17.3 [For the purposes of this Clause 17.3, an "average year figure" means the latest 20 year annual average Heating Degree Day (as defined in Schedule 18) figure available at the date which is two (2) years following the Actual Completion Date, calculated to a base of 18.5 degrees Celsius, as published by Health Facilities Scotland for the [ ] area. During the period of two (2) years following the Actual Completion Date, the parties shall monitor the actual energy consumption at the Facilities in accordance with the procedure set out in Section 7 of Part 8 of the Schedule (Construction Matters), with a view to establishing the Energy Thresholds for the purposes of Part 18 of the Schedule (Payment Mechanism) and ascertaining whether and to what extent the thermal and energy efficiency of the Facilities is in excess of [55] Giga Joules/100 m3 per year. If the average Heating Degree Day figure for the two (2) year period referred to above is either greater than 103% or less than 97% of the average year figure, then such monitoring shall continue until the earlier of:
(a) such time as there has been a period of twenty-four (24) consecutive calendar months the Heating Degree Day figure for such period, when averaged, is neither greater than 103% nor less than 97% of the average year figure; and
(b) the date five (5) years after the Actual Completion Date.
If as a result of such monitoring there is any indication that the thermal and energy efficiency of the Facilities causes energy use exceeding [55] Giga Joules/100m3 per year, the parties shall investigate the matter to determine the cause of such failure either in the manner agreed between them or in such manner as may be determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure).
17.3A Project Co shall, at its own cost install equipment to record and monitor energy consumption in the Facilities. Such equipment must be suitable to enable a detailed monitoring of the energy trends and consumption to allow analysis of the data collected to enable various matters, including:
(a) comparisons to be made with the declared energy targets; and
(b) early warning of deviations from norms and malfunctions.
17.3B All information gathered in accordance with clause 17.3A shall be secured so that it is not lost or degraded as a result of any equipment or service malfunctions. In addition, such information shall be secured from any adjustment, modification or loss from any other source.
17.4 If following any investigation pursuant to Clause 17.3, it is agreed by the parties or determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure) that such failure arises as a consequence of the design and construction of the Facilities by Project Co failing to achieve a thermal and energy efficiency of equal to or less than [55] Giga Joules/100m3 per year then, to the extent that such failure arises as a consequence of the design and/or construction of the Facilities by Project Co, Project Co shall compensate the Board for any costs, losses or expenses incurred by the Board as a result of such failure, during the period of monitoring referred to in Clause 17.3 above, and, the Board, acting reasonably, shall require that Project Co shall at its own expense procure that such additional work or other remedial work is carried out to remedy the relevant defect, or otherwise compensate the Board in a manner approved by the Board (such approval not to be unreasonably withheld or delayed). Where the solution selected by the Board is compensation (a) the Board should not as a consequence face any additional liability upon early termination of this Agreement and the provisions of Part 23 of the Schedule shall be amended as necessary to achieve this, and (b) such compensation shall be a sum equal to the cost to the Board of procuring the excess energy predicted to be consumed by it (including any additional Greenhouse Gas Emissions Permits (as defined in Part 18 of the Schedule) required) as a result of the relevant defect until the end of the Project Term, taking into consideration the likely future cost of energy sources and Greenhouse Gas Emissions Permits, as determined by an appropriately qualified representative of [CIBSE], provided that the cost of such opinion shall be borne by Project Co. The lump sum compensation payment shall be calculated at a discount rate of 3.5% real.]
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36 Boards may wish to consider including this more detailed wording.