Accessibility Condition

means a state or condition of the relevant Functional Part or the means of access to it which allows all persons who are entitled to enter, occupy or use the relevant Functional Part to enter and leave the Functional Part safely and conveniently;

Additional Period

has the meaning set out in paragraph 6.5 of Section C of this Part 18 of the Schedule;

Ad-Hoc Payment

means the sum in pounds sterling payable by the Board to Project Co for the provision of the Ad-Hoc Services in accordance with this Agreement;

Ad-Hoc Services

means Services which, in accordance with Part 14 of the Schedule (Service Level Specifications) the Board is entitled to require Project Co to provide but where Project Co's obligation to provide those Services does not arise unless and until it is requested to do so by the Board;

Ad-Hoc Services Request

means a request for the provision of Ad-Hoc Services made by the Board to Project Co in accordance with Part 14 of the Schedule (Service Level Specifications);

Adjusted Energy Consumption

means Energy Consumption in the relevant Energy Year as adjusted to reflect the difference between the number of Degree Days applicable to that Energy Year and the number of Degree Days in the 20 Year Average;

Allocated Allowances

means, in relation to the Installation(s) at the Facilities in any Scheme Year, the Allowances for emissions (within the meaning of Schedule 1 Part 1 of the GGETS Regulations and Article 3 of the Directive) allocated to the Designated Operator (and in respect of any period shorter than a Scheme Year the Allowances for emissions shall be allocated pro rata);66

Allowance

has the meaning set out in the GGETS Regulations;

Allowances Variance

has the meaning given to that term in paragraph 4.1 of Section H of this Part 18 of the Schedule (Payment Mechanism);

Annual Energy Target

means the total number of Units of Energy which it is expected will be used at the Facilities in each Energy Year, calculated in accordance with paragraph 2.7 of Section F of this Part 18 of the Schedule, as adjusted in accordance with paragraph 3 of Section F of this Part 18 of the Schedule;

Annual Review Date

the first and every subsequent anniversary of the end of the Initial Period; 

Annual Service Payment 

means the sum in pounds sterling calculated in accordance with the provisions set out in Section B paragraph 2 of this Part 18 of the Schedule;

Area Weighting Percentage 

means the percentage weighting ascribed to the relevant Functional Area for the purpose of calculating Deductions for Unavailability Events as set out in Appendix C to this Part 18 of the Schedule;

Availability Condition

67 [means any of (i) the Accessibility Condition, (ii) the Safety Condition, (iii) the Use Condition and (iv) the Prescribed Health Function Condition or, as appropriate, the Prescribed Operational Function Condition;]

[means in respect of each Phase:

(a)  from the Phase Actual Completion Date until the Commissioning End Date of each Phase, (i) the Safety Condition, (ii) the Accessibility Condition and (iii) the Use Condition (provided that the Accessibility Condition and Use Condition will be limited to that reasonably required to allow the Board to enter, leave and use the relevant Functional Part safely and conveniently for the purposes of carrying out its activities under the Outline Commissioning Programme); and

(b)  from the Commissioning End Date for each Phase any of (i) the Accessibility Condition, (ii) the Safety Condition, (iii) the Use Condition and (iv) the Prescribed Health Function Condition or, as appropriate, the Prescribed Operational Function Condition;]

Average Annual Unit Cost

means the average cost to Project Co of each Unit of Energy purchased by Project Co during the relevant Energy Year, calculated by taking the average of the Average Unit Costs of Energy for each Contract Month in the Energy Year allowing for the pro rata effect of Contract Months falling partially within the relevant Energy Year;

Average Unit Cost

means the average cost to Project Co of each Unit of Energy purchased by Project Co during the relevant Contract Month, calculated in accordance with Section F paragraph 4.10 of this Part 18 of the Schedule as may be amended in accordance with Section F paragraph 5.2 of this Part 18 of the Schedule;

Base Date

means [date68];

Baseload

has the meaning set out in paragraph 2.5 of Section F;

Baseload and Slope Review Date

means a date on which the Baseload and Slope is to be reviewed pursuant to paragraph 3.4 of Section F of this Part 18 of the Schedule, being

(a)  the date which is the third anniversary of the expiry of the Initial Period and every third anniversary thereafter until the Expiry Date or the Termination Date, as the case may be; and

(b)  the date of expiry of any period of monitoring of Energy Consumption carried out pursuant to Clauses 17.3 and 17.4 of this Agreement, if, in accordance with Clauses 17.3 and 17.4, such monitoring continues after the expiry of the Initial Period;

