Common use of Change Orders Requested by Contractor Clause in Contracts

Change Orders Requested by Contractor. A. Contractor shall have the right to request a Change Order in the event of any of the following occurrences: 1. Changes in Law that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 2. Acts or omissions of Owner that constitute a breach of any express obligation of Owner under this Agreement and materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or ability to perform any material requirement under this Agreement and, with respect to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 3. Force Majeure to the extent allowed under Section 6.7A; 4. Acceleration of the Work ordered by Owner pursuant to Section 5.6; 5. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to Contractor, to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 6. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report and the Final Geotechnical Report; 7. If the ground water constituents and flow rate potential existing at the Site are materially different from the information set forth in Attachment CC, to the extent such difference has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such difference, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 8. To the extent expressly permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, Section 1.10.5

Change Orders Requested by Contractor. A. Contractor shall have the right only be entitled to request a Change Order in the event of any of the following occurrences: 1. Changes in Law that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 2. Acts or omissions of Owner that constitute a breach of any express obligation of Owner under this Agreement and materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or ability to perform any material requirement under this Agreement and, with respect to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 3. Force Majeure to the extent allowed under Section 6.7A6.8A; 42. Acceleration of the Work ordered by Owner pursuant to Section 5.6; 53. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified Suspension in Work ordered by or Owner pursuant to Contractor, to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;14.3; or, 64. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report 2.5B.1, Section 6.4, Section 6.9, or Section 12.2A. B. Should Contractor desire to request a Change Order under this Section 6.2, Contractor shall, pursuant to Section 6.6, notify Owner in writing and the Final Geotechnical Report; 7. If the ground water constituents and flow rate potential existing issue to Owner, at the Site are materially different from the information set forth in Attachment CC, to the extent such difference has a material and adverse impact on Contractor’s actual cost (expense, a request for a proposed Change Order in the form of Schedule D-3, a detailed explanation of the proposed change and Contractor’s reasons for proposing the change, all documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section 6.6. C. If Owner agrees that a Change Order is necessary and agrees with Contractor’s statement regarding the effect of the proposed Change Order on the Changed Criteria, then Owner shall issue such Change Order, which costs shall be in the form of Schedule D-1, and such Change Order shall become binding on the Parties as part of this Agreement upon execution thereof by the Parties. Owner shall notify Contractor within thirty (30) days after receipt if the Change Order request, when submitted, is not adequately documented and supported by Contractor) of performance Contractor as required under this Agreement. D. If the Parties agree that Contractor is entitled to a Change Order but cannot agree on the effect of the Work or proposed Change Order on the Changed Criteria within thirty (30) Days of Owner’s receipt of Contractor’s ability written notice and proposed Change Order and all other required information, or if Owner desires that the proposed changed Work set forth in the proposed Change Order commence immediately, the rights, obligations and procedures set forth in Section 6.1C are applicable. E. If the Parties cannot agree upon whether Contractor is entitled to a Change Order within thirty (30) Days of Owner’s receipt of Contractor’s written notice and proposed Change Order, then the dispute shall be resolved as provided in ARTICLE 16. Pending resolution of the dispute, Contractor shall continue to perform any material requirement the Work required under this Agreement, and Owner shall continue to pay Contractor in accordance with respect to the terms of this Agreement, any delays (as that term is defined in Section 6.10) caused by such difference, compensation Change Orders and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 8. To the extent expressly permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, Section 1.10.5any previously agreed or unilateral Change Orders.

