PERFORMANCE CONTRACTING AGREEMENT
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Smart Infrastructure PCA-100 PUBLIC NY custom version 2019v2
Deliverables shall mean collectively, (a) any Equipment and any Software Product deliverable to CLIENT from SIEMENS
under or in connection with the Work, and (b) any Work Product Deliverables.
Effective Contract Date is the date appearing at the top of this Agreement, unless specifically indicated otherwise.
Energy Conservation Measure or ECM means the SIEMENS Products and/or other third-party equipment, devices,
materials and/or software as installed by SIEMENS at the Facilities, or as repaired or replaced by SIEMENS or the CLIENT
hereunder, for the purpose of improving the efficiency of utility consumption.
Environmental Laws means applicable national, state/commonwealth, municipal, and local laws as well as all rules,
regulations, codes, standards, permits, directives, or ordinances that impose liability or standards of conduct (including
disclosure or notification requirements) concerning the protection of human health or the environment, including, without
limitation, all laws affecting, controlling, limiting, regulating, pertaining, or relating to the manufacture, possession, presence,
use, generation, storage, transportation, detection, monitoring, treatment, Release, disposal, abatement, cleanup, removal,
remediation, or handling of Hazardous Materials.
Equipment means the installed physical equipment to be provided by SIEMENS as described in the Scope of Work and
Services, Exhibit A.
Escalation Rate means an annual percentage increase to be applied to the previous Annual Period’s energy savings,
operational savings and service pricing, beginning and occurring on dates outlined in the Performance Assurance, Exhibit C.
A different Escalation Rate may be applied to differing Savings calculations and/or payment schedules depending on the
percentage agreed upon by the Parties.
Facility or Facilities means the building(s) or structure(s) where Work will be installed or implemented.
Facility Improvement Measures or FIMs means the (i) Instruments, know-how and Intellectual Property, including but not
limited to methods and techniques for energy conservation, owned or licensed by SIEMENS and employed by SIEMENS to
perform the Work and Services under this Agreement; and, (ii) the installation of Equipment and Software Products with the
intent of generating net savings or efficiencies at or in connection with the operation of the Facilities. A FIM may include one
or multiple ECMs as well as any non-conservation-related activities, means or methods.
FEMP means the Federal Energy Management Program managed by the United States Department of Energy.
FEMP Guidelines means the FEMP M&V Guidelines v. 3.0 published by FEMP as M&V Guidelines; Measurement and
Verification for Federal Energy Management Projects.
Governmental Authority means any federal, state/commonwealth, local or other governmental, judicial, public or statutory
instrumentality, tribunal, agency, authority, body or entity, or any political subdivision thereof, having legal jurisdiction over
the matter or Person in question.
Guarantee Date means the first day of the month following the date on which the CLIENT executes, or is deemed to have
executed, the Certificate of Final Completion.
Guaranteed Annual Savings are the Guaranteed Measured & Verified Savings plus the Stipulated Savings that SIEMENS
guarantees will be achieved in an Annual Period of the Performance Guarantee Period.
Guaranteed Measured & Verified Savings means the Measured & Verified Savings that SIEMENS guarantees will be
achieved, as described in the Performance Assurance, Exhibit C.
Guaranteed Savings means the amount of Savings that SIEMENS guarantees will be achieved at the Facility during the
Performance Guarantee Period. as identified in the Performance Assurance, Exhibit C as subject to the limitation identified in
Hazardous Materials means any material, substance, or waste, that, by reason of its composition or characteristics, is
hazardous to human health and/or the environment, including any “solid waste” or “hazardous waste,” as those terms are
defined by the Resource Conservation and Recovery Act of 1976, as amended, any “hazardous substance,” as that term is
defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and any
other hazardous, toxic or radioactive chemical, waste, byproduct, pollutant, contaminant, compound, product, material or
substance, including without limitation, Asbestos, Asbestos containing materials (“ACM”), polychlorinated biphenyls,
petroleum (including crude oil or any fraction or byproduct thereof), hydrocarbons, radon, urea, urea formaldehyde, and any
other material that is prohibited, controlled, limited or regulated in any manner under any Environmental Laws..
Instruments means all know-how, tools and related documentation owned or licensed by SIEMENS and used by SIEMENS
to install or commission Equipment and Software Products for operation at the Facility, including but not limited to tools for
installing any Software Products in Equipment, performing diagnostics on Equipment as installed in the Facility as well as