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City of Everett 00 72 00 - 39 <br />Port Gardner Storage Facility – Facility Construction Package WO# UP-3525 <br /> <br /> <br />00 72 00 - 39 GENERAL CONDITIONS <br />2. If the parties cannot agree, the Owner’s Representative will determine the price pursuant to the <br />following order: <br />a. Unit prices, if the Work items are defined by unit prices; and <br />b. Other means to establish the reasonable cost of the Work if it is not defined by unit prices, <br />including, but not limited to, Force Account as described in 9.6. FORCE ACCOUNT, the <br />Schedule of Values, or estimating manuals. <br />9.5.2 Limitations <br />The following limitations shall apply in determining the amount of an adjustment: <br />1. Except as otherwise expressly provided, Contractor will only be paid for costs it clearly and <br />convincingly proves it actually and directly incurred, and shall not include consequential or indirect <br />damages not otherwise expressly permitted by the Contract Documents. Costs and damages for <br />which Owner shall not be liable under any circumstances include, but are not limited to: (a) <br />borrowing or interest costs, charges, or expenses of Contractor; (b) alleged lost profit or Overhead <br />on any other project; and (c) Contractor’s failure or inability to obtain other work. <br />2. No Contract Claim for adjustment of Contract Sum or additional compensation for extra, affected, <br />impacted or inefficient Work will be allowed where the Contractor does not keep and maintain <br />contemporaneous, complete and accurate time records for labor and equipment and <br />contemporaneous, complete and accurate records for materials and where such records do not <br />contemporaneously segregate and allocate by time, location and work the time and costs for each <br />item or element of such work. Contractor’s failure to keep and maintain such records constitutes a <br />waiver of any Contract Claim or request by the Contractor for adjustment of Contract Sum for such <br />costs or event. <br />3. To the extent the Contractor is entitled to an adjustment of Contract Sum due to any Delay or <br />extension of Contract Time, Contractor shall be compensated as provided in 12.4 REMEDIES. <br />Such compensation shall be full, adequate and complete compensation for all direct, indirect, <br />cumulative, inefficiency, impact and ripple costs causing, arising out of, or relating to such delays <br />or extension. <br />4. Contractor and Owner agree that compensation to the Contractor for a Contract Claim shall not <br />exceed the Contractor’s actual costs based upon Force Account as described in 9.6. FORCE <br />ACCOUNT. Contractor waives, releases, and agrees not to submit any request for adjustment of <br />Contract Sum or Contract Claim based upon a “total cost” or “modified total cost” calculation, in <br />whole or in part, but instead agrees that any and all requests for compensation shall be based upon <br />accurate, complete and contemporaneous cost records that segregate and allocate actual costs (a) <br />between base Contract Work and the work for which additional compensation is sought and (b) <br />between each item of work for which additional compensation is sought. Claims for inefficiency <br />shall only be based on and calculated by a comparison of productivity of similar Work performed in <br />an unaffected or least affected area of the Project. <br />5. No claim for consequential damages of any kind will be allowed.