The Build Own Transfer Agreement is a specialized contract used in Hong Kong for infrastructure development projects where a private entity undertakes to construct and operate a facility before transferring it to the government. This agreement type is particularly suitable for large-scale infrastructure projects where public authorities seek private sector expertise and financing while maintaining long-term public ownership. The document comprehensively covers the entire project lifecycle, from initial construction through operational phase to final transfer, incorporating Hong Kong's regulatory framework, particularly the Buildings Ordinance, Environmental Impact Assessment Ordinance, and relevant public-private partnership policies. It includes detailed provisions for construction standards, operational requirements, revenue mechanisms, risk allocation, and transfer conditions, while ensuring compliance with Hong Kong's legal and regulatory requirements for infrastructure development.
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1. Parties: Identification of the contracting parties including the project company, government authority, and any other key stakeholders
2. Background: Context of the project, including purpose, objectives, and basic framework of the BOT arrangement
3. Definitions and Interpretation: Comprehensive definitions of terms used throughout the agreement and rules of interpretation
4. Project Scope and Grant of Rights: Detailed description of the project and rights granted to the project company
5. Conditions Precedent: Prerequisites that must be satisfied before the agreement becomes effective
6. Construction Phase Obligations: Detailed obligations regarding design, construction, testing, and commissioning of the facility
7. Construction Timeline and Milestones: Specific deadlines, construction schedule, and milestone achievements
8. Quality Assurance and Compliance: Standards, specifications, and compliance requirements for construction
9. Ownership and Asset Rights: Rights and responsibilities during the ownership phase
10. Operation and Maintenance: Requirements for operating and maintaining the facility during the concession period
11. Performance Standards: Required service levels and performance metrics
12. Payment Mechanisms: Financial terms, including revenue arrangements and payment structures
13. Transfer Provisions: Terms and conditions for the transfer of assets back to the government
14. Force Majeure: Events constituting force majeure and consequences
15. Default and Termination: Events of default, remedies, and termination procedures
16. Indemnification and Liability: Allocation of risks and responsibilities between parties
17. Insurance: Required insurance coverage throughout all project phases
18. Dispute Resolution: Procedures for resolving disputes, including arbitration provisions
19. Governing Law: Specification of Hong Kong law as governing law and related jurisdictional matters
1. Government Support and Guarantees: Included when specific government guarantees or support mechanisms are part of the project structure
2. Environmental Compliance: Detailed environmental obligations when project has significant environmental impact
3. Social and Community Obligations: Required when project has significant community impact or requires specific community engagement
4. Refinancing Provisions: Included when project financing structure allows for potential refinancing
5. Third Party Agreements: Required when project involves significant third-party contracts or relationships
6. Technology Transfer: Included when specific technology transfer requirements exist
7. Local Content Requirements: Required when project must meet specific local content or employment requirements
8. Intellectual Property Rights: Included when project involves significant IP components or technology
9. Change in Law Provisions: Detailed provisions when regulatory environment is likely to change significantly
1. Technical Specifications: Detailed technical requirements and specifications for the facility
2. Performance Standards and Testing Procedures: Detailed performance criteria and testing methodologies
3. Payment Mechanism and Financial Model: Detailed calculation methods for payments and financial projections
4. Construction Schedule: Detailed timeline of construction milestones and deadlines
5. Required Insurance: Specific insurance requirements and coverage levels
6. Form of Performance Security: Templates for performance bonds and other security instruments
7. Land Documents: Details of land rights, access, and related documentation
8. Environmental Management Plan: Detailed environmental compliance and management requirements
9. Transfer Plan and Requirements: Detailed procedures and requirements for final transfer
10. Operating Procedures: Detailed operational requirements and procedures
11. Required Permits and Approvals: List of required regulatory approvals and permits
12. Form of Direct Agreement: Template for direct agreements with lenders or key contractors
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