ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT by and between GEORGIA POWER COMPANY and POWERSECURE SOLAR, LLC dated as of July 9, 2015

Exhibit 10.1

Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

EXECUTION VERSION

CONFIDENTIAL

[***] PROJECT

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

by and between

GEORGIA POWER COMPANY

and

POWERSECURE SOLAR, LLC

dated as of July 9, 2015

TABLE OF CONTENTS


			Page
1.	DEFINITIONS AND RULES OF INTERPRETATION			1

	1.1	Definitions		1

	1.2	Exhibits		13

	1.3	Interpretation		13

	1.4	Headings		14

	1.5	Conflicts in Documentation		14

	1.6	Documentation Format		14

2.	RESPONSIBILITIES OF OWNER			15

	2.1	Owner Representative		15

	2.2	Electrical Interconnection		15

	2.3	Site Representative		15

	2.4	Access to Site		15

	2.5	Cooperation		15

	2.6	Owner Permits; Permit Assistance		15

	2.7	Review and Approval		15

	2.8	Taxes		16

	2.9	Other Responsibilities, Duties and Obligations		16

3.	RESPONSIBILITIES OF CONTRACTOR			16

	3.1	General		16

	3.2	Electrical Interconnection		16

	3.3	Contractor’s Project Manager		17

	3.4	Progress Reports and Regulatory Compliance		17

	3.5	Inspection and Communication with Owner		17

	3.6	Organization		17

	3.7	Utilities and Services		17

	3.8	Hazardous Materials Disposal System		18

	3.9	Maintenance of Site		18

	3.10	Site Security		18

	3.11	Occupational Health and Safety		19

	3.12	Safety		19

	3.13	Handling, Shipping and Importation		20

TABLE OF CONTENTS

(continued)


			Page
	3.14	Applicable Laws and Applicable Permits	20

	3.15	Quality Assurance Programs	21

	3.16	Commissioning Personnel	21

	3.17	Contractor Performance Security	21

	3.18	Contractor Deliverables	22

	3.19	Business Practices	22

	3.20	Site Conditions	22

	3.21	Unforeseeable Site Conditions; Religious or Archeological Findings	22

	3.22	No Toleration of Unacceptable Behavior (Ethics)	23

	3.23	Rights of Owner	24

	3.24	Drug-and Alcohol-Free Work Place	24

	3.25	Non-English Speaking Personnel	24

	3.26	Federal Tax Credits	25

	3.27	Compliance Obligations	25

4.	COVENANTS, WARRANTIES AND REPRESENTATIONS		25

	4.1	Contractor	25

	4.2	Owner	27

5.	COST OF WORK		27

	5.1	Contract Price	27

	5.2	[Reserved]	28

	5.3	Audit	28

	5.4	Taxes	28

6.	TERMS OF PAYMENT		31

	6.1	Milestone Payment Schedule	31

	6.2	Milestone Assessment	31

	6.3	Contractor’s Invoices	31

	6.4	Reserved	31

	6.5	Payments	31

	6.6	Substantial Completion Payment	32

	6.7	Final Completion Payment	32

	6.8	Owner’s Withholding Rights	32

TABLE OF CONTENTS

(continued)


