CHANGE OF CONTRACT PRICE, COST OF THE WORK AND UNIT PRICE WORK

10.1 Change of Contract Price 10.1.1. The Contract Price may only be changed by a Change Order or by a Written Amendment. Any Claim for an adjustment in the Contract Price shall be based on written notice submitted by the party making the Claim to the Owner in accordance with Article 11.5. 10.1.2. The value of the Work covered by a Change Order or covered by a Claim for an adjustment in the Contract Price will be determined as follows: 10.1.2.1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of section 10.4); or 10.1.2.2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum (which may include an allowance for overhead and profit not necessarily in accordance with section 10.5) or by newly agreed unit prices; or 10.1.2.3. where the Work involved is either: (a) not covered by unit prices contained in the Contract Documents, or (b) agreement as to a lump sum is not reached (under Article 10.1.2.2,) the value of the work shall be computed on the basis of the Cost of the Work (determined as provided in Article 10.2) plus a Contractor's fee for overhead and profit (as provided in Article 10.5). 10.2 Cost of the Work 10.2.1. Costs Included: The term Cost of the Work means the sum of all costs necessarily incurred and paid by Contractor in the proper performance of a change in the Work. When the value of any Work covered by a Change Order, Extra Work Order or Construction Change Directive or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work. Except as otherwise agreed in writing by Owner's Representative, such costs shall be in amounts no higher than those prevailing in the locality of the Project and shall include only the items indicated below: 10.2.1.1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classification agreed upon by Owner's Representative and Contractor. 10.2.1.1.1. Such employees shall include without limitation engineers, superintendents, foremen, and other supervisory, safety, security and clerical personnel employed full time at the Site. 10.2.1.1.2. Payroll costs for employees not working exclusively in connection with the Work shall be apportioned based on their time spent working on the Work. - 67 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 10.2.1.1.3. Payroll costs shall include, but shall 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' compensation, union, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. 10.2.1.1.4. The expenses of performing Work outside the regular working hours, on Saturday, Sunday, or legal holidays, shall be included in the above mentioned costs, to the extent authorized by Owner's Representative. 10.2.1.2. Actual cost of all necessary materials and equipment furnished and incorporated in the Work, including costs of transportation, taxes and reasonable and necessary storage thereof, and Suppliers' field services required in connection therewith. 10.2.1.2.1. All cash discounts with regard to the purchase by Contractor of materials and equipment shall accrue for the benefit of Contractor unless Owner deposits funds with Contractor with which to purchase the materials and equipment, in which case the cash discounts shall accrue to Owner. 10.2.1.2.2. All trade discounts, rebates, and refunds and returns from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall make provisions so that these discounts etc. may be obtained. 10.2.1.3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. 10.2.1.3.1. If required by Owner's Representative, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner, who will then determine, with the advice of Architect/Engineer, which bids, if any, will be acceptable. 10.2.1.3.2. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as Contractor's Cost of the Work and fee as provided in this Article 10.2. 10.2.1.4. Reasonable and necessary costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services exclusively related to the Work. 10.2.1.5. Supplemental costs including the following: 10.2.1.5.1. The proportion of reasonable and necessary transportation, travel, and subsistence expenses of Contractor's employees incurred in discharge of duties connected with the Work. Airplane travel shall be on coach class and the car transportation, hotel and subsistence shall be at moderate cost. 10.2.1.5.2. Reasonable cost, including transportation, taxes and maintenance, of all materials, supplies, equipment, machinery, appliances, computers, office, warehousing and temporary facilities exclusively related to the Contract, and cost, less market value, of such items used but not consumed which remain the property of Contractor. 10.2.1.5.3. 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's Representative with the advice of Architect/Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and 68 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS removal thereof. 10.2.1.5.3.1. All such costs shall be in accordance with the terms of said rental agreements. 10.2.1.5.3.2. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. 10.2.1.5.4. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, imposed by Laws and Regulations. 10.2.1.5.5. In such instances (only) where Contractor is insured under OCIP, or where the Owner assumes responsibility for some part of the required projects insurances (such as Builder's Risk) losses and damages (and related expenses) caused by damage to the Work, not compensated by said insurance, sustained by Contractor in connection with the performance of the Work, provided such losses and damages 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. 10.2.1.5.5. 1. Such losses shall include settlements made with the written consent and approval of Owner's Representative. No such losses, damages, and expenses shall be included in the Cost of the Work for the purpose of determining Contractor's fee. 10.2.1.5.6. The cost of all utilities, telephone, data, fax, internet, security services, fuel, and sanitary facilities within the Site. 10.2.1.5.7. When the Cost of the Work is used to determine the value of a Change Order, or Construction Change Directive, Extra Work Order or of a Claim, the cost of premiums for additional Bonds and insurance required because of the changes in the Work. 10.2.1.5.8. An amount of the Contractor's main office overhead costs, when applicable, reached by mutual accord between the parties. If no mutual accord can be reached, the cost for main office overhead shall be computed using the Eichleay case and subsequent case law- If the Contractor does not have financial statements prepared externally by a recognized CPA, he must prepare them in order to be able to present a claim for this purpose. 