1  Energy Efficiency of Facilities

1.1  For the purposes of this paragraph 1, an average year figure means the latest twenty (20) year annual average Heating Degree Day (as defined in the Payment Mechanism) 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 [DH Estates and Facilities for the [♦] area].  

1.2  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 paragraph 2, with a view to establishing the Energy Thresholds for the purposes of the 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 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 one hundred and three per cent (103%) nor less than ninety seven (97%) of the average year figure; and

(b)  the date five (5) years after the Actual Completion Date.

1.3  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 the Dispute Resolution Procedure.

1.4  The Service Provider 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.

1.5  All information gathered in accordance with clause paragraph 1.4 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.

1.6  If following any investigation pursuant to paragraph 1.5, it is agreed by the parties or determined in accordance with the Dispute Resolution Procedure that such failure arises as a consequence of the design and construction of the Facilities by the Service Provider failing to achieve a thermal and energy efficiency of equal to or less than [55] Giga Joules/100m3 per year then.

(a)  to the extent that such failure arises as a consequence of the design and/or construction of the Facilities by the Service Provider, the Service Provider shall compensate the Authority for any costs, losses or expenses incurred by the Authority as a result of such failure, during the period of monitoring referred to in this paragraph 1, and;

(b)  the Authority, acting reasonably, shall require that the Service Provider 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 Authority in a manner approved by the Authority (such approval not to be unreasonably withheld or delayed);

(c)  where the solution selected by the Authority is compensation;

(d)  the Authority should not as a consequence face any additional liability upon early termination of this Agreement and the provisions of Schedule 22 (Compensation on Termination) shall be amended as necessary to achieve this, and;

(e)  such compensation shall be a sum equal to the cost to the Authority of procuring the excess energy predicted to be consumed by it as a result of the relevant defect until the end of the Contract Period, taking into consideration the likely future cost of energy sources, as determined by an appropriately qualified representative of [CIBSE].  Provided that the cost of such opinion shall be borne by the Service Provider.  The lump sum compensation payment shall be calculated at a discount rate of three and a half per cent (3.5%) real.