Menu Performance Contracts
- General Terms and Conditions
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- NEN 2767
[•], its legal form being: [•], with its registered office in [•], principal place of business in [•] at [•] number [•], listed in the commercial register of the Chamber of Commerce in [•] under number [•], hereby duly represented by Mr/Ms [•], director under the articles of association, hereinafter referred to as 'the Client';
[•], its legal form being: [•], with its registered office in [•], principal place of business in [•] at [•] number [•], listed in the commercial register of the Chamber of Commerce in [•] under number [•], hereby duly represented by [•], director under the articles of association, hereinafter referred to as 'the Contractor';
the Client and the Contractor hereinafter also jointly referred to as 'the Parties';
[•] is the owner of the Buildings;
The Client acts as a client;
The Contractor acts as a contractor and thereby as executive party;
- the Client focuses on sustainability. This does not only concern construction and management activities; the conduct of the building users in respect of sustainability also plays an important role here;
- the Client wants to have the Buildings and the Installations built in a sustainable manner and have them managed for [•] year(s), including energy management;
- the Contractor is a business that is able and willing to build, maintain and manage the Buildings and the Installations and to supply the Energy Products agreed upon;
- in respect of the sustainable construction and management of the Buildings and the Installations, the Parties want to cooperate and made agreements in this context, which agreements they want to lay down in this agreement (hereinafter referred to as 'the Agreement').
- apart from the intended energy reduction, the Client wants to increase the air and water quality (the comfort) in the Buildings and to have the management and maintenance of the Buildings conducted by the Contractor as much as possible, in order to ensure the best possible coordination with the intended energy reduction and to relieve the Client from its management and maintenance duties;
- the Client will pay the Contractor a monthly Management and Maintenance Fee and an Energy Performance Fee in return for the services agreed upon; payment made to the Contractor will depend on the actual performance delivered and has been detailed in the Agreement.
- the Parties have agreed on a good cooperation, to rely each other and to make decisions based on facts, therefore to provide each other with information about activities and costs;
- this Preamble forms an integral part of the Agreement and forms an essential basis for the transactions, as laid down in the separate provisions agreed pursuant to this Agreement.
Article LidGeneral Terms and Conditions
HAVE AGREED AS FOLLOWS:
Article: an article of the Agreement.2
Base period: specific time period prior to taking the energy-saving measures which is used as a reference for comparing the Energy Performance during the performance period. (ISO 50001)3
Bonus: an additional fee on top of the Energy Performance Fee and linked to the Energy Performance as described in more detail in Chapter 4 of the Output Specification.4
Annexes: the Annexes forming part of this Agreement.5
Indoor climate: the part of the indoor environment which is only determined by the thermal indoor climate and air quality.6
Indoor environment: all influences in the living environment in an indoor space which may result in a certain sensory perception or which may affect people's physiological functioning in an indoor space. The indoor environment is determined by the thermal indoor climate (including temperature), the visual indoor climate (including lighting intensity), the acoustic indoor climate (including sound) and the air quality.7
Comfort: comfort of the indoor environment; the convenience experienced in the indoor environment.8
Documentation: the documents pertaining to the Installations maintained by the Contractor.9
Energy performance: a measurable result related to (1) the energy efficiency of a process/device or (2) energy consumption (ISO 50001).10
Energy Baseline: the energy performance measured during the base period and, if possible, measured as a function of relevant factors (Influencing Factors or Production Factors). (ISO 50001)11
Energy Performance Line: the energy performance measured during the performance period and, if possible, measured as a function of relevant factors (Influencing Factors or Production Factors). (ISO 50001)12
Functional maintenance: A form of maintenance in which the activities are aimed at a component or installation operating and functioning as intended. NB: This functionality may differ from the original design in case of any changes to, for example, the use of the building. (ISSO Publication 101)13
Buildings: the buildings and related immovable property, located in [•] at [•], as specified in the Drawing, including Installations .and Measuring Instruments.14
Defect: Condition of the Installations, characterised by the inability to carry out a required function, excluding the inability to do so when carrying out Preventive Maintenance, or as a result of a lack of external means. (ISSO Publication 101)15
Installations: the building-specific installations to be maintained by the Contractor and described in the Output Specification according to number, type and/or model marking.16
Influencing Factor: the extent to which energy performance is determined by non-influenceable factors, such as the outdoor climate. (ISO 50001)17
Climate complaints: complaints made by building users about the indoor climate.18
Materials and Equipment: the parts and installation components necessary for the use and maintenance of the Installations, and the tools and use of vehicles required for this, items of equipment, cranes, scaffolding and parts thereof, consumer items and suchlike.19
Staff Member: any natural person engaged by the Contractor or by a subcontractor engaged by the Contractor in order to carry out the Work.20
Long-Term Maintenance Planning (LTMP): Structured package tasks covering activities, procedures, means and a time scale in order to conduct maintenance for a long-term period. (ISSO Publication 101)21
Measuring Instruments: all measuring arrangements combined for registering the actual energy consumption in the Buildings and which have been installed by the Contractor, as described in the Output Specification and indicated in the Drawing.22
Notification: a complaint, wish, malfunction or request for information.23
Wilful damage: 'Wilful damage, external violence, acts of violence by third parties; special war risks, violence inflicted on citizens' goods as a result of warfare; in insurance terms: 'violence inflicted by humans, not by nature, seizure, hijacking, sea piracy, holding on the instructions of the authorities, such as an embargo, declaration of war and reprisals'.24
Standard Value: average value during opening hours per day.25
Client: the client, [•].26
Storage Space: lockable room in the Buildings where articles are stored for management and maintenance.27
Measuring Room: lockable room where the Measuring Instruments are set up.28
Output Specification: the document describing in detail the nature and scope of the Work to be performed.29
Agreement: this performance contract, including annexes.30
Force Majeure: a circumstance that the Contractor can inevitably not meet its obligations under this Agreement (or can only do so by suffering a financial loss), insofar as this is the result of one or more of the following events or circumstances:
a) war, civil war or terrorist acts in the Netherlands;
b) nuclear explosions or detonation of explosives, insofar as not caused by the Contractor;
c) ionising radiation or radioactive, chemical or biological contamination in or near the Buildings insofar as not caused by the Contractor;
d) a crashing aircraft or space vehicle (or part thereof) or a pressure wave resulting from a supersonic aircraft;
e) impact of a meteorite, volcanic eruption or a hurricane;
f) an earthquake with a magnitude of more than 6 on the Richter Scale; or
g) flooding other than caused by local precipitation, not caused by the Contractor.
Party: the Client or the Contractor.32
Plot: the plot located in [•] at [•], recorded in the land register as municipality of [•], section [•], number [•], area [•] m2, as indicated on the map enclosed as Annex [•].33
Performance Period: period after taking energy-saving measures in which the energy performance is evaluated (ISO 50001)34
Performance Contract: this Agreement, intended for Buildings and Installations, which sets out the performance of the Buildings and the Installations to be achieved and maintained. The Work to be performed by the Contractor is aimed at achieving and maintaining this performance.35
Performance Requirement: requirement set on the value of a performance indicator and specified in the Output Specification. (ISSO Publication 101)36
Performance Defect: the failure to comply with the requirements set in the Output Specification.37
Performance Indicator: quantitative variable for analysing and assessing the performance of a process/activity. Sustainable management and maintenance may concern, for example, a maintenance process or the functioning of a climate system. (ISSO Publication 101)38
Preventive Maintenance: maintenance conducted before a malfunction has occurred, with the aim of reducing the chance of occurrence of this malfunction in the period following the maintenance (NVDO Glossary). The Contractor's maintenance instructions can usually be used as a basis for Preventive Maintenance. If there are no instructions, the Contractor will have to draw up these instructions itself and submit them to the Client.39
Production Factor: The extent to which Energy Performance is determined by production from the primary business process (e.g. occupancy rate, operating times, vacancy).(ISO 50001)40
Project: making the Installations more sustainable and maintaining and managing them.41
Project Leader: first contact point on behalf of the Contractor for the Work.42
Reference with Outdoor Climate (measuring station of the Royal Dutch Meteorological Institute or KNMI): the outdoor climate determined in accordance with NEN 5060 for the KNMI measuring station that it is nearest in relation to the location of the Buildings. (ISO 50001)43
Malfunction: interruption of the functioning of the Installations, usually resulting from one or more components not functioning properly. (ISSO Publication 101)44
Corrective Maintenance: repairing any undesirable interruptions of the functioning of Installations or components, even if they are caused by incorrect use or improper operation (not being wilful damage). If necessary, this could be done by means of emergency measures guaranteeing continuation of the Client's primary process.45
Drawing: the drawing of the Buildings, as attached to the Output Specifications as Annex 1.46
Failure on the part of the Client: the Client's failure to comply with one or more of its obligations under this Agreement (including the circumstances in which it has been established that compliance without failure will be impossible) insofar as this failure is not
a) the result of a Failure on the part of the Contractor; or
b) the result of force majeure.
