Common use of Change Orders Requested by Contractor Clause in Contracts

Change Orders Requested by Contractor. (a) It is the intent of the Owner and Contractor that the Scope of Work includes all items reasonably necessary for the proper execution and completion of the Work. Work not described in the Scope of Work will not be required without a Change Order unless that work is reasonably inferable from the Scope of Work. (b) Subject to Section 7.02(d) below, Contractor may at any time, by written notice to Owner, request a Change in the Work (together with any necessary or requested amendments to this Agreement). If Contractor reasonably believes that such requested Change will increase or decrease its cost of performing the Work, lengthen or shorten the time needed for completion of the Work, require modification of its warranties in Article XII or require a modification of any other provisions of this Agreement, it shall notify Owner of such, setting forth its justification for and effect of such changes, within seven (7) days after making a request for a Change. If such description of effect is stated to be an estimate, such request for a Change shall not be effective unless and until a subsequent notice is provided by Contractor stating such effect definitively. If such notice does not specify any effect of such requested Change as to cost, schedule, warranty obligations or other provisions hereof, then such requested Change shall be deemed to be a Change Order without any such effect and may be accepted by Owner without any such effect. If Owner accepts the Changes requested by Contractor (together with amendments to this Agreement specified therein, if any), or if the Parties agree upon a modification of such requested Changes, the Parties shall set forth the agreed upon Change in the Work and agreed upon amendments to this Agreement, if any, in a written Change Order signed by all Parties. Notwithstanding the provisions of this Section 7.02(b), Contractor shall have the right, upon notice to Owner, to carry out, free of charge to Owner, such modifications to the Work which Contractor deems in its reasonable judgment necessary for technical reasons, in order to meet any Guaranteed Performance Levels or to otherwise comply with its obligations under this Agreement so long as such modification has no material impact on Owner’s cost of operating the Ethanol Plant. (c) Contractor may at any time, by written notice to Owner, propose Changes in the Work (i) due to a Force Majeure Event or Pre-Existing Hazardous Material, or an error in the report contained in Exhibit S hereto, provided that such Force Majeure Event or circumstance has an impact that will adversely and materially affect Contractor’s ability to complete one or more Milestones by the required dates or cost of performance, (ii) due to an Owner Caused Delay, provided that such Owner Caused Delay has a demonstrable material cost increase to Contractor and/or schedule impact that will adversely and materially affect Contractor’s ability to complete one or more Milestones by the required dates or (iii) due to a Change In Law, provided that such Change In Law prevents Contractor from performing all or a portion of the Work, has a demonstrable material cost increase to Contractor and/or has a schedule impact that will adversely and materially affect Contractor’s ability to complete one or more Milestones by the required dates. Unless the foregoing conditions are met, Contractor may not request a Change in the Work due to a Force Majeure Event, Owner Caused Delay or Change in Law. If the Parties agree that the foregoing conditions have been met, then the Parties agree to bargain reasonably and in good faith for the execution of a mutually acceptable Change Order. If in such event the Parties are unable to agree on the cost, the cost shall be determined and payment shall be made in accordance with the Cost Plus Formula under Section 7.02(e). Disagreements regarding application of the Cost Plus Formula, whether the conditions of this Section 7.02(c) have been met, and schedule impacts, if any, of Changes covered by this Section 7.02(c) shall be resolved in accordance with Article XVII and Section 7.03 of this Agreement. (d) If Contractor knows of circumstances or events that reasonably requires a Change in the Work or Project Schedule, and Contractor does not provide written notification to Owner of such within ten (10) days after the date Contractor knows of such circumstances or events, then Contractor shall not have any right to request or require any additional consideration or other changes as to cost, schedule, warranty obligations or other provisions hereof, and Contractor shall have waived any claims or offsets against Owner, with respect to any Change Order or any necessary Change in the Work or Project Schedule arising out of such circumstances or events. (e) The Parties agree to bargain reasonably and in good faith for the execution of a mutually-acceptable lump sum Change Order. Failing agreement, the cost of Change Order shall be determined as provided for by a cost plus formula consisting of the sum of the following the (“Cost Plus Formula”): (i) Actual costs (which include materials, supplies, equipment, rental, and travel and travel-related costs) incorporated or consumed in the change in Work, at Contractor’s actual cost including applicable taxes, substantiated by verifiable invoices or data; (ii) Labor at Contractor’s “out-of-pocket” cost at rates shown in Exhibit K substantiated by employee-hour computations at the wage scale paid the worker actually performing the labor plus the percentage to cover direct labor overhead (social security, insurance, etc.) as described on Exhibit K; (iii) The cost of Work performed by Subcontractors, at Contractor’s actual cost including applicable taxes, computed in the same manner as items (i) through (ii) inclusive above, except that percentages may be adjusted to different trade practices if substantiated to Owner to its reasonable satisfaction; (iv) Contractor’s fee covering all profit charges, and any other indirect costs whatsoever, in an amount equal to *****% of the above items (i, ii and iii); and (v) Actual costs incurred by Contractor for additional bond and insurance coverage as necessary.

