PREPA and the Contractor agree that Article 3 of the Original Contract is hereby amended by striking the dollar amount of “$445,429,800 (Contract Amount)” appearing on the seventh (7th) line of such article and replacing it with the following dollar amount: “$945,429,800 (Contract Amount)”.
PREPA and the Contractor agree that the first paragraph of Article 14 of the Contract is hereby amended by striking the first paragraph thereof and replacing it with the following:
Notwithstanding anything to the contrary in this Contract regarding its term, PREPA may, at any moment, terminate, cancel or accelerate its expiration, after giving the Contractor not less than thirty (30) days prior written notice, for any or no reason, when in PREPA’s judgment such action responds to its best interest. PREPA may terminate this Agreement immediately at any time in cases of gross negligence by the Contractor upon written notice to Contractor specifying such gross negligence.”
Materials. The Parties agree that the Contractor may purchase and provide PREPA with materials needed for the restoration work of the electrical system (the “Materials”), subject to the following terms and conditions:
Prior to placing the order for any Materials, the Contractor shall provide to PREPA a schedule of the costs of such Materials on a pass-through basis and the cost for transportation, for final review and approval by PREPA. No purchases shall be made by Contractor on behalf of PREPA except with prior written authorization from PREPA;
All Materials will comply with specifications provided by PREPA.
All Material procurements by Contractor must comply with Federal regulations under the Code of Federal Regulations Title 2 Sections 200.317 to 200.321, 200.326, 200.333 and Appendix II.
Contractor will complete all purchases in accordance with all Puerto Rico laws, rules and regulations, including but not limited to Act 83, Regulation 8518 issued by PREPA, known as the Bid Regulation (Reglamento de Subastas), the Procedure for Purchases by Request for Quotes or Offers Exempt from Formal Bid Process (the “Procedures for Exempt Purchases”), and Chapter 500 of PREPA’s Administrative Manual (Purchases), as applicable. As provided Act 83 and the Bid Regulation, a bid process will not be required when, due to an emergency situation, immediate delivery of certain materials is required. In such cases, purchases shall be made by Contractor in accordance with the provisions of the Procedures for Exempt Purchases. PREPA will provide written notice to the Contractor when Procedures for Exempt Purchases is authorized.
PREPA will reimburse the Contractor for (i) the actual cost of the Materials on a pass-through basis and (ii) transportation costs.
Any profit of Contractor on transportation of materials must not be calculated on a “cost plus a percentage of cost” basis.
The Contractor will deliver the Materials to PREPA’s General Warehouse in Palo Seco or any other location identified by PREPA in writing at the time the order for the Materials is placed. All risk of loss of the Materials
The Contractor shall use its reasonable efforts to obtain the lowest prices available, while considering manufacturers capacity and/or supplier ability to meet the demand of the work schedules which may require procurement from different manufacturers and suppliers.
For any Materials procured under Emergency Procedures, PREPA will certify that each material procurement was necessary due to emergency or exigent circumstances and complies with PREPA’s policies and regulations for emergency procurement.
It is the responsibility of the Contractor to maintain records sufficient to detail the history of procurement. These records will include, but are not necessarily limited to the following: (i) rationale for the method of procurement, (ii) rationale for the election of contract type, (iii) criteria for contractor selection or rejection, (iv) basis for the contract price, (v) documentation of reasonableness of the costs based on multiple quotations and/or pricing solicitations whenever possible to support the costs claimed, (vi) evidence provided by PREPA of emergency situations and immediate need for materials to support that such purchase is exempt from a formal bid process, as required under Act 83, (vii) other evidence of compliance with the applicable purchasing procedures and (viii) any other documentation required by federal or state law. Upon request by PREPA, Contractor shall deliver to PREPA a file containing all documentation described herein.
For any Materials to be procured by the Contractor, PREPA shall review the procurement and will provide certification regarding procurement compliance with Section 15(b) (2) of Act No. 83 of May 2, 1941, as amended, PREPA’s internal policies, and all required statutory and contractual provisions.
The Contractor shall submit invoices for Materials separately from invoices for other work performed under the Contract. All invoices will be delivered in compliance with the provisions of Section 3 of the Contract, as amended.
By signing below, the Contractor certifies that no other Federal, State or local agencies, non-insurance agency or any other entity has paid or will pay Contractor for Material costs paid to Contractor by PREPA.
The Parties agree that the third paragraph of Article 3, Consideration, of the Original Contract is hereby stricken and replaced with the following four paragraphs:
PREPA hereby acknowledges and accepts that the Contractor has delivered to PREPA the certifications required under Executive Orders OE-1991-24 and OE-1992-52 as well as a copy of Contractor’s Certificate of Formation.
PREPA hereby certifies that no public officer or employee of PREPA who has the power to approve or authorize contracts has evaluated, considered, approved or authorized any contract between PREPA and Contractor in which he/she or any member of his/her family unit has or has had direct or indirect economic interest during the last four (4) years prior to his/her holding office.
The definition of “Contract” contained in Article 2, paragraph 3) of the Original Contract is hereby amended by deleting therefrom the following text inadvertently appearing on lines two and three thereof: “, which constitute an amendment and supersedes to that contract entered into by the parties on September 26, 2017,”
PREPA shall not approve the purchase of any Materials under this Amendment until this Amendment is properly registered in the Office of the Controller of the Government of Puerto Rico.
Employees not to Benefit: The Parties hereby declare that, to the best of their knowledge, no public officer or employee of the Commonwealth of Puerto Rico, its agencies, instrumentalities, public corporations or municipalities or employee of the Legislative or Judicial branches of the Government has any direct or indirect interest in the present Agreement. The Contractor certifies that neither it nor any of its partners, directors, executives, officers, and employees receives salary or any kind of compensation for the delivery of regular services by appointment in any agency, instrumentality, public corporation, or municipality of the Commonwealth of Puerto Rico.
PREPA hereby certifies that this Amendment has been approved by the delegate of the Governor of Puerto Rico, as required under Act 3-2017 and Office of the Chief of Staff Memorandum No. 2017-001; Office of Management and Budget Circular Letter 141-17.
Except as set forth herein, the Contract remains in full force and effect in accordance with its terms.