Eng Dbfm Overeenkomst Rws Standaard

8/18/2019 Eng Dbfm Overeenkomst Rws Standaard

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Directorate-General for Public Works and Water

Management (RWS)

DBFM AGREEMENT

Standard 2.0

Date 30 July 2009

Status


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DBFM OVEREENKOMST RIJKSWATERSTAAT | 30 juli 2009

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Contents

1. DEFINITIONS...................................................................................... 6

2. KEY OBLIGATIONS AND TERM............................................................. 6

2.1 KEY OBLIGATIONS OF THE CONTRACTOR ......................................................... 6 2.2 KEY OBLIGATIONS OF THE CONTRACTING AUTHORITY .......................................... 7 2.3 TERM ................................................................................................ 7

3. FINANCING......................................................................................... 7

3.1 PROJECT FINANCING................................................................................ 7

3.2 FINANCIAL CLOSE GUARANTEE.................................................................... 7 3.3 FINANCIAL CLOSE .................................................................................. 8 3.4 PERFORMANCE BOND............................................................................... 9 3.5 REFINANCING ....................................................................................... 9 3.6 FINANCIAL MODEL.................................................................................10

4. RWS INFRASTRUCTURE..................................................................... 10

4.1 ISSUING THE COMMENCEMENT CERTIFICATE....................................................10 4.2 ACCESS.............................................................................................11 4.3 DESIGN AND CONSTRUCTION .....................................................................12 4.4 AVAILABILITY AND MAINTENANCE ................................................................12 4.5 ISSUING THE AVAILABILITY CERTIFICATE .......................................................13 4.6

ISSUING THE COMPLETION CERTIFICATE ........................................................14

5. THIRD-PARTY INFRASTRUCTURE...................................................... 14

5.1 ACCESS.............................................................................................14 5.2 DESIGN AND CONSTRUCTION .....................................................................14 5.3 AVAILABILITY AND MAINTENANCE ................................................................15 5.4 COMPLETION AGREEMENTS FOR THIRD-PARTY INFRASTRUCTURE .............................15 5.5 ISSUING OF THE PART COMPLETION CERTIFICATE FOR THE THIRD-PARTY INFRASTRUCTURE 15

6. CABLES AND THIRD-PARTY PIPELINES............................................. 16

6.1 UNDISTURBED LOCATIONS AND TEMPORARY PROTECTIVE MEASURES..........................16 6.2 THIRD-PARTY CABLES AND PIPELINES CATEGORY 1 ...........................................16 6.3 THIRD-PARTY CABLES AND PIPELINES CATEGORY 2 ...........................................16 6.4 THIRD-PARTY CABLES AND PIPELINES CATEGORY 3 ...........................................17

7. HAND BACK....................................................................................... 18

7.1 HAND BACK REQUIREMENTS......................................................................18 7.2 HAND BACK INSPECTIONS ........................................................................18 7.3 HAND BACK BANK GUARANTEE ..................................................................18 7.4 ISSUING THE HAND BACK CERTIFICATE .........................................................19

8. QUALITY ASSURANCE ....................................................................... 20

8.1 MANAGEMENT SYSTEM ............................................................................20 8.2 PERFORMANCE MEASUREMENT SYSTEM..........................................................20

8.3 INSPECTIONS ......................................................................................20


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17.6 USE AFTER EARLY TERMINATION ...............................................................38 17.7 PROVISION OF LICENCE TO CONTRACTOR FOR EXISTING INFRASTRUCTURE...............38

18. MISCELLANEOUS PROVISIONS....................................................... 39

18.1 REGULATIONS...................................................................................39 18.2 WORKING CONDITIONS AND OCCUPATIONAL HEALTH AND SAFETY..........................39 18.3 PERMITS .........................................................................................39 18.4 FEE LEVIED ON THE EXTRACTION OF SAND, GRAVEL AND SOIL ..............................40 18.5 (TRAFFIC) SAFETY ..............................................................................40 18.6 INCIDENT MANAGEMENT, WINTER MAINTENANCE, TRAFFIC ACCIDENTS AND NON-STANDARDTRANSPORT.................................................................................................40 18.7 [C OST OF MAINS SERVICES ] ...................................................................40

19. INDEXATION .................................................................................. 40

19.1 PRICE LEVEL .....................................................................................40 19.2 NON-INDEXED AMOUNTS .......................................................................40 19.3 INDEXING THE GROSS AVAILABILITY PAYMENT ..............................................41 19.4 INDEXATION OF OTHER AMOUNTS..............................................................41

20. EXCESS PROFITS............................................................................ 41

20.1 WEIGHTED AVERAGE RETURN ON EQUITY .....................................................41 20.2 SHARING OF EXCESS PROFITS .................................................................41 20.3 MAXIMIZATION ..................................................................................41 20.4 WEIGHTED AVERAGE COST OF CAPITAL ......................................................41

21. DISPUTE RESOLUTION................................................................... 42

21.1 DISPUTES........................................................................................42 21.2 EXPERT DETERMINATION.......................................................................42 21.3 JURISDICTION...................................................................................43 21.4 JURISDICTION IN CASE OF THIRD-PARTY PROCEEDINGS .....................................43

22. COMMUNICATION .......................................................................... 44

22.1 LANGUAGE.......................................................................................44 22.2 COMMUNICATION ...............................................................................44 22.3 NOTIFICATIONS AND APPROVALS ..............................................................44 22.4 REPRESENTATIVES..............................................................................44 22.5 REPRESENTATIONS..............................................................................45

23. CONFIDENTIALITY ......................................................................... 45 23.1 CONFIDENTIALITY...............................................................................45 23.2 EXCEPTIONS.....................................................................................45

24. FINAL STIPULATIONS .................................................................... 46

24.1 APPLICABLE LAW ................................................................................46 24.2 EXCLUSION......................................................................................46 24.3 TRANSFER OF RIGHTS ..........................................................................46 24.4 WAIVER..........................................................................................46 24.5 ENTIRE AGREEMENT.............................................................................47 24.6 CONTINUING OBLIGATIONS ....................................................................47 24.7 CONTRADICTION ................................................................................47

24.8 UNFORESEEN CIRCUMSTANCES ................................................................47


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24.9 NO THIRD-PARTY CLAUSES.....................................................................47

SCHEDULES ............................................................................................... 48

SCHEDULE 1 DEFINITIONS.............................................................................48 SCHEDULE 2 PAYMENT MECHANISM ...................................................................66 SCHEDULE 3 COMPENSATION FOR SUPERVENING EVENTS ...........................................82 SCHEDULE 4 COMPENSATION FOR EARLY TERMINATION .............................................88 SCHEDULE 5 CHANGES ...............................................................................95 SCHEDULE 6 DIRECT AGREEMENT................................................................... 101 SCHEDULE 7 MODELS............................................................................... 123 SCHEDULE 8 MANAGEMENT PLAN ................................................................... 131 SCHEDULE 9 PROGRAMME OF REQUIREMENTS.................................................... 132 SCHEDULE 10 FINANCIAL MODEL ADJUSTMENT GUIDELINE ..................................... 139

SCHEDULE 11 AGREEMENT GOVERNING INTELLECTUAL PROPERTY RIGHTS ..................... 152 SCHEDULE 12 INSURANCE .......................................................................... 155 SCHEDULE 13 INFORMATION FURNISHED .......................................................... 156 SCHEDULE 14 THIRD-PARTY CABLES AND PIPELINES ............................................. 157 SCHEDULE 15 RIGHTS OF THIRD PARTIES TO ACCESS THE RWS AND THIRD-PARTY AREAS

DURING THE DEVELOPMENT PERIOD.................................................................... 158


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This Agreement is dated [date of signature].

(1) THE STATE OF THE NETHERLANDS (Ministry of Transport, Public Works and Water

Management, Directorate-General for Public Works and Water Management, with its seat in The

Hague (the Contracting Authority), represented by [name of authorized representative];

(2) [NAME OF CONTRACTOR], with its registered office in [location of the registered office of

the Contractor] (the Contractor), represented by [name of authorized representative];

have agreed to the following:

1. DEFINITIONS

Capitalized terms in this Agreement have the meaning ascribed to them as set out in Schedule 1

(Definitions).