Baseload and Slope Review Period

has the meaning given in paragraph 3.2 of Section F of this Schedule Part 18;

Bedding-In

means a tolerance level for the making of Deductions allowed for a period of time following, as the case may be, a New Service Provider Start Date or the Actual Completion Date [or a Phase Actual Completion Date]69, as more particularly described in paragraph 2 of Section C of this Part 18 of the Schedule;

Catering Service70

has the meaning given to in Sub-Section B of Section 1 of Part 14 of the Schedule (Service Requirements);

Catering Service Specific Specification

has the meaning given to it in Sub-Section B of Section 1 of Part 14 of the Schedule (Service Requirements);

Commissioning End Date

has the meaning set out in Part 12 of the Schedule (Outline Commissioning Programme)

[Completion Bedding-In Period]

[means, in respect of each Phase, the period commencing on the Phase Actual Completion Date and ending [number] months following the Commissioning End Date for that Phase;]71

Contract Month72

means a calendar month, provided that:

(a)  the first Contract Month shall be the period from and including Payment Commencement Date 1 to and including the last day of the calendar month in which Payment Commencement Date 1 falls; and

(b)  the last Contract Month shall be the period from and including the first day of the calendar month in which the Expiry Date or the Termination Date (as the case may be) falls to and including the Expiry Date or the Termination Date (as the case may be);

Deduction

means a deduction made from a Monthly Service Payment in accordance this Part 18 of the Schedule;

Degree Days

means, in respect of each Contract Month, the figure, published in [CIBSE Guide J for Area]73 ;

Designated Operator

means the Operator and Greenhouse Gas Emissions Permit holder for the Installation(s) at the Site pursuant to the GGETS Regulations;

Directive

means, for the purposes of Section H of this Part 18 of the Schedule (Payment Mechanism), Directive 2003/87/EC of 13 October 2003 for establishing a scheme for greenhouse gas emission Allowances trading within the European Union and amending Directive 96/61/EC as amended by Directive 2004/101/EC;

Emissions Baseload

means the level emissions that can reasonably be expected to be generated by activities regulated by the GGETS Regulations for the Site and which is initially as set out in Appendix G to this Part 18 of the Schedule (Payment Mechanism), and thereafter as the same may be adjusted pursuant to paragraph 3 of Section H;

Emissions Saving Adjustment

has the meaning set out in paragraph 6.2 (Emissions Savings and Excess Emissions) of Section H of this Part 18 of the Schedule (Payment Mechanism);

Emissions Threshold

means the higher of the Allocated Allowances and the Emissions Baseload;

Energy 

means electricity, gas, oil, coal and any other fossil-based fuel;

Energy Consumption

means the number of Units of Energy actually consumed at the Facilities during the relevant period;

Energy Year

means a period of 12 months beginning on the day after the expiry of the Initial Period and ending on the first Annual Review Date and each subsequent period of 12 months beginning on the day after an Annual Review Date;

Event 

means an incident or state of affairs which does not meet or comply with the Service Requirements74 set out in Part 14 of the Schedule (Service Level Specifications) and/or does not satisfy the Availability Condition and which Project Co is responsible for Rectifying in accordance with Part 14 of the Schedule (Service Level Specifications)75; 

Excess Emissions Adjustment

has the meaning set out in paragraph 6.3 (Emissions Savings and Excess Emissions) of Section H of this Part 18 of the Schedule (Payment Mechanism);

[External Utility Failure76]

[means a failure or interruption of:

(a)  telephone, communications, sewerage or drainage services to or from the Site; or

(b)  the supply of gas to the Site to the extent that the failure or interruption affects equipment which Project Co is not required to fuel from an alternative energy source under paragraph [          ] of the Board's Construction Requirements; or

(c)  the supply of water to the Site for a period of more than 24 hours provided that Project Co uses best endeavours to provide water from an alternative source;

provided that in every case:

(a)  neither Project Co nor a Project Co Party were responsible for the failure or interruption; and

(b)  Project Co has (i) informed the Board of such failure or interruption and kept the Board informed of the status of the failure or interruption and measures taken by Project Co under paragraphs (ii) and (iii) below; (ii) used its reasonable endeavours to mitigate the effects of such failure or interruption; and (iii) liaised with the Board and with the relevant utility provider to seek timely resumption of the relevant service;]

Functional Area 

means an area of the Facilities specified as such in Appendix C to this Part 18 of the Schedule comprising two or more Functional Units;

