The Build Own Transfer Agreement is a crucial document in Dutch infrastructure development, particularly used in public-private partnership projects. It enables government authorities to leverage private sector expertise and financing while maintaining long-term public ownership of essential facilities. The agreement comprehensively covers three distinct phases: construction, operation, and transfer, incorporating Dutch regulatory requirements and market practices. It's particularly relevant for large-scale infrastructure projects where the government seeks to minimize initial capital expenditure while ensuring high-quality development and operation. The document includes detailed provisions for technical specifications, performance standards, risk allocation, and transfer conditions, all aligned with Dutch legal requirements and European Union regulations where applicable.
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1. Parties: Identification of the contracting parties including the grantor (usually government entity) and the project company
2. Background: Context of the project, including its purpose and public interest objectives
3. Definitions and Interpretation: Definitions of key terms and interpretation rules for the agreement
4. Grant of Concession: Terms of the concession grant, including rights and exclusivity
5. Project Site: Details regarding the site, access rights, and site conditions
6. Construction Phase: Requirements, timelines, and standards for the construction phase
7. Testing and Commissioning: Procedures for testing and accepting completed works
8. Operation and Maintenance: Standards and requirements for facility operation
9. Performance Security: Security arrangements and performance guarantees
10. Payment Provisions: Financial terms, including revenue arrangements and payment mechanisms
11. Transfer Provisions: Conditions and procedures for transferring the facility back to the grantor
12. Risk Allocation: Distribution of risks between parties
13. Force Majeure: Definition and consequences of force majeure events
14. Default and Termination: Events of default, remedies, and termination procedures
15. Dispute Resolution: Procedures for resolving disputes
16. Governing Law: Applicable law and jurisdiction
1. Government Support: Applicable when government guarantees or support are provided
2. Refinancing: Required when project refinancing is anticipated or permitted
3. Change in Law: Detailed provisions for managing regulatory changes, particularly relevant in regulated sectors
4. Environmental Compliance: Detailed environmental obligations, necessary for projects with significant environmental impact
5. Local Content: Requirements for local content and employment, if applicable
6. Step-in Rights: Rights of lenders or the grantor to step in and take control under specific circumstances
7. Technology Transfer: Provisions for technology transfer, particularly relevant in developing markets
8. Insurance: Detailed insurance requirements beyond standard coverage
1. Technical Specifications: Detailed technical requirements for the facility
2. Performance Standards: Specific performance metrics and standards
3. Construction Schedule: Detailed timeline for construction phase
4. Testing Procedures: Detailed procedures for testing and commissioning
5. Operation and Maintenance Manual: Detailed procedures for facility operation
6. Financial Model: Project financial projections and assumptions
7. Form of Performance Security: Templates for required performance bonds or guarantees
8. Transfer Requirements: Detailed specifications for facility transfer
9. Environmental Management Plan: Environmental compliance and management procedures
10. Land Documents: Site maps, surveys, and related documentation
11. Permits and Approvals: List of required permits and status
12. Personnel Requirements: Staffing and qualification requirements
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