2. KEY OBLIGATIONS AND TERM

2.1 Key Obligations of the Contractor

(a) The Contractor must:

(i)

carry out all Work required to obtain the Commencement Certificate in

accordance with this Agreement;

(ii)

keep the RWS Infrastructure available during the Development Period in

accordance with this Agreement;

(iii)

carry out all Work required to obtain the Availability Certificate in accordance

with this Agreement;

(iv)

keep the RWS Infrastructure available during the Availability Period inaccordance with this Agreement;

(v)

carry out all Work required to obtain the Completion Certificate in accordance


(vi) carry out all Work in accordance with the Management System;

(vii) carry out all Work required to obtain the Hand Back Certificate in accordance


(viii)

do everything that is necessary to realise the above, insofar as this Agreement

does not specifically stipulate otherwise; and


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(ix)

fulfil all its other obligations pursuant to this Agreement.

(b) All costs incurred by the Contractor in order to fulfil the aforementioned obligations will

be borne by the Contractor, except to the extent that this Agreement specificallystipulates otherwise.

(c)

Regardless of circumstances or events that may arise during the execution of this

Agreement, the Contractor has:

(i)

no right to any payment from the Contracting Authority;

(ii) no right to a postponement or suspension of the performance of its obligations;

and

(iii) no right vis-à-vis the Contracting Authority with regard to a Contracting

Authority Default,

except to the extent that such rights are specifically stipulated in this Agreement or

result from public law.

2.2 Key Obligations of the Contracting Authority

The Contracting Authority must:

(a) pay the Net Availability Payment to the Contractor for the period from the

Commencement Date to the Expiry Date in accordance with Schedule 2 (Payment

Mechanism);

(b)

after the Completion Certificate has been issued, pay the Lump-Sum Completion

Payment to the Contractor in accordance with Schedule 2 (Payment Mechanism); and

(c) fulfil all its other obligations pursuant to this Agreement.

2.3 Term

This Agreement comes into effect on the Contract Date and ends, subject to Article 24.6

(Continuous obligations), on the Expiry Date unless it is terminated earlier in accordance with

Article 10 (Early Termination).

3. FINANCING

3.1 Project financing

The Contractor must finance the Work by means of Project financing.

3.2 Financial Close Guarantee

(a)

On the Contract Date, the Contractor must provide a Bank Guarantee in the amount of €

[ ] as guarantee for the fulfilment of its obligations under this Agreement in

accordance with the model provided in Schedule 7 (Models), Part 1 (the Financial Close

Guarantee).


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(b)

The Financial Close Guarantee must remain in effect for a period of three months after

the Contract Date. If the deadline for Financial Close specified in Article 3.3 (a) isextended as a result of a Supervening Event or a Disruption of Financial Markets, the

Contractor must ensure that the term of the Financial Close Guarantee is adequately

extended so that, as long as the Supervening Event or Disruption of Financial Markets

continues, the residual term of the Financial Close Guarantee will always be at least 1

month.

(c) Concurrent to issuing the Confirmation of Financial Close, the Contracting Authority

must notify the bank issuing the Financial Close Guarantee that the Financial Close

Guarantee shall cease to apply as at the date of the Confirmation of Financial Close, and

return the original of the Financial Close Guarantee to said institution.

3.3 Financial Close

(a)

Financial Close must occur within the three months following the Contract Date. If

Financial Close cannot occur within three months of the Contract Date due to a

Supervening Event or a Disruption of Financial Markets, the deadlines for attaining

Financial Close will be extended up to 10 Business Days after the day on which the

Supervening Event or Disruption of the Financial Markets no longer prevents the

attaining of Financial Close. If the deadline for attaining Financial Close is extended by

more than [180 Calendar Days] owing to the occurrence of the Supervening Event or

the Disruption of Financial Markets, either of the Parties has the right to terminate this

Agreement. Upon termination of the Agreement on these grounds, neither Party shallbe liable to compensate the other.

(b) The date of Financial Close must be established in consultation with the Contracting

Authority.

(c) On the date of Financial Close, the Contracting Authority and the Contractor must enter

into a Direct Agreement with the Security Agent.

(d)

On the date of Financial Close, the Contractor must hand over to the Contracting

Authority a Confirmation of Financial Close signed by the Facility Agent / Intercreditor

Agent in accordance with the model provided in Schedule 7 (Models), Part 4

(Confirmation of Financial Close).

(e) On the date of Financial Close, the Contracting Authority and the Contractor must

determine the Gross Availability Payment and the Weighted Average Cost of Capital in

accordance with the model provided in Part 5 (Confirmation of Gross Availability

Payment and Weighted Average Cost of Capital ) of Schedule 7 (Models).

(f)

Twenty Business Days after the date of Financial Close, the Contractor must hand over

to the Contracting Authority the entire Finance Agreements and the Junior Debt

Agreements (CD-ROM format accepted), in the form of copies certified by the

Contractor. Throughout the period from the Financial Close Date up to and including the

Expiry Date, the Contractor in the absence of prior consent from the Contracting


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Authority may only provide security interest on its rights under this Agreement vis-à-vis

the Contracting Authority as specified in the Finance Agreements on the date of the

Financial Close.

3.4 Performance Bond

(a)

On the Financial Close Date, the Contractor must provide a Bank Guarantee in the

amount of € [ ] as guarantee for the fulfilment of its obligations under this Agreement

in accordance with the model (Performance Bond ) provided in Part 2 (Performance

Bond ) of Schedule 7 (Models).

(b) The term of validity of the Performance Bond must extend to one month after the

Scheduled Availability Date. If the Scheduled Availability Date is postponed pursuant to

Article 9.2 (Delay Event ), the Contractor must ensure that the term of validity of the

Performance Bond is extended by an equal period at the very least.

(c)

Within 10 Business Days of receipt of a declaration from the Contractor’s chartered

accountant confirming that at least the amount outlined in Paragraph (a) of the

Performance Bond has been expended on components of objects listed with respect to

the Completion Date in Schedule 9, Table 1 (RWS Infrastructure Objects), the

Contracting Authority must inform the bank issuing the Performance Bond that the

Performance Bond shall cease to apply with effect from the date of the chartered

accountant’s declaration and return the original copy of the Performance Bond to said

bank, unless it notifies the Contractor that it disputes the accuracy of the declaration.

(d)

Concurrent to issuing the Availability Certificate, the Contracting Authority must notify

the bank issuing the Performance Bond that the Performance Bond ceases to apply asfrom the date of the Contracting Authority’s notification and return the original copy of

the Performance Bond to said bank, unless the Contracting Authority has already

notified said bank that the Performance Bond has ceased to apply.

3.5 Refinancing

(a)

The Contractor may not enter into a new Finance Agreement with any other party than

an existing Lender if any Grounds for Exclusion or Grounds for Refusal apply to the new

Lender.

(b) The Contractor must request the Contracting Authority’s consent prior to entering into a

new Finance Agreement with any party other than an existing Lender. This authorisation

must be given within [2 0 ] Business Days after the Contractor has demonstrated that

no Grounds for Exclusion apply to the new Lender, unless the Contracting Authority

demonstrates that a Ground for Refusal applies to the new Lender (or a (legal) entity of

which the new Lender is a subsidiary within the meaning of Article 2:24a of the Dutch

Civil Code or belongs to the same group as the Lender as referred to in Article 2:24b of

the Dutch Civil Code). If the Contracting Authority grants its authorisation, no Grounds

for Exclusion shall be deemed to apply to the new Lender pursuant to Paragraph (a).

(c)

The Contractor must inform the Contracting Authority in advance of any Refinancing

other than that referred to in Paragraph (b).


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(d) The Contractor must pay [ % ] of the Financial Benefit (before taxes) achieved through

the Refinancing to the Contracting Authority. This payment must be made on the basis

of a payment schedule that is established on the basis of the expected actual realisation

of that benefit under unchanged circumstances.