Change Orders Requested by Contractor. (a) It is the intent of the Owner and Contractor that the Scope of Work attached hereto as Exhibit "A" includes all items reasonably necessary for the proper execution and completion of the Work. Work not described in the Scope of Work attached hereto as Exhibit "A" will not be required without a Change Order unless that work is consistent with and reasonably inferable from the Scope of Work, so that a design-build contractor of Contractor's experience and expertise should have anticipated that the work would have been required. (b) Subject to Section 7.02(dparagraphs (b) and (c) below, Contractor may at any time, by written notice to Owner, request a Change in the Work (together with any necessary or requested amendments to this Agreement). If Contractor reasonably believes that such requested Change will increase or decrease its cost of performing the Work, lengthen or shorten the time needed for completion of the Work, require modification of its warranties in Article XII or require a modification of any other provisions of this Agreement, it shall notify Owner of such, setting forth its justification for and effect of such changes, within seven ten (710) days after making a request for a Change. If such description of effect is stated to be an estimate, such request for a Change shall not be effective unless and until a subsequent notice is provided by In the event that Contractor stating such effect definitively. If such notice does not specify any provide a written notice to Owner specifying the effect of such requested Change Changes as to cost, schedule, warranty obligations or other provisions hereofhereof within ten (10) days after giving written notice of a requested Change, and if Owner approves of the requested Change, then such requested Change shall be deemed to be a Change Order as specified by Contractor in its initial request (including any amendments hereto specified therein, if any) unconditionally and without additional consideration or other amendments hereto (except as specified by Contractor in its initial request), and Contractor shall have waived any claims or offsets against Owner as a result of such effect and may be accepted by Owner without any such effectChange Order. If Owner accepts the Changes requested by Contractor (together with amendments to this Agreement specified therein, if any), or if the Parties agree upon a modification of such requested Changes, the Parties shall set forth the agreed upon Change in the Work and agreed upon amendments to this Agreement, if any, in a written Change Order signed by all Parties. Notwithstanding the provisions of this Section 7.02(b), Contractor shall have the right, upon notice to Owner, to carry out, free of charge to Owner, such modifications to the Work which Contractor deems in its reasonable judgment necessary for technical reasons, in order to meet any Guaranteed Performance Levels or to otherwise comply with its obligations under this Agreement so long as such modification has no material impact on Owner’s cost of operating the Ethanol Plant. (c) Contractor may at any time, by written notice to Owner, propose Changes in the Work or the Critical Milestones (i) due to a Force Majeure Event or Pre-Existing Hazardous Material, or an error in the report contained in Exhibit S heretoEvent, provided that such Force Majeure Event or circumstance has an impact that will actually, demonstrably, adversely and materially affect Contractor’s 's ability to complete one or more Milestones by the required dates or cost of performancedates, (ii) due to an Owner Caused Delay, provided that such Owner Caused Delay has a demonstrable material cost increase to Contractor and/or schedule impact that will actually, demonstrably, adversely and materially affect Contractor’s 's ability to complete one or more Milestones by the required dates or (iii) due to a Change In Law, provided that such Change In Law prevents Contractor from performing all or a portion of the Work, has a demonstrable material cost increase to Contractor and/or has a schedule impact that will actually, demonstrably, adversely and materially affect Contractor’s 's ability to complete one or more Milestones by the required dates. Unless the foregoing conditions are met, Contractor may not request a Change in the Work or Critical Milestones due to a Force Majeure Event, Owner Caused Delay or Change in In Law. If Owner agrees that Contractor has met all of the Parties agree that the foregoing conditions have been metapplicable condition precedents for a requested Change, then the Parties agree to bargain reasonably and in good faith for the execution of a mutually acceptable Change Order. If in such event the Parties are unable to agree on a mutually acceptable Change Order, then the cost, the cost shall be determined and payment shall be made in accordance with the Cost Plus Formula under Section 7.02(e). Disagreements regarding application of the Cost Plus Formula, whether the conditions of this Section 7.02(c) have been met, and schedule impacts, if any, of Changes covered by this Section 7.02(c) dispute shall be resolved in accordance with Article XVII