Failure on the part of the Contractor: the Contractor's failure to comply with one or more of its obligations under this Agreement (including the circumstances in which it has been established that compliance without failure will be impossible) insofar as this failure is not
a) the result of a Failure on the part of the Client; or
b) the result of force majeure.
Contractor: the executive party, [name of Contractor].49
Refurbishments: changing the functionality, size or capacity of Installations. This activity may also be carried out as part of structural modifications.50
Management and Maintenance Fee: the fee to be paid by the Client to the Contractor for Preventive Maintenance, Corrective Maintenance, Functional Maintenance and Replacement Maintenance of the Installations ], as described in detail in the Output Specification. 'Installations' should be read as 'Buildings and Installations'51
Energy Performance Fee: the fee to be paid by the Client to the Contractor for the supply of energy services, as described in detail in the Output Specification.52
Replacement Maintenance: the 1-on-1 replacement of installation components without any change in functionality, size or capacity. This is done as a result of any malfunctions or defects. Regular replacement maintenance can be laid down in a declaration of intent.53
Visual Inspection: method used to determine visual defects or symptoms of defects using visual tools, possibly using simple tools such as tape, a mirror, flexible steel rule, pocketknife, awl, binoculars and suchlike.54
Working Days: calendar days, except for weekends and holidays, as laid down in the General Extension of Time-Limits Act [Algemene Termijnenwet], on which the maintenance will be conducted.55
Work: the work to be performed, consisting of Preventive Maintenance, Functional Maintenance, Corrective Maintenance, Replacement Maintenance, as described in detail in Article 3 of the General Terms and Conditions and Chapter 1 of the Output Specification.
This Agreement, the Annexes referred to therein and the changes and additions thereto agreed in writing form the legal relationship between the Parties as far as Preventive Maintenance, Functional Maintenance and Corrective Maintenance are concerned.2
This Agreement forms the legal relationship between the Parties as far as Replacement Maintenance and refurbishments are concerned.3
The Parties undertake to immediately report to the other Party in writing any incompleteness, inaccuracy, ambiguity or lack of clarity in the Agreement.4
If the Agreement contains any inconsistencies, the following order will apply in decreasing prevalence, unless otherwise expressly stated:
- any changes and/or additions to the Agreement agreed between the Client and the Contractor in writing;
- the Agreement;
- the Annexes enclosed with the Agreement, in decreasing prevalence.
If the use of the order referred to in paragraph 4 does not offer a solution, the inconsistency will be interpreted with due observance of the principles of reasonableness and fairness.6
The applicability of the General Terms and Conditions used by the Parties is expressly excluded.7
The Contractor states that it has taken note of all data provided by or on behalf of the Client.8
All that has been discussed and/or agreed between the Client and the Contractor before the date of signing of this Agreement will cease to apply as a result of the Agreement, unless otherwise expressly stated in the Agreement.9
For the Work applicable under the guarantee of energy supply under this Agreement, the Contractor may transfer the Work to a third party. The Client will not be inconvenienced by this. The Contractor will remain ultimately responsible.
3Obligations of the Contractor1
The Contractor will conduct the installation, Preventive Maintenance, Functional Maintenance, Corrective Maintenance and Replacement Maintenance of the Installations fully in accordance with the relevant provisions of the Agreement.2
The Contractor will guarantees that during the Performance Period, the energy costs in each financial year will correspond with an amount calculated in Annex 1 (Energy Performance Fee), which corresponds with a monetary value of [•] (net, excluding VAT). An adjustment over various financial years is not possible unless the Client expressly makes any changes.3
The Contractor will ensure that the Installations comply with all current laws and regulations.4
The Contractor must take note of all data to be provided by or on behalf of the Client, which are necessary for a proper execution of the Agreement, and to check the accuracy and completeness of these data.5
The Contractor must have confirmed the circumstances in which the Work must be performed.6
The Contractor will set up a back office so that the Client can report any Malfunctions directly.7
The terms and conditions of the Agreement must be declared applicable to all Agreements between the Contractor and its subcontractors.8
The Work will have to be performed such that it will not cause any inconvenience or nuisance to the Building Users. In case of any possible inconvenience or nuisance, the Contractor will, in consultation with the Client, have to take measures in order to prevent or limit this inconvenience or nuisance as much as possible.9
The Client will not provide the Contractor with any accommodation or storage space at the locations. The installation rooms may not be used as storage space. The Contractor must clean out installation rooms and other parts of the buildings where Work has been performed daily after the Work and remove any waste and packaging materials.10
During the contract period, the Client will, for each Malfunction and/or each time any maintenance is conducted, provide the Contractor or its subcontractor with one or more keys required for this Work. The Contractor will be fully responsible for the management and use of these keys. The keys will be provided by the concierge or the [•] reception desk. Any key(s) will have to be returned each day and/or after the end of the Work and may not be taken outside the relevant buildings of the Client. Loss of a key provided by the Client to the Contractor will be subject to a penalty of [•] 200.00 per key for each time a key is lost. If a master key is lost, the resulting damage and loss suffered and costs incurred by the Client, including the costs of replacing all relevant locks, will be payable by the Contractor. If the Contractor or one of its Staff Members lose any keys, this will have to be reported to the Client within 24 hours. In case of a change of persons charged with managing the keys on behalf of the Contractor, the Contractor will immediately inform the Client of this. In case of any misuse of the key(s) by the Contractor and/or its Staff Member(s), the Contractor will, at all times, remain responsible for all damage and loss suffered as a result of this.11
The Contractor will implement the energy-saving measures described in detail in Annex [•] in its own name and at its own expense.12
The Contractor will ensure that the Installations are installed in accordance with all necessary public obligations such as permits and suchlike.13
The Client will inspect the Installations and approve them if it is satisfied. After the inspection and approval, the risk for the Buildings placed by the Contractor on the immovable property and rights will only pass to the Client after expiry of the Agreement. Until that time, the Contractor must indemnify the Client against any third-party claims. The Contractor will transfer the guarantee claims existing at the time of termination of the Agreement to the Client, any costs resulting from this transfer exclusively being borne by the Contractor.14
As regards the installations already present, and the installations not installed by the Contractor, the Contractor will not in any way be responsible for the management, maintenance and operation of these installations.15
The Contractor guarantees that the facilities installed or renovated by the Contractor, as well as the facilities already present in the Buildings and subject to its performance obligation, pursuant to Article 1(13), will, upon termination of the Agreement, be fully functional and work properly and can be used safely subject to normal wear and tear.16
The Installations may only be installed, maintained, checked, replaced, relocated and removed by the Contractor after prior notification to and, as much as reasonably possible, in consultation with the Client.17
The Client must, if necessary at its own risk and expense, conclude an agreement with the regional Network Manager(s) designated in the area in which its branch(es) is/are located or, as the case may be, the present network owner who did not designate a Network Manager pursuant to Article 15 of the Electricity Act 1998 [Elektriciteitswet 1998], and any other network managers insofar as required, for the transport of electricity, connection to the Network and related system services with due observance of the terms and conditions as included below.18
The failure to conclude and/or a full or partial annulment, dissolution or termination of one or more of the agreements referred to in this Article 3(17) with the Network Manager(s) referred to therein may never result in a full or partial annulment, dissolution or termination of this Agreement by the Client. The Client will make an effort to conclude a new agreement with said Network Manager(s).19
The replacement, relocation and removal of the Contractor's installations and connecting these installations will be at the Client's expense if:
a. this is done at its request;
b. this is the result of its act or omission or the act or omission by third parties for which the Client is liable pursuant to the law, unless it is demonstrated that this act or omission is the result of circumstances which cannot reasonably be imputed to it; or
c. this is the result of a termination of the Agreement under Article 17(2).
The Measuring Instruments are owned by the Contractor and are managed and maintained by the Contractor in accordance with the European standard NEN-EN 13269.21
The Contractor will ensure that all qualifications are met and that the operating staff have all required qualifications and have received sufficient training.22
Communication: With due observance of the provisions of the Output Specification, the Contractor will, in the event that the Contractor has to conduct maintenance, repairs or other work causing users in and near the Buildings to experience inconvenience or nuisance by this Work, communicate with these users and the surrounding area in order to inform them of this in a timely and complete manner. The Contractor will have to submit both the manner of communication and the contents of such communication to the Client for approval.
4Obligations of the Client1
Any agreement existing between the Client and a different contractor for the Installations will, with effect from the agreed date, be deemed to have been terminated and replaced by this Agreement with effect from the same date.2
The Client will purchase the Performance Indicators - included in the Agreement - pertaining to the Installations and required by it within the Buildings exclusively from the Contractor, except:
- in the event that the Contractor cannot supply the required capacity, quantity or quality and cannot do so within a period acceptable to the Client;
- in the event of interruption or limitation of the supply;
- in the event of a situation of force majeure on the part of the Client.