(e)

If there is to be Refinancing, the Parties must consult to determine the Financial Benefit

and the payment schedule referred to in Paragraph (d). This determination must be

based on a comparison between the payments that are expected to be made by the

Contractor to its Shareholders before and after the Refinancing based on the Updated

Financial Model. Upon determination of the Financial Benefit, any commissions,

penalties, breakage costs and other costs and expenses will be left out of consideration

insofar as these cannot be regarded as consistent with the market.

(f)

If the Contracting Authority and the Contractor cannot reach an agreement within 3

months regarding determination of the Financial Benefit and the payment schedulespecified in Paragraph (d), both items will be determined in accordance with Article 21

(Dispute Resolution).

3.6 Financial Model

(a) On the date of the Financial Close, the Contractor must furnish the Financial Model that

has been completed in accordance with Schedule 10 (Financial Model Adjustment

Guideline).

(b)

In determining the compensation to be paid pursuant to Articles 10 (Early Termination),

3.5 (Refinancing) or 20.2 (Sharing of excess profits), account must (also) be taken of

the Updated Financial Model. The compensation to be paid pursuant to Article 9.3(Compensation Event ) shall on the Contracting Authority’s request be determined in

accordance with the Updated Financial Model.

(c) The Contractor must furnish the Updated Financial Model together with a description of

adjustments made since the Original Financial Model, or where applicable, the most

recent copy of the Updated Financial Model.

(d)

At the request of the Contracting Authority, the Contractor must demonstrate, by means

of an affirmative declaration from an independent expert acceptable to the Contracting

Authority, that the Updated Financial Model is based on the Original Financial Model and

that the adjustments are in accordance with Schedule 10 (Financial Model Adjustment

Guideline).

4. RWS INFRASTRUCTURE

4.1 Issuing the Commencement Certificate

(a)

If the Contractor believes that the conditions for issuing the Commencement Certificate

referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate

such fulfilment by providing the Contracting Authority with the documents named in the

Certificate Plan. The Contractor may submit these documents to the Contracting

Authority in stages, according to the procedure described for that purpose in the

Management Plan.


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(b)

Within [ 2 0 ] Business Days of receiving a document as specified in Paragraph (a), the

Contracting Authority must inform the Contractor whether the Contractor has

demonstrated that the conditions for issuing the Commencement Certificate described

in this document have been fulfilled. After such notification, and prior to issuing the

Commencement Certificate, the Contracting Authority may verify whether or not this is

the case and may verify at all times whether such conditions for issuing the

Commencement Certificate described in previously submitted documents continue to be

met.

(c) The Contractor is entitled to amend a document and resubmit it to the Contracting

Authority in the event that the Contracting Authority determines that the conditions

described in said document have not been demonstrably fulfilled.

(d)

If the Contractor has demonstrated that all conditions for issuing the Commencement

Certificate are fulfilled, the Contracting Authority must issue the CommencementCertificate to the Contractor within [ 2 0 ] Business Days of receiving all documents that

demonstrate such fulfilment.

(e)

If the Contracting Authority refuses to issue the Commencement Certificate, it must

inform the Contractor of this refusal within the same period of [ 2 0 ] Business Days,

specifying its reasons.

4.2 Access

(a)

In the period commencing on the Commencement Date and ending on the Completion

Date , the Contracting Authority must provide access to the Contractor to perform the

Work to the RWS Area and the Third-Party Area [with the exception of the sectionsreferred to in Schedule [ ] to which the Contracting Authority is obliged to provide

access as from the date specified in this Schedule in respect of the relevant sections]1,

whereby:

(i)

the Contractor must have regard to the third-party rights of access to the RWS

Area and the Third-Party Area as referred to in Schedule 15 (Rights of third

parties to access the RWS Area and the Third-Party Area during the

Development Period ); and

(ii) insofar as the RWS Area and the Third-Party Area form part of the public road or

waterway, bus lane or rail infrastructure, access by the Contractor will be

subject to authorisation by the relevant authority in charge. Supplementary to

the provisions of point (i), the Contractor must take account of the fact that

third parties other than those referred to in Schedule 15 (Rights of third parties

to access the RWS Area and the Third-Party Area during the Development

Period) also have rights of access to the public road and waterway, bus lane or

rail infrastructure.

The Contractor’s Servants or Agents will also be afforded access in this regard.

1 Some sites have yet to be acquired and this is generally achieved within 4 weeks of the effective date of the Transport Infrastructure (Planning

Procedures) Decree. Access can then be made available to such areas.


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(b)

Throughout the period beginning on the day after the Completion Date and ending on

the Expiry Date, the Contracting Authority will grant access to the Contractor to the

RWS Area in order to perform the Work, whereby:

(i) the Contractor shall have regard to the rights of third parties to access the RWS

Area; and

(ii)

insofar as the RWS Area forms part of the public road or waterway, bus lane or

rail infrastructure, access by the Contractor will be subject to authorisation by

the relevant authority in charge.

( c ) P r io r t o t h e d a t e o n w h i ch t h e T r a n sp o r t I n f r a s t r u c t u r e ( P la n n i n g P r o ce d u r e s )

D e cr e e [ R o ad I m p r o v e m e n t D e c r e e] b e c o m e s i r r e v o ca b l e, t h e Co n t r a c t o r w i l l

n o t b e e n t i t l e d t o c a r r y o u t t h e f o l lo w i n g W o r k : [ ] ]

4.3 Design and construction

(a)

The Contractor must design and build the RWS Infrastructure in a manner that ensures

that on the Availability Date, the RWS Infrastructure shall:

(i) at least comprise of the objects listed in respect of the Availability Date in

Schedule 9, Table 1 (RWS Infrastructure Objects); and

(ii)

meet the Tender requirements.

(b)

The Contractor must design and build the RWS Infrastructure in a manner that ensures

that on the Completion Date, the RWS Infrastructure shall:

(i) at least comprise of the objects listed in respect of the Completion Date in


(ii) meet the Completion requirements.

4.4 Availability and maintenance

(a)

Throughout the period beginning on the Commencement Date and ending on the

Availability Date, the Contractor must ensure that the RWS Infrastructure:

(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 1

(Traffic Lane definitions and availability requirements in the Development

Period );

(ii)

at least comprises of the objects listed in respect of the Commencement Date in


(iii)

is maintained in accordance with the Transition requirements.

(b) Throughout the period beginning on the Availability Date and ending on the Completion

Date, the Contractor must ensure that the RWS Infrastructure:


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(i)

comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 2

(Traffic Lane definitions and availability requirements in the Availability Period );

(ii)

at least comprises of the objects listed in respect of the Availability Date inSchedule 9, Table 1 (RWS Infrastructure Objects); and

(iii)

is maintained in accordance with the Tender requirements.

(c)

Throughout the period beginning on the day after the Completion Date and ending on

the Expiry Date, the Contractor must ensure that the RWS Infrastructure:

(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 2

(Traffic Lane definitions and availability requirements in the Availability Period );

(ii) at least comprises of the objects listed in respect of the Completion Date in


(iii)

is maintained in accordance with the Completion requirements.

4.5 Issuing the Availability Certificate

(a) If the Contractor believes that the conditions for issuing the Availability Certificate

referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate

such fulfilment by providing the Contracting Authority with the documents referred to in

the Certificate Plan. The Contractor may submit these documents to the Contracting


Management Plan.

(b)

The Contracting Authority must inform the Contractor within [ 2 0 ] Business Days of

receiving a document as specified in Paragraph (a) whether the Contractor has

demonstrated that the conditions for issuing the Availability Certificate described in the

document have been fulfilled. The Contracting Authority may verify at all times whether

this is the case as well as whether the conditions for issuing the Availability Certificate

described in previously submitted documents continue to be met.

(c)

The Contractor is entitled to amend a document and resubmit it to the Contracting



(d) If the Contractor has demonstrated that all conditions for issuing the Availability

Certificate have been fulfilled the Contracting Authority must issue the Availability

Certificate to the Contractor within [ 2 0 ] Business Days of receiving the documents that

demonstrate such fulfilment.

(e)

If the Contracting Authority refuses to issue the Availability Certificate, it must inform

the Contractor of same within the same period of [ 2 0 ] Business Days, specifying its

reasons.


