the
House of Representatives in order to solve the water crisis in the same way the
“Power Crisis Act” resolved the earlier power crisis. The proposed legislation was
quickly passed by the Lower House. In the Senate, however, it encountered rough
sailing. There were feedback that the Senate wanted to delete the provision on
granting of authority for the President to privatize water utilities, including MWSS,
contracts.97
It is hereby declared the policy of the State to adopt urgent and effective
measures to address the nationwide water crisis which adversely affects the health
and well-being of the population, food production and industrialization process.
Pursuant thereto the government shall address the issues relevant to the
95
MARK DUMOL, DIRECTIONS IN DEVELOPMENT: THE MANILA WATER
CONCESSION, A KEY GOVERNMENT OFFICIAL’S DIARY OF THE WORLD’S LARGEST
WATER PRIVATIZATION 10 (2000).
96
Republic Act No. 8041 (1995).
97
DUMOL, supra note 95, at 25.
75
water crisis including, but not limited to, supply, distribution, finance,
privatization of state-run water facilities, the protection and conservation of
watersheds and the waste and pilferage of water, including the serious matter of
graft and corruption in all the water agencies.
The law provided for the reorganization of MWSS and the criminalization
of water theft. More importantly, the law granted the President the power to
negotiate contracts for the water sector, without providing for any particular
procedure. In other words, it gave the President the discretion of choosing the
Within six (6) months from the approval of this Act, the President of the
Republic is hereby empowered to revamp the executive leadership and reorganize
the MWSS and the LWUA, including the privatization of any or all segments of
these agencies, operations or facilities if necessary, to make them more
effective and innovative to address the looming water crisis. For this purpose,
the President may abolish or create offices, transfer functions, equipment,
properties, records and personnel; institute drastic cost-cutting and other related
measures to carry out the said objectives. Moreover, in the implementation of this
provision, the prescriptions of Republic Act No. 7430, otherwise known as the
"Attrition Law," shall not apply. Nothing in this section shall result in the
diminution of the present salaries and benefits of the personnel of the MWSS and
the LWUA: Provided, that any official or employee of the said agencies who may
be phased out by reason of the reorganization authorized herein shall be entitled to
such benefits as may be determined by existing laws.
The President may upgrade the compensation of the personnel of the MWSS and
the LWUA at rates commensurate to the improved and efficient revenue
collection of the two agencies as determined by the Board of Trustees and the
same shall be exempted from the provisions of Republic Act No. 6750, otherwise
known as the "Salary Standardization Law," to take effect upon a reduction of
non-revenue water to forty percent (40%) and upon approval by the respective
board of trustees of the MWSS and the LWUA of their budgets.
This authority is broad because it does not provide for any procedure or
necessary, to make them more effective and innovative to address the looming
76
water crisis.” Thus, the only standard provided by the Legislature is “to make them
more effective and innovative to address the looming water crisis.” The next
other related measures to carry out the said objectives” merely pertains to the
Because of the water crisis, it is logical to conclude that the Legislature did
certificate of public convenience and necessity will take so much time as this
requires publication and hearings. Hence, the law gave broad discretion to the
President in addressing the water crisis the soonest time possible. The choice of
The contracts shall be awarded only to contractors with proven competence and
experience in similar projects, competent key personnel, efficient and reliable
77
Under this provision, the President is also empowered to enter into BOT
contracts and/or related schemes for the operation of water facilities. The term
“related schemes” may pertain to the different contracts mention in Republic Act
Section 5 of the law requires a franchise for the operation and maintenance of the
facility. It says:
of private sector participation. On the other hand, Section 7 provides for a broader
authority to the President. If Section 6 talks about the scheme prescribed for the
98
An Act Authorizing the Financing, Construction, Operation, and Maintenance of Infrastructure
Projects by the Private Sector, Republic Act No. 6957 (1990).
99
An Act Amending Certain Sections of Republic Act No. 6957, Entitled “An Act Authorizing the
Financing, Construction, Operation, and Maintenance of Infrastructure Projects by the Private
Sector, and for Other Purposes,” Republic Act No. 7718 (1994).
78
privatization of MWSS, it should have said so. Otherwise, privatization should not
have been mentioned in Section 7. In other words, Section 6 does not talk about
implemented through BOT and/or other related schemes. To the contrary, Section 7
is clearer in specifying the grant of the power to privatize “any or all segments of
not mention any specific method of privatization. With the looming water crisis, it
gave the President the discretion in choosing the best and most expedient mode of
privatization.
Executive Orders No. 286 and 311 in 1995 and 1996, respectively. These executive
private operators.
having been designed to streamline and correct dysfunctions in the structure and
operations of the MWSS and the LWUA to enable these agencies to become more
effective, efficient and responsive to the country's needs for potable water, as well
President Ramos ordered that “the reorganization of the MWSS and LWUA shall
Accordingly, the role of the national government shall be to steer rather than row. It
shall, to the extent possible, encourage the private sector to participate in the
facilities.”
operations in the water utility sector by ordering the involvement of the private
sector in any or all of the segments, operations, and/or facilities of the MWSS. It
also laid down the bases for privatizing MWSS such as R.A. No. 8041 (The
(iii) Republic Act No. 6957, as amended by Republic Act No. 7718, and its
implementing rules and regulations;
(iv) Such other laws, rules, orders, and/or proclamations as the MWSS may deem
appropriate.
All executive issuances, orders, rules and regulations, and/or similar issuances
inconsistent with this Executive Order are hereby revoked, amended or modified
accordingly.
This Order shall take effect immediately.
These Executive Orders were issued pursuant to the powers Section 7 of the
National Water Crisis Act of 1995 vested to the President. The decision of
privatizing MWSS through any means depended on the President, provided that the
scheme chosen would make MWSS “more effective and innovative to address the
from the state through a duly designated agency, and to this extent, the power to
grant franchises has frequently been delegated, even to agencies other than those of
a legislative nature.100 It can be argued that the power granted by the Section 7 of
the National Water Crisis Act delegated to the President the authority to grant the
regulatory mechanism of the public utility. Besides, the law has provided for a
100
Philippine Airlines, Inc. v. Civil Aeronautics Board and Grand International Airways, 270 SCRA
538, 550 (1997).
81
standard in the delegation of such power – to make the MWSS more effective and
constitutional as the following standards have also been held constitutional: “fair
education” as standard for the authority of the Board of Medical Education to set
rules for the closure of medical schools102; and “by the general policy of the law to
standard for the authority of the Energy Regulatory Board to fix domestic prices of
petroleum products103.
It may be true that the concessionaires do not have a franchise that gives
101
Eastern Shipping Lines v. POEA, 166 SCRA 533, 545 (1988).
102
Tablarin v. Gutierrez, 152 SCRA 730, 741 (1987).
103
Osmeña v. Orbos, 220 SCRA 703, 711-713 (1993).
104
People v. Quasha, 93 Phil. 333, 338-339 (1953).
82
authorization from the State to operate as such in the form of a concession, which
Commonwealth Act No. 146105, more commonly known as The Public Service Act,
was passed into law in November 7, 1936. It defined the powers of the Public
Service Commission when it provided that the Commission shall have jurisdiction,
supervision, and control over all public services and their franchises, equipment,
and other properties, and in the exercise of its authority, it shall have the necessary
The law sought to regulate businesses that are imbued with public interest,
particularly those engaged in public service. It provides that no public service shall
operate in the Philippines without possessing a valid and subsisting certificate from
"certificate of public convenience and necessity," as the case may be, to the effect
that the operation of said service and the authorization to do business will promote
the public interests in a proper and suitable manner. It defined public service as:107
105
Public Service Act, Commonwealth Act No. 146 (1936).
106
Id., § 13 (a).
107
Id., § 13 (b).
83
railway, sub-way motor vehicle, either for freight or passenger, or both with or
without fixed route and whether may be its classification, freight or carrier service
of any class, express service, steamboat or steamship line, pontines, ferries, and
water craft, engaged in the transportation of passengers or freight or both,
shipyard, marine railways, marine repair shop, [warehouse] wharf or dock, ice
plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and
power water supply and power, petroleum, sewerage system, wire or wireless
communications system, wire or wireless broadcasting stations and other similar
public services: Provided, however, That a person engaged in agriculture, not
otherwise a public service, who owns a motor vehicle and uses it personally
and/or enters into a special contract whereby said motor vehicle is offered for hire
or compensation to a third party or third parties engaged in agriculture, not itself
or themselves a public service, for operation by the latter for a limited time and for
a specific purpose directly connected with the cultivation of his or their farm, the
transportation, processing, and marketing of agricultural products of such third
party or third parties shall not be considered as operating a public service for the
purposes of this Act.
whatever other persons or entities that may own or possess or operate public
services.108
the rule that entities engaged in public service must procure a certificate of public
warehouses; vehicles drawn by animals and bancas moved by oar or sail, and
tugboats and lighters; airships within the Philippines except as regards the fixing of
their maximum rates on freight and passengers; radio companies except with
respect to the fixing of rates; and public services owned or operated by any
108
Id., §13(c).
84
The last exception provides that public services owned or operated by any
controlled corporation, except with respect to the fixing of rates, need not procure a
the strictest sense when a public utility contracts-out its operations to the private
sector. The assets of the SOE remain with the SOE. They are not transferred to the
private sector. What is being transferred is the right to operate the SOE and other
powers provided in the contract, but certainly not the assets. Hence, the SOE
within the exception provided by the law. The private operator does not become
the owner of the SOE. The MWSS remains to be owned by the government,
Take note that the exception mentions “owned OR operated.” The exception
system are still owned by the State, although it is operated by a private entity.
Hence, in accordance with the exception provided by law, there is really no need to
procure a franchise.
Procuring a franchise is very tedious. Not only are there more than 200 minds that
are entitled to their own version of the franchise, there are also more than 200 bills
waiting to be passed within a span of three years, minus all the recesses and breaks.
To amplify the tediousness, there are two houses of congress in this country – the
so-called Senate and the House of Representatives – that have historically and
A franchise, like all other bills, needs three readings to be passed. All
This burden is in addition to the very political issue of operating public utilities.
The Congress is now filled with leftists, who, with their anti-privatization ideals,
have taken the “pakikibaka” from the streets into the hallowed halls of Congress.
What they lack in numbers, they make up with influence. Certainly, any bill to be
in the Congress.
simply too burdensome and time-consuming to deal with. And considering the
amount of investment that the private sector can infuse to the country’s chronically
fiscally inadequate economy, the opportunity is simply too necessary to forego. The
country being itself a budding economy in Southeast Asia, it needs all the
investments it can attract in order for its evolution into a power economy to happen.
On the other hand, the franchise is also important in order to regulate the rights and
public.
contract, the regulatory contract does not replace the regulator, but substantially
limits the regulator’s discretion. Without a franchise, a contract is entered into with
the private sector by a government agency or a GOCC that is duty bound by law to
protect the interest of the public. No longer is the need for a franchise mandatory
regulation, as with a franchise, the rights and obligations of the private entity are
set, it forces the regulator to set tariff based on specific formulas rather than just
general principles, the consequences of breach are made clear, and dispute
contract, on the other hand, having entrusted to the government agency or GOCC
87
that public interest must always be paramount, safeguards the consuming public
and at the same time, is much more practical and economically sound in joining the
-- J. S. Sherman, 1894.
Proceedings of the 2nd Annual Convention
of the Kansas Irrigation Association
-- Rachel Carson
-- Author unknown
89
Chapter 6
The MWSS Concession Agreements and their Implications to the
Concessionaires
Having shown that contracting out public service to a private entity through a
any law, but in fact follows the intention of appropriate laws, the author now
In 1997, the government corporation responsible for the water supply and sewerage
disposal in the greater Metro Manila area, the MWSS was successfully privatized
private contractor the overall responsibility for the operations, maintenance, and
investments in the water and sewerage system. The MWSS service area was
divided into the West and East Zones, and a concession was granted for each zone
It was also deemed desirable from the point of view of ensuring a stronger
participation; though as the law stipulates, Filipinos must own at least 60% of
both local and foreign partners were also imposed for pre-qualification in the
bidding process to ensure a competent field of bidders. The Filipino partner must
in equity. The foreign partner, in turn, should have experience in each of water
metering, leakage control, and customer service and billing; and design and
construction management for system expansion. It should also have had two years
experience of supplying potable water and sewerage services to areas with at least
2.5 million population, one million connections, and 10,000 kms. of main pipes.
Financially, the foreign partner must be generating $30 million in annual revenues
from water and sewerage services and has investments of $ 1 billion in equity. Both
the local and foreign partners must each be a single company (not an association of
companies though more than one firm may be allowed through a special purpose
subsidiary).109
109
CRISTINA C. DAVID, MWSS PRIVATIZATION: IMPLICATIONS ON THE PRICE OF
WATER, THE POOR, AND THE ENVIRONMENT 9 (2000).
91
investments for water, sewerage, and sanitation services become the responsibility
of the two private concessionaires for the West and East Zones, respectively. The
operations of commonly used facilities upstream from the service areas shall also
exercise by the concessionaire of its agency powers; carry out accounting and
notification functions, administer domestic and foreign loans related to the existing
projects, and manage retained assets including the on-going development and
MWSS including its residual functions together with the new Regulatory Office;
provisions for water charges, rate adjustments, dispute resolution; and other
110
Id.
111
Id.
112
Id. at 10.
92
marketable securities. More than a year after privatization, the shift from a public to
coverage of water supply, sewerage, and sanitation services; provide 24-hour water
supply to all connections not later than June 2000 (and substitute alternative
supplies at standard rates if source is interrupted for more than 24 hours); maintain
water pressure at 16 psi by 2007 for all connections, and meet the national health
the population except those who already have piped water connection from a source
other than the MWSS system. Hence, the population obtaining water from their
own deepwells or from private waterworks located in areas where the MWSS water
service is unreliable and/or are not reached by the distribution network at the time
of their establishment are not covered by the service obligation. Also, the
Agreement does not specify whether or not the coverage includes commercial and
113
Id. at 11.
114
Id.
93
industrial establishments.115
investments, the performance bond, and the various fees designed to free the
terms of equity investments, each of the local and international partners is required
to maintain an equity share of 20% for the first five years and 10% thereafter. And
the initial cash equity investments shall be in the amount of P3 billion ($100
million) for the West Zone and P2 billion ($67 million) for the East Zone.116
million was collected from each concessionaire. Revenues from this fee were used
to pay for the cost incurred in the process of privatization, including the technical
of the local and foreign debts of the MWSS, and the costs of the operations of the
residual MWSS and its Regulatory Office. For the latter, each concessionaire shall
contribute P100 million for a total of P200 million which will be distributed about
The Agreement provides for water tariff rate adjustments from time to time,
subject to the MWSS’s Charter limitation on its rate of return which is equal to
115
Id. at 12.
116
Id. at 14.
117
Id. at 15.
118
Id.
94
12% of the book value of its assets. That limitation is essentially redundant because
the Agreement’s effective cap on the concessionaire’s rate of return on its own
From the discussion in the preceding chapter, it was explained by the author
that the President was empowered to contract-out the functions of MWSS to private
operators. The concession agreements entered into between the government and the
Expansion mandate
o Expansion mandates for water and sewerage specified in terms of
population coverage targets for each municipality, specified for each five
year period.
o Sewerage targets not as high as for water; new infrastructure will gradually
replace septic tanks.
Standards
o Water quality must conform to the National Standards for Drinking Water
o Water reliability must be at 24 hours/day by June 2000
o Detailed standards of water pressure and flow
119
Id. at 16.
120
Shane Rosenthal, The Manila Water Concessions and their Impact on the Poor (2001), available
online URL www.yale.edu/hixon/research/pdf/SRosenthal_Manila.pdf (Accessed 02 June 2007).
95
Financial
o 60% of equity must remain in Filipino ownership
o Concessionaires assume responsibility for 90% of MWSS’s debt burden
Labor
o Comprehensive labor transition package under which:
o all employees who are rehired have a 6 month probation period
o those who fail the probationary period receive retirement pay and
other benefits
o all employees are entitled to stock options
o existing labor unions are automatically recognized
Other
o New Regulatory Office to monitor concessionaires’ performance, arrange
regular independent technical and financial audits and respond to consumer
complaints
o Guarantee of raw water availability to the operator
o Appeals panel to settle unresolved disputes
contractors. A perusal of the Agreement would show that the nomenclature used
contractors:
96
The whereas clause and Section 2.1 merely pertain to a general grant of
act as agents or contractors. It can be gleaned from the foregoing provisions that the
only particular grant of agency is that in Section 7.2 pertaining to Section 3(k) of
agencies and political subdivisions upon due notice to the office, or entity
concerned, subject solely to the condition that the street, avenue, or highway in
which said works are constructed be restored without unnecessary delay to its
former state unless otherwise agreed upon by the System and the office or entity
concerned.
concessionaires as agents of MWSS. These are: 1.) the powers of eminent domain,
easements, right of way and other similar powers to construct works across, over,
98
through and/or alongside, any stream, water-course, canal, ditch, flume, street,
works may require; and 2.) the power to implement changes to the Standard Rates
for water and sewerage services as instructed by the Regulatory Office or, as
It is a basic tenet in the law on obligations and contracts that the form of a
contract does not determine its legal consequences. In other words, it is the law that
determines what kind of contract has been entered into by the parties – not the form
the parties chose it would be. The parties in the Agreement may have chosen the
terms “agent” and “contractor” in describing the relationship between MWSS and
the concessionaires. Nevertheless, such terms have been proven incompatible with
It is worth taking note of the fact that the power of eminent domain has
fact that the power of eminent domain as itself been delegated by the Legislature to
the MWSS. In other words, the power of eminent domain that is delegated by the
whether the Legislature, through the MWSS Charter, has allowed MWSS to further
Section 2.1 provides that the concessionaires shall act as contractors to perform
“certain functions” and as agents “for the exercise of rights and powers under the
MWSS Charter.” The latter obligation (as agents) is clearly provided in Section 3
of the MWSS Charter. However, the former (as contractors) is not very clear. It can
be argued that the concessionaires, aside from performance of rights and powers
hand, the rights and powers (from Section 3 of the MWSS Charter), as already
enumerated in Chapter 5 of this paper, granted by the MWSS Charter are very
broad. The grant encompasses functions of a contractor. For instance, Section 3(f)
provides that the MWSS is empowered to construct, maintain, and operate dams,
reservoirs, conduits, aqueducts, tunnels, purification plants, water mains, pipes, fire
hydrants, pumping stations, machineries and other waterworks for the purpose of
supplying water to the inhabitants of its territory, for domestic and other purposes;
and to purify, regulate and control the use, as well as prevent the wastage of water.
and operate such artesian wells and springs as may be needed in its operation
and definition, these legal terms bring about different legal consequences. An agent
employer. An agent acts under the control and instructions of the principal, while
liable for the torts committed by an agent within the scope of his authority, while
the exclusive rights to operate, maintain and manage the entire system for an
extended period of time. The basic system is still owned by the public, but the
that details all of the performance expectations that need to be met in order to
maintain the concession in effect. The concessionaire sets the rates for the service
regulation is provided, a concession arrangement will not work. For the rights to
operate the system and reap the profits from such operations, the private firm may
be required to pay an initial and/or annual concession fee to the government, and to
commit to certain levels of investment over the course of the concession period.
The concession yields total operational responsibility to the private consortium for
121
Seader, supra note 46.
101
concession agreement and such agreement has a description entirely alien with a
contract for the employment of service. Moreover, it is also not a lease of work or
service because the services to be performed were not ministerial in character. The
On the other hand, the term “contractor” may also mean a “contracting
party.” This would mean that the MWSS Concessionaires, being parties to the
Concession Agreements, are contractors in the sense that there are obligations
Whatever the real intention is, the circumstances cannot escape the reality
that the use of such technical term may brew future controversies.
MWSS Concessionaires,
Not Acting as Agents
Article 1868 provides that “by the contract of agency a person binds himself to
with the consent or authority of the latter.” Interestingly, agency is also quite
beyond the realm of a concession agreement. Article 1891 of the Civil Code
102
provides that “every agent is bound to render an account of his transactions and to
deliver to the principal whatever he may have received by virtue of the agency even
though it may not be owing to the principal.” The Concession Agreement, on the
profits, provided that the rate of net return shall not exceed twelve per centum
(12%), on a rate base composed of the sum of its assets in operation as revalued
from time to time plus two months' operating capital. Article 9.3.4 provides:
It is also the intention of the parties that rates be set in such a way as to
provide appropriate efficiency incentives to the Concessionaire, with a view
toward benefiting both the Customers and the Concessionaire.
The Regulatory Office shall determine the Rebasing Adjustment to be used for the
purposes of calculating the Rates Limit for each of the five Charging Years of
103
each Rebasing Period, in accordance with the provisions set forth below.
The foregoing makes it clear that the concession agreement allows the
transaction, everything that the agent has received by virtue of the agency contract
must be turned over to the principal. It is then up to the principal the amount of
Not later than March 31 preceding each Rate Rebasing Date, the
Concessionaire shall supply the Regulatory Office with information on its
Expenditures, Receipts, Cash Flows, Opening Cash Position and Future Cash
Flows in a form and manner, and covering such time periods, as the Regulatory
Office may determine.
The Concessionaire shall also provide such other information as the Regulatory
Office may reasonable request or as the Concessionaire may wish to provide.
principal, MWSS.
The Agreement also provides that the concessionaires are responsible for all
taxes from any income associated with the Concession arising on or after the
arising from payments by Customers for services rendered on and after the
Commencement Date and from any other income associated with the
Concession arising on or after the Commencement Date. The Concessionaire
shall be responsible for the payment of all documentary stamp taxes payable in
connection with the execution of this Agreement and any related agreements or
instruments; all customs, import duties and other taxes or assessments relating to
the importation into the Philippines of plant and equipment to be used in
connection with the Concession; and all local transfer taxes on property acquired
through the exercise of rights pursuant to Section 7.2. In addition, the
Concessionaire shall pay, for and on behalf of MWSS, or shall reimburse MWSS
within 10 days of demand therefor, any real property taxes and other taxes or
assessments payable by MWSS on MWSS property or assets in the Service Area
used for the supply of water and sewerage services.
