4  Fee9

4.1  The Service Provider shall pay to the Independent Certifier a fee of [♦] for the Services provided in relation to the Project Agreement. The fee is exclusive of value added tax and inclusive of disbursements.  The Independent Certifier shall issue an invoice to the Service Provider on a monthly basis in accordance with Part 1 of Appendix 2. The date on which the invoice is received by the Service Provider shall constitute the due date.  The final date for payment by the Service Provider shall be thirty (30) days after receipt of the Independent Certifier's invoice. If Varied Services are provided then they shall be paid for equally by the Authority and the Service Provider or as otherwise agreed.

4.2  Not later than [five (5)] Business Days after the due date ascertained in accordance with clause 4.1, the Service Provider may give written notice to the Independent Certifier stating the amount which the Service Provider proposes to pay and the basis on which the amount is calculated.

4.3  Where the Service Provider intends to withhold payment of any amount stated in the invoice, the Service Provider and the Authority shall given written notice to the Independent Certifier not later than [five (5)] Business Days before the final date for payment pursuant to clause 4.1.  The notice shall state the amount to be withheld and the ground or grounds for withholding the payment and if there is more then one ground, the notice shall identify the amount attributable to each ground.

4.4  If the Service Provider fails to pay the Independent Certifier any sum payable under this Deed by the final date for payment, the Service Provider shall pay the Independent Certifier simple interest on that sum from the final date for payment until the actual date of payment at the Default Interest Rate.

4.5  If the Service Provider fails to pay the amounts properly due pursuant to these provisions and no notice to withhold the payment has been given pursuant to clause 4.3, the Independent Certifier may suspend performance of any or all of the Services.  This right is subject to the Independent Certifier first giving the Service Provider and the Authority not less than [seven (7)] Business Days' notice in writing of such intention stating the grounds for suspension.  The right to suspend performance shall cease when the Service Provider pays the amount properly due.  [Any period of suspension of the Services in accordance with this clause 4.5 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 4.5 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.]10

4.6  Without prejudice to clause 2.5, neither the Authority nor the Service Provider shall issue instructions or do anything which does or is reasonably likely materially to increase the fees payable to the Independent Certifier without the prior approval of the other (such approval not to be unreasonably withheld or delayed).

4.7  As soon as the Independent Certifier becomes aware of the same and before acting on the same the Independent Certifier shall inform the Authority and the Service Provider of any instructions given to him pursuant to clause 2.5 which will or could reasonably be expected to increase the fees payable to the Independent Certifier under the terms of this Deed.  The Independent Certifier shall if requested by either the Service Provider or the Authority provide both the Authority and the Service Provider 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 Part 2 of Appendix 2.

4.8  The obligations of the Service Provider and the Authority to pay the Independent Certifier for any Varied Services shall be several and not joint.

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9  This drafting assumes that the Service Provider is responsible for paying the Independent Certifier. Authority should consider whether this will be the case and should ensure that bidders are required to bid on the appropriate basis. It may 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.

10  Authority to consider whether this or similar drafting necessary for compliance with the Housing Grants and Construction Act 1995.