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4.6 Issuing the Completion Certificate

(a) If the Contractor believes that the conditions for issuing the Completion Certificate

referred to in the Certificate Plan have been fulfilled, the Contractor may demonstratesuch fulfilment by providing the Contracting Authority with the documents referred to in

the Certificate Plan. The Contractor may submit these documents to the Contracting


Management Plan.

(b)

Within [20] Business Days of receiving a document as specified in Paragraph (a), the

Contracting Authority must inform the Contractor whether the Contractor has

demonstrated that the conditions for issuing the Completion Certificate described in the


this is the case, as well as whether the conditions for issuing the Completion Certificate

described in previously submitted documents continue to be met.

(c)




(d) If the Contractor has demonstrated that all conditions for the issuance of the Completion

Certificate have been fulfilled, the Contracting Authority must issue the Completion

Certificate to the Contractor within [ 2 0 ] Business Days after having received all

documents demonstrating such fulfilment.

(e)

If the Contracting Authority refuses to issue the Completion Certificate, it must inform

the Contractor of this refusal within the same period of [ 2 0 ] Business Days, specifyingits reasons.

5. THIRD-PARTY INFRASTRUCTURE

5.1 Access

Notwithstanding the provisions of Article 4.1 Paragraph (a), where a Part Completion Certificate

has been issued in respect of an object forming part of the Third-Party Infrastructure, the

Contracting Authority shall no longer be obliged to provide access to that part of the Third-Party

Area in which the relevant object is located.

5.2

Design and construction

The Contractor must design and construct the Third-Party Infrastructure in a manner that the

Third-Party Infrastructure:

(i)

at least comprises of the objects listed with respect to the date of issuing of the

Completion Certificate referred to in Schedule 9, Table 1 (Third-Party

Infrastructure Objects); and

(ii) meets the Completion requirements.


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5.3 Availability and maintenance

(a) Throughout the period beginning on the Commencement Date and ending on the

Completion Date, the Contractor must ensure that the Third-Party Infrastructure:

(i) at least comprises of the objects listed with respect to the Commencement Date

in Schedule 9, Table 1 (Third-Party Infrastructure Objects); and

(ii)

meets the Transition requirements.

(b)

Where a Part Completion Certificate has been issued in respect of an object forming part

of the Third-Party Infrastructure, the Contractor will no longer be obliged to comply with

the provisions of Article 5.3 Paragraph (a) with regard to the area in which the relevant

object is located.

5.4 Completion agreements for Third-Party Infrastructure

(a)

The Contractor is obliged, on behalf of the Contracting Authority and subject to the

Contracting Authority’s approval, to reach agreement on the handover by the

Contracting Authority to the relevant authority of objects forming part of the Third-Party

Infrastructure. The arrangements must be set down in a completion agreement to be

concluded between the Contracting Authority and the authority in charge of the relevant

object.

(b)

Such completion agreements at the very least must provide as follows:

(i)

As from the date of issuing of the Part Completion Certificate, the Contractorshall on behalf of the Contracting Authority for a period of 6 months thereafter

and forthwith at the request of the relevant authority ensure that the object in

question meets the Completion requirements, if it transpires that the object fails

to meet said requirements on account of a default on the Contractor’s part; and

(ii)

the relevant authority’s standard procedures regarding inspections and/or

handovers shall be complied with.

5.5 Issuing of the Part Completion Certificate for the Third-Party Infrastructure

(a)

If the Contractor believes that an object or objects having a mutually related function

and forming part of the Third-Party Infrastructure meet the conditions for issuing of aPart Completion Certificate referred to in the Certificate Plan, the Contractor may hand

over the documents referred to in the Certificate Plan and demonstrating such to the

Contracting Authority.

(b)

The Contracting Authority may verify if the conditions governing issuance of a Part

Completion Certificate have been met.

(c)


Authority if the Contracting Authority determines that the conditions described in said

document have not been demonstrably fulfilled.


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(d)

Where the conditions governing issuance of a Part Completion Certificate have been

met, the Contracting Authority must issue the Part Completion Certificate to the

Contractor within [ 2 0 ] Business days of receipt of the documents referred to in

Paragraph (a).

(e)

If the Contracting Authority refuses to issue the Part Completion Certificate, it must

inform the Contractor of this refusal within the same period of [ 2 0 ] Business Days,

specifying its reasons.

(f)

If it transpires within a period of 6 months as from the date of issuance of a Part

Completion Certificate that the object provided for in the Part Completion Certificate

fails to meet the relevant Completion requirements owing to a Contractor Default, and

the Contracting Authority or the authority to which the relevant object has been

transferred in accordance with the provisions of Article 5.4 has raised this matter with

the Contractor within this period, the Contractor shall be obliged to ensure that theobject meets the relevant requirements as yet.

6. CABLES AND THIRD-PARTY PIPELINES

6.1 Undisturbed locations and temporary protective measures

(a) The Contractor must ensure that all Third-Party Cables and Pipelines remain undisturbed

during the performance of the Work, unless otherwise provided in a Project agreement.

(b)

Where a Third-Party Cable or Pipeline is damaged by the Contractor during the

performance of the Work, the Contractor must report this immediately to the relevant

authority in charge of the cable or pipeline and send a copy of this report without delayto the Contracting Authority.

(c) Where a Third-Party Cable or Pipeline requires temporary protection during the

performance of the Work, the Contractor must put the requisite measures in place to

ensure that the said Third-Party Cable or Pipeline is temporarily protected. Prior to

putting these measures in place, the Contractor must obtain permission from the

authority in charge of the cable or pipeline. A copy of the document outlining the

permission obtained from the authority in charge of the cable or pipeline shall be sent

without delay by the Contractor to the Contracting Authority.

6.2 Third-Party Cables and Pipelines Category 1

The location of the Third-Party Cables or Pipelines Category 1 must be retained.


(a)

During the performance of the Work, the Contractor must abide by the provisions of the

Project Agreement that was concluded by the Contracting Authority in relation to the

rerouting, removal or permanent protection of Third-Party Cables and Pipelines

Category 2. Where necessary, the Contractor shall make additional arrangements with

the authorities in charge of the cables or pipelines.

(b)

The Contractor must arrange for the performance of the Work to be agreed wherenecessary with whomsoever is in charge of actually rerouting, removing or permanently


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protecting the Third-Party Cables and Pipelines Category 2 situated within the RWS and

the Third-Party Areas.

(c)

The Contracting Authority shall bear the costs of rerouting, removing or permanentlyprotecting the Third-Party Cables and Pipelines Category 2.

(d)

Where the Contractor arranges for a Third-Party Cable or Pipeline Category 2 to be

removed, rerouted, or afforded permanent protection in a manner that deviates from

the Project agreement, the Contractor shall bear the additional costs involved.


(a)

Where the rerouting, removal or permanent protection of a Third-Party Cable or Pipeline

Category 3 is deemed necessary in connection with the Work, the Contractor on behalf

of the Contracting Authority shall send a Change Request to the authority in charge of

the cable or pipeline. The Change Request must be approved by the Contracting

Authority before it is sent to the authority in charge of the cable or pipeline.

(b)

If the Contracting Authority refuses to approve the Change Request, it must inform the

Contractor of this refusal within 15 Business Days of receipt of a full draft of the Change

Request. The Change Request may only be refused by the Contracting Authority if the

draft does not meet the Regulations governing Cables and Pipelines.

(c)

After submitting the Change Request to the authority in charge of the cable or pipeline,

the Contractor must reach agreement with the said authority in regard to the content of

the Project Agreement. The Project agreement must be in line with the Regulations

governing Cables and Pipelines. The agreement must be reached on behalf of theContracting Authority and is subject to the Contracting Authority’s approval.

(d) If the authority in charge of the cable or pipeline is unwilling to allow the Contractor to

check the estimated costs for the permanent protection, rerouting or removal of the

cable or pipeline, the Contracting Authority at the Contractor’s request will be obliged to

reach an agreement with the authority in charge of the cable or pipeline, subject to the

Regulations governing Cables and Pipelines, on the price to be paid.

