3  Benchmark Consultant

3.1  Subject to paragraph 2.7.1, of this Part 2 where the Parties are required to  (or otherwise agree) pursuant to paragraph 2 of this Part 2 to appoint a Benchmark Consultant, the Parties shall:

3.1.1  obtain a cost estimate from the prospective Benchmark Consultant prior to the appointment of the same; and

3.1.2  agree the terms of reference for the Income Benchmarking Report which shall be based on those set out in Appendix 1 of this Schedule,

and upon agreement (or, in the event agreement is not reached, determination pursuant to the Dispute Resolution Procedure) the Parties shall jointly appoint the Benchmark Consultant, setting out in such appointment the agreed terms of reference.

3.2  The Benchmark Consultant shall benchmark the Leisure Operator Income on a like for like basis and where no relevant local authority leisure centres are established, the Benchmark Consultant shall complete a desktop exercise supported by actual inputs from the Comparable Market to determine whether any adjustment of the Unitary Charge is required to reflect the anticipated market for the period up to the next Income Benchmarking Date.

3.3  In carrying out his analysis for preparation of the Income Benchmarking Report, the Benchmark Consultant shall:

3.3.1  benchmark with reference to other local authority facilities offering similar services to the Leisure Services in the Comparable Market in the relevant Income Benchmarking Period;

3.3.2  ensure the Leisure Operator Profit is not adjusted as a result of any recommended Adjusted Amount.

3.4  All discussions with the Benchmark Consultant will be attended by a representative from each Party.

3.5  The Authority and the Contractor shall use reasonable endeavours to ensure the Benchmark Consultant complies with its obligations under its appointment and, in particular, to produce the Income Benchmarking Report on the due date under the appointment.

3.6  If the Benchmark Consultant fails to produce an Income Benchmarking Report by the due date without good cause, then either Party may require the Benchmark Consultant to be replaced and the Parties shall reserve the right in the appointment of the Benchmark Consultant to withhold payment of the remaining elements of payment due to the Benchmark Consultant. If the Benchmark Consultant fails to complete on time and he is to be replaced, the Parties shall ensure the Benchmark Consultant agrees to return all the information provided by the Authority and the Contractor and the incomplete Income Benchmarking Report to the Authority and the Contractor.

3.7  In circumstances where a Benchmark Consultant fails to deliver an Income Benchmarking Report with due cause and the Parties reasonably believe that no Benchmark Consultant is likely to produce an adequate Income Benchmarking Report, the provisions of paragraph 4.6 of this Part 2 shall apply.