5.1 Sub-hubco shall pay to the Independent Tester a fee of [INSERT FEE] for the Services provided in relation to the Design Build Finance and Maintain Agreement. The fee is exclusive of value added tax and inclusive of disbursements. The Independent Tester shall issue an invoice to Sub-hubco on a monthly basis in accordance with Appendix 2 Section 1 (Schedule of Drawdown of Fees) (the "Application for Payment"). 5 days after the date on which the invoice is received by Sub-hubco shall constitute the due date (the "Due Date"). The final date for payment by Sub-hubco shall be thirty (30) days after receipt of the Independent Tester's invoice (the "Final Date"). If Varied Services are provided then they shall be paid for in accordance with the agreement between the Independent Tester and the Authority and Sub-hubco pursuant to Clause 3.1.
5.2 Not later than 5 days after the Due Date ascertained in accordance with Clause 5.1, Sub-hubco shall give written notice to the Independent Tester stating the amount which Sub-hubco considers to be or have been due at the Due Date and the basis on which the amount is calculated (the "Payment Notice"). It is immaterial that the sum referred to in this notice may be zero. If Sub-hubco fails to give a Payment Notice in accordance with this Clause 5.2 and the Independent Tester has given an Application for Payment in accordance with Clause 5.1, subject to any Pay Less Notice given under Clause 5.3, the sum to be paid to the Independent Tester shall be the sum specified in the Application for Payment.
5.3 Where Sub-hubco intends to pay less than the sum stated as due pursuant to this Agreement, Sub-hubco shall, not later than 2 days before the relevant Final Date, give a written notice to the Independent Tester (a "Pay Less Notice"). Such Pay Less Notice shall specify both the sum that Sub-hubco considers to be due to the Independent Tester at the date the notice is given and the basis on which that sum is calculated. It is immaterial that the sum referred to in this Clause 5.3 may be zero. Where any Pay Less Notice is given, the payment to be made on or before the relevant Final Date shall be not less than the amount stated as due in such notice.
5.4 If Sub-hubco fails to pay a sum, or any part of it, due to the Independent Tester under this Agreement by the relevant Final Date, Sub-hubco shall, in addition to any unpaid amount that should properly have been paid, pay the Independent Tester simple interest on that amount from the Final Date until the actual date of payment at the Default Interest Rate.
5.5 If Sub-hubco fails to pay any amount properly due pursuant to this Agreement by the relevant Final Date and the failure continues for 21 days after the Independent Tester has given notice to Sub-hubco of its intention to suspend performance of all or any of the Services and the ground or grounds on which it is intended to suspend performance, the Independent Tester may suspend performance of any or all of its obligations until payment is made in full. Any period of suspension of the Services in accordance with this Clause 5.5 shall be disregarded in computing any contractual time limit to complete work directly or indirectly affected by the exercise of the rights conferred by this Clause 5.5 or as the case may be, the time for completion of such work shall be extended by a period equal to the period of suspension.
Where the Independent Tester exercises its right of suspension under this Clause 5.5, it shall be entitled to a reasonable amount in respect of costs and expenses reasonably incurred by it as a result of the exercise of that right. Any such costs and expenses shall be included in the Independent Tester's next Application for Payment and the Independent Tester shall, with its application, submit such details of the costs and expenses as are reasonably necessary to enable the Independent Tester's entitlement to be ascertained.14
5.6 Without prejudice to Clause 3.5, neither the Authority nor Sub-hubco shall issue instructions or do anything which does or is reasonably likely materially to increase the fees payable to the Independent Tester without the prior approval of the other (such approval not to be unreasonably withheld or delayed).
5.7 As soon as the Independent Tester becomes aware of the same and before acting on the same the Independent Tester shall inform the Authority and Sub-hubco of any instructions given to him pursuant to Clause 3.5 which will or could reasonably be expected to increase the fees payable to the Independent Tester under the terms of this Agreement. The Independent Tester shall if requested by either Sub-hubco or the Authority provide both the Authority and Sub-hubco with as detailed an estimate as is reasonably practicable of the increase to the fees payable to it if it carries out such instructions. The estimate of increased fees shall be based upon the rates contained in Appendix 2, Section 2 (Schedule of Daily Rates).
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13 This drafting assumes that Sub-hubco is responsible for paying the Independent Tester. Authorities should consider whether this will be the case as it may be better value for money for the Authority to pay an element of the fee itself, although the Authority must ensure that it is able to meet such a commitment.
14 Authorities to consider whether this or similar drafting is necessary for compliance with the Housing Grants and Construction Act 1996, as amended.