(e)

The Project agreement must be signed by the Contracting Authority. If the Contracting

Authority refuses to sign a Project agreement, it must inform the Contractor of this

refusal within 15 Business Days of receipt of a full draft of the Project agreement

(including annexes) which has been agreed between the Contractor and the authority in

charge of the cable or pipeline. The Contracting Authority may only refuse to sign if the

Project agreement does not meet the Regulations governing Cables and Pipelines.

(f)

The final amount paid by the Contracting Authority under the Project agreement to the

authority in charge of the cable or pipeline in respect of a Third-Party Cable or Pipeline

Category 3 becomes payable by the Contractor, and the Contractor shall forward said

payment to the Contracting Authority on first request.

(g) No Work involving the rerouting, removal or permanent protection of Third-Party Cables

and Pipelines Category 3 may be commenced with by the Contractor unless provision is

made for such work in a Project agreement. In performing the said Work, the


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Contractor must abide by the arrangements provided for in the relevant Project

agreement.

(h)

The Contractor must arrange for the performance of the Work to be agreed wherenecessary with whomsoever is in charge of actually rerouting, removing or permanently

protecting the Third-Party Cables and Pipelines Category 3 situated within the RWS and

the Third-Party Areas.

7. HAND BACK

7.1 Hand Back Requirements

The Contractor must ensure that on the Expiry Date the RWS Infrastructure complies with the

conditions for issuing the Hand Back Certificate as specified in the Certificate Plan.

7.2 Hand Back Inspections

(a)

Under the provisions of Article 7.1 (Hand Back Requirements), the Parties must jointly

inspect the RWS Infrastructure.

(b)

The first inspection must take place no earlier than [●] months and no later than [●]

months before the Expiry Date. The last inspection must take place no earlier than [●]

months and no later than [●] months before the Expiry Date.

(c)

The inspections shall take place at the Contracting Authority’s request. The Contracting

Authority must make its request to the Contractor no later than [●] Business Days

before the inspection.

(d)

The Contractor shall organise the inspections.

(e) The inspections shall take place according to the provisions of Schedule 8 (Management

Plan). Within 15 Business Days after each inspection, the Contractor must provide the

Contracting Authority with a summary of the Work that must be performed in addition

to the Work included in the Subplans referred to in [] of the Management Plan in order

for the RWS Infrastructure to comply on the Expiry Date with the requirements laid

down in Article 7.1 (Hand Back Requirements). The Contractor must include plans for

the completion of this additional Work and a list of the associated costs to this review.

(f)

The Contracting Authority may verify if the review of the additional work, its planningand the statement of the costs involved are accurate and complete. If the Contracting

Authority determines that these documents are not accurate and complete, the

Contractor must revise these documents as soon as possible and resubmit them to the

Contracting Authority.

7.3 Hand Back Bank Guarantee

(a) No later than [] months prior to the Expiry Date, the Contractor must provide a Bank

Guarantee in the amount of € [ ] as a guarantee for the fulfilment of its obligations

under this Agreement in accordance with the model provided in Part 3 (Hand Back Bank

Guarantee) of Schedule 7 (Models).


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(b) The term of validity of the Hand Back Bank Guarantee must extend to [ ] months after

the Expiry Date.

(c)

If inspections reveal that the Contractor must take measures to ensure compliance ofthe RWS Infrastructure with the Hand Back Requirements on the Expiry Date and that

the cost of these measures is higher than the maximum amount of the Hand Back Bank

Guarantee, the Contractor within [] Business Days of sending the review specified in

Article 7.2 Paragraph (e) must provide an additional Bank Guarantee in an amount that

is equivalent to the difference

7.4 Issuing the Hand Back Certificate

(a) No later than [ 2 0 ] Business Days prior to the Expiry Date the Contractor must deliver

the documents listed in the Certificate Plan demonstrating that the RWS Infrastructure

will meet the requirements on the Expiry Date for issuing the Hand Back Certificate as

stated in the Certificate Plan. The Contractor may submit these documents to the

Contracting Authority in stages, according to the procedure described for that purpose

in the Management Plan.

(b)

Within [ 2 0 ] Business Days after receiving a document as specified in Paragraph (a),

the Contracting Authority must inform the Contractor whether the Contractor has

demonstrated that the conditions for issuing the Hand Back Certificate described in the


or not this is the case, as well as whether the conditions for issuing the Hand Back

Certificate described in previously submitted documents continue to be met.

(c)

The Contractor is entitled to amend a document and resubmit it to the ContractingAuthority in the event that the Contracting Authority determines that the conditions


(d) If the Contractor has demonstrated that on the Expiry Date all conditions for the

issuance of the Hand Back Certificate have been fulfilled, the Contracting Authority

must issue the Hand Back Certificate to the Contractor on the Expiry Date and inform

the bank that issued the Hand Back Bank Guarantee that the Hand Back Bank

Guarantee shall cease to apply on the Expiry Date and return the original copy of the

Hand Back Bank Guarantee to said bank.

(e)

If the documents referred to in Paragraph (a) do not demonstrate that the RWS

Infrastructure meets the conditions set in Article 7.1 (Hand Back Requirements) on the

Expiry Date and the Contracting Authority therefore is unwilling to issue the Hand Back

Certificate, the Contracting Authority must notify the Contractor of same within [ 2 0 ]

Business Days of receiving all the documents referred to in Paragraph (a), specifying its

reasons. The Contracting Authority may not call in any payment under the Hand Back

Bank Guarantee for 40 Business Days after sending the aforementioned statement of

reasons to the Contractor.


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8. QUALITY ASSURANCE

8.1 Management System

(a)

The Contractor must prepare and maintain a Management System that applies to the

Work, including Work performed by the Contractor’s Agents.

(b)

The Management System must be described in the Management Plan. The Management

System and the description thereof in the Management Plan must be organised in

accordance and in conformity with the requirements of ISO 15288:2008 or a

replacement standard and meet the supplementary requirements provided for in the

Management Specifications.

(c) In performing the Work, the Contractor must follow the Management Specifications and

the plans provided for in Schedule 8, Part 1 (Basic Management Plan and Subplans

governing the Tender ).

(d)

In preparing the documents referred to in Schedule 8, Part 2 (Detailed Subplans), the

Contractor must duly observe the conditions and timeframes set out in Schedule 8, Part

1 (Basic Management Plan and Subplans governing the Tender ) and part 2 (Detailed

Subplans).

(e) Within 1 year of the Contract Date, the Contractor must be in possession of a Quality

System Certificate that conforms to the NEN-ISO 9001:2008 standard (or a

replacement standard) pertaining to the Management System.

(f)

Once in receipt of the certificate referred to in Paragraph (e), the Contractor mustcontinue to be in possession of said certificate for the remaining term of this

Agreement.

(g) The certificate referred to in Paragraph (e) must be issued by a certification body that is

recognised by a national accrediting body (in the Netherlands: de Dutch Accreditation

Council - RVA).

8.2 Performance Measurement System

(a)

The Contractor must design and build the Performance Measurement System in

accordance with the requirements set out in the Measurement Specifications.

(b)

Throughout the period beginning on [ t h e d a t e o f [ ] m o n t h s a f t e r ] the

Commencement Date and ending on the Expiry Date, the Contractor shall ensure that

the Performance Measurement System functions and is maintained in accordance with

the requirements set out in the Management Specifications.

8.3 Inspections

(a)

The Contracting Authority may at any time inspect or commission an inspection to

ensure that the Contractor fulfils its obligations under the Agreement. The Contracting

Authority must be given access by the Contractor to the locations and offices where the

Work is prepared and performed, for purposes of an inspection.


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(b)

At the Contracting Authority’s request, the Contractor must, within the shortest possible

time, provide the former with all the information that the Contracting Authority is

reasonably deemed to require to perform the inspection.

(c) In performing an inspection, the Contracting Authority will endeavour to impede the

performance of Work as little as possible.

(d)

The Contracting Authority must make information about the results of the inspection

available to the Contractor within a reasonable period.

(e) The Contracting Authority is not required to make use of its right to undertake

inspections.