			Page
	6.9	Disputes Regarding Payments		33

	6.10	Punchlist Holdback		33

	6.11	Set-Off		34

7.	COMMENCEMENT AND SCHEDULING OF THE WORK			34

	7.1	Effectiveness of Agreement		34

	7.2	Limited Notice to Proceed		34

	7.3	Notice to Proceed		34

	7.4	Delayed Notice to Proceed and LNTP Supplemental Plan		35

	7.5	Scheduling of the Work		36

	7.6	Progress Reporting		36

8.	FORCE MAJEURE EVENT			36

	8.1	Certain Events		36

	8.2	Notice of Force Majeure Event		37

	8.3	Scope of Suspension; Duty to Mitigate		37

	8.4	Contractor’s Remedies		37

9.	SUBCONTRACTORS			38

	9.1	Use of Subcontractors		38

	9.2	Owner Consent		38

	9.3	Assignment		38

	9.4	Effect of Subcontracts		38

10.	LABOR RELATIONS			39

	10.1	General Management of Employees		39

	10.2	Personnel Documents		39

11.	INSPECTION			39

	11.1	Inspection		39

12.	COMMISSIONING AND TESTING			40

	12.1	Commissioning Plan		40

	12.2	Test Procedures and Schedule		40

	12.3	Output During Start-Up, Testing and Commissioning		41

13.	SUBSTANTIAL COMPLETION AND FINAL COMPLETION			41

	13.1	Punchlist		41

iii

TABLE OF CONTENTS

(continued)


			Page
	13.2	Substantial Completion		43

	13.3	Notice of Substantial Completion		43

	13.4	Final Completion		44

	13.5	Notice of Final Completion		45

	13.6	Contractor’s Access After Substantial Completion to Achieve Final Completion		45

14.	LIQUIDATED DAMAGES			45

	14.1	Delay Liquidated Damages		45

	14.2	Remedial Plan		46

	14.3	Sole Remedy; Liquidated Damages Not a Penalty		46

	14.4	Enforceability		46

15.	CHANGES IN THE WORK			46

	15.1	Change In Work		46

	15.2	By Owner		47

	15.3	Adjustment to Dates and Contract Price Due to Force Majeure Events and Owner-Caused Delay		47

	15.4	Preparation of Change Order		47

	15.5	No Change Order Necessary for Emergency		49

	15.6	Change for Contractor’s Convenience		49

16.	WARRANTIES CONCERNING THE WORK			49

	16.1	Warranties		49

	16.2	Warranty Periods		49

	16.3	Exclusions		50

	16.4	Enforcement by Owner; Subcontractor Warranties		51

	16.5	Correction of Defects		51

	16.6	Limitations On Xxxxxxxxxx		00

00.	EQUIPMENT IMPORTATION; TITLE			53

	17.1	Importation of Project Hardware		53

	17.2	Title		53

	17.3	Transfer of Care, Custody and Control		54

TABLE OF CONTENTS

(continued)


			Page
18.	DEFAULTS AND REMEDIES			54

	18.1	Contractor Events of Default		54

	18.2	Owner’s Rights and Remedies		55

	18.3	Owner Event of Default		55

	18.4	Contractor’s Rights and Remedies		56

	18.5	Suspension		56

	18.6	Stop or Slow Work Directive		57

19.	TERMINATION			57

	19.1	Termination and Damages for Contractor Event of Default		57

	19.2	Payment to Contractor in the Event of Termination for Owner Event of Default		58

	19.3	Termination for Failure to Issue Notice to Proceed		58

	19.4	Termination Invoices		58

	19.5	Contractor Conduct		59

20.	INSURANCE			59

21.	RISK OF LOSS OR DAMAGE			59

	21.1	Risk of Loss Before Substantial Completion		59

	21.2	Risk of Loss After Substantial Completion		59

	21.3	Reserved		59

22.	INDEMNIFICATION			59

	22.1	By Contractor		59

	22.2	Reserved		60

	22.3	Patent Infringement and Other Indemnification Rights		60

	22.4	Electronic Data Files		61

	22.5	Claim Notice		61

	22.6	Defense of Claims		61

	22.7	Survival of Indemnity Obligations		62

23.	CONFIDENTIAL INFORMATION			62

	23.1	Confidential Information		62

	23.2	Use of Confidential Information		62

	23.3	Return of Confidential Information		63

TABLE OF CONTENTS

(continued)


