23.2  Surveys

(a)  If the Authority reasonably believes that the Contractor is in breach of its obligations under clause 23.1 (Maintenance) then it may carry out or procure the carrying out of a survey of the [Facility/Facilities] to assess whether the [Facility has/Facilities have] been and [is/are] being maintained by the Contractor in accordance with its obligations under clause 23.1 (Maintenance).  This right may not be exercised more than once every two (2) years.  

(b)  The Authority shall notify the Contractor in writing a minimum of ten (10) Business Days in advance of the date it wishes to carry out the survey. The Authority shall consider in good faith any reasonable request by the Contractor for the survey to be carried out on a different date if such request is made at least five (5) Business Days prior to the notified date and the Contractor (acting reasonably) is able to demonstrate that carrying out the survey on the notified date would materially prejudice the Contractor's ability to provide the Services.

(c)  When carrying out any survey, the Authority shall use reasonable endeavours to minimise any disruption caused to the provision of the Services by the Contractor. The cost of the survey, except where clause 23.2.4 (Surveys) applies, shall be borne by the Authority. The Contractor shall give the Authority (free of charge) any reasonable assistance required by the Authority from time to time during the carrying out of any survey.

(d)  If a survey shows that the Contractor has not complied or is not complying with its obligations under clause 23.1 (Maintenance), the Authority shall:

(i)  notify the Contractor of the standard that the condition of the [Facility/Facilities] should be in to comply with its obligations under clause 23.1 (Maintenance) and this Agreement generally;

(ii)  specify a reasonable period within which the Contractor must carry out such rectification and/or maintenance work; and

(iii)  be entitled to be reimbursed by the Contractor for the cost of the survey and any administrative costs incurred by the Authority in relation to the survey [other than where the costs of the rectification and/or maintenance work are less than the costs of the survey in which case the cost of the survey shall be shared equally between the Authority and the Contractor].118

(e)  The Contractor shall carry out such rectification and/or maintenance work within the period specified by the Authority and any costs it incurs in carrying out such rectification and/or maintenance work shall be at its own expense.

(f)  In the event of any failure by the Contractor to comply with clause 23.2.5 (Surveys) or if the Authority is or becomes aware of a breach by the Contractor of its obligations under clause 23.2.5 (Surveys) then the Authority shall be entitled to exercise its right of access and remedy such breach in accordance with Good Industry Practice and shall be entitled to recover any costs or expenses incurred in so doing from the Contractor as a debt.

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118  The Authority may, in some circumstances, agree to share the cost of any survey where the costs of rectification and/or maintenance work are less than the costs of the survey in which case the cost of the survey could be shared equally between the Authority and the Contractor.  This may be appropriate for grouped but not single leisure centre projects.