The Client will grant the Contractor's Staff Members access to the Buildings and Installations falling under the scope of the Agreement in accordance with the procedure as described in the Work Description (Annex [•]).4
The Client will provide the Contractor, at the latter's request, with all Documentation for the purpose of the Maintenance, which the Client has at its disposal.5
The Client will ensure that the Contractor is not hindered in performing its work, as a result of which the work may not be completed in time.6
The Client will ensure that the Contractor is not hindered during the completion and inspection.7
If the Client discovers or suspects any leakage and/or defects in the Installations, the Client will immediately notify the Contractor of this, following the Contractor's instructions if any.8
The Client guarantees that existing and other installations for which the Contractor is not responsible under this Agreement do not cause any nuisance or damage to the Contractor or third parties.9
The Client guarantees that the Installations comply with the applicable statutory and other requirements and regulations, as included in the Grid Code, Measurement Code and System Code.10
Any seals affixed by or on behalf of the Contractor will not be broken by the Client.11
The normal functioning of Installations and Measuring Instrumentsor other equipment managed by the Contractor will not be hindered by the Client.12
The Client will make every reasonable effort to prevent any damage to the Installations present in the Buildings. Â All damage caused as a result of this will be fully paid by the Client.13
The Buildings in which the Installations are installed are kept by the Client in a good state of repair. The Client is responsible for regular maintenance measures. This concerns regular and other measures taken by the Client, at its own account and expense, aimed at maintenance of the exterior of the building and maintenance of the technical facilities present in the building - as long as this is not the Contractor's responsibility under this Agreement. The Client must ensure that the actual energy-related state of the immovable property, as determined at the start of the Agreement, in accordance with Annex 1 to the Agreement, does not deteriorate during the term of the Agreement.13
The Client will keep the Buildings in which the Installations are installed in a good state of repair. The Contractor is responsible for regular maintenance measures. This concerns regular and other measures taken and aimed at maintenance of the exterior of the building and maintenance of the technical facilities present in the building.14
The Client is obliged to cooperate with the Contractor in executing the provisions laid down by or pursuant to the Agreement and monitoring compliance with these provisions, and in particular by:
- informing the Contractor as soon as possible of all data, incidents and changes to circumstances which could be important for the execution of the Agreement, including any damage, defects or irregularities detected or suspected by it, including any seals that have been broken, in or on the part of the Client's installation or connection present on its Plot, including the measuring instruments, and other equipment installed by the Contractor within the context of the Agreement.
- granting Staff Members who have been provided with an identity document or authorization issued by the Contractor access to the Plot at all times, also for the purpose of the execution of an obligation resting with the Contractor by or pursuant to the law.
- informing the Contractor of any changes to its address or (trade) name in time.
If the Client is not the owner of the Plot, it will guarantee that the owner agrees to the performance of all acts deemed necessary by the Contractor for installing, replacing, relocating, expanding, changing or removing the part of the Contractor's installation located on the plot or the connection or otherwise deemed necessary for the supply, for itself as well as for third parties. The Contractor may demand that the Client submit a written statement from the owner.16
Insofar as the Measuring Instruments are commonly considered to form part of the immovable property, the Client will, if the immovable property is sold, be obliged to pay the new value of the Measuring Instruments to the Contractor, if the further supplies in respect of the immovable property are terminated by the Contractor.17
The Client will fully cooperate in obtaining all necessary permits and provisions, in order for the Installations to comply with and continue to comply with the regulations and requirements imposed under public law.18
The Client will ensure that a system of encouragement is available for the operating staff and the Client's staff in order to use the Buildings and the Installations in an energy-efficient way.
5Organisation of the Parties1
The Contractor will appoint a Project Leader who will serve as a contact for this Agreement.2
The Contractor will deploy skilled and reliable staff who have the necessary professional knowledge and an oral and written command of the Dutch language in order to conduct the Maintenance.3
The Contractor will replace the Project Leader or any of the Contractor's staff members who have been designated by the Client if so requested by the Client in writing, stating reasons. The Contractor will have to bring this obligation to the attention of its staff.4
If the Contractor's Staff Members perform Work in a way that, in the Client's opinion, causes or may cause damage, or if otherwise the Client cannot reasonably be expected to proceed with the execution of the Work, the Client may demand that these Staff Members stop performing the Work. In this case, the Client will immediately contact the Contractor about any measures to be taken. If the Client so requests, stating reasons, the Contractor will be obliged to immediately replace the Staff Members in question.5
The Contractor must provide its Staff Members with an identity document issued by it and showing, in addition to the identity of the person concerned, that this person performs work for or on behalf of the Contractor.6
The Contractor may have third parties perform the Work. If the Contractor engages third parties in order to perform the work assigned to it, it will ensure that these parties will comply with the obligations described in the Agreement and it will indemnify the Client against any damage or loss suffered by the Client as a result of the failure of these third parties to comply with the obligations.
6Staff members, Working Conditions, Safety and Quality1
The Contractor is responsible for safety during the Maintenance at the Client's locations and must take all measures necessary for the protection of its Staff Members, the Client's staff and third parties, its property, the property of the Client and of third parties against any injury, accidents and material damage. In doing so, it must observe the regulations of the H&S plan as included in Annex [•].2
The Contractor is obliged to provide its Staff Members, as well as Staff Members of subcontractors, with clean and clearly recognisable work clothes, which work clothes will, in any case, clearly have to show the Contractor's company name.3
The Contractor will be responsible for the conduct of all persons performing Work on its instructions. The persons in question are expected to show a positive and service-oriented work attitude. If a staff member shows a negative work attitude towards the building users and/or the Client's visitors, this will affect the Contractor's assessment, as referred to in Annex 1.4
The Contractor must ensure that, during the performance of the Work, all persons performing Work on its instructions, observe the regulations for subcontractors of the Contractor working for [•] (name of the Client) and should be aware of the fact that they are guests and should behave accordingly.
7Materials and Equipment1
The Contractor will ensure that all materials and equipment required for the Work are available at the locations in time and in a good condition, in accordance with the applicable statutory requirements.2
If the Client provides the Contractor with materials, such as raw materials, consumables, tools, drawings, specifications and software, in order to comply with its obligations, or if they are used to carry out the work, these will remain the property of the Client. The Contractor will store these items separately from objects that belong to it or to third parties.3
The Client will be authorised to inspect and check all materials and equipment to be used by the Contractor in the execution of the Agreement.
8Consultation and report1
In addition to the regular meetings included in Annex 1, the Contractor must be prepared to hold necessary meetings with the Client and with any other parties involved or to be involved in the Maintenance, at the Client's first request.2
The Contractor is obliged to report any incidents that occurred during the performance of the Work to the Client as soon as possible.3
Other data to be registered and reports to be submitted by the Contractor are described in Annex 1.
The annual Energy Performance Fee for the funding, installation, Preventive Maintenance, Functional Maintenance and repairs of Malfunctions in energy-efficient Installations amounts to: [•] excluding VAT and at price level 20[•].1
The annual Management and Maintenance Fee amounts to: [•] excluding VAT and at price level 20[•].2
Any changes to the scope of the Work to be laid down by the parties must be agreed in writing in advance. An increase in the Work may result in a fee increase. In respect of the price to be agreed in advance, the Parties will use the prices and rates included in Annex [•] as a point of departure. The above-mentioned fees cannot be reduced..3
The fees referred to are at price level 20[•] (date). The fee adjustment is calculated each year on 1 January, for the first time on [•] (date) and then for each next contract year on 1 January of that next year. This will have to be agreed upon in joint consultation, the composite BDB index figure for maintenance of business premises [BDB indexcijfer bedrijfsgebouwen onderhoud] being used as a basis for indexation. The indexation rate from the composite BDB index figure for maintenance of business premises is calculated as an average over the period of 12 months prior to 1 October of the previous contract year.
10Change to the Maintenance1
The Client will, at all times, be authorised to change the scope of the Maintenance. The Contractor will have to cooperate in this. The provisions of Article 3 will equally apply.2
If, at the Client's request, the Client wants to make permanent changes to the original work to be performed within the context of this Agreement, it will have to consult the Contractor about this at least 1 month in advance.3
In case of any changes resulting from extensive renovations, an extension of the accommodation or otherwise, the Work will have to be adjusted in consultation with the Contractor.4
The Client will, at all times, be obliged to pay the Management and Maintenance Fee referred to in Article 9. In the event of a sale or vacancy, the Client will be obliged to pay the Management and Maintenance Fee for the remaining period.5
The Client may only transfer the Agreement at its request, and only with the Contractor's consent. The transfer may only take place in case of a change of ownership. Any new party will have to demonstrate that it can bear the financial obligation. If this is not the case, it will not be possible to transfer this Agreement.
