In this Schedule Part 18 (Handback Procedure) and elsewhere in this Agreement (save where Schedule Part 1 (Definitions and Interpretations) provides to the contrary) the following words shall have the following meanings:
means the maintenance works (if any) required to be carried out in respect of the Facilities in order to procure that they will, on the Expiry Date, satisfy the Handback Requirements; | |
means the programme for carrying out the Handback Works over the remainder of the Project Term describing the total works to be carried out and the method of carrying out such works during the overall period in which the Handback Works are to be executed; | |
means the estimated cost of carrying out the Handback Works. |
2 On the Expiry Date, each element of the Facilities shall be in a condition which is:
2.1 consistent with due performance by Project Co of the Service Level Specification and Method Statements; and
2.2 consistent with the Facilities and each of the elements of them having been designed and constructed in accordance with the applicable design life requirements set out in paragraph [ ] of the Authority's Construction Requirements,
together referred to as (the "Handback Requirements").
3 Not less than [ ] prior to the Expiry Date, Project Co and the Authority's Representative shall conduct a joint inspection of the Facilities.
4 Within [ ] Business Days after the completion of the inspection, if it is found that any element of the Facilities is not in a condition consistent with the Handback Requirements, Project Co shall forthwith provide to the Authority's Representative in accordance with Schedule Part 8 (Review Procedure):
4.1 Project Co's proposal as to the Handback Works;
4.2 Project Co's proposal as to the Handback Programme; and
4.3 Project Co's estimate of the cost of the Handback Amount.
5 The Authority's Representative may, within [ ] Business Days after receipt of the details set out in paragraph 4 from Project Co, raise comments in accordance with paragraph 3 of Schedule Part 8 (Review Procedure) on Project Co's proposals and estimate referred to in paragraph 1 above.
6 On agreement, or determination in accordance with Schedule Part 20 (Dispute Resolution Procedure), of the Handback Works, the Handback Programme and/or the Handback Amount (as the case may be), Project Co shall procure that the Handback Works are carried out in accordance with the Handback Programme so as to meet the Handback Requirements. Project Co shall carry out the Handback Works at its own cost notwithstanding that the actual cost of the Handback Works may be higher than the Handback Amount.
7 From the date of the agreement (or determination in accordance with Schedule Part 20 (Dispute Resolution Procedure)) of the matters identified in paragraph 6, the Authority shall be entitled to withhold [ ] % of each subsequent Monthly Service Payment up to the amount of the Handback Amount (the "Withheld Amount") and the provisions of paragraph 11 shall apply. The Authority shall pay such amounts into an interest bearing account in its own name (the "Retention Fund").
8 Project Co may elect by notice in writing to the Authority within 10 Business Days of the agreement (or determination in accordance with Schedule Part 20 (Dispute Resolution Procedure)) of the matters identified in paragraph 6 to procure the provision of a bond (the "Handback Bond") in favour of the Authority (and in a form acceptable to the Authority (acting in its sole discretion)) for an amount equal to the Handback Amount and from a bank or insurance company authorised to carry out business in the United Kingdom, and upon delivery of the same to the Authority, the provisions of paragraph 7 shall not apply.
9 Project Co shall carry out the Handback Works to the satisfaction of the Authority's Representative in accordance with Good Industry Practice and in accordance with the Handback Programme so as to meet the Handback Requirements.
10 Notwithstanding:
10.1 the agreement of the Authority's Representative to any Handback Works, the Handback Programme or the Handback Amount;
10.2 the participation of the Authority's Representative in any inspection under this Schedule; and/or
10.3 the complete or partial carrying out of the Handback Works
Project Co shall not be relieved or absolved from any obligation to conduct any other inspection or to perform any other works in accordance with the Service Level Specification and Method Statement for the [describe relevant facilities service].
11 Where this paragraph 11 applies, if and to the extent that Project Co carries out any material part of the Handback Works in accordance with paragraph 6, Project Co may make a claim for payment for the work carried out. Any such claim shall be accompanied by a certificate by Project Co setting out the works performed and the value of such works. The Authority shall be entitled to require any reasonable further evidence in respect of the valuation of the works. The Authority shall make payment of the amount of a valid claim within [ ] Business Days of the date of the claim and shall be entitled to withdraw that amount from the Retention Fund. If at any time the amount in the Retention Fund is insufficient to cover the costs claimed by Project Co, the Authority shall pay the unpaid portion of such valid claim from any amounts which subsequently stand to the credit of the Retention Fund. In the event that the amount remaining in the Retention Fund on the Expiry Date is insufficient to cover Project Co's costs which have not been paid, Project Co shall bear the balance of such costs itself.
12 Not later than [ ] Business Days before the Expiry Date, Project Co and the Authority's Representative shall conduct a joint inspection of the Facilities. Such inspection shall confirm whether or not the condition of the Facilities is in accordance with paragraph 1 above.
13 On, or within [ ] Business Days after, the Expiry Date, the Authority's Representative shall either:
13.1 issue to Project Co a Handback Certificate and return the Handback Bond or pay any balance standing to the credit of the Retention Fund (as appropriate), to Project Co; or
13.2 notify Project Co of its decision not to issue the Handback Certificate stating the reasons for such decision.
14 Any notice given by the Authority's Representative in accordance with paragraph 13.2 shall set out each respect in which the Handback Works have not been completed or the Facilities do not comply with the Handback Requirements and shall state the Authority's Representative's estimate of the cost of procuring that the Facilities comply in all respects with the Handback Requirements.
15 Project Co may, within [ ] Business Days after receipt of the notice given in accordance with paragraph 13.2 by notice to the Authority's Representative, object to any matter set out in the Authority's Representative's notice. The notice from Project Co shall give details of the grounds of such objection and shall set out Project Co's proposals in respect of such matters.
16 If no agreement is reached between Project Co and the Authority's Representative as to any matter referred to in Project Co's notice given in accordance with paragraph 15 within [ ] Business Days of receipt of that notice by the Authority's Representative, then either Project Co or the Authority's Representative may refer the matter for determination in accordance with Schedule Part 20 (Dispute Resolution Procedure) as to:
16.1 whether the Facilities comply in all respects with the Handback Requirements; and
16.2 the estimated cost of procuring that the Facilities comply in all respects with the Handback Requirements, where the Facilities do not comply in all respects with the Handback Requirements.
17 If it is agreed or determined in accordance with Schedule Part 20 (Dispute Resolution Procedure) that the Facilities did not, at the Expiry Date, comply in all respects with the Handback Requirements, Project Co shall pay to the Authority an amount equal to the estimated cost of completing such Handback Works (less, where applicable, any amounts standing to the credit of the Retention Fund at that time) or procuring that the Facilities comply in all respects with the Handback Requirements. Such payment shall be made not later than [ ] Business Days after the estimated cost has been agreed or determined and, upon such payment being received by the Authority, the Authority's Representative shall issue the Handback Certificate and return (where applicable) the Handback Bond to Project Co.