If the income really pertains to the principal, it is illogical why the income
taxes must be shouldered by the agent. It is therefore clear that the returns to be
reaped from the Agreement shall belong to the concessionaires. This kind of
Agreement mandates, an agent must deliver all the returns to its principal – the
1912 of the Civil Code is analyzed in the context of the Agreement. It provides:
Article 1912. The principal must advance to the agent, should the
latter so request, the sums necessary for the execution of the agency.
Should the agent have advanced them, the principal must reimburse him
therefore, even if the business or undertaking was not successful, provided the
agent is free from all fault.
The reimbursement shall include interest on the sums advanced, from the day on
which the advance was made.”
It is clear from Article 1912 that in an agency agreement, the business must
pertain to the principal, and not to the agent. The principal must finance the
business through the agent. The agent must reimburse any advances made in the
105
In the case of the Agreement, it shows that the concessionaires are the ones
who are supposed to finance all the operations, management, and repairs of the
facilities of the MWSS waterworks system. In fact, the concessionaires are required
to pay a commencement fee and a concession fee. The pertinent provisions are as
follows:
(a) Not later than 14 days prior to the date on which any scheduled
payment of principal, interest, fees or other amount is due under
an MWSS Loan, MWSS shall notify the Concessionaire in
writing of the total amount due on that payment date and of the
Peso equivalent thereof (the “Peso Equivalent”) calculated at the
then prevailing exchange rate. Not later than one business day
prior to each such payment date, the Concessionaire shall remit
to such account as MWSS shall instruct an amount, in Pesos,
exclusive of any penalties or default interest charges not
attributable to a late payment of the Concession Fee by the
Concessionaire (each such payment being referred to herein as a
“Concession Fee”), equal to the sum of:
(b) Not later than five days after the Commencement Date, the
Concessionaire shall pay to MWSS the amount of 50 million
Pesos, which MWSS shall use and allocate in accordance with
Section 11.2 for the establishment and budget of the Regulatory
Office during 1997. In addition, the Concessionaire shall pay
to MWSS on the first business day of January of each year
thereafter an amount equal to one-half of the annual budget
for MWSS for that year, provided that such annual budget
shall not for any year exceed million Pesos, subject to annual
CPI adjustments. MWSS may request adjustments to the level
of the annual contribution of the Concessionaire provided in this
Section 6.4(b). If the Concessionaire objects to any such
requested revision, it may refer the matter to the Appeals Panel.
Each Concession Fee shall be treated as an Expenditure of the Concession and the
Concessionaire’s payment obligation in respect thereof shall rank at least
pari passu with its unsecured payment obligations under all other debt
instruments that may be executed by the Concessionaire. In the event the
Concessionaire does not make a timely payment of a Concession Fee, the U.S.
dollar equivalent of such unpaid amount may be drawable under the
Performance Bond in accordance with Section 6.9 below.
The intention is that the concessionaires are the ones who are supposed to
finance all the operations, management, and repairs of the facilities of the MWSS
waterworks system is exemplified by the fact that the concessionaires are mandated
in accordance with Article 6.11 of the Agreement, unless waived by the Regulatory
107
(ii) repair and correct, on a priority basis, any defect in the Facilities that
could adversely affect public health or welfare, or cause damage to
persons or third-party property; and
(iii) ensure that at all times the Concessionaire has sufficient financial,
material and personnel resources available to it to meet its
obligations under this Agreement.
xxx
(i) until December 31,2002 (the first Rate Rebasing Date), the International
Water Operator and the Sponsor shall each (directly or through a
subsidiary that is at least 51% owned, and controlled, by the International
Water Operator or the Sponsor, respectively) at least 20% of the
outstanding capital stock of the Concessionaire. After the first Rate
Rebasing Date and throughout the Concession, the International Water
Operator and the Sponsor shall each own (directly or through a
subsidiary that is at least 51% owned, and controlled, by the International
Water Operator or the Sponsor, respectively) at least 10% of the
outstanding capital stock of the Concessionaire;
(ii) the Concessionaire shall have an equity paid-in cash capital of not
less than P 1 billion at the Commencement Date and by the first
anniversary of the Commencement Date shall have an equity paid-in
cash capital of not less than P 2 billion; and
The foregoing provisions are glaringly contrary to the basic laws of agency.
However, even assuming that the foregoing provisions in the Agreement do not
108
violate the laws on agency, another reason that makes the law on agency
incompatible with the Agreement is the fact that the concessionaires are public
utilities themselves.
Under the law on agency, an agent cannot be personally liable for acts done
in accordance with the authority vested by the principal. The following articles are
pertinent:
“Article 1897. The agent who acts as such is not personally liable to the party
with whom he contracts, unless he expressly binds himself or exceeds the
limits of his authority without giving such party sufficient notice of his powers.”
“Article 1899. If the duly authorized agent acts in accordance with the orders of
the principal, the latter cannot set up the ignorance of the agent as to
circumstances whereof he himself was, or ought to have been, aware.”
“Article 1913. The principal must also indemnify the agent for all the damages
which the executive of the agency may have caused the latter, without fault or
negligence on his part.”
In case the concessionaires are agents of MWSS, which is the public utility,
are the concessionaires personally liable for acts done within the scope of the
Agreement, but in violation of laws binding among public utilities? Yes, because
The concessionaires cannot put the blame on the public utility, MWSS, and
escape the consequences attributed to public utilities by arguing that they are mere
agents of the public utility, and not the public utilities themselves. Assuming
109
arguendo that they are agents, the fact remains that they are public utilities and
should therefore be within the ambit of laws governing public utilities. They cannot
hide behind the “agency agreement” and escape the consequences of being a public
one hand and as public utilities on the other hand, are totally incompatible.
utility. The courts have not attempted to formulate an abstract definition. They
interest in a case to case basis. Justice Brandeis, in his dissent in New State Ice Co.
v. Liebmann122, has attempted to define what a public utility is, when he said:
water, telephone, road, and railway companies clearly are public utilities.
In the 1936 case of North Negros Sugar Co. v. Hidalgo123, the Supreme
122
New State Ice Co. v. Liebmann, 285 US 262 at 301 [1932], Justice Brandeis’ dissent.
123
North Negros Sugar Co. v. Hidalgo, 63 Phil. 664, 691 (1936).
110
Court held that the definition of a public utility is not confined to any legislative
property affected with public interest. It held that when private property is devoted
to public use in the business of a public utility, certain reciprocal rights and duties
are raised by implication of law between the utility and the public it undertakes to
serve, and no contract between them is necessary to give rise thereto. It said:
The circumstance that the road in question does not properly fall within
the definition of a public utility provided in Act No. 3108, does not divest it of this
character: " * * whether or not a given business, industry, or service is a public
utility does not depend upon legislative definition, but upon the nature of the
business or service rendered, and an attempt to declare a company or enterprise
to be a public utility, where it is inherently not such, is, by virtue of the guaranties
of the federal constitution, void wherever it interferes with private rights of
property or contract. So a legislature cannot by mere flat or regulatory order
convert a private business or enterprise into a public utility, and the question
whether or not a particular company or service is a public utility is a judicial one,
and must be determined as such by a court of competent jurisdiction.
…
The road in question being a public utility, or, to be more exact, a private
property affected with a public interest, it is not lawful to make arbitrary
exceptions with respect to its use and enjoyment. "Duty to Serve Without
Discrimination.-A public utility is obligated by the nature of its business to furnish
its service or commodity to the general public, or that part of the public which it
has undertaken to serve, without arbitrary discrimination, and it must, to the extent
of its capacity, serve all who apply, on equal terms and without distinction, so far
as they are in the same class and similarly situated. Accordingly, a utility must act
toward all members of the public impartially, and treat all alike; and it cannot
arbitrarily select the persons for whom it will perform its service or furnish its
commodity, nor refuse to one a favor or privilege it has extended to another, since
the term 'public utility' precludes the idea of service which is private in its nature
and is not to be obtained by the public. Such duties arise from the public nature of
a utility, and statutes providing affirmatively therefore are merely declaratory of
the common law.
Seven days after the promulgation of the Negros case, Commonwealth Act
No. 146, more commonly known as The Public Service Act, was passed into law. It
defined the powers of the Public Service Commission when it provided that the
111
Commission shall have jurisdiction, supervision, and control over all public
services and their franchises, equipment, and other properties, and in the exercise of
its authority, it shall have the necessary powers and the aid of the public force. The
law sought to regulate businesses that are imbued with public interest, particularly
those engaged in public service. It provides that no public service shall operate in
the Philippines without possessing a valid and subsisting certificate from the Public
public convenience and necessity," as the case may be, to the effect that the
operation of said service and the authorization to do business will promote the
public interests in a proper and suitable manner. It defined public service as:
the Public Service Act, the Supreme Court in JG Summit Holdings, Inc. v. Court of
112
Appeals124, in holding that by nature a shipyard is not a public utility, reiterated the
resolved by the Supreme Court as early as 02 March 1923 in the case of Iloilo Ice
and Cold Storage Company v. Public Utility Board125 when it enunciated that:
124
JG Summit Holdings, Inc. v. Court of Appeals, 412 SCRA 10, 20-21 (2003).
125
Iloilo Ice and Cold Storage Company v. Public Utility Board, 44 Phil. 551, 556-557, 563 (1923).
113
may enjoy it by right or only by permission. (US v. Piaco, 40 Phil. 853 [1920])
…
The essential feature of a public use is that it is not confined to privileged
individuals, but is open to the indefinite public. (Thayer and Thayer v. California
Development Company, 164 Cal. 117 [1912])
…
The use is public if all persons have the right to the use under the same
circumstances. (Fallbrook Irrigation District v. Bradley, 164 US 161 [1896])
…
If an individual, copartnership, association, corporation, or joint stock company
does, in truth, sell ice to all persons seeking its services, it is a public utility. But
If, an the other hand, the individual, copartnership, association, corporation, or
joint stock company was organized solely for particular persons under strictly
private contracts and never was devoted by its owners to public use, it could not
be held to be a public utility without violating the due process of law clause of the
Constitution. (Producers Transportation Co. vs. Railroad Commission, 251 US
228 [1920])
In the foregoing case, the petitioner, the Iloilo Ice and Cold Storage
1908, with, a capital stock of P60,000. Continuously since that date, the company
has maintained and operated a plant for the manufacture and sale of ice in the City
of Iloilo. At the time its operations were started, two additional ice plants were
Since 1908, the business of the Iloilo Ice and Cold Storage Company,
according to its managing director and treasurer, has been carried on with selected
The original public utility law, Act No. 2307, in its section 14, in
speaking of the jurisdiction of the Board of Public Utility Commissioners, and in
defining the term of "public utility," failed to include ice, refrigeration, and cold
storage plants. This deficiency was, however, remedied by Act No. 2694, enacted
in 1917, which amended section 14 of Act No. 2307, to read as follows:
" * * * The term 'Public utility' is hereby defined to include every
individual, copartnership, association, corporation or joint stock company,
whether domestic or foreign, their lessees, trustees or receivers appointed by any
court whatsoever, or any municipality, province or other department of the
Government of the Philippine Islands, that now or hereafter may own, operate,
manage or control within the Philippine Islands any common carrier, railroad,
street railway, traction railway, steamboat or steamship line, small water craft,
such as bancas, virais, lorchas, and others, engaged in the transportation of
passengers and cargo, line of freight and passenger automobiles, shipyard, marine
railway, marine repair shop, ferry, freight or any other car service, public
warehouse, public wharf or dock not under the jurisdiction of the Insular Collector
of Customs, ice, refrigeration, cold storage, canal, irrigation, express, subway,
pipe line, gas, electric light, heat, power, water, oil, sewer, telephone, wire or
wireless telegraph system, plant or equipment, for public use: Provided, That the
Commission or Commissioner shall have no jurisdiction over ice plants, cold
storage plants, or any other kind of public utilities operated by the Federal
Government exclusively for its own and not for public use."
‘Public use' is the same as 'use by the public.' The essential feature of the
public use is that it is not confined to privileged individuals, but is open to the
indefinite public. It is this indefinite or unrestricted quality that gives it its public
character. In determining whether a use is public, we must look not only to the
character of the business to be done, but also to the proposed mode of doing it. If
the use is merely optional with the owners, or the public benefit is merely
incidental, it is not a public use, authorizing the exercise of the jurisdiction of the
public utility commission. There must be, in general, a right which the law compels
the owner to give to the general public. It is not enough that the general prosperity
of the public is promoted. Public use is not synonymous with public interest. The
true criterion by which to judge the character of the use is whether the public may
115
The Supreme Court held that the Iloilo Ice and Cold Storage Company is
not a public utility because its services did not pass the criterion of “public use” as
provide that the concessionaires are required to provide water supply services to all
existing customers in their respective services areas. They, in fact, are mandated to
126
US v. Piaco, 40 Phil. 853, 856 (1920).
116
The foregoing provisions show that the use of the services provided by the
concessionaires is public because all persons under the same circumstances have
the right to avail the services of the concessionaires. The concessionaires are
required to offer water supply and sewerage services to all the customers within the
service area. In fact, they are required to make a connection as soon as practicable
upon request from an owner or occupant of the premises located in the service area.
This is tantamount to a demandable right, only qualified by the phrase “as soon as
reasonably practicable.”
the above definition of a public utility, it is obvious that the business of the
concessionaires, by regularly supplying the public with water service, makes them
As soon as practicable, but in any event not later than June 30, 2000, the
127
GENEROSO O. ALMARIO, TRANSPORTATION AND PUBLIC SERVICE LAW 267 (1977)
citing 73 CJS 990-991.
117
In Tatad v. Garcia128, the Supreme Court held that it is not the owner of the
facilities used for the operation of public utility that is within the ambit of public
utility regulation; rather, it is the operator of the public utility that must comply
with public utility laws and regulations. In that case, the issue was whether or not
the owner of a public utility must comply with the nationality requirement under
The petitioner argued that the EDSA LRT III is a public utility, and the
and domestic Corporations, not foreign corporations like, private respondent. The
issue posed was: Can respondent EDSA LRT Corporation, Ltd., a foreign
In ruling that it is not the owner of the facilities used for the operation of
public utility that is within the ambit of public utility regulation; rather, it is the
operator of the public utility that must comply with public utility laws and
128
Tatad v. Garcia, 243 SCRA 436 (1995).
118
129
Id., at 453, 455, 456.
119
6.15 New Assets. Legal title to all fixed assets contributed to the
MWSS system in the Service Area by the Concessionaire during the term of the
Concession shall remain with the Concessionaire until the Expiration Date (or the
Early Termination Date) at which time all right, title and interest in such assets
shall automatically vest in MWSS. The Concessionaire may mortgage or create
security interest over such assets solely for the purpose of financing (or
refinancing) the acquisition or construction thereof; provided, however, that no
such mortgage or security interest shall extend beyond the Expiration Date and,
provided further, however, that no such mortgage or security interest shall be
subject to foreclosure except following an Event of Termination. The
Concessionaire shall not, without the prior approval of MWSS, create a security
interest of any kind over all or any part of the Facilities to which MWSS has legal
title. Legal title to all facilities (including any fixed assets resulting from the
exercise of rights and powers referred to in Section 7.2 below) other than new
assets contributed by the Concessionaire shall remain with MWSS.
Although the legal title to all facilities of the concessionaires, other than
provisions that the operation of the waterworks have been assigned to the
concessionaires. The fact that the concessionaires do not own the facilities does not
deny the fact they are still the operators in accordance to the Agreement, thereby
120
National Oil Company130 explained that a public utility must be organized “for hire
or compensation” to serve the public. This criterion has also been met by the
130
Bagasting v. Committee on Privatization and Philippine National Oil Company, 246 SCRA 334,
358 (1995).
121
(ii) For Connections to a water main or a public sewer located more than 25
meters from the connection point or for Connections to non-residential
Customers, the Concessionaire shall have the right to charge each
Customer requesting such a Connection a fee equal to the costs
reasonably and efficiently incurred by the Concessionaire in making that
Connection, including the costs of upgrading or restoring existing
connections or metering facilities to acceptable technical standards.
are “for hire or compensation.” The rate to charge, however, is limited by the
provided in the second paragraph of Article 9.3.4. Moreover, the Agreement also
provides that the concessionaires are responsible for all taxes from any income
associated with the Concession arising on or after the commencement date. It says:
within 10 days of demand therefor, any real property taxes and other taxes or
assessments payable by MWSS on MWSS property or assets in the Service Area
used for the supply of water and sewerage services.
general public within their respective service areas. Such fact squarely fits on the
criterion that a public utility under the Constitution and the Public Service Law is
one organized “for hire or compensation” to serve the public, as provided in the
“Franchises issued by Congress are not required before each and every public
utility may operate. Thus, the law has granted certain administrative agencies the
power to grant licenses for or to authorize the operation of certain public utilities.”
licenses for, or to authorize the operation of certain public utilities. With the
the legislature, and towards the approval of the practice by the courts. It is generally
recognized that a franchise may be derived indirectly from the state through a duly
designated agency, and to this extent, the power to grant franchises has frequently
131
Bagasting v. Committee on Privatization and Philippine National Oil Company, 246 SCRA 334,
358 (1995).
132
Albano v. Reyes, 175 SCRA 264, 271 (1989).
123
pursuance of this, it has been held that privileges conferred by grant by local
grant the means by which a public utility may operate. A public utility may operate
11 of Article 12 provides:
It is clear, therefore, that under the 1987 Philippine Constitution and the
doctrine enunciated in Albano v. Reyes, the mere absence of a franchise does not
strip the concessionaires the character of a public utility. The absence of franchise
Again, by the doctrine in Tatad v. Garcia, the operator of the public utility is the
133
Philippine Airlines, Inc. v. Civil Aeronautics Board and Grand International Airways, 270 SCRA
538, 550 (1997).
124
be liable as public utilities themselves and they cannot assign their liabilities to
Lastly, it is the Agreement itself that requires the concessionaires to comply with
Article 12 abovementioned for the operation of a public utility. The following are
the operation of a public utility was embodied in the notice to bid for the water
service contracts. Thus, the intention to include the concessionaires within the
ambit of public utility regulation is clear right from the inception of the
Agreements. If the proponents of the concession agreements did not consider the
concessionaires as public utilities themselves, why would they have to comply with
work “The Manila Concession: A Key Government Official’s Diary of the World’s
134
Mark Dumol was the Chief of Staff of the Secretary of Public Works and Highways at the time
of the MWSS privatization in 1997. He was one of the key players in drafting the concession
agreements.
135
DUMOL, supra note 95, at 82.
126
transaction, we were going to attract a lot of flak from the opposition politicians if
we tried to employ a "trick" that would give actual control of MWSS to
foreigners. We did not want to risk ending up in a court battle we could actually
lose. We made it clear to all the bidders that the winning concessionaires
would need to be 60 percent Filipino-owned and that management of the firm
had to be in Filipino hands.
are public utilities themselves and must indeed be within the ambit of laws
governing public utilities. They are not mere agents of MWSS, the public utility.
Instead, they themselves acquire the identity of a public utility by operation of law
It is the imperative duty of the State to interpose its protective power whenever too
much profits become the priority of public utilities.136 In regulating rates charged
by public utilities, the State protects the public against arbitrary and excessive rates
while maintaining the efficiency and quality of services rendered. However, the
power to regulate rates does not give the State the right to prescribe rates which are
136
Republic v. Manila Electric Company, 401 SCRA 130, 131 (2003).
137
Republic v. Manila Electric Company, 391 SCRA 700, 706-707 (2002).
127
jurisprudence to set its rate of return to 12% of the present market value of its
assets actually devoted to public service. The decided weight of authority, however,
is to the effect that property valuation is not to be solved by formula, but depends
upon particular circumstances and relevant facts affecting each utility as to what
constitutes a just rate base and what would be the fair return, just to both the utility
and the public.138 As early as 1966, in Manila Electric Company v. Public Service
Commission139, the Supreme Court has held that “in the Philippines, our decisions
have consistently adopted the 12% rate for public utilities.” It said:
What is the fair rate of return or profit upon which the schedule of rates
chargeable by the MERALCO should be based? The PSC has fixed it at 12% of
the present value of the MERALCO assets devoted to public service.
xxx
With respect to the return allowable to the MERALCO it is urged that the rate
authorized by the PSC is higher than that prevailing in the United States. It is well
settled, however, that the rate of return permissible depends upon existing
conditions. In the Philippines, our decisions have consistently adopted the
12% rate for public utilities and the PSC has done no more than adhere to
the established Jurisprudence thereon. Indeed, the GAO report concedes that
12% is the fair rate of return for the MERALCO. This is not the proper occasion
to inquire into the wisdom of such jurisprudence although it is a matter of
common knowledge that the prevailing rates of interest on loans in the Philippines
are generally higher than those charged in the United States.
What should be included in the rate base are those properties which are
being devoted to public service at the time of the investigation for rate-revision
involves (in the very least) the exercise of reasoned judgment and a realistic,
138
Republic of the Philippines v. Hon. Medina, et. al., 41 SCRA 643, 662 (1971).
139
Manila Electric Company v. Public Service Commission, 18 SCRA 651, 665-666 (1966).
128
of whether the rates so fixed are reasonable and just is a purely judicial question
and is subject to the review of the courts.141 Whether a particular percentage or rate
being the risks to which the principal and income from it are subjected, whether
these risks be moral or physical or otherwise, the uniformity and certainty of the
return, the character of the business, the locality in which it is placed, the density of
population, whether competition exists, the returns secured in the locality from
other investments of a similar nature whether the return is gross or net, for
money to provide good service, the size and comparative financial strength of the
company, the ability of the company to borrow money, the demand for money, the
prevailing rate of interest in the community in which the enterprise is located, the
history of the company, whether it has been poor or prosperous and the market
140
Republic of the Philippines v. Hon. Medina, et. al., 41 SCRA 643, 672 (1971) [Castro’s
concurring opinion].