Change Orders Requested by Contractor. A. (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 Facility. (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 a 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 event Work or Project Schedule arising out of any 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 occurrences:the (“Cost Plus Formula”): 1. Changes (i) Actual costs (which include materials, supplies, equipment, rental, and travel and travel-related costs) incorporated or consumed in Law that materially and adversely affect the change in Work, at Contractor’s actual cost including applicable taxes, substantiated by verifiable invoices or data; (which costs shall be adequately documented and supported by Contractorii) of performance of the Work or Labor at Contractor’s ability “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 perform any material requirement under this Agreementcover direct labor overhead (social security, and with respect to any delays (insurance, etc.) as that term is defined in Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8described on Exhibit K; 2. Acts or omissions (iii) The cost of Owner that constitute a breach of any express obligation of Owner under this Agreement and materially and adversely affect Work performed by Subcontractors, at Contractor’s actual cost including applicable taxes, computed in the same manner as items (which 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 shall be adequately documented and supported by Contractor) of performance whatsoever, in an amount equal to “*****” of the Work or ability to perform any material requirement under this Agreement above items (i, ii and iii); and, with respect to delays (v) Actual costs incurred by Contractor for additional bond and insurance coverage as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 3. Force Majeure to the extent allowed under Section 6.7A; 4. Acceleration of the Work ordered by Owner pursuant to Section 5.6; 5. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to Contractor, to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 6. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report and the Final Geotechnical Report; 7. If the ground water constituents and flow rate potential existing at the Site are materially different from the information set forth in Attachment CC, to the extent such difference has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such difference, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 8. To the extent expressly permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, Section 1.10.5necessary.

Change Orders Requested by Contractor. A. Contractor shall have the right to request a Change Order in the event of any of the following occurrences: 1. Changes Any Change in Law that materially and adversely affect affects (i) Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material requirement obligation under this AgreementAgreement (provided that for any Change in Law regarding Taxes, and with respect any adjustment for Contractor pursuant to any delays (as that term is defined in this Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, 6.2 shall be permitted solely to the extent allowed under Section 6.8such Change in Law causes Contractor’s net aggregate Tax burden to increase benchmarked against Contractor’s net aggregate Tax burden as of February 28, 2017, as determined by a reputable, independent auditor mutually agreed by the Parties and paid for by Contractor (or, absent such mutual agreement, as appointed by the Houston, Texas office of the AAA), such determination to be made on a “with and without” basis and taking into account any decreases in Contractor’s aggregate Tax burden resulting from any other provision in the Law giving rise to the Change in Law; 2. Acts or omissions of Owner that constitute a breach of any express obligation member of Owner Group or any other Person for whom Owner is responsible, including in the case of Owner any failure to perform any obligation under this Agreement and materially and that adversely affect affects (i) Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material requirement obligation under this Agreement and, with respect Agreement; provided that Contractor shall not be entitled to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, Change Order to the extent allowed that such acts or omissions of Owner are (a) caused, directly or indirectly, by Contractor’s failure to perform its obligations under Section 6.8this Agreement, or (b) expressly permitted by this Agreement; 3. Force Majeure to the extent allowed under Section 6.7A6.8A; 4. Acceleration of the Work ordered directed by Owner pursuant to a Confirmed Acceleration Directive in accordance with Section 5.6; 5. If Contractor discovers at Owner’s request for an increase in coverage under the Site Letter of Credit pursuant to Section 9.2 to cover any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, increase in the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to Contractor, Contract Price as a result of Change Orders to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined set forth in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.89.2; 6. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report Sections 3.3C, 3.4, 3.25, 4.3, 4.7A, 5.6A, 7.1, 8.2A, 8.2C, 11.2A, 11.2B.6, 12.2A, 16.3, 16.4 and the Final Geotechnical ReportAttachment 31; 7. If Delay beyond the ground water constituents permissible times specified in Section 1A.9(g)(ii) or Section 1A.11(ii) of Attachment 15 for the delivery by Owner to Contractor of builder’s risk or marine cargo insurance proceeds received by the Collateral Agent (or if no Collateral Agent, a mutually agreed upon escrow agent) shall relieve Contractor of any obligation under this Agreement to effect repairs or other restoration of the Work affected by the insured occurrence for any costs of repairs or restoration exceeding the sum of the deductible under such insurance and flow rate potential existing at any amounts previously paid to Contractor under such insurance and shall entitle Contractor to a Change Order adjusting the Site are materially different from the information set forth in Attachment CCContract Price and Project Schedule, but only to the extent such difference has a material and adverse impact on delay adversely affects (i) Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule, or (iii) or Contractor’s ability to perform any material requirement obligation under this Agreement; provided that, notwithstanding the foregoing, in no event shall this Section 6.2A.7 in any way relieve Contractor from any obligation to perform any work necessary to maintain the builder’s risk and with respect marine cargo insurance in full force and effect; 8. Suspension in Work ordered by Owner pursuant to any delays (as that term is defined in Section 6.10) caused by such difference, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, 16.3; 9. Subsurface Soil Conditions to the extent allowed under Section 6.82.5B.2; 810. To Discovery of Hazardous Materials at the extent expressly permitted Site or on the Off-Site Rights of Way and Easements for which Owner is responsible under Sections 5.2BSection 4.6 that adversely affects (i) Contractor’s costs of performance of the Work, 5.2C(ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material obligation under this Agreement; and 11. Owner’s issuance of NTP after December 31, 5.2D2017 or any delay in issuing NTP by the dates required for NTP as more fully described in Section 5.2B. B. Should Contractor desire to request a Change Order under this Section 6.2, 5.2FContractor shall, 5.3Apursuant to Section 6.5, 9.2Anotify Owner in writing and issue to Owner, 10.2at Contractor’s expense, 12.9 a request for a proposed Change Order in the form attached hereto as Schedule 4-3, a detailed explanation of the proposed change and 13.2AContractor’s reasons for proposing the change, Section 1.10.5documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section

Change Orders Requested by Contractor. A. Contractor shall have the right to request a Change Order in the event of any of the following occurrences: 1. Changes Any Change in Law that materially and adversely affect affects (i) Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material requirement obligation under this AgreementAgreement (provided that for any Change in Law regarding Taxes, and with respect any adjustment for Contractor pursuant to any delays (as that term is defined in this Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, 6.2 shall be permitted solely to the extent allowed under Section 6.8such Change in Law causes Contractor’s net aggregate Tax burden to increase benchmarked against Contractor’s net aggregate Tax burden as of February 28, 2017, as determined by a reputable, independent auditor mutually agreed by the Parties and paid for by Contractor (or, absent such mutual agreement, as appointed by the Houston, Texas office of the AAA), such determination to be made on a “with and without” basis and taking into account any decreases in Contractor’s aggregate Tax burden resulting from any other provision in the Law giving rise to the Change in Law; 2. Acts or omissions of Owner that constitute a breach of any express obligation member of Owner Group or any other Person for whom Owner is responsible, including in the case of Owner any failure to perform any obligation under this Agreement and materially and that adversely affect affects (i) Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material requirement obligation under this Agreement and, with respect Agreement; provided that Contractor shall not be entitled to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, Change Order to the extent allowed that such acts or omissions of Owner are (a) caused, directly or indirectly, by Contractor’s failure to perform its obligations under Section 6.8this Agreement, or (b) expressly permitted by this Agreement; 3. Force Majeure to the extent allowed under Section 6.7A6.8A; 4. Acceleration of the Work ordered directed by Owner pursuant to a Confirmed Acceleration Directive in accordance with Section 5.6; 5. If Contractor discovers at Owner’s request for an increase in coverage under the Site Letter of Credit pursuant to Section 9.2 to cover any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, increase in the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to Contractor, Contract Price as a result of Change Orders to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined set forth in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.89.2; 6. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report Sections 3.3C, 3.4, 3.25, 4.3, 4.7A, 5.6A, 7.1, 8.2A, 8.2C, 11.2A, 11.2B.6, 11.2D, 12.2A, 16.3, 16.4 and the Final Geotechnical ReportAttachment 31; 7. If Delay beyond the ground water constituents permissible times specified in Section 1A.9(g)(ii) or Section 1A.11(ii) of Attachment 15 for the delivery by Owner to Contractor of builder’s risk or marine cargo insurance proceeds received by the Collateral Agent (or if no Collateral Agent, a mutually agreed upon escrow agent) shall relieve Contractor of any obligation under this Agreement to effect repairs or other restoration of the Work affected by the insured occurrence for any costs of repairs or restoration exceeding the sum of the deductible under such insurance and flow rate potential existing at any amounts previously paid to Contractor under such insurance and shall entitle Contractor to a Change Order adjusting the Site are materially different from the information set forth in Attachment CCContract Price and Project Schedule, but only to the extent such difference has a material and adverse impact on delay adversely affects (i) Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule, or (iii) or Contractor’s ability to perform any material requirement obligation under this Agreement; provided that, notwithstanding the foregoing, in no event shall this Section 6.2A.7 in any way relieve Contractor from any obligation to perform any work necessary to maintain the builder’s risk and with respect marine cargo insurance in full force and effect; 8. Suspension in Work ordered by Owner pursuant to any delays (as that term is defined in Section 6.10) caused by such difference, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, 16.3; 9. Subsurface Soil Conditions to the extent allowed under Section 6.82.5B.2; 810. To Discovery of Hazardous Materials at the extent expressly permitted Site or on the Off-Site Rights of Way and Easements for which Owner is responsible under Sections 5.2BSection 4.6 that adversely affects (i) Contractor’s costs of performance of the Work, 5.2C(ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material obligation under this Agreement; and 11. Owner’s issuance of NTP after December 31, 5.2D2017 or any delay in issuing NTP by the dates required for NTP as more fully described in Section 5.2B. B. Should Contractor desire to request a Change Order under this Section 6.2, 5.2FContractor shall, 5.3Apursuant to Section 6.5, 9.2Anotify Owner in writing and issue to Owner, 10.2at Contractor’s expense, 12.9 a request for a proposed Change Order in the form attached hereto as Schedule 4-3, a detailed explanation of the proposed change and 13.2AContractor’s reasons for proposing the change, Section 1.10.5documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section

Change Orders Requested by Contractor. A. Contractor shall only have the right to request a Change Order in the event of any of the following occurrences: 1. Changes in Law that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 2. Acts or omissions of Owner that constitute a breach of any express obligation of Owner under this Agreement and materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or ability to perform any material requirement under this Agreement and, with respect to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 3. Force Majeure to the extent allowed under Section 6.7A6.8A; 42. Acceleration of the Work ordered by Owner pursuant to Section 5.6; 53. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified Suspension in Work ordered by or Owner pursuant to Contractor, to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;14.3; or, 64. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report 2.5B.1, Section 6.4, Section 6.9, or Section 12.2A. B. Should Contractor desire to request a Change Order under this Section 6.2, Contractor shall, pursuant to Section 6.6, notify Owner in writing and the Final Geotechnical Report; 7. If the ground water constituents and flow rate potential existing issue to Owner, at the Site are materially different from the information set forth in Attachment CC, to the extent such difference has a material and adverse impact on Contractor’s actual cost (expense, a request for a proposed Change Order in the form of Schedule D-3, a detailed explanation of the proposed change and Contractor’s reasons for proposing the change, all documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section 6.6. C. If Owner agrees that a Change Order is necessary and agrees with Contractor’s statement regarding the effect of the proposed Change Order on the Changed Criteria, then Owner shall issue such Change Order, which costs shall be in the form of Schedule D-1, and such Change Order shall become binding on the Parties as part of this Agreement upon execution thereof by the Parties. Owner shall be entitled to decline a Change Order with respect to any request by Contractor for a Change Order if the Change Order request, when submitted, is not adequately documented and supported by Contractor) of performance Contractor as required under this Agreement. D. If the Parties agree that Contractor is entitled to a Change Order but cannot agree on the effect of the Work or proposed Change Order on the Changed Criteria within thirty (30) Days of Owner’s receipt of Contractor’s ability written notice and proposed Change Order and all other required information, or if Owner desires that the proposed changed Work set forth in the proposed Change Order commence immediately, the rights, obligations and procedures set forth in Section 6.1C are applicable. E. If the Parties cannot agree upon whether Contractor is entitled to a Change Order within thirty (30) Days of Owner’s receipt of Contractor’s written notice and proposed Change Order, then the dispute shall be resolved as provided in ARTICLE 16. Pending resolution of the dispute, Contractor shall continue to perform any material requirement the Work required under this Agreement, and Owner shall continue to pay Contractor in accordance with respect to the terms of this Agreement, any delays (as that term is defined in Section 6.10) caused by such difference, compensation Change Orders and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 8. To the extent expressly permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, Section 1.10.5any previously agreed or unilateral Change Orders.