11Limitation or interruption of supply1
The Contractor guarantees continuity of supply. If any circumstances arise causing an interruption of the supply, the Contractor will make every reasonable effort to resume the supply in the shortest possible term.2
If the Contractor believes that this is necessary or desirable, the Contractor may, for safety reasons or in case of a reasonable risk of damage - if possible after prior warning - limit or interrupt the supply for a period that is as short as possible.3
If the Contractor believes that this is necessary or desirable, the Contractor may limit or interrupt the supply for a period that is as short as possible in order to conduct maintenance or further work. The time and duration of the limitation or interruption will be determined and notified by the Contractor, if possible after consultations with the Client.4
The Contractor will be authorised to remove or deactivate all or part of the connection or other equipment installed within the context of the Agreement after a prior warning - unless this is not reasonably possible for safety reasons - if and as long as the Agreement or the applicable statutory regulations and provisions are not complied with in any way.5
The measures referred to in paragraph 4 will only be cancelled after the reasons for these measures have been removed and the costs of these measures and of cancelling them, as well as any damage or loss suffered by the Contractor in this connection, have been paid by or on behalf of the Client in full. The Contractor may attach further conditions to the cancellation of the measures.6
The Contractor will not be liable for any damage or loss caused by the justified use of its powers as referred to in this Article.
12Measuring & Verification1
The Contractor is obliged to set up Measuring Instruments and to operate and maintain this system until the moment of settlement after the execution of the Agreement. This system will be able to generate data demonstrating a reduction in energy demands of the individual Buildings as a result of the measures implemented by the Contractor.2
The measurement data obtained in paragraph 1 will be binding.3
The Measuring Instruments can be read out from a distance. As a rule, Measuring Instruments will be read out by the Contractor [•] per year at a time to be determined by the Contractor.4
The Client will ensure that the measuring instruments are properly accessible and can be read out properly at all times. It must also protect the Measuring Instruments against any damage and a breaking of seals.5
In case of any doubts about the accuracy of the reading, both the Client and the Contractor may require that the Measuring Instruments be checked. The Contractor will inform the Client, in advance as far as possible, of the time at which this check will take place and/or the time at which the Measuring Instruments will be removed in order to be checked. The Contractor will inform the Client of the checking options and of the costs of the check. The check will be performed by the Contractor, unless the Client demands that the check be performed by another competent agency. The Client is entitled to be present or represented during the check. The reading is considered to be correct if, in case of nominal measurement capacity of the measuring instruments, the maximum deviation to be expected and guaranteed by the manufacturer of the Measuring Instruments does not exceed the nominal measurement capacity by more than [•]% ([•] percent).6
The costs of checking the Measuring Instruments will be borne by the party at whose request the check is performed.7
If the check shows that the deviation exceeds the tolerable rate of deviation, the costs of the check will be borne by the Contractor if the measuring instruments are managed by the Contractor, including any costs incurred by the Client in order to be represented during the check of the measuring instruments. The latter costs will be borne by the Client itself.8
The Contractor will keep the measuring instruments available for a further check up to 6 weeks after the results of the check have been sent. In case of any dispute, the Contractor will have to store the relevant meter or, as the case may be, be able to trace it if it is installed again, until a final court decision has been made about the dispute or the dispute has ended. If the Measuring Instruments are not managed by the Contractor, the obligations referred to in this paragraph will apply to the Client.9
If the check shows that the deviation of the measuring instruments exceeds the tolerable rate of deviation, the Contractor will determine the quantity supplied on the basis of the results of the check. A recalculation will be done over the period in which the measuring instruments did not function properly, extrapolated back to the time of removal of the defective measuring instruments.10
The Netherlands Measuring Institute (NMI) or another institution that is authorised to calibrate will check the measuring equipment used at least 1 per [•] year and will report on this to all relevant parties.
13Invoicing and payment1
The Contractor will sent a quarterly invoice for the work performed during the past quarter for the purpose of the Agreement. The invoice will be drawn up proportionally to the fixed fees referred to in Article 9 and the applicable rates.2
The Client is authorised deduct an amount if the assessment report shows that the results over the period invoiced give reason to do so. The agreed discount scheme has been included in Annex 1 to this Agreement.3
Invoices should be sent to the following address: [•].4
Any invoices for Work performed until 31 December of a financial year must have been received by the Client no later than 31 January of the next financial year. Any invoices for Work performed until 31 December of a financial year which have been received by the Client after 31 January of the next financial year will not qualify for payment.5
Invoices will be paid within 14 days after the Client has received them in good order. Invoices are considered to have been received by the Client in good order if the Client has not notified the Contractor within seven days after receipt of the invoices that they lack documents that are required in order to assess the correctness of the invoices. If the Client has any objections to the contents of an invoice, it will inform the Contractor of this as soon as possible, but no later than 4 weeks after receipt of the invoice, stating reasons.6
If any payment term is exceeded by the Client or if one or more invoices are not paid by the Client because it believes the contents of such invoice(s) to be incorrect or because the performance that has been invoiced is invalid, this will not give the Contractor the right to suspend or terminate its performance or to charge interest on the amount of the invoice.
14Liability and indemnification2
In respect of any failures to comply with its obligations, the Contractor will only be liable if it can be blamed for these failures (attributable failure). Except for wilful misconduct or gross negligence, any liability of the Contractor for indirect, consequential and/or trading loss is excluded at all times,2
nor will the Contractor be liable for any damage or loss caused by or in connection with any act or omission by other suppliers.3
Any claim for compensation will have to be submitted by the Client to the Contractor in writing within fifteen working days after the date on which the damage or loss occurred or after the date on which the damage or loss could reasonably have been detected. If the Client does not submit a claim within this period, as a result of which the Contractor is not given the opportunity in time to inspect and/or limit the damage or loss, the Contractor will reserve the right to handle the claim no further.4
In all cases in which the Contractor is obliged to pay compensation, the amount per event per year will be limited to [•] in respect of the supply due to or in connection with which the damage or loss was caused.5
In accordance with the statutory liability regime, the Client is liable for any damage or loss suffered by the Contractor as a result of or in connection with the Client failing to comply with its obligations to the Contractor under this Agreement (or failing to do so in full or adequately), as well as for any damage or loss suffered by the Contractor as a result of the fact that the Client fails to comply with its obligations to third energy suppliers under any other Agreement (or fails to do so sufficiently).6
The Client will not be liable for and the Contractor will indemnify the Client against any damage to and loss of machines, tools and materials of the Contractor.7
For the purpose of the Agreement, third parties are also understood to be the Client's staff, third parties engaged by the Client and the staff of these third parties.8
The Contractor will indemnify the Client against any third-party claims in respect of infringement of intellectual property rights, comparable claims in respect of know-how, including unlawful competition.9
The Contractor has a duty to maintain confidentiality in respect of the contents of this Agreement and its annexes.
The Contractor must have taken out and maintain the following insurances in connection with the execution of the Agreement, with insurers and on conditions that require the Client's consent. None of the provisions referred to below will in any way limit the Contractor's responsibility and liability:
- Business liability insurance with a cover of at least &euro 2,500,000 per event resulting in material damage, injury and/or death;
- Motor liability insurance for vehicles, whether or not owned, with a cover that meets the requirements prescribed by law;
- Contractors all risks insurance for the Work arising from the Agreement. This has been attached as Annex [•].
The Contractor's policies will state the Client and the Contractor as the insured parties, depending on their respective interests, and will constitute a waiver of the right of recourse of the insurer(s) against the Client. Each year, the Contractor will send the Client a copy of the policy for the next year immediately upon receipt thereof, along with proof of payment of that year's premiums.3
The prescribed insurance cover should be maintained throughout the period in which the Contractor has any obligations to the Client under the Agreement.4
If, at any time, the Contractor fails to take out one of the insurance policies prescribed (by law or otherwise) or if an insurance policy is terminated, the Client will have the right to take out such insurance itself and to deduct the related premiums and costs from the contract amount.5
The Contractor hereby assigns all claims in respect of payments of insurance proceeds to the Client.
A non-attributable failure by the Contractor to perform the Agreement is understood to be any event which cannot reasonably be foreseen, controlled and prevented by the Contractor and which prevents the Contractor from complying with its obligations to the Client.2
A non-attributable failure is, in any case, not understood to be: a shortage of, illness of and/or strikes by the Contractor's Staff Members or third parties engaged by the Contractor, a delay in the supply of materials or materials being unsuitable and liquidity and/or solvency problems on the part of the Contractor.
17Term of the Agreement1
This Agreement is concluded on [•] (date) for a term of [•] months until [•] (date). The work will have to start on 31 December 20[•] (year) at 0:00 hours. Obligations which are by their nature destined to also continue after termination of the Agreement will continue after termination of the Agreement.2
With due observance of Article 16, either Party has the right to terminate the Agreement early by stating reasons and with due observance of a notice period of two (2) calendar months, if:
a. the other Party fails to perform the Agreement and has not remedied this within a reasonable period set by the other Party in a written demand to that effect;
b. the other Party has been declared insolvent or has been granted a moratorium, or a petition has been filed for this purpose;
c. the Client intends to demolish the Buildings or alter them in such a way that the Installations cannot be maintained;
If either Party exercises the power as referred to in paragraph 2, it will inform the other party of this by registered letter after the period referred to in the preceding paragraph.4
The provisions of Article 18 will apply if the Buildings to which this Agreement relates are sold.5
In the event of an early termination of the Agreement, the termination fee will be determined as follows:
a) [•]% of the Energy Performance Fee for the remaining term of the Agreement;
b) [•]% of the Management and Maintenance Fee for the remaining term of the Agreement.