141
Republic v. Manila Electric Company, 391 SCRA 700, 707 (2002).
129
value of money.142 It is said that the question of the reasonableness of the return
cannot be determined without reference to the interest of the public; that the value
of the service and the financial condition of locality served must be taken into
account. It is held that no one element is sufficient in itself, but that all enter as
governing factors in the problem; that there is no inflexible rule as to the rate of
It should be noted that the present or market value theory adopted by the
Court. And said decisions are borne out by the weight of authority in other
jurisdictions.144
to the State's power to fix the rates that regulated businesses may charge, was
banded down in 1876 in Munn v. Illinois145, when private property is "affected with
a public interest, it ceases to be juris privati only." When, therefore, one devotes his
property to a use in which the public has an interest, he in effect, grants to the
public an interest in that use, and must submit to be controlled by the public for the
common good, to the extent of the interest he has thus created. He may withdraw
his grant by discounting the use; but, so long as he maintains the use, he must
142
Manila Electric Company v. Public Service Commission, 18 SCRA 651, 665 (1966).
143
Manila Electric Company v. Public Service Commission, 18 SCRA 651, 665 (1966).
144
Republic of the Philippines v. Hon. Medina, et. al., 41 SCRA 643, 662 (1971).
145
Munn v. Illinois, 94 U.S. 113 (1876).
130
In other words, the cap on the rate of return of a public utility is a legitimate
exercise of the State’s police power. Since police power lies on the legislature, it is
incumbent upon them to determine the reasonable rate of return a public utility is
entitled. In the case of the MWSS acting as a public utility, the rate of return has
been set by the legislature to 12% on a rate base composed of the sum of its assets
in operation as revalued from time to time plus two months' operating capital. A
perusal of the concession agreements shows that the concessionaires are subject to
In cases where the decision is against the fixed rates or fees, excess payments
shall be reimbursed and/or credited to future payments, in the discretion of the
Commission.
The Agreement, however, provides that when the limitation is exceeded, the
146
Republic of the Philippines v. Hon. Medina, et. al., 41 SCRA 643, 672 (1971) [Castro’s
concurring opinion].
131
The Concessionaire may charge Customers a CERA payment of one Peso per
cubic meter of water consumed above the Standard Rates. Although CERA has
historically been used by MWSS to adjust for exchange rate movements, that
function will be performed through the operation of Section 9.3.1 (vi) of this
Agreement.
xxx
include, among others, the excess in the 12% limitation. This would mean that the
concessionaires will still be able to earn the excess, albeit subject to the condition
of the MWSS Charter which does not in any circumstance allow any excess to the
Worse, the interest of the amount that exceeds the 12% limitation shall be
accrued as the Appropriate Discount Rate (ADR). The ADR was initially defined in
a relatively loose manner as the prevailing rate of return for similar infrastructure
projects.147 In the Agreement, the ADR means, at any time, the real (i.e., not
inflation adjusted) weighted average cost of capital (after taxes payable by the
concession business). In determining the ADR, the Regulatory Office shall apply
estimates of the cost of debt in domestic and international markets, the cost of
equity for utility businesses in the Philippines and abroad and shall make
adjustments to such estimates to reflect country risk, exchange rate risk and any
other project risks. The Regulatory Office, at its sole discretion, may consider the
Concessionaire's rate of return, either stated or implied in its bid, in determining the
147
DUMOL, supra note 95, at 53.
133
consultants during the drafting of the Agreements. The project return is the
theoretical return on an investment made with pure equity. In the case of the
otherwise, the regulators would have needed to approve all of the financing
bureaucratic knots.148
treating the interest of the amount in excess to the 12% limitation as a project
return. It is equivalent to saying that such interest is the fruit of a poisonous tree,
which therefore, cannot be earned as well. If the principal should not be earned,
with more reason that the interest must also not be earned.
The resolution of the issues involved in this case hinged on the determination of the
kind and the amount of operating expenses that should be allowed to a public utility
to generate a fair return and the proper valuation of the rate base or the value of the
148
Id. at 55.
149
Republic v. Manila Electric Company, 391 SCRA 700 (2002), Motion for Reconsideration, 401
SCRA 130 (2003).
134
In this case, the Supreme Court upheld the ruling of the Energy Regulatory
Board (ERB) that income tax should not be treated as operating expense as this
should be “borne by the stockholders who are recipients of the income or profits
realized from the operation of their business” hence, should not be passed on to the
consumers. It also held that the ERB did not abuse its discretion when it applied the
“net average investment method” in the determination of the rate base because this
treatment is consistent with the settled rule in rate regulation that the determination
of the rate base of a public utility entitled to a return must be based on properties
and equipment actually being used or are useful to the operations of the public
investment method.”
being public utilities, the concessionaires must compute their rate of return based
on their respective assets used directly in business. Since the concessionaires are
each a public utility themselves, there is no basis to say that, by being agents of the
public utility and because Section 12 of the MWSS Charter refers to the “System”
in computing for the rate of return and that MWSS and the two concessionaires all
form the “System”, the base for the computation of the rate of return must include
the cumulative assets of MWSS and the two concessionaires. As separate public
utilities that use assets for providing service imbued with public interest, they must
135
ownership of assets used in business does not affect the public utility nature of the
business.
them that pursuant to Article 9.3.1 of the Agreement, it has determined that by
thereof, that affects or is likely to affect the Cash Flow of the Concessionaires, it
shall determine the Extraordinary Price Adjustment which shall be made effective
January 1st of the Charging Year 2005. The pertinent provisions are as follows:
In the event that one or more Grounds for Extraordinary Price Adjustment
(“GEA”), as defined in Section 9.3.1 below, has occurred or is expected to
occur, the Regulatory Office shall either (i) determine, in accordance with
Section 9.3.2 below, an extraordinary price adjustments (an “Extraordinary
Price Adjustment” or an “E”) for the purposes of calculating the Rates
Adjustment Limit to be applied to the Standard Rates appropriate
adjustment to the Service Obligations.
The Concessionaire may at any time require the Regulatory Office to consider
circumstances that the Concessionaire believes constitute Grounds for
Extraordinary Price Adjustment. The Regulatory Office may also at any time
notify the Concessionaire of circumstances that the Regulatory Office believes
constitute Grounds for Extraordinary Price Adjustment, as set forth in Section
9.3.1 below.
(i) the Cash Flows which would be caused by the GEA or GEAs
(and, for this purpose, the circumstances referred to in Section
9.3.1 (iv) any exchange rate movement of the kind referred to
in Section 9.3.1 (vi) shall be deemed to affect Cash Flows);
(ii) the Net Present Value of those Cash Flows as at June 30 of the
following Charging Year; and
(iii) what Extraordinary Price Adjustment, positive or negative,
made to the Rates Adjustment Limit for the following Charging
Year would cause the Net Present Value as at June 30 of the
Charging Year of the expected Receipts of the concessionaire
for the period beginning January 1 of that Charging Year until
the Expiration Date to change by an amount equal but opposite
in sign to the Net Present Value of Cash Flows referred to in
(ii) above.
In the event that such calculation indicates that the appropriate Extraordinary
Price Adjustment is between zero and plus 1% then the Regulatory Office shall
determine that the Extraordinary Price Adjustment is zero.
provisions. Article 9.3.4 provides that “it is the intention of the parties that, from
and after the Second Rate Rebasing Date, the rates for water and sewerage
services provided by the Concessionaire shall be set at level that will permit the
Concessionaire to recover over the 25-year term of the Concession (net of any
grants from third parties and any possible Expiration Payment) operating, capital
MWSS Loans and Concessionaire Loans incurred to finance such expenditures, and
ADR”).” On the other hand, Article 1 defines Appropriate Discount Rate as, “at
any time, the real (i.e., not inflation adjusted) weighted average cost of capital
As earlier discussed, the ADR is referred to as the rate of return, and at any
time, the real (i.e., not inflation adjusted) weighted average cost of capital (after
MWSS Regulatory Office.150 In determining the ADR, the Regulatory Office shall
make estimates of the cost of debt in domestic and international markets, the cost of
150
DUMOL, supra note 95, at 53.
139
equity for utility businesses in the Philippines and abroad and shall make
adjustments to such estimates to reflect country risk, exchange rate risk and any
other project risks. The Regulatory Office, at its sole discretion, may consider the
Concessionaire's rate of return, either stated or implied in its bid, in determining the
be deducted to the real weighted average cost of capital in order to come up with
the rate of return or the ADR. It would seem that it meant all taxes, regardless of
the nature. On the other hand, the former provision, Article 9.3.4, explicitly states
that only business taxes, for purposes of rate determination, are supposed to be
deducted to the actual revenues, which then would be divided by the assets used
directly for business, in order to compute for the rate of return. By deducting
expense.
In determining whether or not a rate yields a fair return to the utility, the
operating expenses of the utility must be considered. The return allowed to a
public utility in accordance with the prescribed rate must be sufficient to
provide for the payment of such reasonable operating expenses incurred by
the public utility in the provision of its services to the public. Thus, the public
151
MWSS Concession Agreement, Article 1.
140
Republic v. Manila Electric Company ruling. Income tax should not be included in
Section 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or
to corporations or associations organized under the laws of the Philippines at least
sixty per centum of whose capital is owned by such citizens, nor shall such
franchise, certificate, or authorization be exclusive in character or for a longer
period than fifty years. Neither shall any such franchise or right be granted except
under the condition that it shall be subject to amendment, alteration, or repeal by
Congress when the common good so requires. The State shall encourage equity
participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to
their proportionate share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the Philippines.
character;
iii. The franchise, certificate, or authorization shall not be for a longer period
iv. Any such franchise or right granted shall always be subject to amendment,
and
vi. All the executive and managing officers of such corporation or association
142
ownership limitation for the operation of a public utility. As public utilities, the
MWSS Concessionaires must be organized under the laws of the Philippines with
the operation of a public utility was embodied in the notice to bid for the water
143
service contracts. Worth quoting is Mark Dumol’s152 entry in his work “The Manila
On the other hand, particular attention must be given to Article 2.1 of the
On the terms and subject to the conditions set forth herein, MWSS hereby grants
to the Concessionaire, as contractor to perform certain functions and as agent for
the exercise of rights and powers under the Charter, the sole right to manage,
operate, repair, Decommission and refurbish the Facilities in the Service Area,
including the right to bill and collect water and sewerage services supplied in the
Service Area (the “Concession”).
public utility shall not be exclusive in character. This foregoing stipulation in the
152
Mark Dumol was the Chief of Staff of the Secretary of Public Works and Highways at the time
of the MWSS privatization in 1997. He was one of the key players in drafting the concession
agreements.
153
DUMOL, supra note 95, at 82.
144
The Commission on Audit has authority to audit public utilities pursuant to Section
6.5.3 Audit. The Regulatory Office shall have the right at any
time to commission an independent technical audit of the accuracy and
completeness of any Asset Condition Report and/or the Concessionaire’s
compliance with its obligations under Section 6.5.1 above. The Concessionaire
shall cooperate fully with any such audit. The cost of any such audit shall be
borne by the Concessionaire and treated as an Expenditure.
13.2 Audits. Not less frequently than once a year, the Concessionaire’s
books and records shall be audited by an independent auditor appointed by,
or acceptable to, the Regulatory Office, pursuant to internationally accepted
accounting practices. In addition, the Regulatory Office may, upon giving not less
than 15 days’ prior written notice to the Concessionaire, require that the
Concessionaire, require that the Concessionaire’s books and records relating to the
Concession to be audited on an interim basis by the Regulatory Office or by an
outside auditor. The Concessionaire shall cooperate fully with all such audits.
145
5. The MWSS Concessionaires may be temporarily taken over by the State in the
times of national emergency, when the public interest so requires.
times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately owned public utility or business
aggression, calamities, or natural disasters, but not strikes.154 The phrase “business
affected with public interest” was also explained to mean as “business with a lot of
may partake the characteristics of public utility but which is not yet considered
public utility” or any business “which concerns a mass-based consumer group” and
The provision is silent with regard to just compensation for the duration of
the temporary take over. Also, unlike the power to declare martial law, it is silent as
154
JOAQUIN BERNAS, THE 1987 CONSITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY 1183 (2003), citing III RECORD 266-267.
155
Id. at 1185, citing III RECORD 647-648.
146
regards the exact duration of the take-over. It is implied, however, that the take-
over can legally continue only during a national emergency. Therefore, the take-
According to Bernas, the duration of the take over would be discretionary with the
President.156
Section 18, Article 12 of the 1987 Philippine Constitution provides that “The State
may, in the interest of national welfare or defense, establish and operate vital
utilities.157
the broad grounds of “the interest of national welfare or defense.”158 As far as just
18 of Article 12. The difference is that while the former’s purpose is for “public
use,” the latter’s purpose is “in the interest of national welfare or defense.”
156
Id. at 1182.
157
Id. at 1185.
158
Id. at 1186.
147
--Leonardo da Vinci
148
Chapter 7
Conclusion
contracting-out the operations of a water public utility run by the government can
be as varied as the human mind can imagine given the liberty to contract, provided
that the terms do not violate the law and public policy. It may be in the form of a
convenience and necessity are required for the operation of a public utility.
convenience or certificate of public convenience and necessity are not at all times
required. First, the MWSS Charter allows the MWSS to approve, regulate, and
governmental purposes and to fix just and equitable rates or fees that may be
operation of waterworks within its jurisdiction. Second, the National Water Crisis
149
Act has allowed the President to privatize the MWSS without any restriction. There
requisite for privatization. Lastly, the Public Service Act has provided exceptions
necessity need not be procured, one of which is when the public service is owned
remains with MWSS, which is a GOCC, there is no need for a certificate of public
Supreme Court held in the case of Albano v. Reyes that franchises issued by
Congress are not required before each and every public utility may operate.
to operate will require unreasonable amount of time. Beside the fact that there are a
lot more important bills to pass each day and that a law in order to be passed
requires three readings, the house also grapples to meet the quorum for each
session. This valuable amount of time wasted, surely will not be conducive and
Under the premise that the term “contractor” means an “independent contractor,” it
agreement and such agreement has a description entirely alien with a contract for
because the services to be performed were not ministerial in character. The matters
On the other hand, the term “contractor” may also mean a “contracting
party.” This would mean that the MWSS Concessionaires, being parties to the
Concession Agreements, are contractors in the sense that there are obligations
Under the law on agency every agent is bound to render an account of his
transactions and to deliver to the principal whatever he may have received by virtue
of the agency even though it may not be owing to the principal. No profit is
everything that the agent has received by virtue of the agency contract must be
compensation that will be awarded to the agent. The principal must also advance to
the agent, should the latter so request, the sums necessary for the execution of the
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agency.
concessionaires to reap profits, provided that the rate of net return shall not exceed
twelve per centum (12%), on a rate base composed of the sum of its assets in
operation as revalued from time to time plus two months' operating capital. There is
also no obligation on the part of the Concessionaires to turn over all the profits to
MWSS. Moreover, the Agreements show that the concessionaires are the ones who
are supposed to finance all the operations, management, and repairs of the facilities
It is clear from Article 1912 that in an agency agreement, the business must
pertain to the principal, and not to the agent. The principal must finance the
business through the agent. The agent must reimburse any advances made in the
In the case of the Agreement, it shows that the concessionaires are the ones
who are supposed to finance all the operations, management, and repairs of the
facilities of the MWSS waterworks system. In fact, the concessionaires are required
The fact also remains that the concessionaires are public utilities and should
therefore be within the ambit of laws governing public utilities. They cannot escape
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the responsibilities and liabilities provided by law by arguing that as agents, they
are not liable as long as they act within the agreement. As public utilities
themselves, they are personally liable. As held in Tatad v. Garcia, it is the operator
utility because the agents, as operators, must be personally liable under public
utility regulations even if they act within the authority vested by the principal.
Contrary to the most recent MWSS Board Resolution and OGCC legal
opinion, and in accord with jurisprudence, the concessionaires are public utilities.
supplying the public with some commodity or service of public consequence such
water to customers within their respective service areas. They must insure
Secondly, the case of Tatad v. Garcia provides that the operator of a public
service is the one responsible as a public utility. Although the legal title to all
MWSS, it is clear from the concession agreements that the operation of the
Thirdly, a public utility under the Constitution and the Public Service Law
is one organized “for hire or compensation” to serve the public. Based on the
concession agreements, the services offered by the concessionaires are “for hire or
compensation”. The rate to charge, however, is limited by the agreement. The rates
paragraph of Article 9.3.4. Moreover, the agreement also provides that the
concessionaires are responsible for all taxes from any income associated with the
It is also clear that under the 1987 Philippine Constitution and the doctrine
enunciated in Albano v. Reyes, the mere absence of a franchise does not strip the
Again, by the doctrine enunciated in Tatad v. Garcia, the operator of the public
utility is the one within the ambit of public utility regulations. Therefore, it is the
Lastly, it is the intention of the drafters of the concession agreement that the
concessionaires must comply with public utility regulations. This is patent on the
warranty of the concessionaires. They stated that the outstanding voting capital
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for the operation of a public utility was embodied in the notice to bid for the water
service contracts. Thus, the intention to include the concessionaires within the
As public utilities, the MWSS Concessionaires are bound to observe laws and
regulations governing public utilities.
utility regulations. This is simply a legitimate exercise of the State’s police power.
return to 12% of the present market value of its assets actually devoted to public
service. Therefore, the stipulation which allows any excess to the 12% cap be
Public utilities are not allowed to charge income taxes paid as part of
operating expenses. They are also bound to use only their own capital for the
computation of their respective rate of return. These are the doctrines in the 2002
interpretation thereof that affects or is likely to affect the Cash Flow of the
Concessionaire.”
Section 11, Article 12 of the 1987 Philippine Constitution provides for six
(40%);
character;
good so requires;
refurbish the Facilities in the Service Area, including the right to bill and collect
water and sewerage services supplied in the Service Area, the Concession
audit public utilities. This is in addition to the MWSS Regulatory Office’s authority
Lastly, the concessionaires are also within the purview of Sections 17 and
temporary state take over of businesses affected with public interest, provides that
“In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility
or business affected with public interest.” On the other hand, Section 18, which
refers to nationalization of industries, provide that “The State may, in the interest of
national welfare or defense, establish and operate vital industries and, upon
-- Jean Giraudoux
Chapter 8
Recommendations
and public utility, it is important to have a good grasp of the big picture before
entering into an agreement with any investor. Having a good grasp of the big
picture is not simply making sure that the contract is fair and equitable. Neither is it
consequences coming during and after the actual implementation of the contract.
binding inherent powers of the State – police power, eminent domain, and taxation.
In case of any ambiguity in the contract, it must always be construed in favor of the
public.
There are some ambiguities pointed out in the preceding chapter such as the role of
159
as operating expenses in determining the rates that may be charged against the
controversy involving the determination of any ambiguity will be very costly. The
through consultation and negotiation among the parties thereto shall be finally
the Agreement (the “Rules”), except insofar as the Rules conflict with the
It is clear therefore that the parties are bound to consult and negotiate first
any disagreement. Thereafter, in case the disagreement is not resolved, the parties
are bound to submit the controversy to arbitration in accordance with the arbitration
rules of the United Nations Commission on International Trade Law. Only after
due process has been exhausted would the winning party ask the local courts to
enforce the award. The local courts, on the other hand, may not allow the
enforcement of the award if it is against public policy, among many other reasons.
160
If this happens, the whole process will start all over again, this time, with the local
courts. Only after the Supreme Court has decided on the matter will the controversy
be finally over.
be wise. The good thing with arbitration, despite being more costly, is that the
expedient process is not always a guaranty. Besides that, the big cost
accompanying the arbitration proceeding, in the long run, will have to be borne by
Whether arbitration or local courts is the way to go, each one has its
agents.
is incompatible with the law on public utilities. The whole terminology makes
contract interpretation more confusing, as these terms bring with them legal
consequences. Being agents, the concessionaires are clearly not responsible for the
responsibilities of the said agents would reveal that they are functioning as public
utilities, despite the misleading label, in accord with current laws and
jurisprudence.
the exclusive rights to operate, maintain and manage the entire system for an
extended period of time. The basic system is still owned by the public, but the
that details all of the performance expectations that need to be met in order to
maintain the concession in effect. The concessionaire sets the rates for the service
under the regulatory requirements of the government. For the rights to operate the
system and reap the profits from such operations, the private firm may be required
to pay an initial and/or annual concession fee to the government, and to commit to
certain levels of investment over the course of the concession period. The
concession yields total operational responsibility to the private consortium for the
necessarily transform the private entity into a public utility itself, because
159
Seader, supra note 46.
162
regulation, not the owner of the facilities. In other words, there can never be a
legally sound agency agreement in the strictest legal sense for the operation of a
public utility because contrary to the law on agency, the operator or the agent must
Make the contract couched on the fact that the concessionaires are public
utilities.
As the protector of its people, the State must see to it that the contract
Nevertheless, these statutes and case laws, are deemed included in the contract.
extravagant controversies because it is the paying public that will suffer. This
means that, among other regulations, the conditions and consequences provided
under Section 11, Article 12 of the 1987 Philippine Constitution must be met and
Agreement is unconstitutional, the 12% cap on the rate of return must be complied
with, income tax must not be part of operating expenses, and the Commission on
Audit has jurisdiction to audit the concessionaires’ books and records. Moreover,
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the concessionaires may subject to either temporary take over by the government
unforeseen capital expenditure. This lump-sum shall include, among others, the
excess in the 12% limitation. This would mean that the concessionaires will still be
able to earn the excess, albeit subject to the condition that there will be an
Charter which does not in any circumstance allow any excess to the 12% limitation
be earned by any means. Worse, the interest of the amount that exceeds the 12%
Water Inc., have been earning for the past years more than their statutorily allowed
rate of return. Obviously, there may have been some misinterpretation of the law.
Nevertheless, the mistakes of the government’s agents do not estop the State from
claiming the excess. Invoking the principle of unjust enrichment, a refund is called
for.