Functional Part

means a Functional Unit or a Functional Area according to the context in which it is used;

Functional Unit 

means a room, a number of rooms or space within a Functional Area which is specified as such in Appendix C to this Part 18 of the Schedule;

Gainshare Adjustment

means the adjustment calculated in accordance with paragraphs 4.6 and 4.7 of Section F of this Part 18 of the Schedule;

GGETS Regulations

means the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (SI 2005 No. 925);

Gigajoules

means the international unit of energy being 1 Joule multiplied by a factor of 10 to the power 9;

Greenhouse Gas Emissions Permit

has the meaning set out in the GGETS Regulations;

Helpdesk 

means the contact point to be established by Project Co pursuant to Part 14 of the Schedule (Service Level Specifications) in respect of the Helpdesk Service (as defined in Part 14 of the Schedule) for the notification of Ad-Hoc Service Requests, the occurrence of Events and other day to day matters arising in relation to the provision of Services;

Indexation Base Month

[Month, Year]77

Initial Period

means the period of two years beginning on the first day of the first full Contract Month following the Commissioning End Date78;

Installation

has the meaning set out in the GGETS Regulations;

[Joint Operating Protocol79]

[To be included as a separate Part of the Schedule if used]

[Joint Utilities Management Group]

[To be defined in Part 14 of the Schedule and in Joint Operating Protocol]

Logged Event Time

means the time (shown on the printout of the Helpdesk records) at which an Event was notified to the Helpdesk or, if a failure affecting the Helpdesk occurs which prevents such a record from being accurately produced, such time as the parties (acting reasonably) agree as the time at which the relevant Event occurred;

Major Performance Failure

means a Performance Failure which has been designated as such in the Service Level Specifications or in this Part 18 of the Schedule;

Medium Performance Failure

means a Performance Failure which has been designated as such the Service Level Specifications or in this Part 18 of the Schedule;

Methodology

means the principles and methodologies contained within the GGETS Regulations and the EU Emissions Trading Scheme Guidance Note 1 dated 30 January 2004 and Note 2 dated 14 May 2004 as published by the Department for the Environment, Food and Rural Affairs in relation to the calculation of the Specified Emissions, together with any guidance supplementing or replacing those Guidance Notes that may be published from time to time;

Minimum Agreed Availability Conditions

means the Accessibility Condition, the Safety Condition and either the Prescribed Health Function Condition or Prescribed Operational Function Condition (as the case may be) together with the Use Condition, as temporarily modified with the approval of the Board for the purposes of a Temporary Repair;

Minimum Unavailability Deduction

means either (i) £[50] (index linked) or (ii) where the Board continues to use any room or space within the relevant Functional Part and that room or space is in a state or condition which does not comply with any one or more of the Availability Conditions, £[25] (index linked)80;

Minor Performance Failure

means a Performance Failure which has been designated as such in the Service Level Specifications or in this Part 18 of the Schedule;

Monthly Service Payment 

means the sum in pounds sterling payable by the Board to Project Co in respect of each Contract Month for the provision of the Services in accordance with this Agreement, as calculated in accordance with paragraph 1.1 of Section B of this Part 18 of the Schedule;

Monthly Service Payment Statement

has the meaning given in Part 14 of the Schedule (Service Level Specifications);

New Entrant Reserve

has the meaning set out in the GGETS Regulations

New Service Provider Bedding-In Period

has the meaning set out in paragraph 2.1 of Section C of this Part 18 of the Schedule;

New Service Provider Start Date

means, where a Service Provider or Sub-Contractor is replaced by a new Service Provider or Sub-Contractor, either:

(a)  (in the case of replacement following a Market Testing) the date established in accordance with paragraph 10.2 (Service Payment Adjustments) of Part 17 of the Schedule (Benchmarking and Market Testing); or

(b)  in other cases, the date on which the Services commence to be provided by the replacement Service Provider or Sub-Contractor or, if earlier, the date on which they were first due to be provided by the replacement Service Provider or Sub-Contractor;

Non-Clinical Waste81

has the meaning given in Sub-Section B of Section 1 of Part 14 of the Schedule (Service Requirements);

Operator

has the meaning set out in the GGETS Regulations

Painshare Adjustment

means the adjustment calculated in accordance with paragraphs 4.8 and 4.9 of Section F of this Part 18 of the Schedule;