Change Orders Requested by Contractor. A. Contractor shall have the right to request a Change Order in the event of any of the following occurrences: 1. Changes in Law that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 2. Acts or omissions of Owner that constitute a material breach of any express obligation of Owner under this Agreement by Owner and materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractorsupported) of performance of the Work or ability to perform any material requirement under this Agreement and, with respect to delays (as that term is defined Section 6.106.9) caused by Owner or any Person acting on behalf or under the control of Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, Project Schedule to the extent allowed under Section 6.8; 32. Force Majeure to the extent allowed under Section 6.7A; 43. Acceleration of the Work ordered by Owner pursuant to Section 5.65.5, provided that a Change Order has been issued; 5. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to Contractor, to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 64. To the extent expressly permitted under Section 2.5B.1 12.2A; or 5. Suspension in Work ordered by Owner pursuant to Section 15.3. B. Should Contractor desire to request a Change Order under this Section 6.2, Contractor shall, pursuant to Section 6.5, notify Owner in writing and issue to Owner, at Contractor’s expense, a request for material differences between a proposed Change Order, a detailed explanation of the Soils Report proposed change and Contractor’s reasons for proposing the Final Geotechnical Report; 7change, all documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section 6.5. If Any adjustments to the ground water constituents Estimated Contract Price shall be requested on a unit price or lump sum basis and flow rate potential existing at the Site are materially different shall be derived from the information rates set forth in Attachment CC, Schedule D-3 to the extent such difference has applicable, or, if not therein, derived from rates not to exceed then-current market rates. C. If Owner agrees that a material Change Order is necessary and adverse impact on agrees with Contractor’s actual cost (statement regarding the effect of the proposed Change Order on the Changed Criteria, then Owner shall issue such Change Order, which costs shall be adequately documented in the form of Schedule D-1, and supported such Change Order shall become binding on the Parties as part of this Agreement upon execution thereof by Contractor) of performance the Parties. D. If the Parties agree that Contractor is entitled to a Change Order but cannot agree on the effect of the Work or proposed Change Order on the Changed Criteria within ten (10) Business Days of Owner’s receipt of Contractor’s ability written notice and proposed Change Order and all other required information, or if Owner desires that the proposed changed Work set forth in the proposed Change Order commence immediately, the rights, obligations and procedures set forth in Section 6.1C are applicable. E. If the Parties cannot agree upon whether Contractor is entitled to a Change Order within ten (10) Business Days of Owner’s receipt of Contractor’s written notice and proposed Change Order, then the dispute shall be resolved as provided in Article 17. Pending resolution of the dispute, Contractor shall continue to perform any material requirement the Work required under this Agreement, and Owner shall continue to pay Contractor in accordance with respect to the terms of this Agreement, any delays (as that term is defined in Section 6.10) caused by such difference, compensation Change Orders and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 8. To the extent expressly permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, Section 1.10.5any previously agreed or unilateral Change Orders.