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the concessionaires notifying them that pursuant to Article 9.3.1 of the Agreement,
order, or interpretation thereof, that affects or is likely to affect the Cash Flow of
shall be made effective January 1st of the Charging Year 2005. The “change in law,
decision in Republic v. Manila Electric Company where the Supreme Court upheld
the ruling of the Energy Regulatory Board that income tax should not be treated as
operating expense as this should be “borne by the stockholders who are recipients
of the income or profits realized from the operation of their business” hence, should
that the Republic v. Manila Electric Company ruling is not applicable to them
because they are not public utilities themselves. However, a perusal of applicable
laws and jurisprudence reveal that the concessionaires themselves are public
BIBLIOGRAPHY
I. PRIMARY AUTHORITIES
The New Civil Code of the Philippines, Republic Act No. 386 (1950)
National Water Crisis Act of 1995, Republic Act No. 8041 (1995)
Cases
Philippine Cases
Eastern Shipping Lines v. POEA, G.R. No. 76633, October 18, 1988
Iloilo Ice and Cold Storage Company v. Public Utility Board, G.R. No.
19857, March 2, 1923
North Negros Sugar Co. v. Serafin Hidalgo, G.R. No. L-42334, October
31, 1936
Republic of the Philippines v. Hon. Medina, et. al., G.R. No. L-32068,
October 4, 1971
Books
Blue Drop Campaign Position Papers from the Freedom from Debt
Coalition.
Guasch, J.L. & Hahn, R.W. The Costs and Benefits of Regulation:
Implications for Developing Countries. 14 World Bank
Research Observer 1, 137-158 (1999).
Internet Sources
APPENDIX I :
THE CONCESSION AGREEMENT
173
CONCESSION AGREEMENT
WHEREAS, pursuant to the Charter MWSS has jurisdiction, supervision and control over all
waterworks and sewerage systems within Metropolitan Manila, the entire province of Rizal and a portion of the
province of Cavite; and
WHEREAS, pursuant to Republic Act No. 8041 (the “ National Water Crisis Act of 1995”), as
implemented by Executive Order 286 (December 6, 1995 and Executive Order 311 (March 20, 1996), MWSS
was mandated to enter into arrangements that will result in the involvement or participation of the private sector
in any or all the segments, operations and/or facilities of the MWSS:
WHEREAS, Article 3(j) of the Charter authorizes MWSS, among other things, to dispose of real and
personal property, including rights and franchises, consistent with the purpose for which MWSS was created
and reasonably required for the transaction of the lawful business of the same;
WHEREAS, MWSS has determined to grant concessions to private sector corporations, at least 60%
of the outstanding capital stock of which is owned and controlled by Philippine nationals, which shall act as
contractors to perform certain functions, and as agents for the exercise of certain rights and powers, of MWSS
under its Charter, operate the system of waterworks and sewerage services referred to in the Charter;
WHEREAS, pursuant to a process of open public bidding and selection, the Concessionaire has been
awarded the right to enter into Agreement with respect to the Service Area East, as identified in Schedule 1
hereto (the “Service Area”); and
WHEREAS, MWSS and the Concessionaire wish to record the terms on which the Concessionaire is
being granted the right to operate the waterworks and sewerage services in the Service Area for the period
specified herein;
NOW, THEREFORE, in consideration of the mutual promises and undertakings described herein,
the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
When used herein, the following terms shall have the meanings ascribed to those terms below:
“Appeals Chairman” means the chairman for the time being of the Appeals Panel.
“Appeals Panel” has the meaning given to that term in Section 12.2 hereof.
“Appropriate Discount Rate” means, at any time, the real (i.e., not inflation adjusted) weighted
average cost of capital (after taxes payable by the concession business). In determining the Appropriate
Discount Rate, the Regulatory Office shall apply conventional and internationally accepted methods, and in
particular shall make estimates of the cost of debt in domestic and international markets, the cost of equity for
utility businesses in the Philippines and abroad and shall make adjustments to such estimates to reflect country
risk, exchange rate risk and any other project risks. The
Regulatory Office, at its sole discretion, may consider the Concessionaires rate of return, either stated or
implied in its bid, in determining the Appropriate Discount Rate.
“Asset Condition Report” has the meaning given to that term in Section 6.5.2 hereof.
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“C” means the percentage change in the Consumer Price Index for the Philippines as published by
the National Statistical Office between July of the Weighting Year and July of the Prior Year.
“Cash Flows” means (i) in the context of historical cash flows, both Receipts and Expenditures
efficiently and prudently incurred by the Concessionaire in the course of carrying out its obligations under this
Agreement, and (ii) in the context of future cash flows, (A) both anticipated Receipts and Expenditures
efficiently and prudently incurred by the Concessionaire in the course of carrying out its obligations under this
Agreement and (B) from and after the second Rate Rebasing Date, any Expiration Payment agreed to be paid
by MWSS to the Concessionaire on the Expiration Date pursuant to Section 9.4.3; it being understood that
Expenditures “efficiently and prudently incurred” does not include, among other things, payments for (X)
Disapproved Assets or (Y) fees for management or consulting services required by the Concessionaire in
order to carry out its obligations under this Agreement payable to any shareholder or affiliate of the
Concessionaire to the extent, in the judgment of the Regulatory Office, that such fees do not represent the best
value available in the market for such services.
“CERA” means the Currency Exchange Rate Adjustment of one Peso per cubic meter of water
consumed above the Standard Rates as permitted by Section 9.1.
“Charging Year” means any year beginning on January 1 following the first anniversary of the
Commencement Date.
“Charter” means the Charter of the MWSS set out in Republic Act No. 6234 (as amended), as the
same may be further amended or supplement from time to time.
“Closing Date” means May 6, 1997, or such later date (not to exceed September 30, 1997) on which
the conditions set out in Article 15 hereof have been satisfied.
“Commencement Date” means the day immediately following the Closing Date.
“Common Purpose Facilities” means the Facilities upstream of Angat dam established under the
UATP project and the Facilities downstream of the auxiliary hydropower plant of Norzagaray, Bulacan,
including the Ipo reservoir facilities, the Ipo-Bicti tunnels Bicti basins and Bicti-Novaliches aqueducts, up to
and including the Novaliches portal interconnection Facilities.
“Concession” has the meaning given to that term in Section 2.1 hereof.
“Concessionaire Event of Termination” has the meaning given to that term in Section 10.2.
“Concession Fee” has the meaning given to that term in Section 6.4 hereof.
“Concessionaire Employee” has the meaning given to that term in Section 3.1 hereof.
“ Connection” has the meaning given to that term in Section 9.5 hereof.
“Connection Charge” has the meaning given to that term in Section 9.5 hereof.
175
“Consumer Price Index” or “CPI” means, for any year, the Consumer Price Index for the
Philippines for that year published by the National Statistical Office of the Republic or such successor index as
the parties may agree pursuant to Section 2.4.
“Cost Overruns” means any amount paid by the Concessionaire related to an Existing Project or
UATP, which is neither covered by an MWSS Loan or identified as Local Component costs in Schedule 9.
“Customer” means (i) as of the date hereof, any customer of MWSS or (ii) thereafter, any customer
of the Concessionaire, in each case for the supply of water and/or sewerage services in the service Area.
“Disapproved Assets“ means any assets acquired by the Concessionaire following the
Commencement Date which are not, in the reasonable opinion of the Regulatory office, needed for the efficient
and prudent performance by the Concessionaire of its obligations under this Agreement and are so identified in
a writing sent to the Concessionaire by the Regulatory Office.
“Dispute Notice” has the meaning given to that term in Section 12.4 (i) hereof.
“E” means any Extraordinary Price Adjustment determined in accordance with Section 9.3.
“Early Retirement Incentive Package” means the separation package approved by the Board of
Trustees of MWSS pursuant to its resolutions numbered 24-96 dated February 3, 1996 and 68-96 dated April
18, 1996 (providing for computation of benefits based on creditable service in Government).
“Early Termination Amount” has the meaning given to that term in Section 10.3.2.
“Early Termination Date” has the meaning given to that term in Section 10.3.1.
“ESOP Shares” has the meaning given to that tem in Section 6.1.4(i)
“Event of Force Majeure” has the meaning given to that term in Section 16.10.1
“Existing Projects” means the projects (or any separable component or project, including only the
non-revenue water component of the Umiray Angat Transbasin Project) in the Service Area identified in
Schedule 9, which have been funded by MWSS from bilateral or multilateral sources prior to the
Commencement Date.
“Expiration Payment” has the meaning given to that term in Section 9.4.4.
“Extraordinary Price Adjustment” has the meaning given to that term in Section 9.3 hereof.
“Facilities” means all fixed and movable assets, including Movable Property, required to provide
water delivery services and sewerage services in the Service Area but excluding the Retained Assets. For
purposes of this definition, it is understood that the Magallanes Sewerage Treatment Plant and related
infrastructure shall be a Facility of Service Area East, and the Central Collecting System and related
infrastructure shall be a Facility of Service Area West.
“Future Cash Flows” means, for any Rate Rebasing Date, Cash Flows of the Concessionaire
expected to arise after such Rebasing Date in the course of carrying out its obligations under the Concession
176
Agreement as at such Rebasing Date, excluding any revision to those obligations that has been the subject of
an Extraordinary Price Adjustment determination due to come into effect on such Rebasing Date.
“Grounds for an Extraordinary Price Adjustment” or “GEA” has the meaning given to that term
in Section 9.3.1 hereof.
“Interconnection Agreement” has the meaning to that term given in Section 6.3
“Inventory” means the spare parts, pipes and accessories, pumps, meters and other similar items
owned by MWSS just prior to the Commencement Date related to the Service Area, and any other terms
allocated to the Concessionaire by MWSS prior to bidding on the Concession from the shared facilities with the
Other Operator, as set forth in the document captioned “Summary of Construction Materials/Office Supplies”,
undated December 2, 1996.
“Joint Venture” means the joint venture arrangement to be entered into by the Concessionaire and
Other Operator pursuant to Section 3.8 hereof.
“LBT” means the La Mesa/Balara Tunnel project-4. Notwithstanding the geographical location of
the LBT project, it shall be treated as an Existing Project of Service Area East.
“Local Component” means the scheduled costs associated with an Existing Project of the UATP
project which is not covered by an MWSS Loan.
“Low-income Customers” means Customers with an annual household income of P50,000 or less,
which amount shall automatically be adjusted on January 1st of each year by the percentage change in the
Consumer Price Index for the preceding year.
“Major Dispute” has the meaning given to that term in Section 12.4 (ii).
“Minor Dispute” has the meaning given to that term in section 12.4(ii).
“Movable Property” means the vehicles, furniture, maintenance equipment, computers and other
similar items owned by MWSS just prior to the Commencement Date related to the Service Are, and any items
allocated to the Concessionaire by MWSS prior to bidding on the Concession from the shared facilities with the
Other Operator, as such property shall be designated by MWSS in the document captioned “General
Administration Equipment, Physical Inventory,” undated, distributed December 2, 1996.
“MWSS Event of Termination” has the meaning given to that term in Section 10.1.
“MWSS Loans” means the indebtedness listed in Schedule 8 hereto for which MWSS is the primary
obligor.
“NAPOCOR” means the National Power Corporation, a Government owned and controlled
corporation organized and existing under Republic Act No. 6395, as amended.
“National Building Standards” means the building standards promulgated or issued pursuant to the
National Building Code (Presidential Decree No. 1096, as amended) and related laws, rules and regulations.
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“Net Present Value” means the net present value calculated at a specified date by discounting real
Cash Flows expected to occur at and subsequent to that date, and inflating real Cash Flows occurring prior to
that date, at the Appropriate Discount Rate, using the same discount rate for Cash Flows occurring at any point
during any calendar year.
“New Third Party License” has the meaning given to that term in Section 5.3.
“Opening Cash Position” means (i) with respect to the first Rate Rebasing Date, the Net Present
Value as at June 30 following such Rate Rebasing Date of the real Cash Flows occurring between the
Commencement Date and such Rate Rebasing Date in connection with the Concessionaire’s carrying out its
obligations under this Concession Agreement using the Appropriate Discount Rate determined as of the
Commencement Date and (ii) with respect to any subsequent Rate Rebasing Date, the Net Present Value as at
June 30 following such Rate Rebasing Date of Cash Flows occurring since the last Rate Rebasing Date together
with the Opening Cash Position determined with respect to the last Rate Rebasing Date in connection with the
Concessionaire’s carrying out its obligations under this Concession Agreement, using the Appropriate Discount
Rate determined at the last Rate Rebasing Date. For purposes of calculating the Opening Cash Position, any
prior negative Rebasing Convergence Adjustments shall be deemed to have been applied in full in the first
Charging Year of the Respective Rate Rebasing period, and not over the five year period set forth in Section
9.4.3 (ii).
“Other operator” means Benpres-Lyonnaise Waterworks, Inc., in its capacity as the concessionaire
appointed pursuant to that certain agreement captioned “Concession Agreement (Service Area West),”
between MWSS and Benpres-Lyonnaise Waterworks, Inc., dated as of the date hereof.
“Other Operator Employee” has the meaning given to that term in Section 3.1 hereof.
“Other Service Area” means the area in which the other Operator shall provide water and sewerage
services in its capacity as the concessionaire pursuant to that certain agreement captioned “Concession
Agreement (Service Area West)” between MWSS and Benpres-Lyonnaise Waterworks, Inc., dated as of the
date hereof.
“Performance Bond” has the meaning given to that term in Section 6.9 hereof.
“Pesos” or “P” refers to the lawful currency of the Republic of the Philippines.
“Peso Equivalent” has the meaning given to that term in Section 6.4.
“Prior Year” means the year beginning on the first day of January of the year prior to the
commencement of each Charging Year.
Agreement and (ii) that meets the requirements of Philippine law concerning foreign ownership and
management of a public utility.
“R” means any Rebasing Convergence Adjustment determined in accordance with Section 9.4.3.
“Rates Adjustment Limit” means the percentage, either positive or negative, equal to the sum of C,
E and R.
“Rate Rebasing Date” means each of January 1, 2003, January 1, 2008, January 1, 2013 and January
1, 2018.
“Rate Rebasing Period” means, in the case of the first Rate Rebasing Period, the period
commencing on the Commencement Date and ending on December 31,2002, and, in the case of subsequent
Rate Rebasing Periods, the period commencing on the last Rate Rebasing Date and ending on December 31 of
the fifth year thereafter; provided, however, that the last Rate Rebasing Period shall end on the Expiration
Date.
“Raw Water Dispute” has the meaning given to that term in Section 12.4 (iv) hereof.
“Rebasing Adjustment” has the meaning given to that term in Section 9.4.2.
“Rebasing” Convergence Adjustment” has the meaning given to that term in Section 9.4.3.
“Rebasing Dispute” has the meaning given to that term in Section 12.4(iii).
“Receipts” means all cash receipts from Customers and grants from third parties (including from the
Republic) to the Concessionaire, excluding any interest and dividends received by the concessionaire.
“Regulatory Office” has the meaning given to that term in Section 11.1 hereof.
“Retained Assets” means those assets that are retained by MWSS following the Closing Date,
which are set forth in the document captioned “Allocation of Fixed Assets,” dated December 6, 1996.
“Retained Employee” has the meaning given to that term in Section 3.1 (i).
“Rules” means the arbitration rules of the United Nations Commission on International
Trade Law as in effect on the date of this Concession Agreement. “Service Area” means the area
identified as Service Area East on the map attached to Schedule 1 hereto, and “Service Area West”
means the areas identified as such on the map attached to Schedule 1 hereto.
“Service Area Loans” means the credits listed in Schedule 8 hereto for which MWSS is the
primary obligor.
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“Service Obligations” mean the obligations of the Concessionaire of the kind referred to in Article 5
hereof, as such Service Obligations may be revised from time to time by the Regulatory Office in accordance
with this Agreement.
“Shared Facilities” has the meaning given to that term in Section 3.11.
“Standard Rates” mean the rates set out in Schedule 5 hereto for the supply of water and sewerage
services in the Service Area from the Commencement Date, as amended from time to time in accordance with
the provisions of Article 9.
“Termination Date” means the Expiration Date or the Early Termination Date, as the case may be.
“UATP” means the Raw Water conveyance component of the Umiray Angat Transbasin Project, as
described in Schedule 9.
“Undertaking Letter” has the meaning given to that term in Section 15.3 (iii)(d).
“Weighted Average Rates Increase” means the percentage difference, either positive or negative,
between (i) the revenue that would have accrued to the Concessionaire in the Weighting Year had the Standard
Rates to be applied in the Charging Year been applied in the Weighting Year and (ii) the revenue that would
have accrued to the Concessionaire in the Weighting Year had the Standard Rates applied by the
Concessionaire or, as the case may be, MWSS in the Prior Year been applied in the Weighting Year.
“Weighting Year” means the year beginning on the first day of January two years prior to the
commencement of each charging year.
ARTICLE 2. APPOINTMENT
On the terms and subject to the conditions set forth herein, MWSS hereby grants to the
Concessionaire, as contractor to perform certain functions and as agent for the exercise of rights and powers
under the Charter, the sole right to manage, operate, repair,
Decommission and refurbish the Facilities in the Service Area, including the right to bill and collect water and
sewerage services supplied in the Service Area (the “Concession”). The Concessionaire shall perform its
functions and exercise its rights under this Agreement directly or, in respect of functions and rights delegated to
the Joint Venture. The rights and benefits of the Concessionaire under this Agreement shall be deemed to
apply with equal force to the Joint Venture to the extent that the Joint Venture is performing functions
delegated to it under this Agreement.
On the terms and subject to the conditions set forth herein, the Concessionaire hereby accepts the
Concession and its appointment as the Concessionaire hereunder.
The Concession shall take effect on the Commencement Date and, subject to the provisions of Article
10 hereof, shall continue in effect until the Termination Date.
In the event that the Concessionaire and the Regulatory Office determine that the CPI is for any
period not an accurate reflection of the rate of inflation in the Philippines as it relates to this Agreement, the
Concessionaire and the Regulatory Office may select an alternative index.
(i) Prior to bidding on the Concession, MWSS shall have provided the Concessionaire with a
list of MWSS permanent employees (and salary/benefit levels/length of service) who shall
be hired by the Concessionaire effective on the Commencement Date (each a
“Concessionaire Employee”) and a list of MWSS permanent employees who shall be hired
by the Other Operator effective on the Commencement Date (each an “Other Operator
Employee”). The list of prospective Concessionaire Employees and the Other Operator
Employees shall be updated at the reasonable Discretion of the Administrator of MWSS
within 30 days of the signing hereof such that all current permanent employees of MWSS
shall have been designated as either a Concessionaire Employee, Other Operator Employee
or retained employee of MWSS (each, a “Retained Employee”). The Concessionaire shall
not, without the consent of the Other Operator, hire any Other Operator Employees during a
period of one year after the Commencement Date.
(ii) MWSS shall, within 15 days of the Commencement Date, Supply the Concessionaire with
information sufficient to permit the Concessionaire to calculate its maximum exposure for
severance payments under Section 6.1.2 below.
3.2 Liabilities/Revenues
MWSS shall bear all liabilities, including the collection of accounts receivable, contingent liabilities
relating to environmental contamination, and shall (subject to Section 3.4) be entitled to receive and to retain all
revenues, arising out of the operation of the Facilities prior to the Commencement Date. MWSS shall, on the
Commencement Date transfer to the concessionaire all Customer deposits then held by MWSS for Customers
in the Service Area.
MWSS hereby covenants that, from the date hereof and until the Commencement Date, unless the
Concessionaire shall otherwise consent in writing (which consent shall not unreasonably be withheld), MWSS
shall conduct the business and operations of MWSS in the ordinary and usual course in a manner consistent
with past best practice and, without limiting the generality of the foregoing, MWSS shall:
(i) use its reasonable efforts to preserve and maintain the Facilities and Inventories;
(ii) maintain in accordance with its normal best practices all documents, agreements, contracts
and other corporate records of MWSS relevant to its business and operations;
(iii) at all times comply with all material laws, statutes, rules, regulations, orders and directives
of any governmental authority having jurisdiction over MWSS or its businesses, except in
cases where the application thereof is being contested in good faith or is the subject of an
appeal or other legal challenge;
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(iv) give prompt written notice to the Concessionaire of the commencement of any dispute or
proceeding between MWSS and any governmental body which, if determined adversely to
MWSS, could reasonably be expected to have a material adverse effect on MWSS business
or financial condition; (b) the occurrence of any material event of default in any material
agreement of MWSS or any event which, upon a lapse of time or the giving of notice or
both, would become a material event of default under any such agreement; and (c) the
occurrence of any other event which has or could reasonably be expected to have a material
adverse effect on MWSS’ business or financial condition;
(v) not waive any valuable right owed to MWSS or enter into any material contract which could
affect the Concessionaire; or
(vi) not reorganize departments or otherwise its organizational structure or employee salaries or
benefits in any material fashion, other than any such reorganization consistent with the terms
hereof.
Until the first anniversary of the Commencement Date, the Concessionaire shall have the exclusive
right to collect any accounts receivable from Customers for water and sewerage services outstanding as of the
Commencement Date. The Concessionaire shall remit to MWSS, on a monthly basis, all amounts collected in
respect of such accounts receivable less a collection fee of (i) for any receivable that has been outstanding for
60 days or less as of the Commencement Date, a fee equal to 3% of the amount collected and (ii) for any
receivable that has been outstanding for more than 60 days as of the Commencement Date, a fee equal to 6% of
the amount collected.
3.5 Inventory
Effective on the Commencement Date, the Concessionaire shall have the Right to use any items of
Inventory in carrying out its responsibility under the Concession. Any consumable items owned by MWSS and
inventory not identified for use by the Concessionaire shall be subject to the retention or disposal by MWSS
and the applicable rules and procedures of the Commission on Audit shall be complied with in the event of any
such disposition of assets by MWSS.