XVII, except as otherwise provided in Section 6.03, and except as provided in Section 7.03 14.03, Contractor will be limited to extensions of this Agreementthe Project Schedule only for Force Majeure Events. (d) If Contractor knows of circumstances or events that reasonably requires do or may require a Change in the Work or Project Schedule, and Contractor does not provide written notification to Owner of such within ten (10) days after the date Contractor knows of such circumstances or events, then Contractor shall not have any right to request or require any additional consideration or other changes as to cost, schedule, warranty obligations or other provisions hereof, and Contractor shall have waived any claims or offsets against Owner, with respect to any Change Order or any necessary Change in the Work or Project Schedule arising out of such circumstances or events. (e) The Parties agree to bargain reasonably and in good faith for the execution of a mutually-acceptable lump sum Change Order. Failing agreement, the cost of Change Order Orders shall be determined as provided for by a cost plus formula consisting of the sum of the following the (“Cost Plus Formula”): (i) Actual costs (which include materials, supplies, equipment, rental, and travel and travel-related costs) incorporated or consumed in the change in Work, at Contractor’s actual cost including applicable taxes, substantiated by verifiable invoices or data; (ii) Labor at Contractor’s “out-of-pocket” cost at rates shown in attached Exhibit K substantiated by employee-hour computations at the wage scale paid the worker actually performing the labor plus the percentage to cover direct labor overhead (social security, insurance, etc.) as described on Exhibit K; (iii) The cost of Work performed by Subcontractors, at Contractor’s actual cost including applicable taxes, computed in the same manner as items (i) through (ii) inclusive above, except that percentages may be adjusted to different trade practices if substantiated to Owner to its reasonable satisfaction; (iv) Contractor’s fee covering all profit charges, and any other indirect costs whatsoever, in an amount equal to *****% of the above items (i, ii and iii); and (v) Actual costs incurred by Contractor for additional bond and insurance coverage as necessary.K.

Change Orders Requested by Contractor. (a) It is the intent of the Owner and Contractor that the Scope of Work attached hereto as Exhibit A includes all items reasonably necessary for the proper execution and completion of the Work. Work not described in the Scope of Work will not be required without a Change Order unless that work is reasonably inferable from the Scope of Work. (b) Subject to Section 7.02(dparagraphs (c) and (d) below, Contractor may at any time, by written notice to Owner, request a Change in the Work (together with any necessary or requested amendments to this Agreementthe Contract Documents). If Contractor reasonably believes that such requested Change will increase or decrease its cost of performing the Work, lengthen or shorten the time needed for completion of the Work, require modification of its warranties in Article XII or require a modification of any other provisions of this Agreementthe Contract Documents, it shall notify Owner of such, setting forth its justification for and effect of such changes, within seven (7) days after making a request for a Change. If such description of effect is stated to be an estimate, such request for a Change shall not be effective unless and until a subsequent notice is provided by Contractor stating such effect definitively. If such notice does not specify any effect of such requested Change as to cost, schedule, warranty obligations or other provisions hereof, then such requested Change shall be deemed to be a Change Order without any such effect and may be accepted by Owner without any such effectchange. If Owner accepts the Changes requested by Contractor (together with amendments to this Agreement the Contract Documents specified therein, if any), or if the Parties agree upon a modification of such requested Changes, the Parties shall set forth the agreed upon Change in the Work and agreed upon amendments to this Agreementthe Contract Documents, if any, in a written Change Order signed by all Parties. Notwithstanding For the provisions avoidance of doubt, the Parties agree that Owner’s representative shall have authority to approve Change Orders. The Parties hereby express their intention that this Section 7.02(bAgreement will not be modified orally, through course of conduct or otherwise (regardless of whether any other agreements or documents relating to this Project have been so amended or modified), Contractor shall have unless a writing to such effect is executed by the right, upon notice to Owner, to carry out, free of charge to Owner, such modifications to the Work which Contractor deems in its reasonable judgment necessary for technical reasonsParties. Further, in order the event either Party hereto proposes that any oral agreement or course of conduct be construed as an amendment or modification to meet any Guaranteed Performance Levels or to otherwise comply this Agreement, it