8.4 Consequences of inspections and examination of documents

(a)

If the Contracting Authority conducts an inspection, it is not required to establish any

Contractor Defaults.

(b)

An inspection does not imply any approval of Work performance. The Contractor

remains responsible for fulfilling its obligations based on this Agreement.

(c) The fact that the Contracting Authority examines, tests, assesses or approves any

document does not in any way mean that the Contracting Authority assumes any

liability or responsibility for the content thereof or that the Contractor is discharged of

any responsibility based on this Agreement.

8.5

Obligation to correct

(a)

The Contractor must remedy any damage to the Infrastructure as soon as possible, but

in any case no later than the Correction Deadline, or if no Correction Deadline applies

with regard to the damage in question, within a reasonable period of time. In the latter

case, the Contractor must provide the Contracting Authority with a correction plan

specifying the reasonable period involved and requesting the Contracting Authority to

approve the said period provided for in the correction plan. If the Contracting Authority

cannot approve the said period provided for in the Correction Deadline, the Correction

Deadline will be determined subject to Article 21 (Dispute Resolution).

(b)

This obligation does not apply in regard to any damage that is the consequence of a

Force Majeure Event.

9. SUPERVENING EVENTS

9.1 Notification of a Supervening Event

(a)

If, as a consequence of a Force Majeure Event, the Contracting Authority cannot fulfil its

obligations pursuant to this Agreement or can only fulfil them at higher costs, it must

inform the Contractor as soon as possible of the following:

(i)

the events or circumstances that constitute the Force Majeure Event;


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(ii)

the obligations pursuant to this Agreement that inevitably cannot be fulfilled as

a result or can only be fulfilled at higher costs; and

(iii)

the expected duration of the inability to fulfil said obligations.

(b) If, due to a Supervening Event, the Contractor cannot fulfil its obligations pursuant to

this Agreement or can only fulfil them at a Financial Disadvantage, it must inform the

Contracting Authority as soon as possible of the following:

(i)

the events or circumstances that constitute the Supervening Event;

(ii) the obligations pursuant to this Agreement that inevitably cannot be fulfilled as

a result or can only be fulfilled at a Financial Disadvantage;

(iii) the expected duration of the inability to fulfil said obligations; and

(iv)

in the event of a Delay Event or a Postponed Completion Event, the expected

duration of the Critical Delay or Critical Delay in Completion caused by the

Supervening Event, with particulars thereof.

In the event of a Critical Delay or a Critical Delay in Completion, the Contractor must

inform the Contracting Authority within 10 Business Days after making the relevant

notification whether, and at what additional costs, it will be able to make up for the

Critical Delay or Critical Delay in Completion in part or in full.

(c)

Within 20 Business Days of sending the notification as stated in Paragraph (b) (i) to (iv),

the Contracting Authority must inform the Contractor of the following:

(i)

whether it does or does not accept that a Supervening Event has occurred;

(ii) whether it does or does not, to the extent that this is applicable, accept that a

Critical Delay or Critical Delay in Completion exists and whether it agrees with

the duration thereof as specified by the Contractor; or

(iii)

whether or not it requires more information in order to make a judgement.

If the Contracting Authority has not responded within 20 Business Days in one of the

ways referred to in this Paragraph, it will be assumed that the Contracting Authority

acknowledges the occurrence of a Supervening Event and agrees to the duration of theCritical Delay or Critical Delay in Completion specified by the Contractor.

(d) If the Contracting Authority requires further information as outlined in Paragraph(c)

under (iii), the Contractor must provide the Contracting Authority with said information

(to the extent that it is in its possession) as soon as possible but at the latest within 20

Business Days. Within 20 Business Days of receiving said information, the Contracting

Authority must make a notification to the Contractor as referred to in Paragraph (c).

(e)

If the Contracting Authority does not accept that a Supervening Event has occurred or

does not agree with the duration of the Critical Delay or Critical Delay in Completion

specified by the Contractor and the Contractor does not agree with this notification, the

Contractor must notify the Contracting Authority of same within [10] Business Days of


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receiving the notification, in which case either Party will be at liberty to commence

proceedings under Article 21 (Dispute Resolution). If the Contractor fails to inform the

Contracting Authority within the period specified that it cannot accept the Contracting

Authority’s notification, the Contractor shall be deemed to concur with said notification.

(f)

The Financial Disadvantage must be agreed where applicable by the Parties in

accordance with the provisions of Schedule 3 (Compensation for Supervening Events).

In determining the Financial Disadvantage, the Contracting Authority has the right to

have an investigation carried out by an independent expert. If the Parties have not been

able to reach agreement within 3 months of sending the notification regarding the

Financial Disadvantage as specified in Paragraph (b), the Financial Disadvantage must

be determined subject to Article 21 (Dispute Resolution).

9.2 Delay Event

(a)

If a Delay Event occurs, the Scheduled Availability Date will be extended by the addition

of a period equal to the duration of the Critical Delay, insofar as the Contractor is not

required to make up for this Critical Delay by applying Paragraph (b). The Contractor

must adapt the Project Planning accordingly.

(b) If, in the event of a Delay Event, the Contractor can make up for all or part of the

Critical Delay by incurring a Financial Disadvantage, the Contractor must do so at the

request of the Contracting Authority.

(c)

In the event of a Delay Event, the Contracting Authority must pay the Contractor

compensation in accordance with Section 1 (Delay Event) of Schedule 3 (Compensation

for Supervening Events). The previous sentence does not apply to a Delay Eventreferred to under (c) of the definition of a Delay Event.

9.3 Compensation Event

If a Compensation Event occurs, the Contracting Authority must indemnify the Contractor (or in

the event of a Contracting Authority Change, the Contractor may have to pay the Contracting

Authority) compensation in accordance with Section 2 (Compensation Event ) of Schedule 3

(Compensation for Supervening Events).

9.4 Force Majeure Event

(a)

If a Force Majeure Event occurs, the obligations that as a result thereof cannot be

fulfilled or that can only be fulfilled at a Financial Disadvantage shall be suspended for

the duration of such Force Majeure Event. If this Agreement is terminated pursuant to

Article 10.6 (Termination upon a Force Majeure Event ), these obligations shall be

deemed to have expired.

(b)

In the case of a Force Majeure Event:

(i) the Contractor must take all measures that are reasonably possible in order to

mitigate the negative consequences of the Force Majeure Event, without being

obliged to repair damage to the Infrastructure as a consequence of the Force

Majeure Event;


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(ii)

the Parties must consult about the possibilities of continuing this Agreement, in

amended form or otherwise; and

(iii)

the Contracting Authority must pay compensation to the Contractor inaccordance with Section 3 (Force Majeure Event) of Schedule 3 (Compensation

for Supervening Events).

(c)

Without prejudice to the payment obligations that may arise subject to Paragraph (b)

under (iii), the Parties shall not be liable towards each other for any damage as a

consequence of a Force Majeure Event. Any damage that is incurred remains entirely for

the account of the Party that has incurred the damage.

(d) In this Agreement, the Parties have set out an exhaustive regulation of the events and

circumstances pursuant to which a default cannot be attributed to a Party (within the

meaning of Article 6:75 of the Dutch Civil Code). A Party cannot therefore rely on this

provision in any situation other than these circumstances.

9.5 Postponed Completion Event

(a) If a Postponed Completion Event occurs, the Scheduled Completion Date will be

extended by a period equal to the duration of the Critical Delay in Completion, insofar

as the Contractor is not obliged to make up for said delay under Paragraph (b). The

Contractor must adapt the Project Planning accordingly.

(b)

If, in the event of a Postponed Completion Event, the Contractor can make up for all or

part of the Critical Delay in Completion by incurring a Financial Disadvantage, the

Contractor is obliged to do so at the request of the Contracting Authority.

(c)

In the event of a Postponed Completion Event, the Contracting Authority must pay the

Contractor compensation in accordance with Section 4 (Postponed Completion Event) of

Schedule 3 (Compensation for Supervening Events). The previous sentence does not

apply to a Postponed Completion Event as referred to under Paragraph (c) of the

definition of a Delay Event.