Legal title to all Movable Property in existence at the Commencement Date shall be retained by
MWSS. The Concessionaire is hereby granted the right to operate, maintain in good working order, repair,
decommission and refurbish the Movable Property required to provide the water and sewage services under this
Agreement; provided, however, that upon expiration of the useful life of any such Movable Property as maybe
determined by the Concessionaire, such Movable Material shall be returned to MWSS in its then-current
condition at no charge to MWSS or the Concessionaire.
The Concessionaire shall pay a commencement fee of U.S. $5 Million to MWSS on the
Commencement Date.
Prior to the Commencement Date, the Concessionaire and Other Operator shall enter into a joint
venture arrangement in such form as they shall select (e.g., a contractual arrangement, a special purpose
company incorporated in the Philippines or other arrangement) (the “Joint Venture”)` subject to the approval of
MWSS to assure that (i) the Joint Venture arrangement identifies the party which shall bear each material
responsibility and liability of the Joint Venture and (ii) the Joint Venture enters into appropriate contractual
undertakings with MWSS regarding the Common Purpose Facilities (including recourse to the Performance
Bonds of the Concessionaire and the other Operator). The Joint Venture shall have the responsibility to:
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(i) operate, maintain, renew and, as appropriate, decommission the Common Purpose Facilities
in a manner consistent with the National Building Standards and best industrial practices so
that, at all times, the water and sewerage system in the Service Area is capable of meeting
the Service Obligations (as such obligations may be revised from time to time by the
Regulatory Office following Consultation with the Concessionaire); and
(ii) perform such other functions relating to the Concession (and the Concession of the Other
Operator) as the Concessionaire and the Other Operator may choose to delegate to the Joint
Venture, subject to approval by MWSS.
In addition, the Concessionaire and the Other Operator shall enter into bilateral arrangements relating
to the billing and collection for any services provided by either of them in the other’s Service Area and
interconnection arrangements as provided in Section 6.3.
(i) Arrangements with respect to the terms and conditions of the supply of Raw Water to the
Concessionaire and the Other Operator are set forth in the letter from MWSS to NWRB
dated November 27, 1996, which letter was acknowledged and approved by the MWSS
Board of Trustees on December 2, 1996.
(ii) Whenever MWSS receives notice of meeting with NWRB at which an issue affecting the
Concessionaire is scheduled to be discussed, MWSS shall promptly give the Concessionaire
notice of that meeting and shall make all reasonable efforts to permit a representative of the
Concessionaire to attend such meeting and to express views on behalf of MWSS. On any
issue put to vote at any such meeting which affects only the Concessionaire and not the
Other Operator, MWSS shall vote in a manner consistent with the Concessionaire’s interest.
On any issue which affects both the Concessionaire and the Other Operator, MWSS shall
vote in such manner as consistent with the interests of the Concessionaire and the Other
Operator.
MWSS shall retain, and not transfer to the Concessionaire, all cash and Marketable
securities in existence on the Commencement Date.
The Concessionaire and Other Operator shall have equal access to those MWSS facilities involved in
the provision of water supply and sewerage services in both Service Area East and Service Area West
including, but not limited to, the MWSS management information system, billing system, telemetry system,
central control room and central records (the “Shared Facilities”)
MWSS shall also make its corporate headquarters available to the Concessionaire and the Other
Operator during one-year period beginning on the Commencement Date (subject to renewal with the consent of
all parties).
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MWSS is a government corporation duly organized, validly existing and in good standing
under the laws of the Republic.
4.1.2 Authorization
MWSS has full power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of this Agreement by
MWSS and the consummation by MWSS of the transactions contemplated hereby have been duly
authorized by all necessary action of MWSS and no further action or proceeding on the part of
MWSS is necessary to authorize the execution and delivery by MWSS of this Agreement or the
consummation by MWSS of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by MWSS and has been approved by the President of the Republic and, under
the laws of the Republic in effect as of the date of this Agreement, is a legal, valid and binding
obligation of MWSS, against MWSS in accordance with its terms.
(i) Neither the execution and delivery of this Agreement nor the transactions contemplated
hereby will (a) conflict with or violate any provision of the Charter, (b) conflict with or
violate any law, rule, regulation, ordinance, order, writ, injunction, judgment or decree
applicable to MWSS or by which any of MWSS properties or assets are bound or affected
or (c) conflict with or result in any breach or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others any rights
of termination, cancellation or acceleration of, or result in the creation of any lien, charge
or encumbrance on any of its assets or properties pursuant to any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, permit, license, franchise, contact,
agreement or other instrument or provisions of, any note, bond, mortgage, indenture,
permit, license, franchise, lease, contract, agreement or other instrument or obligation to
which MWSS is a party or by which MWSS or any of its properties or assets is bound or
affected.
(ii) Except for the approval of the President of the Republic referred to in Section 4.1.2 above,
no notice, declaration, report or other filing or registration with, and no waiver, consent,
approval or authorization of, any governmental or regulatory authority or instrumentality is
required to be submitted, made or obtained by MWSS in connection with the execution,
delivery or performance of this Agreement by MWSS and the consummation of the
transactions contemplated hereby.
The financial statements of MWSS for the fiscal year ending December 31, 1995,
previously provided to the Concessionaire, fairly present the financial position of MWSS as of such
dates and the results of operations of MWSS for the periods covered by those statements. Since
December 31, 1995 there has been no materials adverse change in the business, financial position,
results of operations or prospects of MWSS. (The representation and warranty contained herein will
be deemed to be repeated as of the Closing Date with reference to the financial statements of MWSS
dated December 31, 1996). In addition, the disaggregated pro forma statements with respect to the
Concession, the Other Service Area and the retained functions of MWSS previously provided to the
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Concessionaire have been prepared in a manner consistent with generally accepted accounting
principles in the Philippines.
Neither MWSS, nor any of its officials or employees, has incurred any liability for any
brokerage fees, commissions, finders’ fees or similar fees or Expenses in connection with the
transactions referred to in its Agreement for which the Concessionaire may be liable.
The Concessionaire is a corporation duly organized, validly existing and in good standing
under the laws of the Republic of the Philippines. The Concessionaire has full corporate power and
authority to carry on its business as required under the terms of this Agreement and is duly qualified
to do business in all jurisdictions where the ownership of its assets or the conduct of its business
requires such qualification. The outstanding voting capital stock of the Concessionaire is at least 60%
owned by citizens of the Philippines or by corporations that are themselves at least 60% owned by
citizens of the Philippines.
4.2.2 Authorization
The Concessionaire has full power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery of this Agreement
by the Concessionaire and the consummation by the Concessionaire of the transactions contemplated
hereby have been duly authorized by all necessary action of the Concessionaire and no further action
or proceeding on the part of the Concessionaire is necessary to authorize the execution and delivery
by the Concessionaire of this Agreement or the consummation by the Concessionaire of the
transactions contemplated hereby.
This agreement has been duly executed and delivered by the Concessionaire and is a legal, valid and
binding obligation of the Concessionaire, enforceable against the Concessionaire in accordance with
its terms.
(i) Neither the execution and delivery of this Agreement nor the transactions contemplated
hereby will (a) conflict with or violate any provisions of the Articles of Incorporation or
By-Laws of the Concessionaire, (b) conflict with or violate any law, rule, regulation,
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(ii) No notice, declaration, report or other filing or registration with, and no waiver, approval or
authorization of, any governmental or regulatory authority or instrumentality is required to
be submitted, made or obtained by the Concessionaire in connection with the execution,
delivery or performance of this Agreement by the Concessionaire and the consummation of
the transactions contemplated hereby, other than those which have already been obtained
and are in full force and effect.
Neither the Concessionaire, nor any of its officials or employees, has incurred any liability
for any brokerage fees, commissions, finder’s fees or similar fees or expenses in connection with the
transactions referred to in this Agreement for which MWSS may be liable.
The Concessionaire shall have the obligations set forth in this Article 5 in respect of the provision of
water services in the Service Area. The Regulatory Office may defer the implementation of specific Service
Obligations in any situation where, in the opinion of the Regulatory Office such a deferment is warranted in
light of unforeseen circumstances (e.g., material delay in the completion of the UATP project beyond June 30,
1999 or a material delay in the completion of the LBT project, if such project is amended pursuant to Section
6.13.1 (ii)(B) hereof, beyond June 30, 1999).
The Concessionaire shall offer water supply services to all existing Customers in the
Service Area on the Commencement Date and, in addition, the Concessionaire shall make at least
sufficient connections (net of any disconnections) to meet the coverage target percentages of the
population in the designated municipality at the time of the target (excluding users who obtain water
from a legal source other than the MWSS system) set out in Schedule 2 hereto by the dates specified
in that Schedule. Further, the Concessionaire shall provide data and supporting evidence to the
Regulatory Office that demonstrates compliance with such coverage targets, along with the method
by which such compliance was calculated, prior to each Rebasing Date in accordance with Section
9.4.1.
As soon as practicable, but in any event not later than June 30, 2000, the Concessionaire
shall ensure the availability of an uninterrupted 24 hour supply of water to all connected Customers
in the Service Area, subject to interruptions resulting from the temporary failure of items of the
Facilities (where the Concessionaire acts promptly to remedy such failure) or required for the repair
or construction of the Facilities where such repairs or construction cannot be performed without
interruption to the supply of water. At all times, such water shall be supplied at a level of positive
pressure sufficient to secure the system against the ingress of untreated water or other contaminants;
provided, however, that such pressure shall be at a minimum of 11 meters (16 psi) for all areas
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connected by new primary or secondary conveyance pipelines and, from the tenth anniversary of the
Commencement Date, for all pipelines throughout the Service Area. Water pressures shall be
determined by measuring service pressure on the Customer’s side of the water meter inside of the
water meter box.
Upon request from the owner or occupant of premises located in the Service Area for a
connection to a water main, the Concessionaire shall make such a connection as soon as reasonably
practicable. For such connection to a water main located less than 25 meters from the connection
point for such main, the Customer shall pay the connection fee set out in Section 9.5(i). For all other
connections, the Customer shall pay a fee determined in accordance with Section 9.5 (ii).
The Concessionaire shall ensure at all times that the water supplied to Customers in the
Service Area complies with Philippine National Drinking Water Standards as published by the
Department of Health of the Republic (or successor entity responsible for such standards) and
prevailing at such time; provided, however, that the Regulatory Office, after consultation with any
appropriate governmental authorities, shall have the discretion to consent to a phase-in of compliance
with these standards over a period of not more than 12 months from the Commencement Date. The
Concessionaire shall observe any requirements regarding sampling, record keeping or reporting as
may be specified by law in the Philippines.
The Concessionaire shall make available an adequate supply of water for fire-fighting and
other public purposes as the municipalities comprising the Service Area may reasonably request. The
Concessionaire shall not assess a charge for such water used for fire-fighting purposes but may
The Concessionaire shall make a supply of water available to Customers other than through a water main
in circumstances where (i) supplies through a water main have been or will be interrupted for more than
24 hours, or (ii) supplies through a water main have been or will be subject to contamination. The charges
for these services shall not exceed the Standard Rates for piped water supplies. In circumstances where no
connection to a water main exists, the Concessionaire may make a supply of water available to Customers
other than through a water main at a fee equal to the costs reasonably and efficiently incurred by the
Concessionaire in supplying such water.
The Concessionaire shall have the following obligations in respect of the provision of
sewerage services in the Service Area:
The Concessionaire shall offer to supply sewerage services to all Customers in the Service
Area who have sewerage connections on the date hereof for domestic sewage and industrial effluents
compatible with available treatment processes and, in addition, the Concessionaire shall meet the
coverage target percentages of the total population in the designated municipality connected to the
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Concessionaire’s water system at the time of the targets set out in Schedule 3 below by the dates
specified in that Schedule.
Upon request from the owner or occupant of premises located in the Service Area for a
connection to a public sewer, the Concessionaire shall make such a connection as soon as reasonably
practicable. For such connection to a public sewer located less than 25 meters from the connection
point, the Customer shall pay the connection fee set out in Section 9.5 (i). For all other connections,
the Customer shall pay a fee determined in accordance with Section 9.5(ii).
The Concessionaire shall comply with all national and local environmental laws and
standards relating to treated wastewater in the Service Area and in accordance with a schedule of
compliance provided by the Regulatory Office as the same may be modified or supplemented from
time to time in consultation with the Concessionaire, and the Concessionaire shall have the sole
liability for any changes or fines that may be assessed in connection with violations thereof.
The Concessionaire shall offer septic and sanitation cleaning services in the Service
Area, and, in addition, the Concessionaire shall meet the coverage target percentages of the
total population in the designated municipality at the time of the target for such services set out
in Schedule 4 below by the dates specified in that Schedule; provided, however, that Customers
who requests such services of the Concessionaire shall have first priority over those who do not
request them. Septic and sanitation cleaning services are defined as the emptying of domestic
septic tanks and subsequent sludge disposal at regular intervals of five to seven years.
5.3 Exclusivity
Subject to (i) and (ii) below, the Concessionaire shall have the exclusive right to provide water and
sewerage services in the Service Area:
(i) Any license granted by the NWRB with the consent of MWSS to a third-party provider of
water and sewerage services in effect on the Commencement Date shall remain in effect in
accordance with its terms.
(ii) In the event of any application to the NWRB for which MWSS consent is sought by a third
party for a license to provide water and sewerage services to a new development after the
Commencement Date (a “New Third Party License”), MWSS shall consent to the grant by
the NWRB to the Concessionaire of the right to provide such services to such new
development if the Concessionaire agrees to provide such services on (a) substantially
similar terms as set forth in the proposed New Third Party License and (b) at the Standard
Rates then in effect for such services. If the conditions set out in the previous sentence are
not met, or if the Concessionaire voluntarily declines to provide the services to such new
development, MWSS may consent to the grant of a license to the third-party service
provider for a term not longer than 10 years, subject to revocation upon not less than 60
days’ notice to such third party provider if the Concessionaire notifies MWSS and the
NWRB in writing that the Concessionaire is in a position to provide such services in
accordance with the conditions of this clause (ii).
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To the extent feasible, MWSS shall authorize and facilitate direct communication between NWRB and the
Concessionaire with respect to the matters referred to in this Section 5.3.
At all times, the Concessionaire shall provide the highest quality services to its Customers that are
practically achievable subject to guidelines issued by the Regulatory Office, including, but not limited to:
(ii) giving notices to Customers at least 48 hours in advance of any planned interruptions in
water supply;
(iii) making alternative water supplies available for planned interruptions in service of more
than 24 hours;
(iv) effecting urgent restoration of water supplies for any unplanned interruptions in service and
informing Customers on progress in making necessary repairs and treatment of potentially
contaminated supplies;
(v) taking measures to prevent sewage flooding from the sewerage network; and
(vi) providing invoices to Customers which clearly identify services, charges, period covered,
forms of payment and penalties for late or non-payment.
The Concessionaire shall have the following obligations in respect of employee matters:
6.1.1 Hiring
(ii) Effective as the end of business hours on the day prior to the Commencement
Date, the employment of each Concessionaire Employee with MWSS shall be
terminated and each such Employee shall (upon receipt by MWSS of a release
and quitclaim from such Employee) be entitled to:
(iii) One month prior to the Commencement Date, the Concessionaire Shall make an
offer to employ each Concessionaire Employee, subject to a probationary period
of six months following the Commencement Date, at a salary or pay scale and
with benefits at least equal to those enjoyed by such Employee on the date of his
or her separation from MWSS. Within a period of six months from the
Commencement Date, the Concessionaire, in consultation with the Other
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(iv) The Concessionaire shall pay any Concessionaire Employees who do not accept
the Concessionaire’s offer of employment the difference between the severance
pay that they previously received in accordance with clause (i)(b) above and the
severance benefits offered by MWSS pursuant to the Early Retirement Incentive
Package, without prejudice to any salary adjustment that may be granted by the
Republic.
(vi) Not later than six months after the Commencement Date, the Concessionaire will
choose which employees to retain on regular status in accordance with the
Philippine Labor Code and after due consultation with the Kapatiran ng mga
Mangagawa at Kawani sa MWSS (“KKMK”) and the MWSS Supervisors
Association (“MWSSSA”). KKMK, as the accredited and certified labor union
of the rank and file MWSS employees, and MWSSSA shall be recognized, as of
the Commencement Date, by the Concessionaire as the representative of the rank
and file and supervisory employees, respectively, until such time as an
appropriate union has been formed and certified as a bargaining agent. As such,
KKMK and MWSSSA may take up with the management of the Concessionaire
any and all issues affecting the rights and welfare of their respective members.
(vii) Those employees retained after six months from the Commencement Date shall
then begin employment with the Concessionaire as regular employees. In all
cases, the Concessionaire shall recognize and respect the rights of its employees
to self-organization and collective bargaining.
(viii) Any Retained Employee who notifies the Concessionaire and MWSS in writing
within three years following the Commencement Date of his or her desire to be
employed by the Concessionaire shall, upon the release of MWSS, promptly be
hired by the Concessionaire and entitled to the same treatment as other
Concessionaire Employees under this Section 6.1.
(i) Concessionaire Employees not retained by the Concessionaire after the six-month
probation period following the Commencement Date shall be paid by the
Concessionaire an amount equal to the difference between the severance pay they
previously received in accordance with Section 6.1.1 (i)(b) above and the
severance benefits offered by MWSS pursuant to the Early Retirement Incentive
Package, without prejudice to any salary adjustment that may be granted by the
Republic;
(ii) For a period of one year beginning at the end of the six month probationary
period from the Commencement Date, any Concessionaire Employee who is
affected by any reduction in personnel (e.g. redundancy, installation of labor
savings devices, closure, retrenchment or other authorized causes as provided
under the Labor Code) shall be paid separation pay equal to the greater of (a) that
prescribed by the Labor Code and (b) the difference between the severance pay
they previously received in accordance with Section 6.1.1(i)(b) above and the
severance benefits offered by MWSS pursuant to the Early Retirement Incentive
Package, without prejudice to any salary adjustment that may be granted by the
Republic, whichever is higher.
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Severance payments due to Concessionaire Employees under this section 6.1.2 shall be the
sole responsibility of the Concessionaire.
The Concessionaire shall grant to all Concessionaire employees employee benefits no less
favorable than those granted to such employees by the MWSS at the time of their separation from
MWSS, particularly those set forth in Exhibit F and the following:
(i) The Concessionaire shall institute, under terms and conditions which are no less
favorable than those provided in the MWSS Employees Savings and Welfare Plan,
a welfare fund, to which it shall constitute no less than 5% of the monthly basic
salary of a member of the Fund who authorizes the Concessionaire to deduct from
his or her monthly basic salary 5% thereof as a contribution to the Fund.
(ii) The Concessionaire shall permit deductions from the salaries of those employees
who are members of ESLA/Health Cooperative and Consumers
Cooperative/KKMK and MWSSSA of their contributions for capital subscriptions
and loan repayments or membership dues in favor of those institutions. The
Concessionaire shall likewise, to the extent feasible, provide to those institutions
office facilities free of charge.
The Concessionaire shall, within a period of no more than six months from the
Commencement Date, adopt an Employee Stock Option Plan (“ESOP”) that overtime shall ensure the
ownership by its regular employees equal to six percent of the total outstanding capital stock of the
Concessionaire. The Concessionaire shall decide whether these shares will be sourced from original
Filipino shareholders, an issue of previously authorized but unissued shares or through a capital
increase. The ESOP shall have the following features:
(i) Coverage and Allocation. All regular employees of the Concessionaire and its
affiliates shall be entitled to participate in the ESOP. Employees may only
subscribe shares under the ESOP (the “ESOP Shares”) pursuant to the Annual
Stock Purchase Bonus referred to in clause (iii) below. The ESOP shares shall
comprise a portion of the Filipino equity ownership of the Concessionaire.
(ii) Subscription Price. During the first year of the ESOP, the subscription price of
each ESOP Share shall be the issued price of the Concessionaire’s common shares
at the time of incorporation of the Concessionaire. Thereafter, and until an initial
public offering (an “IPO”) of the Concessionaire’s shares is conducted, the ESOP
Share subscription price shall be adjusted at the end of each fiscal year by the
Concessionaire’s external auditors according to established and generally accepted
accounting principles applicable to comparable ESOPs in the Philippines.
(iii) Manner of Payment. The Concessionaire shall grant to every regular employee
who has rendered continuous satisfactory service during the full prior year an
Annual Stock Purchase Bonus equal to not less than the last basic monthly salary
of the employee during that year. This Bonus shall automatically be applied to the
purchase of ESOP Shares for the account of that employee. This Bonus shall be
paid until all ESOP Shares available for subscription under the ESOP have been
prescribed.
(iv) Vesting. The ESOP Shares shall be issued in the name of the purchasing
employees upon full payment for such ESOP Shares.
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(v) Holding Period. For a period of five years from the date of issuance of each ESOP
Share, employees may not sell or transfer that ESOP Share. Thereafter, an
employee may only sell that ESOP Share to the Concessionaire at a price equal to
that determined in the same manner as in Section 6.1.4(ii). Should the
Concessionaire conduct an IPO within or after this five-year period, all
outstanding ESOP Shares shall be included in the relevant registration statement
and each employee holding ESOP Shares may then freely sell or transfer the
ESOP Shares held by that employee. In the event of the death of an employee, the
balance of the foregoing holding period shall likewise apply to the employee’s
successors-in-interest.
(vi) Separation from the Concessionaire. In the event that an employee resigns, retires
or is otherwise separated for any reason (other than death) from the
Concessionaire or its affiliates prior to the expiration of the five-year holding
period or, if earlier, the implementation of an IPO, the ESOP Shares then held by
the resigned, retired or separated employee shall be purchased by the
Concessionaire at the then-applicable subscription price under the ESOP.
(vii) Voting Rights. The ESOP shall comprise a class of shares which, during the first
five years after commencement of the ESOP, shall have no voting rights except
for the matters provided for under Section 6 of the Corporate Code; provided,
however, that if the ESOP Shares are included in an IPO during this five-year
period, this restriction on voting rights shall automatically terminate.
(viii) New Employees. Regular Employees who join the Concessionaire after the
institution of the ESOP are eligible to participate on a first-come, first-served basis
if there are still ESOP Shares available for subscription. Subject to rules to be
issued by the Concessionaire, available ESOP Shares may be allocated on a pro-
rata basis if it is not possible in Section 6.1.4(i) hereof.
