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Change of Contract Price
ARTICLE 10 - CHANGE OF CONTRACT PRICE
10.1 Items Included in Contract Price. The Contract Price constitutes the total compensation (subject to authorized adjustments) payable to CONTRACTOR for performing the Work and assuming all obligations and risks as provided by the Contract Documents. All duties, responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at his expense without change in the Contract Price.
10.2 Changes in Contract Price. The Contract Price may only be changed by a Change Order or by a Written Agreement. Any claim for an increase or decrease in the Contract Price shall be based on written notice delivered by the party making the claim to the other party and ENGINEER promptly, but in no event later than twenty (20) days) after the occurrence of the event or the commencement of a series of events giving rise to the claim, which notice shall particularly state the factual basis of the claim and the nature and extent of additional costs or damages to be sustained therefrom. Notice of the specific amount of the claim, with supporting data shall be delivered to the other party and ENGINEER within thirty (30) days after such notice, unless ENGINEER, for good cause shown, allows an additional period of time for claimant to ascertain and present accurate supporting data. A written statement of the amount claimed by claimant shall be conclusively presumed to include all direct, indirect and consequential amounts claimed or to be claimed by claimant as a result of all facts, occurrences and events giving rise thereto. Nothing provided in this Section shall be construed to afford the CONTRACTOR any rights or claims otherwise precluded by any other provisions of these General Conditions or other Contract Documents. The burden of proof for such claim shall be on claimant.
10.3 Value of Affected Work. The value of any Work affected by a Change Order, or any Written Agreement, or of any increase or decrease in the Contract Price in respect of OWNER-initiated changes or CONTRACTOR claims as provided by this Section shall be determined in one of the following ways:
10.3.1 For Work covered in whole or in part by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the contract items involved, unless otherwise provided in the Contract Documents;
10.3.2 For items or elements of Work not covered by unit prices, by mutual acceptance of a lump sum or unit price; or, if no such agreement is reached, on the basis of the Cost of the Work (determined as provided in Sections 10.4 and 10.5) plus a reasonable allowance for CONTRACTOR's profit and overhead based on a percentage of the Cost of Work not to exceed ten percent (10%), or such different percentage as may be specified by other Contract Documents.
10.4 Cost of The Work. The term Cost of the Work means the sum of all costs necessarily incurred and paid by CONTRACTOR in the proper and efficient performance of the particular Work for which costs thereof are to be determined. Except as otherwise may be agreed to in writing by OWNER, such costs shall be in amounts no higher than those prevailing in the locality of the Project. Such costs shall not include any of the costs itemized in Section 10.5 and may include only the following items:
10.4.1 Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the affected Work under schedules of job classifications agreed upon by OWNER and CONTRACTOR. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on such Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' or workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. Such employees shall not include superintendents or other management and supervisory personnel whose costs are included in the Contract Price. The expenses of performing Work after regular working hours, on Saturday, Sunday or legal holidays, shall be included only if authorized by OWNER in writing.
10.4.2 Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and field services by suppliers or manufacturers required in connection therewith. All cash discounts shall accrue to CONTRACTOR unless OWNER deposits funds with CONTRACTOR with which to make payments, in which case cash discounts shall accrue to OWNER. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to OWNER and CONTRACTOR shall make provisions so that they may be obtained.
10.4.3 Payments made by CONTRACTOR to the Subcontractors for affected Work performed by Subcontractors. If required by OWNER, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to CONTRACTOR and shall deliver such bids to OWNER who will then determine, with the advice of ENGINEER, which bids will be accepted. If a subcontract provides that the Subcontractor is to be paid on the basis of Cost of the affected Work Plus a Fee, the Subcontractor's cost of such Work shall be determined in the same manner as CONTRACTOR'S Cost of the Work. All subcontracts shall be subject to the other provisions of the Contract Documents insofar as applicable.
10.4.4 Costs of special consultants (including, but not limited to, engineers, architects, testing laboratories, surveyors, attorneys and accountants) employed for services specifically related to the affected Work.
10.4.5 Supplemental costs including the following:
.1 The proportion of necessary transportation, travel and subsistence expenses of CONTRACTOR's employees incurred in discharge of duties connected with the affected Work.
.2 Costs, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workers, which are consumed in the performance of the affected Work, and cost less market value of such items used but not consumed which remain the property of CONTRACTOR.
.3 Rentals of all construction equipment and machinery and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by OWNER with the advice of ENGINEER, and the costs of transportation, loading, unloading, installation, dismantling and removal thereof all in accordance with terms of said rental agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the affected Work. When construction equipment is owned by CONTRACTOR, the cost of such equipment shall be in accordance with U.S. Army Corps of Engineers publication titled "Construction Equipment Ownership and Operating Schedule" for Region II.
.4 Sales, consumer, use or similar taxes related to the affected Work, and for which CONTRACTOR is liable, imposed by Laws or Regulations.
.5 Deposits lost for causes other than negligence of CONTRACTOR, any Subcontractor or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses.
.6 Losses, damages, and related expenses not compensated by insurance or otherwise, to the Work or otherwise sustained by CONTRACTOR in connection with the performance and furnishing of the affected Work (except losses and damages within the deductible amounts of property insurance established by OWNER in accordance with Article 5, provided they have resulted from causes other than the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of OWNER. No such losses, damages and expenses shall be included in the Cost of the Work for the purpose of determining CONTRACTOR's Fee. If, however, any such loss or damage requires reconstruction and CONTRACTOR is placed in charge thereof, CONTRACTOR shall be paid for services a fee proportionate to that stated in Section 10.3.
.7 The cost of utilities, fuel and sanitary facilities at the site.
.8 Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the Work.
.9 Cost of premiums for additional Bonds and Insurance required because of changes in the Work and premiums for property insurance coverage within the limits of the deductible amounts established by OWNER in accordance with Article 5.
10.5 Excluded Costs. The term Cost of the Work shall not include (i) expenses of CONTRACTOR's branch offices other than CONTRACTOR's office at the site, (ii) any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR's capital employed for the Work and charges against CONTRACTOR for delinquent payments (iii) cost of premiums for all Bonds and for all insurance not required by the Contract Documents (except for cost of premiums covered by Subparagraph 10.4.5.9 above), (iv) costs due to the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of Defective Work, disposal of materials and equipment wrongly supplied and making good any damage to property, or (v) other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Section 10.4.
10.6 Cash Allowances. It is understood that CONTRACTOR has included in the Contract Price all allowances so named in the Contract Documents, if any, and shall cause the Work so covered to be done by such Subcontractors or Suppliers and for such sums within the limit of the allowances as may be acceptable to OWNER. CONTRACTOR further agrees that:
10.6.1 The allowances include the cost to CONTRACTOR (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the site and all applicable taxes; and
10.6.2 CONTRACTOR's costs for unloading and handling on the site, labor, installation costs, overhead, profit and other expenses contemplated for the allowances have been included in the Contract Price and not in the allowances. No demand for additional payment on account of any thereof will be valid.
10.6.3 Prior to final payment, an appropriate Change Order will be issued as recommended by ENGINEER to reflect actual amounts due CONTRACTOR on account of Work covered by allowances, and the Contract Price shall be adjusted accordingly.
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