Pass Through Costs

means costs payable to Project Co pursuant to paragraphs 9.1 and 10 of Section F of this Part 18 of the Schedule as part of any Monthly Service Payment;

Performance Failure

means any failure by Project Co to provide the Services in accordance with the Service Requirements and which, where a Rectification Time applies, has not been rectified within the relevant Rectification Time, but excluding any Unavailability Event and provided that:

(a) if Service Requirements are duplicated in the various Service Level Specifications in Section 1 of Part 14 of the Schedule (Service Level Specifications) and Project Co fails to meet such duplicated Service Requirements, only one Performance Failure will be deemed to have occurred in respect of such failure to provide the Services in accordance with the duplicated Service Requirements. In such cases of duplicated Service Requirements, Project Co and the Board shall endeavour to agree (acting in good faith) to which Service Requirement the Performance Failure should be attributed so that there is no double counting of Performance Failures in respect of one failure to provide the Services in accordance with the Service Requirements. The Helpdesk shall be responsible for implementing such agreement; and

(b)  in respect of an individual Service Requirement, no more than one Performance Failure shall be deemed to have occurred in the relevant Performance Monitoring Period;

Performance Failure Deduction

means a Deduction which may be made in respect of a Performance Failure;

Performance Monitoring Period

means the period of time specified as such in Part 14 of the Schedule (Service Level Specifications) in respect of a Service or a part of a Service being a period by reference to which Project Co has an obligation to monitor its performance of a Service; 

Performance Monitoring Report

has the meaning set out in Part 14 of the Schedule (Service Level Specifications);

Permanent Repair

means Rectification following the agreement of a Temporary Repair;

Permanent Repair Deadline

has the meaning given to it in paragraph 9.1.2 of Section C of this Part 18 of the Schedule (Payment Mechanism);

[Phase Percentage82]

[means:

(a)  [x] % from Payment Commencement Date 1 to the day prior to Payment Commencement Date 2;

(b)  [y] % from Payment Commencement Date 2 to the day prior to Payment Commencement Date 3; and

(c)  100 % from Payment Commencement Date 3

and in any Contract Month in which a Payment Commencement Date falls a pro rata adjustment shall be made to the above percentages reflect the actual number of days in the relevant Contract Month for which each percentage is applicable;]

Prescribed Health Function

means the clinical use or purpose of the relevant Functional Part (if any);83

Prescribed Health Function Condition

means a state or condition of the relevant Functional Part which allows the Prescribed Health Function for that Functional Part to be carried on and performed in accordance with any Law and generally accepted clinical practices for such Prescribed Health Function and having regard to the practicalities of carrying on and performing such Prescribed Health Function;

Prescribed Operational Function

means the use or purpose of the relevant Functional Part where it does not have a Prescribed Health Function;

Prescribed Operational Function Condition

means a state or condition of the relevant Functional Part which allows the Prescribed Operational Function for that Functional Part to be carried on and performed having regard to the practicalities of carrying on and performing such Prescribed Operational Function;

Re-commissioning84

means any testing, including but not limited to the setting of cultures, required to demonstrate that a Functional Part listed in Appendix E to this Part 18 of the Schedule (Payment Mechanism) meets the Availability Condition;

Rectification 

means, following the occurrence of an Event, making good the Event so that the subject matter of the Event complies with the levels of Service required pursuant to this Agreement which shall, without prejudice to the generality of the foregoing, include (a) restoring all functional capability and (b) ensuring that any Functional Part which has been affected by the relevant Event complies with the Availability Conditions and "Rectify" shall be construed accordingly;

Rectification Confirmation Notice

means a written notice from Project Co to the Board's Representative confirming the date and time that the relevant Event has been Rectified;

Rectification Time 

means the period (which shall commence from the Logged Event Time) specified for Rectification of an Event in Part 14 of the Schedule (Service Level Specifications) provided that if the Board denies Project Co or a Project Co Party access to the relevant Functional Part and in so doing prevents Rectification of that Event, the Rectification Time shall be extended for a period of time equal to the period of time for which Project Co or the relevant Project Co Party is so denied access. For the avoidance of doubt, if no period for rectification is specified in Part 14 of the Schedule (Service Level Specifications) in respect of the relevant Service requirement, no Rectification Time applies;

Remedial Period

[means the period allowed to Remedy a Performance Failure which does not have a Rectification Time, as set out in the column marked Remedial Period/Remedy in Part 14 to the Schedule]85;