6.2 Taxes
Subject to the Undertaking Letter, the Concessionaire shall be responsible for all income and
withholding taxes and other forms of taxes arising from payments by Customers for services rendered on and
after the Commencement Date and from any other income associated with the Concession arising on or after the
Commencement Date. The Concessionaire shall be responsible for the payment of all documentary stamp taxes
payable in connection with the execution of this Agreement and any related agreements or instruments; all
customs, import duties and other taxes or assessments relating to the importation into the Philippines of plant
and equipment to be used in connection with the Concession; and all local transfer taxes on property acquired
through the exercise of rights pursuant to Section 7.2. In addition, the Concessionaire shall pay, for and on
behalf of MWSS, or shall reimburse MWSS within 10 days of demand therefor, any real property taxes and
other taxes or assessments payable by MWSS on MWSS property or assets in the Service Area used for the
supply of water and sewerage services.
6.3 Interconnection
Within thirty days following the date hereof, the Concessionaire shall enter into an interconnection
agreement with the Other Operator, in form and substance satisfactory to MWSS (the “Interconnection
Agreement”). The Interconnection Agreement shall address the matters summarized in Schedule 10 in a manner
consistent with that Schedule.
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By January 15 of each calendar year, MWSS shall provide the Concessionaire with a schedule of all
anticipated amounts due in connection with the Concession Fee payable during that year, as described in (a) and
(b) below:
(a) Not later than 14 days prior to the date on which any scheduled payment of principal,
interest, fees or other amount is due under an MWSS Loan, MWSS shall notify the
Concessionaire in writing of the total amount due on that payment date and of the Peso
equivalent thereof (the “Peso Equivalent”) calculated at the then prevailing exchange rate.
Not later than one business day prior to each such payment date, the Concessionaire shall
remit to such account as MWSS shall instruct an amount, in Pesos, exclusive of any
penalties or default interest charges not attributable to a late payment of the Concession Fee
by the Concessionaire (each such payment being referred to herein as a “Concession Fee”),
equal to the sum of:
(vi) 10% of the aggregate Peso Equivalent due under any MWSS Loan which has been
disbursed prior to the Commencement Date (including MWSS Loans for Existing
Projects and the UATP project) on the relevant payment date set forth on Schedule
8; plus
(vii) 10% of the aggregate Peso Equivalent due under any MWSS Loan designated for
the UATP project which has not been disbursed prior to the Commencement Date
on the relevant payment date set forth on Schedule 8; plus
(viii) 10% of the Local Component costs and Cost Overruns related to the UATP project
in accordance with Schedule 9; plus
(ix) 100% of the aggregate Peso Equivalent due under any MWSS Loan designated for
Existing Projects, which have not been disbursed prior to the Commencement
Date and have been either awarded to third party bidders in accordance with
Section 6.13.1(i) or been elected by the Concessionaire for continuation in
accordance with Section 6.13.1(ii); plus
(x) 100% of the Local Component costs and Cost Overruns related to Existing
Projects in accordance with Schedule 9.
(b) Not later than five days after the Commencement Date, the Concessionaire shall pay to
MWSS the amount of 50 million Pesos, which MWSS shall use and allocate in accordance
with Section 11.2 for the establishment and budget of the Regulatory Office during 1997. In
addition, the Concessionaire shall pay to MWSS on the first business day of January of each
year thereafter an amount equal to one-half of the annual budget for MWSS for that year,
provided that such annual budget shall not for any year exceed million Pesos, subject to
annual CPI adjustments. MWSS may request adjustments to the level of the annual
contribution of the Concessionaire provided in this Section 6.4(b). If the Concessionaire
objects to any such requested revision, it may refer the matter to the Appeals Panel.
Each Concession Fee shall be treated as an Expenditure of the Concession and the
Concessionaire’s payment obligation in respect thereof shall rank at least pari passu with its unsecured
payment obligations under all other debt instruments that may be executed by the Concessionaire. In
the event the Concessionaire does not make a timely payment of a Concession Fee, the U.S. dollar
equivalent of such unpaid amount may be drawable under the Performance Bond in accordance with
Section 6.9 below.
The Concessionaire shall have the following obligations concerning the management of the Facilities:
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6.5.1 General
(v) repair and correct, on a priority basis, any defect in the Facilities that could
adversely affect public health or welfare, or cause damage to persons or third-
party property; and
(vi) ensure that at all times the Concessionaire has sufficient financial, material and
personnel resources available to it to meet its obligations under this Agreement.
Not later than the second anniversary of this Agreement, the Concessionaire shall provide a
report (the “Asset Condition Report”) to the Regulatory Office, in form and substance satisfactory to
the Regulatory Office, classifying (on a graded scale) the condition of infrastructure Facilities in the
Service Area. This Report shall cover:
(i) Facilities related to the provision of water supply services, distinguishing among
dams, Bulk Water transfer, water treatment plants, pumping stations, trunk potable
water systems, service reservoirs and distribution mains; and
6.5.3 Audit
The Regulatory Office shall have the right at any time to commission an independent
technical audit of the accuracy and completeness of any Asset Condition Report and/or the
Concessionaire’s compliance with its obligations under Section 6.5.1 above. The Concessionaire shall
cooperate fully with any such audit. The cost of any such audit shall be borne by the Concessionaire
and treated as an Expenditure.
Commencing five years subsequent to the Commencement Date, if, based on an audit report
commissioned pursuant to Section 6.5.3 above and any other information coming to the attention of
the Regulatory Office, the Regulatory Office reasonably concludes that the Concessionaire is not
meeting its obligations under Section 6.5.1 above, then the Regulatory Office shall give the
Concessionaire written notice of this conclusion and the Concessionaire shall have 60 days (or such
longer period as the Regulatory Office may provide) thereafter to commence appropriate action to
correct the problem to the satisfaction of the Regulatory Office. Failing such correction, the
Regulatory Office shall have the authority to commission appropriate remedial works by third parties.
The costs of such remedial works shall be borne by the Concessionaire but shall not constitute an
Expenditure or qualify as a Ground for an Extraordinary Price Adjustment. In the event the
Concessionaire does not make a payment within 30 days of written notice pursuant to this Section
6.5.4 of the cost of such remedial works, the U.S. dollar equivalent of such unpaid amount shall be
drawable under the Performance Bond in accordance with Section 6.9 below.
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6.6 Disconnections
The Concessionaire may disconnect any Connection for the supply of water services or sewerage
services in the Service Area if charges billed to the Customer therefor remain unpaid for a period of 60 days
after their due date. The Concessionaire shall provide the Customer with not less than seven days’ prior written
notice of any such disconnection. Upon the payment in full of all outstanding charges (including late payment
penalties and reconnection charges), the Concessionaire shall reconnect any Customer whose services have
previously been disconnected within five days following receipt of a request for reconnection.
6.7 Insurance
The Concessionaire shall at its own expense effect and maintain, or require to be effected and
maintained throughout the term of the Concession insurance coverage in such amounts as are reasonable and
customary throughout the industry internationally; provided however, that the Concessionaire shall at all times
comply with Administrative Order #141 regarding insurance of Government properties by the General Insurance
Funds of the Government Service Insurance System.
The Concessionaire shall comply with all Philippine laws, statutes, rules regulations, orders and
directives of any governmental authority that may affect the Concession from time to time.
On the Commencement Date, and on each Rate Rebasing Date, the Concessionaire shall post a bond,
bank guarantee or other security acceptable to MWSS (a “Performance Bond”)in favor of MWSS to secure the
Concessionaire’s performance of its obligations under Section 3.8 (Joint Venture), Section 6.4 (Concession Fee),
Section 6.5.4 (Remedial Works), Section 10.3.2 (Early Termination), Section 10.4 (Penalties for Failure to Meet
Service Obligations) Section 11.2.2 (Annual Contribution), Section 12.6 (Costs of the Appeals Panel) during the
Rate Rebasing Period commencing on that date. The aggregate amount drawable in one or more installments
under each such Performance Bond during the Rate Rebasing Period to which it relates is set out below:
Second 70
Third 60
Fourth 60
Fifth 50
Within 30 days of the Commencement of each calendar year, the Concessionaire shall cause the
Performance Bond to be reinstated in full amount set forth above applicable for that year.
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Upon not less than 10 days’ written notice to the Concessionaire, MWSS may take one or more
drawings under the Performance Bond relating to a Rate Rebasing Period to cover amounts due to MWSS
during that period; provided, however, that no such drawing shall be made in respect of any claim that has been
submitted to the Appeals Panel for adjudication until the Appeals Panel has handed its decision in the matter.
In the event that any amount payable to MWSS or the Regulatory Office by the Concessionaire
hereunder is not paid when due, such amount shall accrue interest at a rate equal to that of a364 days Treasury
Bill for each day it remains unpaid from and including the due date thereof to but excluding the date on which
such amount shall be paid (including payment through a drawing under the Performance Bond) in full.
6.10 Procurement
During the course of the Concession, other than with respect to existing Projects, the Concessionaire
shall make available for public tender any contract involving the procurement of goods or services, in one or
more installments, having a value in excess of P 250,000,000, which amount shall be adjusted on January 1st of
each year by the percentage change in the Consumer Price Index for the preceding year. The Concessionaire, at
its sole discretion, shall determine the specifications upon which contractors will bid and the criteria, including
price and quality, by which the winning bid is selected.
(iv) until December 31,2002 (the first Rate Rebasing Date), the International Water Operator
and the Sponsor shall each (directly or through a subsidiary that is at least 51% owned, and
controlled, by the International Water Operator or the Sponsor, respectively) at least 20% of
the outstanding capital stock of the Concessionaire. After the first Rate Rebasing Date and
throughout the Concession, the International Water Operator and the Sponsor shall each own
(directly or through a subsidiary that is at least 51% owned, and controlled, by the
International Water Operator or the Sponsor, respectively) at least 10% of the outstanding
capital stock of the Concessionaire;
(v) the Concessionaire shall have an equity paid-in cash capital of not less than P 1 billion at the
Commencement Date and by the first anniversary of the Commencement Date shall have an
equity paid-in cash capital of not less than P 2 billion; and
(vi) the Concessionaire shall consider the feasibility of making a public offering of a portion of
its equity in the Philippines with a view toward broadening the ownership base of the
Concessionaire.
The Concessionaire shall not, without the prior approval of MWSS, incur any debt or liability that
would mature after the Expiration Date.
The Concessionaire shall have the following responsibilities with respect to Existing Projects of
UATP.
(i) For the Existing Projects set forth on Schedule 9 which MWSS has awarded a
contract to a third party through a public tender prior to the Commencement Date:
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(B) the interest, principal and fee obligations related to the disbursed
amounts of MWSS Loans designated for such Existing Projects,
together with the Local Component costs identified in Schedule 9 and
Cost Overruns, shall be covered by the Concession Fee.
(iii) For Existing Projects set forth on Schedule 9 which MWSS has not awarded a
contract to a third party through a public tender prior to the Commencement Date
the Concessionaire shall have the option within 30 days following the
Commencement Date to:
(A) continue with the project design and funding in the same manner as
initially contemplated by MWSS and the lender to such Project;
(B) amend the project design and funding in collaboration with MWSS and
the respective lender to such Project; or
(C) notify MWSS and the lender to such Project of the Concessionaire’s
intent to cancel such Project and its related financing.
In the event the Concessionaire does not cancel such Project pursuant to sub-
clause (C) above;
(2) the interest, principal and fee obligations related to the disbursed
amounts of MWSS Loans designated for such Existing Projects together
with the Local Component costs identified in Schedule 9 and Cost
Overruns, shall be covered by the Concession Fee; and
(3) MWSS and the Concessionaire shall, with the consent of the respective
order, set out in writing the details relating to the exercise of the
Concessionaire’s supervisory responsibility for such Existing Project.
6.13.2 UATP
(i) MWSS shall retain supervisory responsibility for the UATP project and the Other
Operator shall assist and support, to the best of its ability, MWSS to exercise the
completion of the UATP project at or under budget.
(ii) The interest, price and fee obligations related to the disbursed Amounts of the
MWSS Loans designated for the UATP project, together with related Cost
Overruns and the Local Component costs identified on Schedule 9, shall be
covered by the Concession Fee.
(iii) Cost Overruns or any material delay after June 30, 1999 in the completion of the
UATP project and the supply of the related incremental Raw Water shall be
considered, upon completion of the UATP project, grounds for a deferment of
Service Obligations Adjustment in accordance with Section 9.3.1.
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(iv) The Joint Venture shall be responsible for the operation, maintenance and renewal
of all related facilities upon completion of UATP.
Any liquidated damages or other performance penalties paid to MWSS under any Existing
Project or UATP shall promptly be paid over the Concessionaire and treated as a Receipt under the
Concession.
The Concessionaire shall provide to the Regulatory Office, not later than 30 days after the
Commencement Date, a copy of its Technical Submission. In addition, the financial model supporting the
Concessionaire’s Rate Bid and Technical Submission (including discount rates, return on equity, projected
income statements, balance sheets, sources and uses of funds and relevant ratios) which accompanied the
Concessionaire’s bid shall kept in a sealed envelope which may not be opened by the Regulatory Office prior to
30 days after the Commencement Date. The Regulatory Office may treat this information as relevant in
carrying out its responsibilities under Article 9 hereof.
Legal title to all fixed assets contributed to the MWSS system in the Service Area by the
Concessionaire during the term of the Concession shall remain with the Concessionaire until the Expiration Date
(or the Early Termination Date) at which time all right, title and interest in such assets shall automatically vest in
MWSS. The Concessionaire may mortgage or create security interest over such assets solely for the
purpose of financing (or refinancing) the acquisition or construction thereof; provided, however, that no such
mortgage or security interest shall extend beyond the Expiration Date and, provided further, however, that no
such mortgage or security interest shall be subject to foreclosure except following an Event of Termination. The
Concessionaire shall not, without the prior approval of MWSS, create a security interest of any kind over all or
any part of the Facilities to which MWSS has legal title. Legal title to all facilities (including any fixed assets
resulting from the exercise of rights and powers referred to in Section 7.2 below) other than new assets
contributed by the Concessionaire shall remain with MWSS.
Subject to the requirements of the Charter, MWSS shall, upon request of the Concessionaire,
cooperate in all reasonable ways to facilitate the Concessionaire’s carrying out of its responsibilities under the
Concession. Pursuant to the authority given to MWSS by Section 3(h) of the Charter, and subject to the
restrictions contained in Section 12 of the Charter, this cooperation shall include, but not be limited to,
cooperation with actions undertaken by the Concessionaire to implement changes to the Standard Rates for
water and sewerage services as instructed by the Regulatory Office or, as appropriate, by the Appeals Panel.
The cooperation to be rendered by MWSS to the Concessionaire shall not require MWSS or any of its
affiliates to finance (or guarantee the financing of) any expenditure required in connection with the Concession,
or to undertake any liability in favor of a third party other than those expressly provided for in this Agreement.
MWSS hereby appoints the Concessionaire as its agent and representative, for purposes of, among
others, Section 3 (K) of the Charter in its name, place and stead, to apply for and exercise its easement, eminent
domain, right of way and similar rights and powers given to MWSS under its Charter in connection with
infrastructure projects and works undertaken relating to the Concession by the Concessionaire in the Service
Area pursuant to this Agreement. The Concessionaire shall be solely responsible for the payment of any
compensation to third parties occasioned by the exercise of such rights and powers.
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MWSS shall retain, among others, the following operational responsibilities during the period of the
Concession (other than the responsibilities assigned to the Regulatory Office):
(i) facilitating the exercise by the Concessionaire of its agency powers, upon appropriate
notification to MWSS by the Concessionaire as provided in Sections 7.1 and 7.2 above;
(iii) monitoring, reporting and administering the MWSS Loans, and performing related functions
in connection with the Existing Projects;
(iv) providing such other services or functions as are assigned by this Agreement, or by the
Regulatory Office following the Commencement Date, to MWSS;
Subject to the limitation of Section 12 of the Charter, Standard Rates may be adjusted from time to
time in accordance with the rate adjustment provisions set forth in Sections 9.2, 9.3 and 9.4 below. In the event
that the Standard Rates chargeable under this Agreement during any period would exceed the limitation of
Section 12 of the Charter applicable to that period, the Charter limitation shall be observed but the Regulatory
Office shall treat the excess amount (and interest accrued thereon at the Appropriate Discount Rate) as an
Expiration Payment; provided, however, that the Concessionaire may agree to forgo such Expiration Payment in
exchange for some other benefit, such as an adjustment to one or more of the coverage targets, that the
Regulatory Office may at the time offer to the Concessionaire. Without prejudice to the obligation of MWSS to
pay any such Expiration Payment on the Expiration Date, it is the intention of MWSS, should it choose to solicit
bids from private parties for the right to operate the system following the Expiration Date, to obtain a lump-sum
cash payment from such parties as part of the consideration for the awarding of such rights and to fund any
Expiration Payment required by this Section from the proceeds of such cash payment.
The Concessionaire may charge Customers a CERA payment of one Peso per cubic meter of water
consumed above the Standard Rates. Although CERA has historically been used by MWSS to adjust for
exchange rate movements, that function will be performed through the operation of Section 9.3.1 (vi) of this
Agreement.
The Standard Rates for water and sewerage services shall be adjusted each year effective January 1 of
each Charging Year, in accordance with (i) the Rates adjustment Limit forth in Section 9.2.2, (ii) the adjustment
principles set forth in Section 9.2.2 and (iii) the procedures set forth in Section 9.2.3.
The Weighted Average Rates Increase implied by the Standard Rates proposed by the
Concessionaire in respect of any Charging Year may not exceed the Rates Adjustment Limit.
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If an any Charging Year the Weighted Average Rates Increase is less than the Rates
Adjustment Limit, that shortfall shall not be recoverable in any way by the Concessionaire in a future
Charging Year.
For purposes of calculating Weighting Year revenue, where the Weighting Year is 1996 or
1997, MWSS shall provide to the Concessionaire all information necessary to make the calculation in
respect of periods occurring prior to the Commencement Date.
Other than adjustments pursuant to Section 9.2.3 below, all Standard Rates will be revised
annually by the same percentage adjustment; provided, however, that the Concessionaire may, subject
to the overall Rates Adjustment Limit, propose to the Regulatory Office that certain Standard Rates be
revised by different percentage adjustments. In proposing different percentage adjustments, the
Concessionaire shall have regard to the following:
(i) the impact of the proposed adjustment upon the ability of low income domestic households
to afford such charges;
(iv) the desirability of removing any cross-subsidy between domestic Customers, as a group, and
non-domestic Customers, as a group, as soon as practicable.
Prior to October 31 of each Prior Year, the Concessionaire shall submit to the Regulatory
Office its proposed Standard Rates for the following Charging Year along with sufficient supporting
information to enable the Regulatory Office to verify that the proposed Standard Rates is consistent
with the Rates Adjustment Limit.
In the event that the annual rate of inflation for any year, as measured by the CPI, shall
exceed 12%, the Regulatory Office shall propose amended rules and procedures for the calculation
and application of the Rates Adjustment Limit so as to provide for quarterly rate adjustments; such
procedures to remain in place until January 1st next following a calendar year in which the annual CPI
is 12% or less; provided, however, that no such quarterly rate adjustment shall be made during the first
12 months after the Commencement Date.
notification has not been given within 30 days, the Regulatory Office shall be deemed to
have accepted the proposed rates and to have verified that they comply with the Rates
Adjustment Limit.
In either accepting or rejecting the proposed Standard Rates, the Regulatory Office
shall have regard to the principles described in Section 9.2.2 above, and in any case may not
withhold approval if the proposed adjustments entail a reduction in cross-subsidies between
Customers or groups of Customers and are likely to have no detrimental impact on
affordability efficiency.
In the event that the Concessionaire’s Standard Rate proposals are rejected by the
Regulatory Office, the Concessionaire may submit revised proposals based on uniform
percentage adjustments within seven days of notification of the rejection. The Regulatory
Office shall verify the revised proposal complies with the Rates Adjustment Limit and notify
the Concessionaire accordingly within 7 days.
In the event the Concessionaire proposes to make a change (other than one which relates
solely to the level of Standard Rates in Section 9.2.3 above) to the basis on which the Concessionaire
makes or calculates any Standard Rate (including a change in the application of discounts and
surcharges to Standard Rates), the Concessionaire shall notify the Regulatory Office and submit
sufficient supporting information to enable the Regulatory Office to verify that the proposal is
consistent with the Rates Adjustment Limit for that Charging Year.
Upon receipt of such a proposal, the Regulatory Office shall determine within 60 days
whether or not to accept the proposal. In the event the Regulatory Office cannot verify whether the
proposal is consistent with the Rates adjustment Limit for that Charging year, the Concessionaire may
either submit an interim Standard Rates adjustment proposal for the following Charging Year, in
accordance with Section 9.2.5 below, or defer its proposed change for consideration under the rate
adjustment provisions set forth in Section 9.2.
Without prejudice to Section 9.2.3 above, the Concessionaire may at any time make an
interim Standard Rates adjustment proposal to the Regulatory Office, for Implementation during the
Charging Year, but not before the first day of the calendar month following 90 days from submission
of such proposal. The Concessionaire shall submit sufficient supporting information to enable the
Regulatory Office to verify that the Standard Rates proposal is consistent with the Rates Adjustment
Limit.
In verifying that the interim Standard Rates proposal is consistent with the Rates Adjustment
Limit, the Regulatory Office shall recalculate the Weighted Average Rates Increase for the Charging
Year in which the interim Standard Rates proposal, including verification that such proposal complies
with the Rates Adjustment Limit, within 30 days.
In either accepting or rejecting the interim Standard Rates proposal, the Regulatory Office
shall have regard to the principles described in Section 9.2.2 above, and in any case may not withhold
approval if the proposed adjustments entail a reduction in cross-subsidiaries between Customers or
Groups of Customers and are likely to have no detrimental impact on affordability and economic
efficiency.