Change Orders Requested by Contractor. A. 6.2.1 It is the intent of FPL and Contractor that the Scope of Work attached hereto as Appendix A, Scope of Work, includes all items necessary for the proper execution and completion of the Work. As more particularly described in Section 3.1.3, Contractor’s Exclusions, of Article III, CERTAIN OBLIGATIONS AND RESPONSIBILITIES OF CONTRACTOR work not described in the Scope of Work attached hereto as Appendix A, Scope of Work, shall not require a Change Order if such work is consistent with and reasonably inferable from the Scope of Work, so that an engineering, procurement and construction contractor of Contractor’s experience and expertise should have anticipated that the right work would have been required. 6.2.2 Subject to Section 6.2.3, below, Contractor may at any time, by written notice to FPL, request a Change Order in the event Work (together with any necessary or requested amendments to the Contract Documents) and FPL may accept or reject such request in its sole discretion. If Contractor 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, CONTRACTOR’S WARRANTIES, or require a modification of any other provisions of the following occurrences:Contract Documents, it shall notify FPL of such, setting forth its justification for and effect of such changes, within ten (10) days after making a request for a Change. If FPL accepts the Changes requested by Contractor (together with amendments to 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 the Contract Documents, if any, in a written Change Order signed by all Parties. For the avoidance of doubt, the Parties agree that FPL’s representative referred to in Section 4.11 shall not have authority to approve Change Orders. The Parties acknowledge and agree that one or more of the documents and agreements, including agreements with Subcontractors, may not be amended orally or through course of conduct. The Parties hereby express their intention that this Agreement 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). 1. 6.2.3 Contractor may at any time, by written notice to FPL, propose Changes in Law that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or the Critical Milestones due to: (a) A Force Majeure Event, provided that such Force Majeure Event has an impact that will actually, demonstrably, adversely and materially affect Contractor’s ability to perform any material requirement under this Agreementcomplete one or more Critical Milestones by the required dates and further provided that Contractor complies with requirements provided in Article XIV, FORCE MAJEURE EVENT AND FPL CAUSED DELAY, and with respect to any delays (as that term is defined in Section 6.10) caused by such Changes in Law6.2.2, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8above; 2. Acts or omissions of Owner that constitute a breach of any express obligation of Owner under this Agreement and materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or ability to perform any material requirement under this Agreement and, with respect to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 3. Force Majeure to the extent allowed under Section 6.7A; 4. Acceleration of the Work ordered by Owner pursuant to Section 5.6; 5. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to ContractorAn FPL Caused Delay, to the extent provided that such discovery FPL Caused Delay has a demonstrable material cost increase to Contractor and/or schedule impact that will actually, demonstrably, adversely and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or materially affect Contractor’s ability to perform any material requirement under this Agreement, complete one or more Critical Milestones by the required dates and further provided that Contractor complies with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8; 6. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report and the Final Geotechnical Report; 7. If the ground water constituents and flow rate potential existing at the Site are materially different from the information requirements set forth in Attachment CCArticle XIV, to FORCE MAJEURE EVENT AND FPL CAUSED DELAY; (c) A Change In Law, provided that such Change In Law prevents Contractor from performing all or a portion of the extent such difference Work, has a demonstrable material cost increase to Contractor and/or has a schedule impact that will actually, demonstrably, adversely and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or materially affect Contractor’s ability to perform any material requirement under this Agreementcomplete one or more Critical Milestones by the required dates, and with respect further provided that Contractor shall diligently make adjustments to any delays minimize the effect of such Change In Law on the Project; or (as that term is defined in Section 6.10d) caused by such difference, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, Certain unforeseeable subsurface conditions but only to the extent allowed under provided in Section 6.8;3.4.4, Differing Condition, of Article III, CERTAIN OBLIGATIONS AND RESPONSIBILITIES OF CONTRACTOR. Unless the foregoing conditions are met, Contractor may not request a Change in the Work or Critical Milestones due to a Force Majeure Event, FPL Caused Delay, Change In Law or unforeseeable subsurface conditions. 86.2.4 If FPL agrees that Contractor has met all of the applicable conditions precedent for a requested Change, then the Parties agree to bargain reasonably and in good faith for the execution of a mutually acceptable Change Order. To Force Majeure Events will only entitle Contractor to extensions of the extent expressly Project Schedule. If in such event the Parties are unable to agree on a mutually acceptable Change Order, then the dispute shall be resolved in accordance with Article XVII, DISPUTE RESOLUTION. Any extension permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, this Section 1.10.5shall be of an equitable duration designed to reflect the delay actually caused by the relevant event despite Contractor’s reasonable efforts to mitigate the same.