10. EARLY TERMINATION

10.1 Termination due to an Immediate Termination Event

(a)

The Contracting Authority may terminate this Agreement on a date of its choosing if an

Immediate Termination Event should arise.

(b) In the event of termination pursuant to Paragraph (a), the Contracting Authority must

pay compensation to the Contractor or as the case may be, the Contractor must pay

compensation to the Contracting Authority, in accordance with Section 1 (Termination

due to an Immediate Termination Event or Termination due to Contractor Default) of

Schedule 4 (Compensation for Early Termination).

10.2 Termination due to Contractor Default

(a)

The Contracting Authority may terminate this Agreement on a date that it specifies if a

Contractor Default exists and the Contractor does not remedy that situation within a


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reasonable period of time as specified in Article 11.1, Paragraphs (a) and (b), unless the

Contractor Default, in view of the situation’s extraordinary nature or minimal

significance, does not warrant termination with all of the associated consequences.

( b ) [ T h e Co n t r a c t in g A u t h o r i t y m a y n o t t e r m i n a t e t h is A g r ee m e n t p u r s u a n t t o

P a r a g r a p h ( a ) o n a c co u n t o f a Co n t r a c t o r D e f a u l t t h a t c o n s i st s o f a f a i l u r e t o

a d h e r e t o t h e A v a i la b i l i t y R e q u i r em e n t s , ex c e p t i f t h e im p l em e n t a t i o n o f

A v a i l a b i li t y c o r r e c t i o n s i n a c co r d a n c e w i t h S ch e d u l e 2 ( P a ym e n t M e c h a n i s m )

r e s u l t s in t h e N e t A v a i l a b i li t y P a ym e n t d u r i n g a c o n s e c u t i v e p e r i o d o f a t l e as t

[ 3 ] Q u a r t e r s b ei n g l e ss t h a n :

( i ) [ ] % o f t h e Gr o ss A v a i l a b i l i t y P a y m e n t f o r t h e Qu a r t e r s b e g i n n i n g

p r i o r t o t h e A v a i l a b i l i t y D a t e ; o r

( i i ) [ ] % o f t h e Gr o ss A v a i l a b i l i t y P a y m e n t f o r t h e Qu a r t e r s b e g i n n i n g

a f t e r t h e A v a i l a b i l i t y D a t e .

(c)

T h e Co n t r a c t i n g A u t h o r i t y m a y n o t t e r m i n a t e t h i s A g r e e m e n t p u r s u a n t t o

P a r ag r a p h ( a ) o n a c co u n t o f a n y o t h e r C o n t r a ct o r D e f a u l t t h a n t h e C o n t r a ct o r

D e f a u l t r e f e r r e d t o i n P a r a g r a p h ( b ) , u n l e s s t h e C o n t r a c t i n g A u t h o r i t y h a s

a l l o ca t e d p e n a l t y p o i n t s f o r ( t h e f a i l u r e t o c o r r e c t ) t h i s Co n t r a c t o r D e f a u l t

m o r e t h a n [ t w i ce ] . ]

(d) In the event of termination pursuant to Paragraph (a), the Contracting Authority must

pay compensation to the Contractor or as the case may be, the Contractor must pay

compensation to the Contracting Authority, in accordance with Section 1 (Termination

due to an Immediate Termination Event or Termination due to Contractor Default) ofSchedule 4 (Compensation for Early Termination).

10.3 Termination due to Contracting Authority Default

(a) The Contractor may terminate this Agreement on a date that it specifies if a situation of

Contracting Authority Default exists and the Contracting Authority does not remedy that

situation within a reasonable period of time as specified in Article 11.2, Paragraphs (a)

and (b), unless the Contracting Authority Default, in view of the situation’s

extraordinary nature or minimal significance, does not warrant termination with all of

the associated consequences.

(b)

In the event of termination pursuant to Paragraph (a), the Contracting Authority must

pay compensation to the Contractor in accordance with Section 2 (Termination due to

Contracting Authority Default or Discretionary Termination by the Contracting Authority)

of Schedule 4 (Compensation for Early Termination).

10.4 Discretionary termination by Contracting Authority

(a) The Contracting Authority may terminate this Agreement at any time on a date that it

specifies.

(b) If the fulfilment of this Agreement by the Contracting Authority or the contents of the

Contracting Authority Schedules are or come to be in conflict with Regulations, and this


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conflict cannot be corrected by a Contracting Authority Change, the Contracting

Authority must terminate this Agreement pursuant to Paragraph (a).

(c)

In the event of termination pursuant to Paragraph (a), the Contracting Authority mustpay compensation to the Contractor in accordance with Section 2 (Termination due to

Contracting Authority Default or Discretionary Termination by the Contracting Authority)

of Schedule 4 (Compensation for Early Termination).

10.5 Termination due to a prolonged Delay Event

(a) The Contractor may terminate this Agreement with immediate effect, where:

(i)

in the case of a Delay Event as referred to in paragraph (d) of the definition

thereof, the Critical Delay lasts longer or it is established that the Critical Delay

will last longer than [] year(s); or

(ii)

in the case of a Delay Event (not being a Compensation Event, a Force Majeure

Event or a Delay Event as referred to in Paragraphs (c) or (d) of the definition

thereof) the Critical Delay lasts longer or it is established that the Critical Delay

will last longer than 2 years.

(b) The Contracting Authority may terminate this Agreement with immediate effect, where:

(i) in the case of a Delay Event as referred to in paragraph (d) of the definition

thereof, the Critical Delay lasts longer or it is established that the Critical Delay

will last longer than [] year(s); or

(ii)

in the case of a Delay Event (not being a Force Majeure Event or a Delay Event

as referred to in Paragraph (d) of the definition thereof), the Critical Delay lasts

longer or it is established that the Critical Delay will last longer than 2 years.

(c) In the event of termination pursuant to Paragraphs (a) or (b), the Contracting Authority

must pay compensation to the Contractor in accordance with Section 3 (Termination

due to a Prolonged Delay Event) of Schedule 4 (Compensation for Early Termination).

In the event of termination pursuant to Paragraph (a) (i) or Paragraph (b) (i), the

compensation payable by the Contracting Authority to the Contractor as specified in the

previous sentence shall not exceed [].

10.6

Termination due to a Force Majeure Event

(a) If a Force Majeure Event continues for [ 1 8 0 ] Business Days and the Parties have not

reached an agreement concerning the continuation of this Agreement, or as much

earlier as it has been established that the Agreement shall not be continued as a

consequence of a Force Majeure Event, either of the Parties has the right to terminate

this Agreement with immediate effect.

(b)

In the event of termination pursuant to Paragraph (a), the Contracting Authority must

pay compensation to the Contractor in accordance with Section 4 (Termination due to a

Force Majeure Event) of Schedule 4 (Compensation for Early Termination).


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10.7 Direct Agreement

The rights pursuant to this Article can only be exercised subject to provisions of the Direct

Agreement.

11. DEFAULT

11.1 Contractor Default

(a) If a Contractor Default occurs, the Contracting Authority may inform the Contractor of

this and may set a reasonable deadline for the Contractor to correct the Contractor

Default.

(b)

If the Contractor believes that the deadline set by the Contracting Authority is not

reasonably sufficient for correction of the Contractor Default, the Contractor may inform

the Contracting Authority of this within 10 Business Days. The notification sent to the

Contracting Authority must be accompanied by a proposal for corrective measures to be

taken and a time schedule for the execution of the work. If the Contracting Authority

does not reject the deadline for correction referred to in this proposal within 10

Business Days of receiving it, this deadline shall be considered to have been accepted

by the Contracting Authority. If the Contracting Authority rejects the deadline referred

to in the proposal and the Contractor does not agree to this rejection, the Contractor

must commence proceedings concerning the dispute, pursuant to Article 21 (Dispute

Resolution), within 10 Business Days of receiving notice of the rejection.