The discount rate to be used is [•] %.
If the Client fails to perform one or more of its obligations (or fails to do so in time or properly), is declared insolvent, applies for a (provisional) moratorium, liquidates its business, and if all or part of its assets are attached, the Contractor will have the right to suspend the execution of the Agreement or to dissolve the Agreement in part or in full by means of a written statement without prior notice of default, all this at its discretion and always retaining any of its rights to compensation of damage, interest and costs.7
If the Contractor exercises its powers as referred to in the above paragraph, this will not result in the Contractor being liable for any damage or loss resulting therefrom.
The Agreement will remain in force if a Party's legal form is changed or if a Party transfers its business to another legal entity. Without each other's written consent, the Parties cannot transfer their rights and obligations arising from the Agreement to a third party.2
The Client undertakes, irrevocably and for no consideration, to impose the rights and obligations arising from the Agreement on every new owner in case of a full or partial transfer of ownership of the Buildings. If the Client fails to comply with this obligation, it will, without notice of default or judicial intervention, be obliged to compensate all damage or loss suffered by the Contractor as a result.
The Parties will keep the existence, nature and contents of the Agreement secret and will not disclose anything about this without the other party's written permission. At the other party's first request, the Parties will return all materials and documentation, including extracts and copies thereof, provided by the other party in connection with the Agreement.2
The Parties undertake to treat in confidence all data and information concerning or connected with the clients, products, business operations and organisation of the other party, which come to knowledge of this party within the context of the execution of the Agreement and to use them for no purpose other than the purpose for which they were provided.3
The Parties also undertake to impose the same duty of confidentiality on its Staff Members and/or auxiliary staff directly or indirectly involved in the execution of the Agreement and will have them sign a non-disclosure agreement if necessary.4
The Parties will ensure that the duty of confidentiality imposed on Staff Members and/or auxiliary staff will continue after the Work has ended or the Agreement has been terminated.5
Without the other party's written permission, the Parties are not allowed to give any publicity to the Agreement or to make use of the other party's name, logo or corporate identity.
In order to prevent any legal disputes, all possibilities for solving disputes out of court will have to be exhausted first. If no agreement can be reached and the difference of opinion mainly concerns an issue of fact, technical issue or calculation procedure under this Agreement, the partners will first of all engage a publicly appointed and sworn expert as a mediator in order to settle the dispute. The expert should have demonstrable expertise in determining energy and heating requirements of buildings. If the Parties to this Agreement are unable to agree on an expert, both Parties will be entitled to ask the Chamber of Commerce and Industry competent for the location of the Buildings to appoint an expert, taking into account the qualification criteria set out in this Agreement. The expert's decision will be final. If this situation arises, both partners state that they will acquiesce in the expert's opinion and will acknowledge the decision as binding, also in any court proceedings to be instituted. The unsuccessful Party will bear the costs of the expert's opinion.2
If it appears to be impossible to settle a dispute out of court, the dispute will be submitted to the competent court of [•].3
Unless expressly permitted by the Client in writing, the Contractor will not stop or delay the work due to disputes or proceedings.
21Governing law and statutory regulations1
The Agreement is governed by Dutch law.2
The Contractor must comply with all national, provincial, municipal and other laws, regulations, norms and standards and requirements and conditions set by competent authorities in respect of employees, social security benefits, labour regulations, safety, materials, the environment, taxes, etc.3
The Contractor must ensure that all necessary official documents and approvals by the government and other agencies are available, which are necessary for the execution of the Agreement.4
If one or more provisions of the Agreement appear to be non-binding, the other provisions of the Agreement will remain in full force and the parties undertake to replace the non-binding provisions by provisions that are binding and approach the parties' original intention as closely as possible.
The Client will ensure that the Measuring room and storage space continues to be properly accessible. If the installation installed and the pertaining goods cannot be accessed properly due to acts or omissions by the Client or the owner of the Buildings, the Contractor will, after a demand, be entitled to remove the obstacles that prevent proper access, to make changes to the route of the Installations and the connection, or to build an entirely new connection, all this at the Client's expense.2
The Client will grant the Contractor the right to access and enter the Buildings in order for the Contractor to provide the required services. In exercising this right, the Contractor will be obliged to take account of the normal working hours of the relevant responsible employees of the person/institution responsible for the building. The Client will ensure that the users and any tenants do not limit this right of access and entry without, however, making it possible for the Contractor to submit any other claims of whatever nature. The Client will not be liable for any damage inflicted on the Contractor or the third parties engaged by it during their presence in the buildings.3
The Client and the person/institution responsible for the Buildings will ensure that the information required for performance of the Agreement will be provided to the Contractor in writing at its request and that copies of relevant documents will be provided to the Contractor after the Contractor's written request to that effect and at the Contractor's expense.4
The person/institution responsible for the Buildings will, except in case of imminent danger, not implement any changes in respect of the facilities and the equipment installed, exploited, maintained or optimised by the Contractor and/or in respect of the settings thereof.5
If possible, the Client will inform the Contractor of any considerable changes to the terms and conditions of use of the Buildings, no later than 3 months before such measures are implemented.6
If the Contractor can demonstrate that the energy-saving measures implemented do not produce the expected savings, as a result of a deterioration of the actual energy-relevant condition of the exterior of the Buildings, the Baseline of the energy costs will have to be adjusted accordingly. If the Client's regular maintenance measures have an energy-saving effect, the Baseline of the energy costs will have to be changed such that a successful reduction in the energy costs demonstrated by the Client will fully accrue to the Client.7
The Client guarantees to the Contractor that it no longer has any current contractual obligations towards one or more other suppliers on the starting date of the Agreement.8
No forfeiture of rights: Should, at any time, one Party or both Parties do not demand specific performance of one or more provisions of this Agreement, or do not rely on it/their rights under this Agreement, this will not be construed as a waiver of the right to do so at a later point in time, nor will this in any way limit this Agreement or the Parties' rights and obligations under this Agreement.9
Supplies to third parties: If the Agreement is terminated, the Contractor will still be allowed to use the installation installed in the Buildings for the supply to third parties, without prejudice to the Contractor's right to then remove or deactivate the Contractor's installation or connection installed in the immovable property or the other equipment installed by it within the context of the Agreement. The Client/owner will guarantee the undisturbed use of the measuring room for the purpose of the installation by the Contractor. If the Contractor's installation and the connection in the immovable property is no longer in use, the Contractor may clear the measuring room.10
Rights in rem established on the Installations: If a right in rem is established on the installation installed in the immovable property and the pertaining goods of the Contractor, the rights and obligations of both parties will also be governed by the provisions of the property-law Agreement concluded in this connection. In case of any inconsistency between the property-law Agreement and the provisions of this Agreement, the property-law Agreement will prevail.
23Ownership of newly installed Installations1
The Contractor's Installation (or part thereof) installed by the Contractor on the Parcel, Connection and other equipment installed by the Contractor within the context of the Agreement are and continue to be the property of the Contractor. The Client is obliged to take the necessary measures and/or to cooperate in order to guarantee the Contractor's right of ownership, for example by granting the Contractor a right in rem to be specified by the Contractor, such as an independent right of superficies.Back to top
Chapter Annex 1 - Output Specification
The Work described in this document includes installing an energy-efficient installation and hkeeping this Installation installed at location [•] (name of location) in [•] (town/city) on the instructions of [•] (name of Client) in a good condition in accordance with performance agreements, by means of Preventive, Functional and Corrective Maintenance.
Under the direction of [•] (position) employed by [•] (name of Client).
The document discusses the Contractor's duties, response times, scope of the Installations to be maintained, performance to be delivered, registration, reports and cost settlementand energy performance. It also discusses consultation structures, contact persons, performance review and energy performance review.
The Work to be performed within the context of Replacement Maintenance is included in the Management and Maintenance Fee insofar as it concerns parts that have been installed by the Contractor.
The Contractor will keep the Installations falling under the Agreement, along with the pertaining equipment, in the desired condition. Moreover, the Contractor must ensure that they function on a continuous basis. For this purpose, requirements are set on operational liability of Installations and the time it takes to respond to any reports (of malfunctions). The Contractor will achieve this goal by conducting Preventive and Corrective Maintenance on the Installations installed by it as listed in Appendix 2. For this purpose, the Contractor will draw up and implement an annual preventive maintenance plan. This is a plan for all regular (or annual) maintenance work. This plan includes the maintenance work to be performed, along with the pertaining frequency of maintenance work and checks. This should at least be specified for the following types of installations and according to the classification of NL SFB NO. SPECIFICATION [•].
The Contractor's organisation is adequate in order to conduct the Corrective Maintenance. The work forming part of the contract will be performed within the Client's normal office hours, i.e. on Working Days from 07.30 am to 6.00 pm.3
Response times and on-call duty
Any malfunctions of Installations should be corrected in a timely and adequate manner under this Agreement. They are deemed to have been solved if adequate emergency measures have been taken, so as not to hinder the business operations of the [•] (name of Client).