10.2.2 Costs Excluded: The term Cost of the Work shall not include any of the following items: 10.2.2.1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnerships and sole proprietorships), general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor who work at Contractor's principal, branch or other office, other than Contractor's office at the Site, for general administration of the Work, all of which are to be considered administrative costs covered by the Contractor's fee, and not specifically included in the agreed upon schedule of job classifications referred to in Article 10.2.1.1 or specifically covered by Article 10.2.1.4. 10.2.2.2. Expenses of Contractor's principal, branch or other offices, other than Contractor's office at the Site. 10.2.2.3. Any part of Contractor's capital expenses, including interest on Contractor's capital employed 69 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS for the Work and charges against Contractor for delinquent payments. 10.2.2.4. 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 or equipment wrongly supplied, or making good any damage to property. 10.2.2.5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Articles 10.2.1.1 and 10.2.1.2, unless proven as a valid reasonable and necessary expense directly and exclusively related to the Project. 10.2.3. Contractor's Fee. When the value of any Work covered by a Change Order/Extra Work Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor's fee shall be determined as set forth in Article 10.5. 10.2.4 Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to Articles 10.2.1 and 10.2.2, Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to Architect/Engineer, or Owner's Representative, an itemized cost breakdown together with supporting documentation and data. 10.2.5 Time Extension: Whenever additional time is required to perform extra work, said time allotment shall be included as part of the Change Order. 10.2.6 If the requirement specified in Article 10.1.2.3, above, causes a delay in the project completion, the costs of said delays, including project and main office overhead shall be added to the cost of the Work and a reasonable time extension provided under the Contract. 10.3 Cash Allowances 10.3.1 Unless otherwise stated in the Contract Documents, it is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents. 10.3.2 Items covered by allowances shall be supplied for such amount and by such persons or entities as the Owner's Representative may direct, but the contractor shall not be required to employ persons or entities against which the Contractor makes written reasonable objections. 10.3.3 If the allowance covers the cost of only furnishing material or, the allowance should include: 10.3.3.1. The cost to Contractor (less any applicable discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and 10.3.3.2. Contractor's costs for unloading and handling on the Site. Labor and installation costs, have been included in the Contract Price. 10.3.4 If the allowances include the cost of furnishing and installing material or equipment to be furnished and installed by the Contractor the allowances include the cost to Contractor (less any applicable discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes plus the total cost of installation including unloading and handling. 70 UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 10.3.5 If the allowances include the cost of furnishing and installing material or equipment to be furnished and installed by a Subcontractor the allowances include the cost to the Contractor of the subcontractor's price. 10.3.6 Unless otherwise provided in the Contract Documents, insurances and bonds do not form part of the allowance price, but are included as part of the Contract Price. 10.3.7 An appropriate Change Order/Extra Work Order will be issued to reflect any difference in the actual cost of the allowance versus the amount specified in said allowance in the Contract Documents. Said amount will be due to Contractor, or credited to Owner as the case may be, on account of Work covered by allowances, and the Contract Price, and Contract Time, if necessary, shall be correspondingly equitably adjusted. Said Change Order/Extra Work Order will include the costs of bonds, insurances and fee stated in Article 10.5. If the change order is a credit, the amount credited will be the net amount due the Owner. 10.4 Unit Price Work 10.4.1 Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include, for all Unit Price Work, an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. 10.4.1.1. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of bids and determining an initial Contract Price. 10.4.1.1.1. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Owner's Representative subject to the provisions of Article 13.2.1. 10.4.2 Each unit price will be deemed to include an amount considered by Contractor in the proposal to be adequate to cover Contractor's overhead and profit for each separately identified item. 10.4.3 Owner and Contractor may make a Claim for an adjustment in the Contract Price in accordance with r shall be determined as follows: 10.5.1. a mutually acceptable fixed fee; or 10.5.2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: 71 UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 10.5.2.1. for costs incurred under Articles 10.2.1.1 and 10.2.1.2, the Contractor's fee shall be fifteen (15) percent; 10.5.2.2. for costs incurred under Article 10.2.1.3, 10.2.1.4 and 10.2.1.5, the Contractor's fee shall be ten (10) percent; 10.5.2.3. where one (1) or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Article 10.5.2.1 is that the Subcontractor who actually performs the Work, at whatever tier, will be paid a fee of fifteen (15) percent of the costs incurred by such Subcontractor under Articles 10.2.1.1 and 10.2.1.2 and that any higher tier Subcontractor and Contractor will each be paid a fee often (10) percent of the amount paid to the next lower tier Subcontractor; 10.5.2.4. no fee shall be payable on the basis of costs itemized under Articles 10.1.2.1 and 10.1.2.2; 10.5.2.5. the amount of credit to be allowed by Contractor to Owner for any change which results in a net decrease in cost will be the amount of the actual net decrease in cost; and 10.5.2.6. when both additions and credits are involved in any one change, the adjustment in Contractor's fee shall be computed based on the net change in accordance with Article 10.5.2.1 through 10.5.2.5, inclusive.