Calculation of fees
A5.1 The fees for performance of the Services and/or any additional services, together with any specified Expenses are calculated as specified elsewhere in the Agreement.
A5.2.1 Where the Project is for construction works, the Basic Fee for performance of the Services, including the specified number of site visits during the construction period, is:
(a) a percentage of the Relevant Cost calculated in accordance with clause A5.3; and/or
(b) a calculated or fixed lump sum or sums in accordance with clause A5.4 or A5.5; and/or
(c) time charges in accordance with clause A5.6; and/or
(d) another agreed method.
A5.2.2 For other professional services, the Basic fee is:
(a) a fixed lump sum or sums in accordance with clause A5.5; and/or
(b) time charges in accordance with clause A5.6; and/or
(c) another agreed method.
A5.3 Where this clause A5.3 applies, the specified percentage or percentages are applied to the Relevant Cost. Interim fee calculations are based on the current Relevant Cost. The final fee is calculated on the agreed final Relevant Cost.
Calculated lump sums
A5.4 Where this clause A5.4 applies, the fee is calculated, subject to clause A5.7, by applying the specified percentages to create:
.1 a lump sum or sums based on the Relevant Cost approved by the Client for the developed design (RIBA Stage D), or
.2 a separate lump sum for each work stage based on the Relevant Cost approved by the Client at the end of the previous stage.
Fixed lump sums
A5.5 Where this clause A5.5 applies, the fee is the specified fixed lump sum or sums.
Such sums are adjusted in accordance with clause A5.7 or if material changes are made to the Brief and/or the Relevant Cost and/or the Timetable.
A5.6 A time-based fee is ascertained by multiplying the time reasonably spent in the performance of the Services by the specified hourly or daily rate for the relevant personnel. Time ‘reasonably spent’ includes the time spent in connection with performance of the Services in travelling from and returning to the Designer’s office.
Revision of lump sums
A5.7 Every 12 months, lump sums complying with clause A5.4.1 or A5.5, less any and other rates amounts previously claimed, and rates for time charges are revised in accordance with changes in the Average Earnings Index and rates for mileage and printing in accordance with changes in the Consumer Prices Index.
Each 12-month period commences on the anniversary of the Effective Date of the Agreement, or where clause A5.4 applies, the date of calculation of the lump sums.
A5.8.1 Additional Fees, calculated on a time basis unless otherwise agreed, are payable to the Designer if:
(a) the Designer is involved in extra expense for reasons beyond the control of the Designer. Reasons for such entitlement include, but are not limited to, the Designer being required to vary any item of work commenced or completed pursuant to the Agreement and/or performance of the Services is delayed, disrupted or prolonged;
(b) the costs of any work, installation or equipment, for which the Designer performs Services, are omitted from the Relevant Cost.
The Designer informs the Client on becoming aware that this clause A5.8.1 will apply. This clause A5.8.1 does not apply where the extra work or expense to which it refers is due to a breach of the Agreement by the Designer.
A5.8.2 If the Designer consents to enter into any supplementary agreement, the terms of which had not been agreed by the Designer at the date of the Agreement, the Designer is entitled to payment of the Designer’s reasonable costs of so doing, including but not limited to legal advice.
A5.8.3 If any part of the Services is reduced or omitted, the relevant fee is adjusted to reflect the change in resources required by the Designer.
Services not completed
A5.9.1 Where for any reason the Designer provides only part of the specified Services, the Designer is entitled to fees calculated as follows:
(a) for completed Services, as specified for those Services;
(b) for completed stages, as specified for those stages;
(c) for Services or stages not completed, a fee proportionate to that specified based on the estimated percentage of completion.
A5.9.2 Where a tender is invited for work or services as instructed by the Client but such work or services are not proceeded with, the Designer is entitled to fees calculated on the Relevant cost current at the date of invitation to tender.
Expenses and Disbursements
A5.10 Expenses other than specified Expenses and incurred with the prior authorisation of the Client and any disbursements made on the Client’s behalf are reimbursed at net cost plus any specified handling charge.
A5.11 The Designer maintains records of time spent on Services performed on a time basis and of any expenses and disbursements to be reimbursed at net cost and makes these available to the Client on reasonable request.
A5.12 Payment under the Agreement becomes due to the Designer on issue of the Designer’s account. The final date for such payments by the Client is 28 days from the date of issue of an account. Instalments of fees are calculated on the basis of the estimated percentage of completion of the Services or stages or other services or any other specified method. The Designer issues accounts showing any accrued instalments of the fee and other amounts due, less any amounts previously paid and state the basis of calculation of the amounts due. The Designer submits the final account for fees and any other amounts due when the Designer considers the Services have been completed.
A5.13 Any sums due and remaining unpaid at the expiry of 28 days after the date of issue of an account from the Designer bear simple interest until the date that payment is received at the daily rate equivalent to 5% over the current dealing rate of the Bank of England Rate current at the date that a payment becomes overdue.
For the avoidance of doubt the Designer’s entitlement to interest at the specified rate also applies in respect of any amounts that are awarded to the Designer in adjudication, arbitration or legal proceedings.
Payment on suspension
A5.15 If the performance of any or all of the Services is suspended or the Agreement or termination is terminated, the Designer issues an account or accounts for and is entitled to payment of:
.1 any part of the fee and other amounts due at the date of suspension or termination; and
.2 any direct costs properly and necessarily incurred by the Designer by reason of the suspension and any resumption or the termination together with any licence fee due if the notice of suspension or termination is given:
(a) by the Client, except where the suspension or termination arises from a material or persistent breach of the obligations under the Agreement by the Designer;
(b) by the Designer because of a material or persistent breach of the
obligations under the Agreement by the Client; or
(c) by the Designer if prevented from or impeded in performing the services for reasons beyond the Designer’s control.
Recovery of costs
A5.16 The Client or the Designer pays to the other party all costs reasonably incurred (including costs of time spent by principals, employees and advisors)
- in respect of obtaining payment of any amounts properly due, or
- in successfully resisting or defending any claim or part of a claim brought by the other
A5.17 In addition to the fees and expenses, the Client pays any Value Added Tax chargeable on the Designer’s fees and expenses.