The response time applies to reports of complaints and malfunctions and shows the maximum duration for each malfunction from the moment of detection.
- Priority 1: urgent malfunctions and calamities directly disrupting the business operations of the primary process. In these cases, the Contractor must contact [•] (name of Client) within 0.5 hour (as indicated under 1.4) and start the Work at the location within 3 hours and perform this work without interruption until the Work is complete.
- Priority 2: regular complaints and malfunctions constituting a disruption of the primary process. This Work must start within office hours 4 hours after the report and be completed within 5 calendar days.4
Availability and reports of Malfunctions
The Contractor can be contacted at all times by telephone via a central control room for urgent malfunctions and calamities and ensures that they are responded to and handled within the set response times.
The Contractor can be contacted in various ways in case of malfunctions and calamities:
Telephone number: [•]
Listing and condition assessment
The Installations or Installation components to be maintained are stated under paragraph 1.2, the NL-SFB classification system being applicable. A specified overview of the Installations to be maintained has been included in this Annex 1 under Appendix [•].
The following details are listed per Installation and main components:
1. kind, location and code, brand and type;
2. capacities per installation, year of manufacture/revision;
3. condition assessment.
Re 4. The condition assessment includes the checking of 2 parameters of the installation, namely:
- I/O score.
The condition assessment is based on a 6-point scale, condition 1 being the best condition, and condition 6 being the worst. A more detailed explanation of these parameters and the condition assessment method used can be found in Appendix [•] and NEN 2767. An explanation of maintenance work has also been included.
For the purpose of the assessment of the 'state of repair' and 'operational reliability', according to 3.3 and 3.5 respectively of this Output Specification, Annex [•] includes overviews for the interpretation of the concept of 'Installations' during the assessment according to Chapter 3.
The Contractor will, during the term of the Agreement, keep the Installations at least in condition 3 as described in NEN 2767.
The Client wants to keep the Installations at least in condition 3 throughout the term of the Agreement. During the first two years, this will be condition 1. Up to 6 years, this will be condition 2.6
Preventive and Functional Maintenance All costs for Preventive and Functional Maintenance (including hours, materials/parts and tools) are settled according to the performance agreements laid down in this Output Specification at a fixed annual Management and Maintenance Fee.
Repairs of any Malfunctions will be fully paid by the Contractor. However, this does not apply if these malfunctions were caused by improper use or Wilful Damage, by the Client or the Client's staff or visitors.
Any malfunctions caused by parts of the Installation which have not been installed by the Contractor and which work has not been described in this contract will be settled on the basis of actual hours and use of materials. The warranty period for the work and/or services performed and relating to this malfunction is 24 months. The warranty period for the installation components which have been replaced in order to repair this malfunction is in accordance with the product warranty/warranties given by the manufacturer/supplier, with a minimum of 48 months.
The Contractor guarantees that spare parts are available in time, in accordance with the obligations arising from this description of the work and response times referred to.
Alle kosten voor de geleverde energiediensten in de Gebouwen (inclusief uren, materialen/onderdelen en hulpmiddelen) worden volgens de in hoofdstuk 4 van de Outputspecificatie vastgelegde prestatieafspraken tegen een vaste jaarlijkse Vergoeding energieprestatie verrekend.
2Consultation and reports1
Consultation / contacts
The Contractor provides the Client with the following contacts:
- The Project Leader, who is a regular contact for the Client at the location(s). All progress meetings, reports and applications for additional work will go through this officer or, should he be absent, through his substitute. The Project Leader will ensure and is responsible for a full execution of the Agreement, including compliance with all performance requirements.
- The Account Manager, who is responsible for the Agreement and the monitoring thereof.
The Contractor participates in the following consultation structures:
1. Progress consultations and discussion of monthly reports (once per quarter per location).
- The Contractor's Project Leader or a person designated by the Contractor.
- Technical coordinator or persons designated by him.
2. Performance measurement consultation (once a year).
- DThe Contractor's Account Manager and Project Leader.
- The person designated by the Client
- (Independent adviser).
3. Contract consultation (once a year).
- The Contractor's Account Manager and Project Leader.
- The person designated by the Client
During the consultations referred to under 3, the Client may, in consultation with the Contractor, discuss any revisions to the Agreement, following experiences gained during the past Contract Year. This may result in adjustments. However, the changes are no financial changes.
Reports of meetings as referred to under points 1, 2 and 3 of paragraph 2.1 are drawn up by the Contractor and must be approved by the Client. Meeting reports are provided no later than two weeks after the relevant meeting.3
The Contractor will, within the context of the meetings, provide the following regular reports on paper and in electronic form (MS Office), a proposal for the layout being submitted to the Client (unless otherwise stated):
- Report on the condition of the Installations;
- Energy report;
- Schedule of dates for Preventive Maintenance;
- Complaints and malfunctions and response times for performance measurement purposes;
- Plans for the improvement of own performance and recommendations to the Client;
- Long-Term Maintenance Planning for the purpose of Replacement Maintenance;
- Annual safety, health and environmental report and safety, health and environmental plan.
Long-Term Maintenance Planning
The Contractor will clarify the maintenance work in a Long-Term Maintenance Planning. The Client will then have taken note of any work to be performed on the Installations. The Client can inform its staff on any nuisance caused.5
Safety, health and environmental plan and report
The [•] [state the period, depending on the scope of the Work] safety, health and environmental plan for the work will at least include:
- A risk inventory and evaluation and an action plan for the safety, health and environmental measures to be taken, facilities, cooperation and consultation and method of monitoring the plan;
- A report of the safety, health and environmental measures taken, facilities, cooperation and consultation, as well as any absence and the causes of absence over the past year.
The Contractor's risk inventory should at least meet the requirements of the H&S plan included in the Agreement under Annex [•].
3Assessment of performance management and maintenance3
The general principle of the assessment is:
good - fully complies with the standard
acceptable - does not comply with the standard on some points, be it to a limited degree
mediocre - does not comply with the standard on several points, be it to a limited degree
poor - does not comply with the standard on many points, be it to a limited degree or does not comply with the standard on some points to a large degree
The Contractor is assessed on the basis of the following performance indicators:
- 3.1 User satisfaction
This aspect covers the degree of satisfaction of users of the Buildings with the indoor climate and the quality of the services provided by the Contractor and is measured once a year on the basis of short surveys among users and facility managers.
- 3.2 Comfort
This includes the standard values for indoor climate and the maximum permissible deviations from these standards.
- 3.3 State of repair
This covers maintaining the desired state (condition level) of repair of the Buildings and installations to be maintained.
-3.4 Handling of work plan
Following a predesignated work plan for maintenance of the Installations.
- 3.5 Operational reliability
This shows the maximum number of malfunctions per installation during operating hours.
- 3.6 Response time
This shows the maximum duration per malfunction from the moment of detection.
- 3.7 General impression of the Contractor
This shows the total impression of the Work performed by the Contractor.
Registration of assessment criteria - total
Once a quarter, consultations are held between the Client and the Contractor on the performance and there will be a test. The maximum score applies to criteria which cannot be measured at that time. A form with a total score, based on which a penalty or sanction is determined, has been developed for the purpose of the assessment. The assessment is conducted for each location.4
In case of a mediocre or poor performance by the Contractor, the Client will deduct a maximum discount of [•]% of the fixed contract price per quarter from the payment in respect of the relevant location, according to table [•] ('Registration of assessment criteria and sanctions'). A total score of [•] points and less will be a reason for the Client to deduct such penalty.
During the consultation, the Contractor will, for the 'poor' and 'mediocre' parts, state the causes that resulted in this score, the measures to be taken and when.
The following only applies to the performance-oriented management and maintenance part .
The following situations shall constitute a Failure:
- if a Total Score of [•] points or a score of 1 point for one part lasts more than one quarter, this will constitute a Failure;
- an overall score of less than [•] points will always constitute a Failure.
A Failure shall grant the right to terminate the Agreement. This will only be possible after the Client has given the Contractor written notice of default and has given the Contractor a reasonable period to comply with its obligations
4Energy Performance Review1
Berekenwijze Vergoeding energieprestatie
The Client will pay the Contractor an annual Energy Performance Fee for the energy services provided in the Buildings. The Energy Performance Fee is based on the average energy consumption per year in the Buildings, broken down into Gas Baseline, Electricity Baseline and Heat Baseline. These Baseline values are set once at the start of the Agreement and are laid down in Annex [•].
The Energy Performance Fee is the sum of:
[Gas Baseline] x [price 20[•] (year)/m3 of gas]
[Electricity Baseline] x [price 20[•] (year)/kWh of electricity]
[Heat Baseline] x [price 20[•] (year)/GJ of heat]
he Energy Performance Fee is indexed each year in accordance with Article 9 of the General Terms and Conditions.
