18.5.1 An issue related to step-in rights (and at times confused with them) is that of rights of access of the Authority to the facilities.
18.5.2 This right exists in part to give the Authority the ability to monitor performance (see Section 20 (Payment mechanism and Monitoring)) and carry out spot checks, to the extent required by the Contract.
18.5.3 The Authority or a representative of the Authority should have the right to enter upon any property used by the Contractor to perform the Service, to inspect the construction, operation and maintenance of the Project and to monitor compliance by the Contractor with its obligations. Required drafting to deal with this is:
18.5.3 Right of Inspection
The Contractor shall procure that the Authority or any representative or adviser of the Authority (when accompanied by a representative of the Authority) shall have, at all reasonable times and upon giving reasonable notice, the right (but not so as to delay or impede the progress of the Works) to enter onto the Site in order to inspect:
(a) the state and progress of the Works (and to ascertain whether they are being properly executed), and/or
(b) the operation and maintenance of the Project and to monitor compliance by the Contractor with its obligations under this Agreement.
18.5.4 Further, this right should extend to any property used by the Contractor as training or workshop facilities and places where work is being prepared or materials being obtained for the Project. Required drafting to deal with this is:
18.5.4 Inspection of Facilities
(c) The Authority or a representative or adviser of the Authority (when accompanied by a representative of the Authority) may at all reasonable times and on reasonable notice and subject to obtaining the consent of the relevant manufacturer or supplier (which the Contractor shall use all reasonable endeavours to obtain) enter upon any property used by the Contractor as training or workshop facilities and places where work is being prepared or materials are being obtained for the Project for the purposes of general inspection and of attending any test or investigation being carried out in respect of the Works.
18.5.5 The Contractor should be responsible for ensuring that satisfactory facilities are made available to the Authority and its representative and that reasonable assistance is given to the Authority and its representative subject to the Contractor's and Sub-Contractors' construction or operational requirements not being adversely affected and to reimbursement of any reasonable costs or expenses of the Contractor. Required drafting to deal with this is:
18.5.5 Contractor's Reasonable Assistance
(d) The Contractor shall procure that satisfactory facilities are made available to the Authority and any representative of the Authority (when accompanied by a representative of the Authority) and that reasonable assistance is given for the purposes of Clause 18.5 (a) and (b) (Right of Inspection), and 8.5 (Inspection of Facilities), subject to the Contractor's and the Sub-Contractors' construction obligations not being adversely affected and to the Authority reimbursing the Contractor for any reasonable costs or expenses incurred as a result of the action taken by the Authority under Clauses 8.5 (a) and (b) (Right of Inspection) and Clauses 8.5 (c) (Inspection of Facilities).
18.5.6 If the Authority is or becomes aware of a breach by the Contractor of its obligations under Clause 9.1 (Hard FM Maintenance Services) then the Authority may exercise its right of access and remedy such breach and shall be entitled to recover any costs or expenses incurred from the Contractor as a debt5 Required drafting to deal with this is:
18.5.6 Access on Breach of Maintenance Provisions
(e) If the Authority is or becomes aware of a breach by the Contractor of its obligations under Clause 9.1 (Hard FM Maintenance Services) then the Authority shall be entitled to exercise its right of access and remedy such breach and shall be entitled to recover any costs or expenses incurred in so doing from the Contractor as a debt.
18.5.7 The Authority and its representative shall at all times comply with any health and safety requirements when exercising its rights under this Clause 8.5.
Required drafting to deal with this is:
18.5.7 Health and Safety Requirements
(f) The Authority and its representative shall at all times comply with all relevant health And safety procedures which shall include any relevant health and safety plans for the construction and operation of the facility6 and any reasonable directions with regard to safety that may be issued by or on behalf of Contractor
18.5.8 If the Authority or its representative causes material damage to any asset7 in exercising any right under this Clause 8.5, then the Authority shall be liable to the Contractor for the reasonable costs directly caused by such damage. Required drafting is as follows:
18.5.8 Damage
(g) If the Authority or an Authority Related Party causes material damage to any Asset7 in exercising any right under this Clause 8.5 then the Authority shall be liable to the Contractor for the reasonable costs directly caused by such damage and such damage shall be deemed to be a Compensation Event.
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5 The Authority should be careful in exercising this right owing to paragraph (f) and should not interfere with the obligations of the Contractor but instead rely on its other rights under the Contract.
6 The Authority should include a list of the relevant health and safety plans for its particular facility.
7 These are the physical assets referred to in the definition of "Assets".