In the event that the Concessionaire’s interim Standard Rates proposal is rejected by the
Regulatory Office, the Standard Rates already agreed for that Charging Year shall continue to apply.
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It is the intention of the parties that should certain unforeseen events occur during the term of the
Concession, rates may be adjusted (up or down) to account for the financial consequences of such events. Such
adjustments may occur from time to time as described in this Section 9.3.
In the event that one or more Grounds for Extraordinary Price Adjustment (“GEA”), as defined in
Section 9.3.1 below, has occurred or is expected to occur, the Regulatory Office shall either (i) determine, in
accordance with Section 9.3.2 below, an extraordinary price adjustments (an “Extraordinary Price Adjustment”
or an “E”) for the purposes of calculating the Rates Adjustment Limit to be applied to the Standard Rates
appropriate adjustment to the Service Obligations.
The Concessionaire may at any time require the Regulatory Office to consider circumstances that the
Concessionaire believes constitute Grounds for Extraordinary Price Adjustment. The Regulatory Office may
also at any time notify the Concessionaire of circumstances that the Regulatory Office believes constitute
Grounds for Extraordinary Price Adjustment, as set forth in Section 9.3.1 below.
A Ground for Extraordinary Price Adjustment (“GEA”) means any of the following
circumstances(whether or not treated as an Expenditure or Receipt under this Agreement):
(xii) the Regulatory Office, following consultation with the Concessionaire, determines
that amendments should be made to the Service Obligations;
(xiii) there is any change in law, government regulation, rule or order, or interpretation
thereof, that affects or is likely to affect the Cash Flow of the Concessionaire;
(xiv) the Regulatory Office determines that a breach of this Concession Agreement has
occurred and an appropriate remedy has not been made and will not be made;
(xvi) in the reasonable opinion of the Regulatory Office, a material change has been
made to the basis of calculation or definition of the Consumer Price Index or
replacement index agreed to pursuant to Section 2.4 above, which would render
that index inappropriate for the purposes contemplated by Section 9.2.1 above;
(xvii) without regard to the CERA adjustment referred to in Section 9.1, (a) in respect of
any MWSS Loan, a change of more than 2% has occurred after December 6, 1996
(the date of the distribution to the Concessionaire of the technical and business
assumptions set forth in Exhibit E) in the rate of exchange between the Philippine
peso and the currency in which such Concessionaire Loan is denominated, and, in
either case, such change in exchange rates has not previously been the subject of
an Extraordinary Price Adjustment;
(xviii) there exists an unpaid penalty amount owed by the Concessionaire to the
Regulatory Office pursuant to Section 10.4;
(xix) in the reasonable opinion of the Regulatory Office, the bidding assumptions
distributed to the Concessionaire prior to the bid (and attached hereto as Exhibit E)
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have proven to be incorrect in a material way during any period prior to the first
general rate rebasing pursuant to Section 9.4.2;
(xx) an increase has occurred in the Concession Fee as a result of Cost Overruns for the
UATP project;
(xxi) the financial performance of the Concessionaire has been materially affected as a
result of a delay in the completion of the UATP project beyond June 30, 1999; or
(xxii) the Concessionaire has incurred significant additional costs as a result of an Event
of Force Majeure which are not covered by nsurance.
In order to qualify for an Extraordinary Price Adjustment to be incorporated into the Rates
Adjustment Limit for any Charging Year, notification by the Regulatory Office and/or, as the case
may be, the Concessionaire, that one or more GEAs have occurred or are expected to occur shall be
made by March 31 of the previous Charging Year.
Upon determination by the Regulatory Office that one or more GEAs have occurred, the
Regulatory Office shall, by taking into account all information available at the time, and by making
reasonable projections of all factors relevant to the future Cash Flows of the Concessionaire, calculate:
(iv) the Cash Flows which would be caused by the GEA or GEAs (and, for this
purpose, the circumstances referred to in Section 9.3.1 (iv) any exchange rate
movement of the kind referred to in Section 9.3.1 (vi) shall be deemed to affect
Cash Flows);
(v) the Net Present Value of those Cash Flows as at June 30 of the following
Charging Year; and
(vi) what Extraordinary Price Adjustment, positive or negative, made to the Rates
Adjustment Limit for the following Charging Year would cause the Net Present
Value as at June 30 of the Charging Year of the expected Receipts of the
concessionaire for the period beginning January 1 of that Charging Year until the
Expiration Date to change by an amount equal but opposite in sign to the Net
Present Value of Cash Flows referred to in (ii) above.
In the event that such calculation indicates that the appropriate Extraordinary Price
Adjustment is between zero and plus 1% then the Regulatory Office shall determine that the
Extraordinary Price Adjustment is zero.
The Regulatory Office shall determine what Extraordinary Price Adjustment should be made
for any Charging Year by May 31 prior to the beginning of that Charging Year and shall notify the
Concessionaire in writing setting out the basis for such determination.
(i) has notified the Regulatory Office that, in the opinion of the Concessionaire, one
or more GEAs have occurred or are expected to occur but the Regulatory Office
has not concurred with that opinion; or
the Concessionaire may, not later than June 30 of that year, refer the matter to the Appeals
Panel. Within 30 days after any such referral, the Concessionaire and the Regulatory Office
shall each file its submission with the Appeals Panel and the Appeals Panel shall thereafter
conduct an investigation into the matter in accordance with Article 12. Consequently, the
Appeals Panel shall render a decision as to whether one or more GEAs have occurred and, if
so, the appropriate level of Extraordinary Price Adjustment or adjustment to the Service
Obligations, by September 30 of the year in which the referralsis made.
The maximum rates chargeable by the Concessionaire for water and sewage services
hereunder applicable to the period through the Second Rate Rebasing Date (subject to interim
adjustment’s as described in this Article 9) are set out in Schedule 5 to this Agreement. It is the
intention of the parties that, from and after the Second Rate Rebasing Date, the rates for water and
sewerage services provided by the Concessionaire shall be set at level that will permit the
Concessionaire to recover over the 25-year term of the Concession (net of any grants from third
parties and any possible Expiration Payment) operating, capital maintenance and investment
expenditures efficiently and prudently incurred, Philippine business taxes and payments corresponding
to debt service on the MWSS Loans and Concessionaire Loans incurred to finance such expenditures,
and to earn a rate of return (referred to herein as the “Appropriate Discount Rate”) on these
expenditures for the remaining term of the Concession in line with the rates of return being allowed
from time to time to operators of long-term infrastructure concession arrangements in other countries
having a credit standing similar to that of the Philippines. The parties further agree that the maximum
rates chargeable for such water and sewerage services shall be subject to general adjustment at five-
year intervals commencing on the second Rate Rebasing Date; provided that the Regulatory Office
may exercise its discretion to make a general adjustment of such rates on the First Rate Rebasing Date,
but, if it does not do so, the Regulatory Office shall implement the assumptions set out in paragraph 2
of Exhibit E on the fifth anniversary of the Commencement Date. It is understood that the
determination of the appropriate rate of return will be made separately at the time of each generalized
rate rebasing.
It is also the intention of the parties that rates be set in such a way as to provide appropriate
efficiency incentives to the Concessionaire, with a view toward benefiting both the Customers and the
Concessionaire.
The Regulatory Office shall determine the Rebasing Adjustment to be used for the purposes
of calculating the Rates Limit for each of the five Charging Years of each Rebasing Period, in
accordance with the provisions set forth below.
Not later than March 31 preceding each Rate Rebasing Date, the Concessionaire shall
supply the Regulatory Office with information on its Expenditures, Receipts, Cash Flows, Opening
Cash Position and Future Cash Flows in a form and manner, and covering such time periods, as the
Regulatory Office may determine.
The Concessionaire shall also provide such other information as the Regulatory Office may
reasonable request or as the Concessionaire may wish to provide.
For the purpose of determining the Rates Adjustment Limit to apply to Standard Rates to
come into effect on a Rate Rebasing Date commencing with the second Rate Rebasing Date, and the
Rates Adjustment Limits for the following four Charging Years, the Regulatory Office shall, by taking
into account all information available at the time, and by making reasonable projections of all factors
relevant to the future Cash Flows of the Concessionaire, determine:
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(i) the Net Present Value, which may be either positive or negative, of the Opening
Cash Position, as at June 30 following that Rate Rebasing Date;
(ii) the amount, either positive or negative, which if made to the Rates Adjustment
Limit for the following Charging Year would cause the Net Present Value of the
Future Cash Flows, as at June 30 following that Rate Rebasing Date, to be equal
but opposite in sign to the Net Present Value of the Opening Cash Position as
determined in (i) above (the “Rebasing Adjustment”)
Notwithstanding the foregoing, the regulatory Office may, in its sole discretion, implement a
general rate rebasing consistent with this Section 9.4.2 on the first Rate Rebasing Date if the
Regulatory Office determines that circumstances warrant such an action.
The “Rebasing Convergence Adjustment” to be used for the purposes of calculating the
Rates Adjustment Limit for each of the five Charging Years of the Rebasing Period shall be
determined as follows:
(i) where the Rebasing Adjustment is found to be positive, the Rebasing Convergence
Adjustment for the first Charging Year of the Rate Rebasing Period shall be equal
to the Rebasing Adjustment, and the Rebasing Convergence Adjustment for each
of the following four Charging Years shall be zero; and
(ii) where the Rebasing Adjustment is found to be negstive, the Rebasing Adjustment
for each of the five Charging Years of the Rebasing Period shall be equal to the
Rebasing Adjustment divided by five.
The Regulatory Office shall notify the Concessionaire in writing of each of the rebasing
Convergence Adjustments that will apply in respect of the following Rate Rebasing Period by June 30
prior to the Rate Rebasing Date.
In the event that the Regulatory Office determines, at any time from and after the second
Rate Rebasing Date, that the Concessionaire shall incur significant capital expenditures in carrying out
the Concessionaire’s responsibilities under this Agreement which (in the judgment of the Regulatory
Office) should not be recovered through immediate rate adjustments, the Regulatory Office may
propose to the Concessionaire that this Agreement be amended to provide for the payment to the
Concessionaire on the Expiration Date of a lump-sum amount designed to reimburse the
Concessionaire for all or a portion of such unforeseen capital expenditure (the “Expiration Payment”).
Any Expiration Payment shall be treated by the Regulatory Office as an anticipated Receipt for
purposes of making rate adjustment calculations under this Article 9. Any Expiration Payment may be
discharged through the delivery to the Concessionaire of a U.S. Dollar-denominated debt instrument
issued by MWSS or by another public-sector entity owned by the Republic but, in either case, with the
full faith and credit guarantee of the Republic, ranking at least pari passu with all other unsecured and
unsubordinated external debt obligations of the Republic, having a cash value to such Expiration
Payment.
(iii) For connections or reconnections to a water main or a public sewer (each a “Connection”)
that are both located less than 25 meters from the connection point and are to residential
Customers the Concessionaire shall have the right to charge each Customer requesting such
a Connection a fee not to exceed P3,000, which amount shall automatically be adjusted on
January 1st of each year by the percentage change in the Consumer Price Index for the
preceding year (each a “Connection Charge”). Within three months after the
Commencement Date, the Concessionaire shall with the approval of the Regulatory Office
promulgate rules that permit payment of Connection Charges in installments over a five-
year period by Low-Income Customers.
(iv) For Connections to a water main or a public sewer located more than 25 meters from the
connection point or for Connections to non-residential Customers, the Concessionaire shall
have the right to charge each Customer requesting such a Connection a fee equal to the costs
reasonably and efficiently incurred by the Concessionaire in making that Connection,
including the costs of upgrading or restoring existing connections or metering facilities to
acceptable technical standards.
Notwithstanding anything to the contrary in this Section 9.5, there shall be no connection
charge for public standpipes.
Within five days after receiving a request from a customer for a Connection, the
Concessionaire shall notify the Customer in writing of the proposed charge for making that
Connection. Subject to Section 5.1.3 and Section 5.2.2, Connections shall be carried out by the
Concessionaire as promptly as may be practicable following the Customer’s written acceptance of the
related charge. A Customer shall have the right to notify the Regulatory Office if it objects to the
charge proposed by the Concessionaire and the Regulatory Office shall determine in its sole opinion
whether such Charge is reasonable and notify the Concessionaire whether an adjustment is required.
If the Regulatory Office determines at any time that the Concessionaire is setting charges for
connections that are inconsistent with the standards set out in Section 9.5 (ii) above, the Regulatory
Office, upon not less than 30 days’ prior written notice to the Concessionaire, shall have the authority
to prescribe a schedule of maximum charges consistent with those standards.
Each of the following events shall constitute an “MWSS Event of Termination” under this Agreement:
(i) MWSS, acting on its own behalf or at the direction of any Philippine governmental
authority, shall make an assignment for the benefit of creditors, petition or apply to any
tribunal for a receiver or a trustee for itself or for any substantial part of its property,
commence any judicial or other legal proceedings by reason of its financial difficulties under
any reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect; or there shall be commenced
against such party any such proceeding which shall remain undismissed for a period of 60
days, or such party shall by any act indicate its consent to, approval of, or acquiescence, in
any such proceeding or the appointment of any receiver of, or trustee for, it or any
substantial part of its property, or shall suffer any such receivership or trusteeship to
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(ii) The Undertaking Letter, or any governmental authorization or approval necessary to enable
MWSS perform any of its material obligations under this Agreement, shall be revoked,
withdrawn or withheld or shall otherwise fail to be issued or to remain in full force and
effect; and
(iii) MWSS shall fail to perform an obligation under this Agreement of a kind or to a degree that
such failure effectively prevents the Concessionaire from carrying out its responsibilities
under this Agreement and such failure continues for a period of not less than 30 days after
written notice from the concessionaire to MWSS.
Each of the following events shall constitute a “Concessionaire Event of Termination” under this
Agreement:
(i) The Concessionaire shall make an assignment for the benefit of creditors, petition or apply
to any tribunal for a receiver or a trustee for itself or of any judicial or other proceedings by
reason of its financial difficulties under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter
in effect; or there shall be commenced against such party any such proceeding which shall
remain undismissed for a period of 60 days, or such party shall by any act indicate its
consent to, approval of, or acquiescence in, any such proceeding or the appointment of any
receiver of, or trustee for, it or any substantial part of its property, or shall suffer any such
receivership or trusteeship to continue undischarged for a period of 60 days; or there shall be
any reorganization, arrangement, readjustment of debt, dissolution, or liquidation with
respect to such party which does not involve a judicial proceeding;
(ii) The Concessionaire shall fail to perform an obligation under this Agreement of a kind or to a
degree such that (a) in the reasonable opinion of the Regulatory Office, such failure amounts
to an effective abandonment of the Concession Agreement because it jeopardizes the
provision of essential water and sewerage supply services in all or any significant part in the
Service Area and (b) such failure continues for a period of not less than 30 days after written
notice from the Regulatory Office to the Concessionaire;
(iii) The Concessionaire shall in the reasonable opinion of the Regulatory Office, fail to perform
any material obligation of the Concessionaire set out in this Agreement (other than an
obligation described in (ii) above) for which the Regulatory Office shall have determined
that a financial penalty pursuant to Section 10.4 would be inappropriate or ineffective, if
such failure shall continue for a period of not less than 180 days after written notice from the
Regulatory Office to the Concessionaire.
10.3.1 Notice
termination of the Concession to MWSS (with a copy to the Appeals Panel), and the Concession
granted hereby shall terminate on the date set out in such notice (which date shall not be less than 60
days, nor more than 180 days, after the date of such notice) unless such termination is stayed by the
Appeals Panel. The date of early termination specified in a notice delivered pursuant to this Section
10.3.1, as such date may be extended by the Appeals Panel as a result of a stay, is referred to herein as
the “Early Termination Date”.
(i) Within 30 days after the giving of any notice terminating the Concession pursuant
to Section 10.3.1, the Regulatory Office shall determine the amount (the “Early
Termination Amount”) payable in accordance with clause (ii) of this Section
10.3.2 following an MWSS Event of Termination, or payable in accordance with
clause (iii) of this Section 10.3.2 following a Concessionaire Event of
Termination. The Regulatory Office shall promptly give written notice to each of
MWSS, the Concessionaire and the Appeals Panel of the Early Termination
Amount and shall furnish a copy of all supporting calculations.
(B) the Concession (including all fixed assets existing as of the Early
Termination Date but excluding all current assets and current liabilities
other than the short-term portion of the Concessionaire Loans) shall
revert to MWSS for a payment to the Concessionaire (the “Early
Termination Amount”) equal to an amount, determined by an outside
auditor appointed by the Regulatory Office, equal and opposite in sign
to the Net Present Value as at the Early Termination Date of the Cash
Flows occurring between the Commencement Date and the Early
Termination Date of the Cash Flows occurring between the
Commencement Date and the Early Termination Date less the then-
outstanding amount of the Concessionaire Loans (in the event that such
Early Termination Amount is a negative number, the Early Termination
Amount shall be deemed to be zero); and
(C) the Early Termination Amount payable by MWSS under this Section
10.3.2 (ii) may either:
(A) All of the concessionaire’s right, title and interest in the Concession shall be
assigned by the Concessionaire to a Qualified Replacement Operator (acceptable
to the Regulatory Office) nominated by the Concessionaire Lenders; provided
however, that if the Concessionaire Lenders do not nominate such a Qualified
Replacement Operator within 6 months of a notice terminating the Concession
pursuant to Section 10.3.1, MWSS shall pay to the Concessionaire the Early
Termination Amount (set forth in sub-clause (B) below) and the Concession shall
thereupon automatically terminate and revert to MWSS with no further liability or
obligations on the part of MWSS to the Concessionaire or to the Concessionaire
Lenders. In either case, MWSS may draw upon the Performance Bond to recover
from the Concessionaire an amount equal to the out-of-pocket costs and expenses
incurred by MWSS as a result of such Concessionaire Event of Termination.
(B) In the event that the Concessionaire Lenders do not nominate Qualified
Replacement Operator pursuant to sub-clause (A) above, the Concessionaire and
MWSS agree that it would not be feasible to determine the total amount of losses,
costs and expenses that MWSS would incur as a result of a Concessionaire Event
of Termination. Accordingly, MWSS and the Concessionaire agree that, as a
reasonable pre-estimate of such losses, costs and expenses, following a
Concessionaire Event of Termination, the Concession (including all current and
fixed assets existing as of the Early Termination Date, but excluding any
liabilities associated therewith) shall revert to MWSS for a discounted payment,
(the “Early Termination Amount”), which shall equal 75 percent of the value of
such current assets and 75 percent of the depreciated value of all fixed assets
installed by the Concessionaire in the Service Area after the Commencement Date
(excluding Disapproved Assets) and all improvements to such fixed assets
existing in the Service Area on the Commencement Date, determined as of the
Early Termination Date by an outside auditor appointed by the Regulatory Office
in accordance with Philippine generally accepted accounting principles, provided,
however, that the Early Termination Amount shall not exceed the then-outstanding
Concessionaire Loans and any other indebtedness incurred by the Concessionaire
in connection with the Concession and provided further, however, that such Early
Termination Amount (or the cash proceeds from the sale of the debt from the sale
of the debt instrument referred to in clause (C) (2) below) shall be applied to
repay then-outstanding Concessionaire Loans and any such other indebtedness.
(C) the Early Termination Amount payable to the Concessionaire by MWSS under
sub-clause (B) of this Section 10.3.2 (iii) may either:
(1) be paid by MWSS in a lumpsum payment not later than 45 days after the
Early Termination Date or
10.3.3 Appeal
(i) Upon receipt of a notice of early termination pursuant to Section 10.3.1 above (other than a
notice which specifies an MWSS Event of Termination of the kind described in Section 10.1
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(i) or a Concessionaire Event of Termination of the kind described in Section 10.2 (i)
above), the recipient shall have the right within 30 days thereafter to refer the matter to the
Appeals Panel and to seek a stay in connection with such Appeal. The Appeals Panel shall
have 60 days from receipt of such notice to deliver its determination by written notice to the
Regulatory Office and the Concessionaire in accordance with Article 12. Until such
determination is made by the Appeals Panel, the Concession shall continue and the parties
shall continue to perform their respective obligations hereunder.
(ii) Either the Concessionaire or MWSS may challenge the calculation of the Early Termination
Amount by written referral to the Appeals Panel made within 30 days after receipt of the
Regulatory Office’s calculation of the Early Termination Amount. The challenging party
shall indicate in its referral the amount that it believes is the appropriate termination amount
calculated in a manner consistent with Section 10.3.2 above. Within 60 days of any such
referral, the Appeals Panel shall either confirm the Early Termination Amount determined
by the Regulatory Office or confirm the termination amount proposed by the Challenging
Party, whichever the Appeals Panel finds is most consistent with the requirements of Section
10.3.2 above.
A failure by the Concessionaire to meet any Service Obligation which continues for more than 60 days
(or 15 days in cases where the failure could adversely affect public health or welfare) after written notice thereof
from the Regulatory Office to the Concessionaire shall constitute a basis for the Regulatory Office to assesss
financial penalties against the Concessionaire. The amount of any such penalty shall be equal to 25% of the
costs that, in the reasonable opinion of the Regulatory Office, the Concessionaire will incur in order to meet the
Service Obligation in question; provided, however, that if the Concessionaire does not meet such Service
Obligation within 180 days, the amount of the penalty shall be equal to 50% of such costs. The Concessionaire
shall pay any penalties assessed in connection with this Section to the Regulatory Office within 30 days after
receipt of a demand thereof. Such penalties shall not be regarded as an Expenditure of the Concession. In the
event the Concessionaire fails to make timely payment of an assessment pursuant to this Section 10.4, the
Regulatory Office may draw the U.S. dollar equivalent of such unpaid amount under the Performance Bond in
accordance with Section 6.9 above or may treat such non-payment as a GEA in accordance with Section 9.3.1.