The Client will pay the Contractor an annual Energy Performance Fee for the energy services provided in the Buildings. The Energy Performance Fee is based on the Energy Baseline of the Buildings and a guaranteed energy reduction. The Energy Baseline is determined on the basis of historical consumption data and measurements in the Buildings and is broken down into Gas Baseline, Electricity Baseline and Heat Baseline. The guaranteed energy reduction is determined once on the basis of an Energy Performance Advice for Non-Residential Buildings [EPA-Utiliteitsbouw] and additional calculations. The Energy Baseline and the guaranteed energy reduction are laid down in Appendix [•].
The Energy Performance Fee is the sum of:
[Gas Baseline] x [price 20[•] (year)/m3 of gas] x [[•]% reduction in Gas Baseline]
[Electricity Baseline] x [price 20[•] (year)/kWh of electricity] x [[•]% reduction in Electricity Baseline]
[Heat Baseline] x [price 20[•] (year)/GJ of heat] x [[•]% reduction in Heat Baseline]
The Energy Performance Fee is indexed each year in accordance with Article 9.2
Calculation method for Energy Performance bonus/penalty
By maintaining, managing and monitoring the Buildings and the Installations, the Contractor can influence the Energy Performance to be delivered. The Energy Performance to be delivered by the Contractor is separated from the performance for maintenance and management. The Energy Performance bonus/penalty scheme is therefore not calculated on the Management and Maintenance Fee, but on the difference between the Energy Costs Achieved and the Energy Performance Fee.
Every month, the Contractor measures and reports the Energy Performance Line of the Buildings, broken down into gas (m3), electricity (kWh) and heat (GJ). The reports form the basis for determining the bonus/penalty on the Energy Performance and combines 12 reports into one annual report at the end of each financial year. The Contractor corrects the annual Energy Performance Line for changing Production Factors or Influencing Factors according to the IPMVP international standard for Monitoring and Verification and NEN 5060 (Reference with Outdoor Climate).
The Energy Costs Achieved during a certain year are the sum of:
[Gas Performance Line in m3] x [price 20[•] (year)/m3 of gas]
[Electricity Performance Line in kWh] x [price 20[•] (year)/kWh of electricity]
[Heat Performance Line in GJ] x [price 20[•] (year)/GJ of heat]
The Energy Costs Achieved are indexed each year in accordance with Article 9.
In case of any doubts about the correctness of the Energy Costs Achieved, an independent third party will assess the underlying documents, correction calculations etc. in accordance with Article 12 of the General Terms and Conditions.
Energy Performance bonus/penalty calculation
If, measured during one year, the difference between the Energy Performance Fee and the Energy Costs Achieved > 0, the bonus for the Contractor will be 50% of this difference.
If, measured during one year, the difference between the Energy Performance Fee and the Energy Costs Achieved < 0, the penalty for the Contractor will be 100% of this difference.
By maintaining, managing and monitoring the Buildings and the Installations, the Contractor can influence the Energy Performance to be delivered. The Energy Performance to be delivered by the Contractor is separated from the performance for management and maintenance. The Energy Performance bonus/penalty scheme is therefore not calculated on the Management and Maintenance Fee, but on the difference between the Energy Costs Achieved and the Energy Performance Fee.
Every month, the Contractor measures and reports the Energy Performance Line in the Buildings, broken down into gas (m3), electricity (kWh) and heat (GJ). The reports form the basis for determining the bonus/penalty on the Energy Performance and combines the 12 reports into one annual report at the end of each financial year. The Contractor corrects the annual Energy Performance Line for changing Production Factors or Influencing Factors according to the IPMVP international standard for Monitoring and Verification and NEN 5060 (Reference with Outdoor Climate).
The Energy Costs Achieved are the sum of:
([Gas Baseline gas] - [Gas Performance Line in m3]) x [price 20[•] (year)/m3 of gas]
([Electricity Baseline in kWh] - [Electricity Performance Line in kWh]) x [price 20[•] (year)]/kWh of electricity]
([Heat Baseline in GJ] - [Heat Performance Line in GJ]) x [price 20[•] (year)/GJ of heat]
The Energy Costs Achieved are indexed each year in accordance with Article 9.
In case of any doubts about the correctness of the Energy Costs Achieved, an independent third party will assess the underlying documents, correction calculations etc. in accordance with Article 12.
Energy Performance bonus/penalty calculation:
If, measured during one year, the difference between the Energy Performance Fee and the Energy Costs Achieved > 0, the bonus for the Contractor will be 50% of this difference.
If, measured during one year, the difference between the Energy Performance Fee and the Energy Costs Achieved < 0, the penalty for the Contractor will be 100% of this difference.3
Additional energy-saving measures
The additional energy-saving measures will result in a Baseline improvement. The Contractor will receive no more than [•]% of the difference between the original Baseline and the new Baseline. This will apply throughout the remaining contract term.
The Contractor and the Client will consult each other on determining the new Baseline.
Annex [•] describes additional energy-saving measures including calculations.
Any measures to improve the energy performance of the Buildings may not affect the use and functionalities of the Buildings.Back to top
Dit Document is samengesteld op basis van de Menukaart Prestatiecontracten, welke is ontwikkeld in opdracht van en in samenwerking met het Platform Duurzame Huisvesting, AT Osborne en AHB Consultancy (de “Partijen”).
Dit Document wordt aangeboden op een “As Is” basis. De Partijen sluiten uitdrukkelijk alle garanties uit, inclusief maar niet uitsluitend de garanties dat:
- de aangeboden inhoud commercieel toe te passen is;
- de informatie bruikbaar is voor specifieke doeleinden;
- dat de informatie geen inbreuk maakt op intellectuele eigendomsrechten van derden.
De Partijen aanvaarden geen verantwoordelijkheid of aansprakelijkheid voor enige schade, letsel, of aanspraken van derden voortvloeiend uit of gerelateerd aan:
- verschrijvingen, fouten en/of omissies van dit Document of de inhoud daarvan, inclusief technische onjuistheden en typefouten;
- de inhoud van websites van derden die middels links, geplaatst in dit Document bereikbaar zijn;
- uw gebruik van dit Document.
In geen geval zijn de Partijen aansprakelijk voor directe, indirecte, speciale, incidentele of gevolgschade voortkomend uit enig gebruik van de informatie vermeld in dit Document, inclusief doch niet uitsluitend de aansprakelijkheid voor gederfde winst, verlies van data of enig ander gevolg.
U stemt er bij voorbaat mee in om de Partijen te vrijwaren tegen alle claims, schade en kosten, inclusief de kosten van juridische bijstand, voortkomend uit uw gebruik van dit Document.
Tenzij anders aangegeven zijn de afbeeldingen, de grafische vormgeving, de buttons en de tekst weergegeven in dit Document het exclusieve eigendom van de Partijen. Behoudens voor huiselijk en/of persoonlijk gebruik mogen deze zaken niet worden gekopieerd, verspreid, weergegeven, gereproduceerd of verzonden, in welke vorm en op welke wijze dan ook middels elektronische of mechanische wijze zonder de voorafgaande schriftelijke goedkeuring van de Partijen.
De Menukaart Prestatiecontacten is gebaseerd op Nederlands recht.
2. Graph and definitionsDownload the infosheet
The Energy Baseline and the Energy Performance Line (year) must be determined under unchanged conditions. For this,
they must be standardised for changing influencing factors.
For factors influencing energy consumption, a distinction should be made between:
(1) Production Factors which are related to the primary business process and have been set by the Client.
(2) Influencing Factors (e.g. outdoor climate).
Basic principles for the Base period:
The circumstances under which the Energy Baseline is determined will be laid down in a contract:
- occupancy density of workplace per FTE
- occupancy rate
- operating times
- energy-intensive processes
- Reference with outdoor climate (NEN 5060)
Compensation of the Energy Performance Line If, during the term of the Agreement, any changes are reported or identified in respect of the Production Factors (more m2 of leased area, more FTE per m2 (new working), higher occupancy rate, longer operating times), the Energy Performance Line must be compensated for this.
NB: the Performance Contracts Menu does not include a correction formula for this.
3. Determining performance criteria for existing buildingsDownload the infosheet
Uitgangspunt van dit prestatiecontract is dat er een nul-meting of een conditiemeting heeft plaatsgevonden op grond van NEN 2767.
NB: Absolute performance criteria must be set for drawing up a performance contract for sustainable management and maintenance of existing buildings. These criteria depend, among other things, on the building specification and conditions, desired quality and current use. After the core document (see below) and the 0-status of the building (retro-commissioning process) have been determined, it will be possible to determine a minimum quality to be maintained.
Core document (ISSO Publication 105):
The core document is an important document for a sustainable management and maintenance of buildings and can be regarded as a building manual, setting out all important information about basic principles, functioning and possibilities of the climate system, also for non-technicians.
ISSO Publication 105 describes how to set up a core document of a building that is managed and maintained in a sustainable manner. It summarises the basic principles and core specifications of the building technique. The expert supervising the step-by-step plan according to ISSO Publication 104 will usually offer support in drawing up a core document. A core document can be drawn up for every building, even if no Sustainable Management and Maintenance are conducted there, but it requires additional attention when collecting and selecting the necessary data.