shall first notify the other Party in writing of such proposal in accordance with its obligations under this Agreement so long as Section 18.4. No such modification has no material impact on Owner’s cost of operating proposal notice shall be deemed accepted unless executed by the Ethanol PlantParty receiving the same. (c) Contractor may at any time, by written notice to Owner, propose Changes in the Work Work: (i) due to a Force Majeure Event or Pre-Existing Hazardous Material, or an error in the report contained in Exhibit S heretoEvent, provided that such Force Majeure Event or circumstance has an impact that will actually, demonstrably, adversely and materially affect Contractor’s ability to complete one or more Milestones the Project by the required dates or cost of performance, and further provided that Contractor complies with requirements provided in Article XIV and Section 6.2(b); (ii) due to an Owner Caused Delay, or, as provided in Section 3.2(a), third party delay, provided that such Owner Caused Delay has a demonstrable material cost increase to Contractor and/or schedule impact that will actually, demonstrably, adversely and materially affect Contractor’s ability to complete one or more Milestones the Project by the required dates or date and further provided that Contractor complies with the requirements set forth in Article XIV; (iii) due to a Change In Law, provided that such Change In Law prevents Contractor from performing all or a portion of the Work, has a demonstrable material cost increase to Contractor and/or has a schedule impact that will actually, demonstrably, adversely and materially affect Contractor’s ability to complete one or more Milestones all portions of the Project by the required dates. Unless date, and further provided that Contractor shall diligently make adjustments to minimize the foregoing conditions are met, Contractor may not request a effect of such Change in In Law on the Work Project; or (iv) due to a Force Majeure Event, Owner Caused Delay or Change in Lawcertain unforeseeable subsurface conditions. If Owner agrees that Contractor has met all of the Parties agree that the foregoing conditions have been metapplicable condition precedents for a requested Change, then the Parties agree to bargain reasonably and in good faith for the execution of a mutually acceptable Change Order. If in such event the Parties are unable to agree on a mutually acceptable Change Order, then the cost, the cost shall be determined and payment shall be made in accordance with the Cost Plus Formula under Section 7.02(e). Disagreements regarding application of the Cost Plus Formula, whether the conditions of this Section 7.02(c) have been met, and schedule impacts, if any, of Changes covered by this Section 7.02(c) dispute shall be resolved in accordance with Article XVII and XVII. Any extension permitted under this Section 7.03 shall be of this Agreementan equitable duration designed to reflect the delay actually caused by the relevant event despite Contractor’s efforts to mitigate the same. (d) If Contractor knows of circumstances or events that reasonably requires do or may require a Change in the Work or Project Schedule, and Contractor does not shall provide written notification to Owner of such within ten fifteen (1015) days after the date Contractor knows of such circumstances or events, then Contractor shall not should have any right to request or require any additional consideration or other changes as to cost, schedule, warranty obligations or other provisions hereof, and Contractor shall have waived any claims or offsets against Owner, with respect to any Change Order or any necessary Change known (in the Work or Project Schedule arising out exercise of due diligence) of such circumstances or events. (e) The Parties agree to bargain reasonably and in good faith for the execution of a mutually-acceptable lump sum Change Order. Failing agreement, the cost of Change Order shall be determined as provided for by a cost plus formula consisting of the sum of the following the (“Cost Plus Formula”): (i) Actual costs (which include materials, supplies, equipment, rental, and travel and travel-related costs) incorporated or consumed in the change in Work, at Contractor’s actual cost including applicable taxes, substantiated by verifiable invoices or data; (ii) Labor at Contractor’s “out-of-pocket” cost at rates shown in Exhibit K substantiated by employee-hour computations at the wage scale paid the worker actually performing the labor plus the percentage to cover direct labor overhead (social security, insurance, etc.) as described on Exhibit K; (iii) The cost of Work performed by Subcontractors, at Contractor’s actual cost including applicable taxes, computed in the same manner as items (i) through (ii) inclusive above, except that percentages may be adjusted to different trade practices if substantiated to Owner to its reasonable satisfaction; (iv) Contractor’s fee covering all profit charges, and any other indirect costs whatsoever, in an amount equal to *****% of the above items (i, ii and iii); and (v) Actual costs incurred by Contractor for additional bond and insurance coverage as necessary.