Remedy

[means the agreed actions or tasks detailed in the column marked Remedial Period/Remedy in Part 14 of the Schedule (Service Level Specifications) required to remedy the Performance Failure];

Return Date

means, for the purpose of Temporary Alternative Accommodation, the date agreed for the return to the original Functional Part in accordance with paragraph 12.3.4 of Section C of this Part 18 of the Schedule;

Safety Condition

means a state or condition of the relevant Functional Part which allows those persons who it can reasonably be expected may from time to time require to enter, leave, occupy and use such Functional Part to do so safely including but not limited to compliance with the Health and Safety Regime and any other Law or NHS Requirement relating to fire safety or health and safety at work; 

Scheme Year

has the meaning set out in the GGETS Regulations

Service Failure Points 

means points allocated to Project Co and to individual Service Providers in respect of the occurrence of Unavailability Events and Performance Failures which are determined by the provisions set out in Section G of, and Appendix A to, this Part 18 of the Schedule;

Service Requirements

has the meaning given to it in Sub-Section B of Section 1 of Part 14 of the Schedule (Service Requirements);

Session

means an eight hour period running from 06:00 to 13:59, or from 14:00 to 21:59 or from 22:00 to 05:59; 

Slope

has the meaning given to it in paragraph 2.6 of Section F of this Part 18 of the Schedule (Payment Mechanism);

Specified Emissions

has the meaning set out in the GGETS Regulations

Temporary Alternative Accommodation 

means accommodation offered to the Board by Project Co as a substitute for any Unavailable Functional Part pursuant to paragraph 12 of Section C of this Part 18 of the Schedule (Payment Mechanism);

Temporary Repair

means, in respect of the occurrence of an Event, works of a temporary nature that do not constitute Rectification but satisfy the Minimum Agreed Availability Conditions and substantially make good the relevant Event for the period until a Permanent Repair can be undertaken;

Total Volume Adjustment

means the adjustment calculated in accordance with paragraph 1 of Section F of this Part 18 of the Schedule (Payment Mechanism);

Unavailable

means in relation to a Functional Part that such Functional Part or any room or space within it is in a state or condition which does not comply with any one or more of the Availability Conditions;86

Unavailability Event

means an Event which has not been Rectified within the relevant Rectification Time and which causes a Functional Part to be Unavailable;

Unit of Energy

means one Gigajoule;

Unit Weighting Percentage 

means the percentage weighting ascribed to each Functional Unit for the purpose of calculating Deductions for Unavailability Events as set out in Appendix C to this Part 18 of the Schedule;

Use Condition

means a state or condition of the relevant Functional Part which satisfies the Use Parameters for that Functional Part;

Use Parameters

means the range of functional requirements for the proper use and enjoyment of a Functional Part for its particular purpose relating to (i) temperature; (ii) humidity; (iii) air-flow; (iv) lighting; (v) power (essential and non-essential); (vi) safe water (relating to availability, temperature, quality and safe sewerage system); (vii) nurse call system; (viii) medical and other equipment; (ix) medical gasses; (x) data sockets and (xi) voice sockets87 as the same are specified on the Room Data Sheets for the relevant Functional Part as set out in Part 8 of the Schedule;

Utility Cost Adjustment

means the adjustment calculated in accordance with paragraph 7.1 of Section F of this Part 18 of the Schedule (Payment Mechanism);

Utility Contract Date

means the date, for any utility for which Project Co has supply responsibility according to paragraph 8 (Utility Procurement) of Section F of this Part 18 of the Schedule (Payment Mechanism), on which there must be a supply contract in place which would remain in place after the Actual Completion Date, and the date of any subsequent renewal of each utility contract;

Verified Emissions

means the aggregate emissions of the Installation(s) at the Site measured annually (or by references to such other period as may be required by the GGETS Regulations) and which have been verified for the purposes of the Greenhouse Gas Emissions Permit in accordance with the GGETS Regulations;

Volume Adjusted Service Payment

means the amount that would be calculated for the relevant Contract Month in accordance with the formula set out in paragraph 1.1 of Section B of this Part 18 of the Schedule with the sums represented by the element ∑D, PTC, GS, PS, ESA, EEA, IE, IEB and WLA88 being set to zero (0);

Waste Service89

has the meaning given to it in Sub-Section B of Section 1 of Part 14 of the Schedule (Service Requirements);

20 Year Average

means, at the relevant date, the most recently available figure showing the number of Degree Days per annum in [CIBSE Guide 18 for [Area]]90 calculated as an average over the immediately preceding 20 years.