4. ISSO publication series 100-107: Sustainable Management and Maintenance of buildingsDownload the infosheet
The ISSO Sustainable Management and Maintenance publication series describes the method used to improve the management and maintenance of buildings. The method has been developed on the basis of results from various surveys and has been tested during a large number of pilot projects. The surveys and tests were conducted on buildings owned by various large property organisations.
Sustainable Management and Maintenance of buildings primarily focuses on the management and maintenance of climate systems in buildings. The reason why Sustainable Management and Maintenance focuses on climate systems is that research (TNO and Halmos, 2005) has shown that in more than 70% of buildings in the Netherlands, climate systems do not work as intended. The causes of complaints about the indoor climate are the most difficult to demonstrate. The research also shows that 90% of complaints from users about the indoor climate are related to climate systems. Moreover, energy consumption of climate systems often proves to be higher than necessary.
As a result of these findings, more practical research into the background of this was conducted for a large number of buildings and clients, followed by recommendations for improvement. The nature and cause of the findings appear to be highly diverse. These could be problems of an organisational nature, but also functional defects of a technical origin. Moreover, many managers feel that they have no 'grip' on the (indoor environment) performance of the buildings.
ISSO Publication 100 Sustainable Management and Maintenance of buildings This publication outlines the following situation: buildings often do not function properly and consume more energy than necessary. This is illustrated with practical examples that appeal to the target group, users and organisations occupying these buildings. It describes the main features of the approach according to Sustainable Management and Maintenance, explaining and substantiating the performance improvements for People, Profit & Planet.
ISSO Publication 101 Maintenance and maintenance contracts Publication 101 was drawn up in order to improve communication between the various parties during maintenance and management. It serves as a practical guideline and makes use of other, existing, standardising documents. The publication comprises two parts. On the one hand, it discusses the various maintenance contract forms. On the other hand, it gives a list of terms and definitions used. Publication 101 goes deeper into the process of Sustainable Management and Maintenance in order to clarify the need for maintenance and to arrive at a maintenance contract. Publication 101 does not limit itself to Sustainable Management and Maintenance, but applies to all building-specific installations.
ISSO Publication 102 Performance Indicators for Sustainable Management and Maintenance Clear performance indicators or demand specifications are essential in order to allow for performance contracts for management and maintenance of buildings. The basic ingredient of these performance contracts are the key performance indicators (KPI) on which parties make mutual agreements. With these performance indicators, the performance achieved in the areas of health, comfort and energy efficiency can be determined in a clear manner. Publication 102 describes these performance indicators and how to implement them in practical manner.
ISSO Publication 103 Monitoring Sustainable Management and Maintenance This publication describes a method for monitoring the performance of the indoor environment and energy efficiency in buildings. It includes monitoring the functioning of the installations by means of effective installation monitoring, monitoring data management and periodically measuring satisfaction with the indoor environment experienced. During the measurement and monitoring, account should be taken of whom (which organizational layer) the information is meant for.
ISSO Publication 104 Step-by-step plan for Sustainable Management and Maintenance This publication is meant as a step-by-step plan for analysing and improving the current situation. For many facilities managers, this publication is the instrument for conducting checks and determining the state of affairs as far as Sustainable Management and Maintenance in their building are concerned. This step-by-step plan describes a structured process for properly functioning installations, effective sustainable management and good comfort experienced by users. In other words: regaining control of the indoor environment and guaranteeing an optimal energy efficiency.
ISSO Publication 105 Core Document on building technique This publication gives guidelines for drawing up a core document. A 'core document' is understood to be: A document which can be regarded as a 'building manual' and which clearly sets out all important information about basic principles, functioning and possibilities of the climate system, also for non-technicians. The core document is an important document for a Sustainably Managed and Maintained building. This publication described the parts to be included and for whom and provides a guide for the structure of the document.
ISSO Publication 106 Functional inspection method for Sustainable Management and Maintenance ISSO Publication 106 describes the method of functional inspection of existing buildings according to the Quick Scan method. ISSO Publication 106 provides advisers/inspectors trained for Sustainable Management and Maintenance with a guide for carrying out the inspection. This inspection method fits in with a Retro-commissioning process.
ISSO Publication 107 Completion procedure for climate systems A completion procedure has to be implemented before a building and installation are completed in case of a new building or renovation. This completion procedure demonstrates that the building and the installation meet the performance agreed with the client. ISSO Publication 107 describes the minimum required tests, revision and documentation for the completion of a climate system in order to guarantee this performance. For this purpose, procedures and methods are described or designated in this publication, referring to the applicable guidelines and ISSO publications.
Coming from ISSO Publication 103:
KSF Key success factor
PI Procedure (performance indicator for process)
PI Performance (performance indicator for product or situation)
Policy & organisation
Design of policy and organisation
Availability of means for implementing policy
Procedure for expertise
Concept of facilities management of core specifications of building and use
Procedure for control of documentation
Core document for building technique (according to ISSO Publication 105)
Quality of available data
Communication with organisation(s)
Communication with users
Procedure for recording performance requirements and user flexibility
Knowledge of support for performance requirements
Quality of indoor environment
Building-specific health complaints
Operation and conduct
Procedure for recording operating instructions and code of conduct
Operation by users
Procedure for monitoring technical functioning
Registration of functioning of technical installations
Inspection of functioning of technical installations
Maintenance procedure and long-term maintenance plan
Handling of malfunctions
Procedure for handling malfunctions
Registration of malfunctions
Procedure for energy registration
Registration of energy consumers
5. NEN 2767Download the infosheet
NEN 2767 beschrijft het meten van de onderhoudsstaat van gebouwen en de onderdelen waar gebouwen uit bestaan. De NEN 2767 beoogt een objectieve meetmethode te zijn voor het bepalen van de onderhoudsstaat van gebouwen. Gebouwen bestaan, voor wat betreft de conditiemeting uit de volgende onderdelen:
- installatie technische;
- transporttechnische (als bijzonder onderdeel van de elektrische installaties);
De conditiemeting heeft bepaalde voordelen maar ook nadelen. Grootste voordeel is dat door de objectieve meting de resultaten betrouwbaarder en bruikbaarder zijn. Een nadeel is dat de meting meer vaardigheden en meer discipline (en nauwkeurigheid) vereist van de inspecteur die de meting verricht, hetgeen de inspectie in aanvang duurder maakt. Op den duur verdient de betere werkwijze zich terug.
De NEN 2767 bestaat uit de volgende onderdelen:
- NEN 2767-1: Conditiemeting van bouw- en installatiedelen - Deel 1: Methodiek
- NEN 2767-2: Conditiemeting van bouw- en installatiedelen - Deel 2: Gebrekenlijsten
- NEN 2767-3: Conditiemeting van bouw- en installatiedelen - Deel 3: Aggregatie conditiescores tot Technische Index
- NEN 2767-4: Conditiemeting van Infrastructuur.
De NEN 2767 of de conditiemeting wordt toegepast door gecertificeerde inspecteurs van adviesbureaus die het onderhoud aan gebouwen bepalen.
De conditiemeting wordt gehanteerd in de sectoren:
woningbouw (in een lichtere versie gezien de beperkte omvang van de particuliere of sociale woning).
De NEN 2767 maakt integraal onderdeel uit van de inspectiesystematiek RgdBOEI® van de Rgd.
Bron: Wikipedia geraadpleegd 28 februari 2014
6. Tips for working with performance contracts
- Make sure that the baseline measurement is good and clear at the start of the agreement and is signed by all parties.
- Challenge the contractor to come up with innovative measures. For example the use of innovative techniques creating technical links between cooling and heating.
- Do business with parties who make proposals and recommendations and think beyond the traditional, effort-oriented approach to maintenance.
- Use the 20/80 rule when drawing up your performance contract. Realise and state that it cannot be 100% sound and perfect.
- Make sure that the contract can be adjusted to changing circumstances. For example changed opening hours of the building or changed reference consumption of energy.
- Agree with the contractor on what to do if things are really not working out: agreements on dispute resolution as well as on possible termination.
- It is not possible to define everything in a contract; there are always issues that remain unknown. For these situations, however, procedural agreements can be made on how to handle such situations. They state the step-by-step plan, how to deal with measurements and what is to be done with the results.
- A complaints registration - and a careful complaints handling - is also in the interest of the satisfaction among building users. For a careful complaints handling, it is important to make a distinction between climate complaints and malfunctions.
- Have the condition assessment (measurement of the technical condition) of the installations performed by the same independent party each time.
- Rely on the contractor's expertise; have this party make statements on the possibilities of the building in terms of energy consumption and maintenance costs
- In case of a renovation or new building, a DBFMO approach will facilitate the making of performance agreements. It is important to work with an integrated building team represented by all parties from day 1.
- Pay sufficient attention to the scope of the contract. In doing so, you should exclude any risks of additional work.
- Make sure that the measurement to be performed and the measurement method to be used are clear and agreed upon in advance.
- Have the energy performance guaranteed by the contractor tested by a third party.
- Do not manage the contract based on input but on output of maintenance processes.
- Only start the work after all contracts and underlying documents have been signed.