			Page
	23.4	Protection of Confidential Information		64

	23.5	Export		64

	23.6	Confidential Information Remedy		64

24.	INVENTIONS AND LICENSES			64

	24.1	Invention; License		64

	24.2	Suitability of Contract Design, Engineering and Computer Programming Information		65

	24.3	Contractor Deliverables		65

	24.4	Software Licenses		65

25.	ASSIGNMENT			65

	25.1	Assignment to Other Persons		65

	25.2	Indemnitees; Successors and Assigns		66

26.	HAZARDOUS MATERIALS			66

	26.1	Use by Contractor		66

	26.2	Remediation by Contractor		66

	26.3	Notice of Hazardous Materials		67

27.	NON-PAYMENT CLAIMS			67

	27.1	Liens		67

	27.2	Lien Waivers		68

	27.3	Notice of Commencement		68

28.	NOTICES AND COMMUNICATIONS			69

	28.1	Requirements		69

	28.2	Representatives		69

	28.3	Effective Time		69

29.	LIMITATIONS OF LIABILITY AND REMEDIES			69

	29.1	Limitations on Damages		69

	29.2	Limitations on Contractor’s Liability		70

	29.3	Releases, Indemnities and Limitations		70

	29.4	Limitation on Remedies		70

30.	DISPUTES			71

	30.1	Management Negotiations		71

TABLE OF CONTENTS

(continued)


			Page
	30.2	Compulsory Mediation		71

	30.3	Confidentiality		71

	30.4	Work Notwithstanding Disputes		71

31.	MISCELLANEOUS			72

	31.1	Severability		72

	31.2	Governing Law; Venue; Submission to Jurisdiction		72

	31.3	Waiver of Jury Trial		72

	31.4	No Oral Modification		72

	31.5	No Waiver		72

	31.6	Third Party Beneficiaries		73

	31.7	Assurances		73

	31.8	Binding on Successors, Etc		73

	31.9	Merger of Prior Contracts		73

	31.10	Counterparts		73

	31.11	Attorneys’ Fees		73

	31.12	Announcements; Publications		73

	31.13	Independent Contractor		74

vii


		EXHIBITS

A		Scope of Work
B		Contractor Deliverables Table
C		Applicable Permits
D		Environmental, Health and Safety Plan
E		Site Description
F		Lien Waivers
		F-1 Contractor’s Interim Waiver and Release Upon Payment
		F-2 Subcontractor/Supplier’s Interim Waiver and Release Upon Payment
		F-3 Contractor’s Waiver And Release Upon Final Payment
		F-4 Subcontractor/Supplier’s Waiver And Release Upon Final Payment
G		Requirements for Progress Report
H		Commissioning Process and Testing
I		Milestone Payment Schedule
J		Contract Schedule
K		Approved Major Subcontractors
L		Quality Assurance Plan
M		Form of Performance and Payment Bonds
N		Reserved
O		Reserved
P		Form of Change Order
Q		Substantial Completion and Final Completion Notices
		Q-1 Notice of Substantial Completion
		Q-2 Notice of Final Completion
R		Form of Contractor’s Invoice
S		Insurance Requirements
T		Owner’s Compliance Documents
U		Applicable [***] Clauses
V		Special Conditions
W		Applicable Labor Regulations

viii

This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT is made and entered into as of this 9^th day of July, 2015 by and between GEORGIA POWER COMPANY, a Georgia corporation (“Owner”), and POWERSECURE SOLAR, LLC, a Delaware Limited Liability Company (“Contractor”). Each entity is sometimes individually referred to herein as a “Party” and the entities are sometimes collectively referred to herein as the “Parties.”

RECITALS

WHEREAS, Owner is developing the Project at the Site; and

WHEREAS, Owner desires to engage Contractor to design, engineer, procure, install, construct, test and commission the Project, on a turnkey basis, for the Contract Price, and Contractor desires to provide such services, all in accordance with the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the sums to be paid to Contractor by Owner and of the covenants and agreements set forth herein, the Parties agree as follows:

AGREEMENT

DEFINITIONS AND RULES OF INTERPRETATION

1.1 Definitions. For the purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the following meanings.

“AC” means alternating current.

