[Code of Federal Regulations]
[Title 10, Volume 3]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR436.35]

[Page 429]
 
                            TITLE 10--ENERGY
 
                    CHAPTER II--DEPARTMENT OF ENERGY
 
PART 436_FEDERAL ENERGY MANAGEMENT AND PLANNING PROGRAMS--Table of Contents
 
    Subpart B_Methods and Procedures for Energy Savings Performance 
                               Contracting
 
Sec.  436.35  Standard terms and conditions.

    (a) Mandatory requirements. In addition to contractual provisions 
otherwise required by the Act or this subpart, any energy savings 
performance contract shall contain clauses--
    (1) Authorizing modification, replacement, or changes of equipment, 
at no cost to the Federal agency, with the prior approval of the 
contracting officer who shall consider the expected level of performance 
after such modification, replacement or change;
    (2) Providing for the disposition of title to systems and equipment;
    (3) Requiring prior approval by the contracting officer of any 
financing agreements (including lease-acquisitions) and amendments to 
such an agreement entered into after contract award for the purpose of 
financing the acquisition of energy conservation measures;
    (4) Providing for an annual energy audit and identifying who shall 
conduct such an audit, consistent with Sec.  436.37 of this subpart; and
    (5) Providing for a guarantee of energy cost savings to the Federal 
agency, and establishing payment schedules reflecting such guarantee.
    (b) Third party financing. If there is third party financing, then 
an energy savings performance contract may contain a clause:
    (1) Permitting the financing source to perfect a security interest 
in the installed energy conservation measures, subject to and 
subordinate to the rights of the Federal agency; and
    (2) Protecting the interests of a Federal agency and a financing 
source, by authorizing a contracting officer in appropriate 
circumstances to require a contractor who defaults on an energy savings 
performance contract or who does not cure the failure to make timely 
payments, to assign to the financing source, if willing and able, the 
contractor's rights and responsibilities under an energy savings 
performance contract;