BY SCHEDULE D-4, APPLICABLE DETAILED ESTIMATES AND COST
RECORDS AND A GRAPHIC DEMONSTRATION USING THE CPM SCHEDULE AND MONTHLY PROGRESS
REPORTS SHOWING CONTRACTOR'S ENTITLEMENT TO A TIME EXTENSION TO THE PROJECT
SCHEDULE PURSUANT TO THE TERMS OF THIS AGREEMENT); AND (II) SETTING FORTH THE
EFFECT, IF ANY, WHICH SUCH PROPOSED CHANGE ORDER HAS OR WOULD HAVE FOR THE WORK
ON ANY OF THE CHANGED CRITERIA.
CONTRACTOR SHALL PROMPTLY SUPPLEMENT ITS
REQUEST FOR CHANGE ORDER WITH ADDITIONAL INFORMATION AS SUCH ADDITIONAL
INFORMATION (IF ANY) BECOMES AVAILABLE.
If Contractor fails to provide the notice as required under this Section 6.5,
and if Owner demonstrates that it has been prejudiced on account of such failure
to provide notice, then, to the extent that Owner is so prejudiced, Contractor
waives its right for, and releases Owner from and against any claims for,
adjustments in the Contract Price, the Project Schedule, Payment Schedule, any
Work, any of the Minimum Acceptance Criteria or Performance Guarantees or any
other modification to any other obligation of Contractor under this Agreement.
Oral notice, shortness of time, or Owner's actual knowledge of a particular
circumstance shall not waive, satisfy, discharge or otherwise excuse
46
Contractor's strict compliance with this Section 6.5.
Contractor shall have the
burden of proof with respect to any claim made by it.
6.6
EVIDENCE OF FUNDS.
WITH THE EXCEPTION OF
ANY CONTRACT PRICE ADJUSTMENT CONTEMPLATED UNDER SECTIONS 7.1A THROUGH 7.1H,
CONTRACTOR SHALL NOT BE OBLIGATED TO PROCEED WITH ANY CHANGE ORDER THAT, ALONE
OR IN CONJUNCTION WITH OTHER CHANGE ORDERS, WOULD RESULT IN AN INCREASE
EXCEEDING AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE CONTRACT PRICE UNLESS
OWNER FURNISHES, TO CONTRACTOR'S REASONABLE SATISFACTION, DOCUMENTATION WHICH
DEMONSTRATES EITHER THAT OWNER HAS (I) SUFFICIENT FUNDS TO PAY FOR SUCH CHANGE
ORDER, OR (II) OBTAINED FINANCING FROM ONE OR MORE LENDERS IN SUFFICIENT FUNDS
TO PAY FOR SUCH CHANGE ORDER.
6.7
ADJUSTMENT ONLY THROUGH CHANGE ORDER.
UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, NO CHANGE IN THE REQUIREMENTS OF
THIS AGREEMENT, WHETHER AN ADDITION TO, DELETION FROM, SUSPENSION OF OR
MODIFICATION TO THIS AGREEMENT, INCLUDING ANY WORK, SHALL BE THE BASIS FOR AN
ADJUSTMENT FOR ANY CHANGE IN THE CONTRACT PRICE, THE PROJECT SCHEDULE, PAYMENT
SCHEDULE, ANY WORK, ANY OF THE MINIMUM ACCEPTANCE CRITERIA OR PERFORMANCE
GUARANTEES OR ANY OTHER OBLIGATIONS OF CONTRACTOR OR RIGHT OF OWNER UNDER THIS
AGREEMENT UNLESS AND UNTIL SUCH ADDITION, DELETION, SUSPENSION OR MODIFICATION
HAS BEEN AUTHORIZED BY A CHANGE ORDER EXECUTED AND ISSUED IN ACCORDANCE WITH AND
IN STRICT COMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION 6.7.
CONTRACTOR
SHALL NOT PERFORM ANY CHANGE IN THE WORK UNLESS AND UNTIL SUCH CHANGE IS
AUTHORIZED PURSUANT TO THIS SECTION 6.7, AND SHOULD CONTRACTOR PERFORM OR CLAIM
TO PERFORM ANY CHANGES IN THE WORK PRIOR TO AUTHORIZATION BY CHANGE ORDER, ALL
SUCH COSTS AND EXPENSES INCURRED BY CONTRACTOR SHALL BE FOR CONTRACTOR'S
ACCOUNT.
NO COURSE OF CONDUCT OR DEALINGS BETWEEN THE PARTIES, NOR IMPLIED
ACCEPTANCE OF ADDITIONS, DELETIONS, SUSPENSIONS OR MODIFICATIONS TO THIS
AGREEMENT, INCLUDING