18.6  Defects and Asbestos

18.6.1 Defects98

[The Contractor accepts, in relation to the Buildings other than the New Buildings, entire responsibility (including any financial and other consequences which result whether directly or indirectly) for:

(a)  any Defects identified in the Buildings Survey99 ; and

(b)  any Defects that ought reasonably to have been discovered or that could otherwise have been reasonably expected to have been identified or found in the Buildings Survey, given the scope of such Buildings Survey [as agreed between the Contractor and the Authority]; and

(c)  any Defects caused by the Contractor100

provided that where the Contractor is, in the reasonable opinion of the Authority, diligently pursuing the party who is responsible for the Buildings Survey, then any delay to the Services Availability Date caused by a Defect shall be treated as a Relief Event, subject to and in accordance with clause 58.

18.6.2  The Authority accepts, in relation to the Buildings other than the New Buildings, entire responsibility for Defects which have not been identified in the Buildings Survey (other than those referred to in clause 18.6.1(b) or which have been caused by the Contractor) and the discovery of any such Defects shall:

(a)  prior to the Services Availability Date for a Station constitute a Compensation Event subject to and in accordance with clause 16.

(b)  after the Services Availability Date for a Station be deemed to be a Relief Event and no Deductions may be made in respect of the relevant Area pursuant to Schedule 6 (Payment Mechanism) for a reasonable period (to be agreed between the parties acting reasonably) and any work or change to the Services required or instructed to be done in consequence of it, shall constitute an Authority Change.

18.6.3  For the avoidance of doubt, the Contractor accepts, in relation to the New Buildings, entire responsibility (including any financial and other consequences which result whether directly or indirectly) for any Defects.

18.6.4  Asbestos Liability101

The Contractor accepts, in relation to the Buildings other than the New Buildings, entire responsibility (including any financial and other consequences which result whether directly or indirectly) for:

18.6.4.1  any asbestos identified in the Asbestos Survey102; and

18.6.4.2  any asbestos liability that ought reasonably to have been discovered or that could otherwise have been reasonably expected to have been identified or found in the Asbestos Survey given the scope of such Asbestos Survey [as agreed between the Authority and the Contractor]103;

provided that where the Contractor is, in the reasonable opinion of the Authority, diligently pursuing the party who is responsible for the Asbestos Survey, then any delay to the Services Availability Date caused by such asbestos shall be treated as a Relief Event, subject to and in accordance with clause 58.

18.6.5  The Authority accepts, in relation to the Buildings other than the New Buildings, entire responsibility for asbestos which has not been identified in the Asbestos Survey (other than any asbestos liability referred to in clause 18.7.4.2) and the discovery of any such asbestos shall:

(a)  prior to the Services Availability Date for a Station constitute a Compensation Event subject to and in accordance with clause 16.

(b)  After the Services Availability Date for a Station be deemed to be a Relief Event and no Deductions may be made in respect of the relevant Area for a reasonable period (to be agreed between the parties acting reasonably) and any work or change to the Services required or instructed to be done in consequence of it, shall constitute an Authority Change.

18.6.6  For the avoidance of doubt, the Contractor accepts, in relation to the New Buildings, entire responsibility (including any financial and other consequences which result whether directly or indirectly) for any asbestos.

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98 This clause will only be appropriate where buildings are being refurbished.

99 The Authority may identify in the ISDS how it has interpreted the survey results in relation to parts of the Buildings and how they may apply across the remainder of the Buildings forming part of the Project. Alternatively, it may require the Contractor to assume an agreed scope of remediation works given the results of the survey.

100 This is included as the term Defect implies Defects which are already present (i.e. latent defects) but this is not explicit.  Obviously, the Contractor should not be able to claim a Compensation Event where it has caused the Defect.

101 This clause will only be appropriate where buildings are being demolished and/or refurbished.

102 As for defects, the Authority may identify in the ISDS how it has interpreted the survey results in relation to parts of the Buildings and how they may apply across the remainder of the Buildings forming part of the Project. Alternatively, it may require the Contractor to assume an agreed scope of remediation works given the results of the survey.  See the Guidance for further comment in relation to Level 2 and Level 3 Asbestos surveys.

103 Wording in square brackets may be appropriate where the surveys have not been carried out.