Notwithstanding the foregoing, no penalties will be assesses in respect of any failure to meet water quality
standards identified by this Section 10.4 unless such failure continues after 12 months following the
Commencement Date. All penalties received by the Regulatory Office pursuant to this Section 10.4 shall be
rebated to Customers affected by the Concessionaire’s failure to meet Service Obligations in such manner as the
Regulatory Office deems appropriate.
11.1 Organization
The MWSS Board of Trustees shall establish and fund a regulatory Office (the“Regulatory Office”)
to be organized and operated in a manner consistent with the MWSS Board of Trustees may make from time to
time, and shall have the functions and powers described in that Exhibit. Decisions of the Regulatory Office
requiring action by the MWSS Board of Trustees, including decisions affecting the level of Standard Rates, shall
promptly be submitted to the Board in accordance with Section 7.1 hereof.
11.2 Funding
Not later than 10 days after the Commencement Date, MWSS shall allocate from the Concession Fees
received from the Concessionaire and the Other Operator the amount of 100 Million Pesos which shall
constitute the budget of the Regulatory Office for the year 1997. Not later than January 10 of each subsequent
year, MWSS shall allocate from the Concession Fees paid in that year by the Concessionaire and the Other
Operator the annual budget for the Regulatory Office and MWSS for that year, provided that such annual budget
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shall not for any year exceed 200 Million Pesos, subject to annual CPI adjustments, 100 Million Pesos of which,
as so adjusted, shall be allocated by MWSS for the Regulatory Office.
12.1 Consultation
The parties hereto agree to use reasonable efforts to resolve any disagreements or disputes concerning the
interpretation or implementation of this Concession Agreement through mutual consultation and negotiation.
12.2 Arbitration
All disagreements, disputes, controversies or claims arising out of or relating to this Agreement or the
interpretation hereof or any arrangements relating hereto or contemplated herein or the breach, termination or
invalidity hereof (including all decisions by the Regulatory Office with respect to the Concession) which cannot
be resolved through consultation and negotiation among the parties hereto shall be finally settled by an
arbitration proceedings in accordance with the arbitration rules of the United Nations Commission on
International Trade Law as in effect on the dates of this Agreement (the “Rules”), except insofar as the Rules
conflict with the provisions of this Agreement.
Not less than 30 days to the commencement of each Rate Rebasing period, the Concessionaire and the
Regulatory Office shall each appoint one member of the Appeals Panel to serve for the following Rate Rebasing
Period. If either party fails to appoint a member shall be appointed by the President (for the time being) of the
International Chamber of Commerce. (in the case of disputes between the Concessionaire and the Other
Operator, on the one hand, and MWSS, on the other, the Concesiionaire and the Other Operator shall jointly
agree on the appointment of one member to the Appeals Panel). For matters involving Major Disputes (as
defined below), the President (for the time being) of the International Chamber of Commerce shall designate a
third member shall act as the chairman of the Appeals Panel (the “Appeals Chairman”). For matters involving
Minor Disputes (as defined below), the two members so appointed shall designate a third member and the third
member shall act as the Appeals Chairman. Each member of the Appeals Panel (other than the Appeals
Chairman) shall be a resident (but need not be a citizen) of the Philippines. Members appointed to the Appeals
Panel shall be individuals of good business reputation who have no prior business connection with any party to
this Agreement or with the Other Operator. In the event of the death, incapacity or resignation of any member
of the Appeals panel, the appointing party (including, where appropriate, the President of the International
Chamber of Commerce) for such members shall promptly appoint a successor to serve out the unexpired term of
such member. An individual may be reappointed to serve on the Appeals Panel for more than one Rate
Rebasing Period.
12.4 Procedures
The Appeals Panel shall decide Disputes in accordance with the following procedure:
(i) Disputes may be referred to the Appeals Panel by any party hereto by providing written
notice to the Appeals Chairman of the Appeals Panel and the other parties hereto (each a
“Dispute Notice”) setting out in reasonable detail the circumstances of such dispute.
(ii) Disputes related to (A) a Rebasing Dispute (described below), (B) an appeal of the
determination of a GEA or Extraordinary Price Adjustment pursuant to Section 9.3.3, (C) an
appeal of the calculation of the Termination Amount pursuant to Section 10.3.3, (D) the
amount and price of Bulk Water transported from Service Area West to Service Area East,
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(E) the delegation of responsibilities between the concessionaire and the Other Operator in
the Joint Venture or (F) a contested notice of termination pursuant to Section 10.3.1 (each a
“Major Dispute”) shall be referred to an Appeals Panel constituted under the chairmanship
of a Appeals Chairman appointed by the President of the International Chamber of
Commerce. All Disputes other than Major Disputes (each a “Minor Dispute”) shall be
referred to the Appeals Panel as provided in Section 12.3 above.
(iii) Dispute Notices referred by the Concessionaire relating to Rate Rebasing Adjustments (each
a “Rebasing dispute”) shall include a detailed description of the Concessionaire’s alternative
description of the Concessionaire’s alternative proposal for a Rate Rebasing Adjustment for
the next Rate Rebasing Period, together with information as to how such Adjustment was
calculated. The Regulatory Office shall have 15 days after receipt of notice of a Rebasing
Dispute in which to submit to the Appeals Panel the Rate Rebasing Adjustment for the next
Rate Rebasing Period determined by the Regulatory Office in accordance with Section 9.4.2
above, together with information as to how such Adjustment was calculated. After making
such investigation and conducting such hearings into the matter as the Appeals Panel deems
appropriate, the Appeals panel shall, by not later than September 30 of the year in which a
Rebasing Dispute is referred to it, accept either the Rate Rebasing Adjustment as determined
by the Regulatory Office or the alternative Rate Rebasing Adjustment proposed by the
Concessionaire.
(iv) Dispute Notices may be referred by the Concessionaire or the Other Operator in connection
with matters arising under the Interconnection Agreement or the supply of Raw Water
pursuant to Section 3.9 (each a “ Raw Water Dipsute”). The Raw Water Agreement shall
contain a dispute resolution provision submitting all disputes under that Agreement to the
Appeals Panel in a manner consistent with this Article 12.
(v) All disagreements, disputes, controversies or claims referred to the Appeals Panel, other
than those involving a Rebasing Dispute, shall be decided in such manner as the Appeals
Panel determines in its sole discretion to be appropriate.
(vi) Except as otherwise set forth herein, the Appeals Panel shall make a decision on any matter
referred to it within a period of 90 days from receipt of a dispute Notice. Such decision
period may be extended by mutual agreement of the parties to the dispute. Each decision
must have the written concurrence of at least two of the three members of the Appeals Panel.
(vii) The Appeals Panel may stay any termination of the Concession as notified pursuant to
Section 10.2.2 pending its determination of the validity of such termination.
(viii) The Appeals Panel may retain the services of legal, economic and technical consultants as
the Panel deems appropriate.
(ix) The Appeals Panel proceedings shall be held in English, and the place for the proceedings
shall be Manila.
(x) The appeals Panel may from time to time adopt procedural rules or guidelines consistent
with the terms of this Concession Agreement, and such rules and guidelines shall be binding
on the parties hereto.
Any decision or award of the Appeals Panel shall be final and binding upon the parties hereto. To the
maximum extent permitted by applicable law, each party hereby waives any right to seek any interlocutory or
other relief from any judicial or regulatory body, or to appeal or seek the review of an Appeals Panel award by
any court, regulatory body or other tribunal. Each of the parties hereto agrees that an award of the Appeals
Panel may be enforced against it or its assets wherever they may be found and that judgment upon such award
may be entered in any court having jurisdiction thereof. Each such party hereby waives and agrees not or plead
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any immunity (whether on the basis of sovereignty or otherwise) to which such party or its assets might
otherwise be entitled in connection with any such enforcement proceeding.
(i) Incurred by the Appeals Panel in connection with any proceeding brought before it relating
solely to the Concession (including the fees and expenses of panel members and legal,
economic or technical consultants retained by the Appeals Panel), shall be apportioned
between the parties as the Appeals Panel shall direct and the Concessionaire’s share of such
costs shall be treated as an Expenditure. One half of the estimated costs of each proceeding
(as determined by the Appeals Panel) shall be due prior to the Commencement of such
proceeding. The Appeals Panel shall invoice the appropriate party or parties for the balance
of such costs within 30 days of delivering its decision in respect of each proceeding and
such balance shall be payable within 10 days after receipt of the invoice.
(ii) The Appeals Chairman shall be entitled to a per diem compensation at such rate as the
President of the International Chamber of Commerce may recommend. The other members
of the Appeals Panel shall each be entitled to a per diem compensation equal to 2,500 Pesos
per day (or portion of a day) while in session. This per diem rate shall automatically be
adjusted on January 1st of each year by the percentage change in the Consumer Price Index
for the preceding year.
(iii) In any proceeding in which the Concessionaire, the Other Operator or MWSS are parties,
the Appeals Panel shall assess costs ratably to the parties to such proceeding.
(iv) In the event the Concessionaire does not make timely payment of any charges payable by
its pursuant to this Section 12.6., the U.S. dollar equivalent of such unpaid amount may be
drawn under the Performance Bond in accordance with Section 6.9 above.
(v) The Appeals Panel shall be entitled to use the secretarial and administrative support services
of the Regulatory Office free of charge.
The Concessionaire shall have a general duty to provide to the Regulatory Office all information that
the Regulatory Office may reasonably require in order to permit the Regulatory Office to monitor the
Performance of the Concessionaire in relation to its obligations under this Agreement. Such information shall
include, and not limited to:
The Concessionaire shall provide to the Regulatory Office not more than 30 days following
the end of each calendar quarter a report of its performance with respect to the provision of water and
sewerage services in the Service Area which shall contain the information specified in Schedule 6
hereto, as such Schedule may be revised by the Regulatory Office from time to time.
The Concessionaire shall provide to the Regulatory Office not later than 60 days following
the end of each calendar year a report of the financial performance of the Concession. Such report
shall include (i) an analysis of revenue by source and revenue from other sources, (ii) an analysis of
operating costs which distinguishes between water supply, sewerage and other services, (iii) an
analysis of capital expenditures and investments which distinguishes between water supply, sewerage
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and other services, and (iv) the other information specified in Schedule 7 hereto, as such Schedule
may be revised by the Regulatory Office from time to time.
13.2 Audits
Not less frequently than once a year, the Concessionaire’s books and records shall be audited by an
independent auditor appointed by, or acceptable to, the Regulatory Office, pursuant to internationally accepted
accounting practices. In addition, the Regulatory Office may, upon giving not less than 15 days’ prior written
notice to the Concessionaire, require that the Concessionaire, require that the Concessionaire’s books and
records relating to the Concession to be audited on an interim basis by the Regulatory Office or by an outside
auditor. The Concessionaire shall cooperate fully with all such audits.
The Concessionaire shall indemnify and hold MWSS and its employees, servants and agents harmless
from and against any and all liabilities, claims, demands, actions, suits, losses, damages, costs and expenses
(including reasonable attorney’s fees) payable to third persons resulting from the operation and maintenance of
the Facilities by the Concessionaire, and the performance by the Concessionaire of its obligations under the
Concession, on or after the Commencement Date, except to the extent of any foregoing results from the
negligence or willful misconduct of MWSS.
MWSS shall indemnify and hold the Concessionaire and its respective employees, servants and agents
harmless from and against any and all liabilities, claims, demands, actions, suits, losses, damages, costs and
expenses (including reasonable attorney’s fees) payable to third persons arising out of the operation and
maintenance of the Facilities by MWSS prior to the Commencement Date.
Each of MWSS and the Concessionaire shall promptly notify the other of any claim for
indemnification pursuant to any of the above Sections in this Article 14 and shall include sufficient information
to enable the other party to assess the circumstances relating to such claim or potential claim. Each of MWSS
and the Concessionaire shall cooperate fully with the other party in defense of any such claims. The
indemnifying party shall have the right to assume the defense, appeal or settlement of such claims with respect
to which indemnify has been invoked within 20 days after receipt of notice thereof from such indemnified party.
The obligation of each party hereto to effect the transactions contemplated by this Agreement shall be
subject to the satisfaction at or prior to the Closing Date of the following general conditions;
(i) no order, statute, rule, regulation, executive order, injunction, stay, decree or restraining
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order shall have been enacted, entered, promulgated or enforced by any court of competent
jurisdiction or governmental or regulatory authority or instrumentality having jurisdiction
over the matter that restrains, prohibits or declares illegal the consummation of the
transactions contemplated hereby, and no action, suit, injury or proceeding shall have been
instituted or threatened by any governmental or regulatory authority or instrumentality
having jurisdiction over the matter that seeks to restrain, prohibit or declare illegal the
consummation of the transaction contemplated hereby; and
(ii) all waivers, consents, approvals or authorizations required to be obtained from, and all
notices, declarations, reports or filings required to be made with, any governmental or
regulatory authority or instrumentality in connection with the consummation of the
transactions contemplated hereby, shall have been made or obtained.
The obligations of MWSS to effect the transactions contemplated by this Agreement shall be subject
to the satisfaction at or prior to the Closing Date of the following additional conditions, unless such conditions
are waived by MWSS:
(i) the Concessionaire shall have performed in all material respects the obligations required
under this Agreement to be performed by it at or prior to the Closing Date;
(ii) the representations and warranties of the Concessionaire contained herein be true and
correct in all material respects at and as of the Closing Date as if made at and as of such
date except to the extent that a different time is specifically stated in any such representation
and warranty; and
(iii) MWSS shall have received the documents and instruments set out below:
(b) a certificate, dated as of the Closing Date, from a duly authorized officer of the
Concessionaire to the effect that the representations and warranties of the
Concessionaire contained in this Agreement are true and correct in all material
respects as of the Closing Date;
(c) all other documents, instruments, writings and other items required to be
delivered by the Concessionaire at or prior to the Closing Date pursuant to this
Agreement or otherwise reasonably requested by MWSS in connection herewith;
(d) certified true copies of resolutions adopted by the Board of Directors of the
Concessionaire authorizing the execution, delivery and performance of this
Agreement;
(iv) and the Concessionaire and the Other Operator shall have entered into the Joint Venture.
The obligations of the Concessionaire to effect the transactions contemplated by this Agreement shall
be subject to the satisfaction at or prior to the Closing Date of the following additional conditions, unless such
conditions are waived by the Concessionaire:
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(i) MWSS shall have performed in all material respects the obligations required under this
Agreement to be performed by it at or prior to the Closing Date;
(ii) the representations and warranties of MWSS contained herein shall be true and correct in all
material respects at and as of the Closing Date as if made at and as of such date except to
the extent that a different date is specifically stated in any such representation and warranty;
(iii) the Concessionaire shall have received the documents and instruments set out below:
(a) an opinion from the Office of the Government Corporate counsel, dated as of the
Closing Date and substantially in the form attached hereto as Exhibit C;
(b) a certificate, dated as of the Closing Date, from a duly authorized officer of
MWSS to the effect that the representations and warranties of MWSS contained in
this Agreement are true and correct in all material respects as of the Closing Date;
(c) a copy of the letter setting forth Raw Water supply arrangements as described in
Section 3.9 above;
(d) an undertaking letter ( the “Undertaking Letter”) from the Republic signed by the
Secretary of Finance setting forth the undertaking of the Republic in connection
with the transactions described in this Agreement substantially in the form of
Exhibit D hereto;
(e) copies of the releases and quitclaims referred to in Section 6.1.1 (i) above; and
(f) certified true copies of resolutions adopted by the MWSS Board of Trustees
authorizing the execution, delivery and performance of this Agreement.
16.1 Assignment
This Agreement and all the provisions hereof shall be binding upon and insure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any rights
hereunder shall be assigned by either party hereto, nor shall any party delegate any of its obligations hereunder,
without the prior written consent of the other party, and any purported assignment or delegation absent such
consent shall be void; provided, however, that the Concessionaire may assign its right to receive any payments
or other consideration hereunder (including the right to receive any Termination Amount) as security for
Concessionaire Loans.
16.2 Amendments
Any amendment of any provision of this Agreement shall be in a writing signed by the parties and
acknowledged by the Republic acting through the Secretary of Finance.
16.4 Notices
If to MWSS to:
or such other address as the person to whom notice is to given has furnished in writing to the other parties. A
notice of change in address shall not be deemed to have been given until received by the addressee.
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16.5 Counterparts
This Agreement may be executed in three counterparts or more, each of which when so executed shall
be deemed an original, and all of which together shall constitute one and the same instrument.
This Agreement (including any Exhibits, Schedules, documents and instruments referred to herein)
constitute the entire agreement and supersede all other prior agreements and understandings, both written and
oral, among the parties. Each of the parties undertakes to execute such documents and perform such acts as may
reasonably be necessary to give effect to this Agreement.
16.7 Headings
The descriptive headings of the several Articles and Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
16.8 Expenses
Each party hereto shall bear its own expenses in connection with the preparation and negotiation of
this Agreement and any related documents.
Except as otherwise expressly provided herein, this Agreement is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
No failure or omission to carry out or observe any terms, provisions or conditions of this
Agreement shall give rise to any claim by any party against another party or be deemed to be a breach
or default of this Agreement if the same shall be caused or arise out of an Event of Force Majeure, as
defined below.
The following events shall constitute an “Event of Force Majeure”: any war, declared or not,
or hostilities or belligerence, blockade, revolution, insurrection, riot, public disorder, expropriation,
requisition, confiscation, nationalization or prolonged obstruction of the exercise of rights or powers
referred to in Section 7.2, export or import restrictions closing of harbors, docks, canals or other
assistance to or adjuncts of shipping or navigation of or with any place, rationing or allocation,
whether imposed by law, decree or regulation by, or by compliance of industry at the insistence of,
any governmental authority of or within the Republic, or (B) fire, unusual flood, drought, earthquake,
pollution of Raw Water (other than caused by the act or omission of the party invoking such Event of
Force Majeure), volcanic eruption, storm, lightning, tide (other than normal tide), tidal wave,
unusually severe weather conditions, perils of the sea, accidents of navigation or breakdown or injury
of vessels, accidents to harbors, docks, canals or other assistance to or adjuncts of shipping or
navigation, epidemic, quarantine, strikes or combination of workmen, lockouts or other labor
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disturbances, or any other event, matter or thing wherever occurring, which shall not be within the
reasonable control of the party affected thereby; provided, however, that no expropriation, requisition,
confiscation, nationalization or prolonged obstruction of the exercise of rights or powers referred to in
Section 7.2 by the Republic or any governmental authority of or within the Republic shall constitute
an Event of Force Majeure relieving MWSS of any of its obligations hereunder.
The party invoking an Event of Force Majeure shall (i) notify in writing each other party as soon as
reasonably possible of the nature of the Event of Force Majeure and the extent to which the Event of Force
Majeure suspends the affected party’s obligations under this Agreement and (ii) resume performance of its
obligations as soon as the effects of the Event of Force Majeure cease to exist.
The parties will consult with each other and take all reasonable steps to minimize the losses of either
party resulting from an Event of Force Majeure.
The Concessionaire hereby covenants that, from the date three months prior to and including the
Expiration Date, unless MWSS shall otherwise consent in writing (which consent shall not unreasonably be
withheld), the Concessionaire shall conduct the business and operations of the Concession in the ordinary and
usual course in a manner consistent with past best practice and, without limiting the generality of the foregoing,
the concessionaire shall:
(i) use its reasonable efforts to preserve and maintain the Facilities and Inventories;
(ii) maintain in accordance with its normal best practices all documents, agreements, contracts
and other corporate records of MWSS relevant to its business and operations;
(iii) at all times comply with all material laws, statutes, rules, regulations, orders and directives
of any governmental authority having jurisdiction over the Concessionaire or its businesses,
except in cases where the application thereof is being contested in good faith or is the
subject of an appeal or other legal challenge;
(iv) give prompt written notice to MWSS of: (a) the commencement of any dispute or
proceeding between the Concessionaire and any governmental body which, if determined
adversely to the Concessionaire, could reasonably be expected to have a material adverse
effect on the Concessionaire’s business or financial condition; (b) the occurrence of any
material event of default in any material agreement of the Concessionaire or any event
which, upon a lapse of time or the giving of notice or both, would become a material event
of default under any such agreement; and (c) the occurrence of any other event which has or
could reasonably be expected to have a material adverse effect on the Concessionaire’s
business or financial condition;
(vi) not reorganize departments or otherwise revise its organizational structure in any material
fashion, other than any such reorganization consistent with the terms hereof.
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16.12 Reversion
Upon the expiration of this Concession on the Expiration Date, all of the rights duties and powers of
the Concessionaire provided under the terms of this Agreement shall automatically revert to MWSS’ successors
or assigns; provided, however, that the Concessionaire bear all liabilities, and shall be entitled to receive and to
retain all revenues, arising out of its operation of the Facilities prior to the expiration of the Concession. MWSS
shall be solely responsible for any taxes, fees or duties payable in connection with such reversion. On the
Expiration Date, the Concessionaire shall retain the all cash and marketable securities and Disapproved Assets (
other than such assets which are integral to the MWSS system) and transfer to MWSS or its successors or
assigns:
(ii) Inventory having a value (adjusted for CPI) at least equal to the Inventory made available to
the Concessionaire on the Commencement Date pursuant to Section 3.5 hereof;
(iii) legal title (free of any liens or encumbrances) to new assets contributed by the
Concessionaire pursuant to Section 1.15; and
(iv) All reports, records, designs, manuals, asset registers, employment records, maps and plans
associated with the provisions of water and sewerage services within the Service Area.
At the time of such expiration, MWSS shall have the option to rebid the Concession or undertake any
other course of action it deems appropriate with respect to the Concession; it being understood that without their
express approval at such time, neither MWSS nor the Republic shall incur any financial obligation in respect of
such rebidding or other undertaking. This Agreement may not be renewed except with the express written
consent of MWSS and the Republic.
16.13 Severability
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or
enforceability of any other portion or provision. Any invalid or unenforceable portion or provision shall be
deemed severed from this Agreement. The parties shall negotiate an equitable adjustment in the remaining
portions or provisions of this Agreement to effect the underlying purposes of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Concession Agreement to be executed
on its behalf by its duly authorized officer, all as of the date first written above.