(c)

If a Contractor Default occurs and the Contractor has failed to rectify this within the

deadline that applies pursuant to Paragraphs (a) or (b) of this Article, the ContractingAuthority shall be entitled to:

(i) file a claim for specific performance pursuant to Article 3:296 of the Dutch Civil

Code; or

(ii) rectify the Contractor Default, or arrange to have it rectified;

(iii)

take measures under Article 18.5 ((Traffic) Safety ) to the extent that these

measures need to be taken due to Contractor Default;

(iv)

suspend its obligations that are associated with the relevant Contractor Default;

or

(v) terminate the Agreement pursuant to Article 10.2.

(d) If, pursuant to Paragraph (c) under (ii), the Contracting Authority rectifies the

Contractor Default or arranges to have it rectified or takes measures pursuant to

Paragraph (c) under (iii), the Contractor must pay an amount to the Contracting

Authority equal to the costs paid by the Contracting Authority to third parties (in case of

the involvement of third parties) and the internal costs incurred by the Contracting

Authority as per its standard internal direct setting off costs (in case of measures taken

unilaterally) plus a surcharge of 10%.


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(e)

In the event of a Contractor Default or an Immediate Termination Event, the

Contracting Authority shall have no rights other than those expressly provided for in

this Agreement. For example the Contracting Authority may not, in that case:

(i) suspend its obligations based on the Agreement other than pursuant to

Paragraph (c) under (iv);

(ii)

claim damage from the Contractor; or

(iii)

demand dissolution of this Agreement.

11.2 Contracting Authority Default

(a)

If a Contracting Authority Default occurs, the Contractor may inform the Contracting

Authority of this and may set a reasonable deadline for the Contracting Authority to

correct the Contracting Authority Default.

(b)

If the Contracting Authority believes that the deadline set by the Contractor is not

reasonably sufficient for the correction of the Contracting Authority Default, the

Contracting Authority may inform the Contractor of this within 10 Business Days of

receiving notification from the Contractor. The notification from the Contracting

Authority must be accompanied by a proposal for the correction measures to be taken

and a time schedule for the implementation of this work. If the Contractor does not

reject the deadline for correction referred to in this proposal within 10 Business Days of

receiving it, the deadline will be deemed to be accepted by the Contractor. If the

Contractor rejects the deadline for correction referred to in the proposal and the

Contracting Authority does not agree to this rejection, the Contracting Authority mustinstitute proceedings pursuant to Article 21 (Dispute Resolution) within 10 Business

Days of receiving the rejection.

(c)

If a Contracting Authority Default occurs and the Contracting Authority has not corrected

this default after expiry of the deadline that applies pursuant to Paragraphs (a) or (b) of

this Article, the Contractor is entitled to exercise its right of termination specifically

afforded to it under this Agreement.

(d)

With regard to a Contracting Authority Default, the Contractor has no other rights than

those specifically provided for in this Agreement. For example, in such a case, the

Contractor shall not be at liberty to:

(i) suspend its obligations pursuant to this Agreement;

(ii)

claim damage from the Contracting Authority; or

(iii)

demand dissolution of this Agreement.

12. LIABILITY AND INDEMNITY

12.1 Contracting Authority Liability

(a) The Contracting Authority shall not be liable for any damage or damage sustained by the

Contractor, unless specific provision is made for same in this Agreement.


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(b)

For example, the Contracting Authority shall not be liable in respect of:

(i) damage or damage sustained by the Contractor due to the condition of the

Existing Infrastructure, the RWS Infrastructure or the Third-Party Infrastructureor due to conditions pertaining in, at or adjacent to the Existing Infrastructure,

RWS Infrastructure or Third-Party Infrastructure;

(ii)

the content of the Contractor Schedules or any inconsistency between the

Contractor Schedules and the other parts of the Agreement; or

(iii) the content of a document once said document has been examined, assessed or

agreed to by the Contracting Authority (tacitly or otherwise).

(c) The Contracting Authority shall indemnify the Contractor in regard to any damage for

which the Contracting Authority is liable in law (outside of this Agreement) vis-à-vis the

Contractor, including any damage that the Contractor may incur as a consequence of an

unlawful act on the part of the Contracting Authority.

12.2 Contracting Authority Indemnities

(a) Insofar as not due to a Contractor Default, the Contracting Authority must indemnify the

Contractor in respect of:

(i) third-party claims for compensation in respect of damage incurred due to an

unlawful act on the part of the Contracting Authority;

(ii)

third-party claims pursuant to an (alleged) infringement of Intellectual orIndustrial Property Rights during the performance of Work with respect to any

part of the Existing Infrastructure;

(iii)

third-party claims deriving from the Contractor’s compliance with the directions

and instructions of the Contracting Authority pursuant Article 18.6 Paragraph

(b) or Article 18.5 ((Traffic) Safety ), to the extent that such directions or

instructions do not necessarily result from a Contractor Default; and

(iv)

all third-party claims arising in connection with the performance of Work that

exceed the maximum amounts specified in Article 12.3 (Contractor

Indemnities), Paragraph (c).

(b) The Contracting Authority shall indemnify the Contractor against third-party claims

arising in connection with any damage incurred as a consequence of the unavailability

or decreased availability of the Infrastructure to public traffic.

(c)

The indemnity by the Contracting Authority does not apply to third-party claims that

arise pursuant to an agreement that these third parties have concluded with the

Contractor, to the extent that the Contractor would not be liable for this if the

agreement did not exist.


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12.3 Contractor Indemnities

(a) Insofar as not due to a Contracting Authority Default, the Contractor must indemnify the

Contracting Authority in respect of:

(i) third-party claims for compensation in respect of damage incurred by an

unlawful act on the part of the Contractor;

(ii)

third-party claims pursuant to an (alleged) infringement of intellectual or

industrial property rights while performing the Work (except insofar as such

infringement is prescribed by a Contracting Authority Schedule or involves an

(alleged) infringement as specified in Article 12.2 (Contracting Authority

Indemnities), Paragraph (a) under (ii));

(iii)

third-party claims relating to a Contractor Default with the exception of claims

by third parties arising in connection with damage sustained due to

unavailability or reduced availability of the Infrastructure to public traffic;

(iv)

all negative consequences of the failure of the Contracting Authority or

Contractor to fulfil Regulations applicable to working conditions and occupational

health and safety with respect to the performance of Work (except to the extent

that non-fulfilment is the consequence of an action or failure to act on the part

of the Contracting Authority); and

(v)

claims by authorities in charge of cables or pipelines in connection with the

performance of the Work.

(b) The indemnity by the Contractor does not apply to third-party claims pursuant to an

agreement that these third parties have concluded with the Contracting Authority, to

the extent that the Contracting Authority would not be liable in such instances if the

agreement did not exist.

(c) The liability of the Contractor vis-à-vis the Contracting Authority pursuant to this Article

is limited to the sum of:

(i)

€ [maximum] per claim (indexed in accordance with the preliminary figures for

total expenses in all categories of the Consumer Price Index as published by

Statistics Netherlands) during the Development Period;

(ii) € [maximum] per claim (indexed in accordance with the preliminary figures for


Statistics Netherlands) during the Availability Period;

(iii)

€ [maximum] in total (indexed in accordance with the preliminary figures for


Statistics Netherlands) during the Development and Availability Periods

together.


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13. CHANGES

13.1 Contracting Authority Change

(a)

The Contracting Authority may propose to amend Schedule 2 (Payment Mechanism),

Schedule 8 (Management Plan) or Schedule 9 (Programme of Requirements), or the

definitions for “Scheduled Availability Date” or “Expiry Date” (a Contracting Authority

Change).

(b)

If:

(i) a relevant Change in Law necessitates an amendment to this Agreement; or

(ii)

the wording of the Transport Infrastructure (Planning Procedures) Decree [Road

Improvement Decree] once it becomes irrevocable differs from the wording of

the Transport Infrastructure (Planning Procedures) Decree [Road Improvement

Decree] as at two weeks prior to [ d a t e o f D e f i n i t i v e Re g i s t r a t i o n ] and this

necessitates a change in this Agreement; or

(iii)

this Agreement (excepting the Contractor Schedules) mandates activity that

contravenes Regulations or infringes on the intellectual or industrial property

rights of a third party and such contravention or infringement can be corrected

by a Change in the

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