“Affiliate” means, with respect to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is under common Control with, or is Controlled by such specified Person.

“Agreement” means this Engineering, Procurement and Construction Agreement, including all Exhibits hereto, as the same may be modified, amended or supplemented from time to time in accordance with the terms hereof.

“Applicable Law” means any statute, license, law, rule, regulation, code, ordinance, judgment, arbitral award, Permit Requirement, decree, writ, legal requirement or order, of any national, federal, state or local court or other Governmental Authority, and the official, written judicial interpretations thereof, applicable to the Work, the Site, the Project or the Parties.

“Applicable Permit” means each national, federal, state, county, municipal, local or other license, consent, appraisal, authorization, ruling, exemption, variance, order, judgment, decree, declaration, regulation, certification, filing, recording, permit (including, where applicable, conditional permits), right of way or other approval with, from or of any Governmental Authority, that is required by Applicable Law for the performance of the Work or ownership, operation or maintenance of the Project, including those set forth on Exhibit C.

“Bankrupt” means with respect to any entity, such entity (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (iv) generally does not pay its debts as they fall due.

“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. in Atlanta, Georgia.

“Change In Work” shall have the meaning set forth in Section 15.1.

“Change Order” means the form in respect of a Change In Work attached as Exhibit P.

“Claim Notice” shall have the meaning set forth in Section 22.5.

“Code” shall have the meaning set forth in Section 5.2.3(b).

“Commissioning Plan” shall have the meaning set forth in Section 12.1.

“Confidential Information” shall have the meaning set forth in Section 23.1.

“Contract Interest Rate” means the Prime Rate plus two percent (2%) per annum, but not to exceed the maximum rate permitted by Applicable Law.

“Contract Price” has the meaning set forth in Section 5.1, as the same may be adjusted pursuant to the terms hereof.

“Contract Schedule” means the Level II Xxxxx Chart set forth on Exhibit J, that represents the plan for accomplishing the Work, as updated from time to time pursuant to the terms of this Agreement, and which shall be the baseline schedule document that forms the basis of all measurement of progress of Work under this Agreement.

“Contractor” shall have the meaning set forth in the preamble.

“Contractor Deliverables” means all of the deliverables set forth on the Contractor Deliverables Table.

“Contractor Deliverables Table” means the table of Contractor Deliverables attached hereto as Exhibit B.

“Contractor Event of Default” shall have the meaning set forth in Section 18.1.

“Contractor Lien” shall have the meaning set forth in Section 27.1.

“Contractor Party” means Contractor, its Subcontractors and their respective directors, officers, employees and agents.

“Contractor Permits” means (i) all Applicable Permits set forth on Part I of Exhibit C and (ii) all Applicable Permits that are required for the performance of the Work in accordance with this Agreement other than Owner Permits.

“Contractor’s Interconnection Facilities” means the equipment and facilities up to the point of interconnection (as shown in Exhibit A) needed to interconnect the Project to the adjacent transmission facilities owned by Georgia Power Company as described in more detail in Exhibit A.

“Contractor’s Invoice” means an invoice from Contractor to Owner prepared by Contractor and in a form attached as Exhibit R.

“Contractor’s Project Manager” means [***], or any other project manager appointed by Contractor.

“Contractor’s Termination Invoice” shall have the meaning set forth in Section 19.4.

“Control” means (including with correlative meaning the terms “Controlled”, “Controls” and “Controlled by”), as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“Defect Warranty” means the warranties of Contractor under Section 16.1.1.

“Defect Warranty Period” shall have the meaning set forth in Section 16.2.1.

“Delay Liquidated Damages” means Twenty Thousand Dollars ($20,000.00) per day.

“Delay Notice” shall have the meaning set forth in Section 8.2.

“Design Warranty” shall have the meaning set forth in Section 16.1.2.

“Design Warranty Period” shall have the meaning set forth in Section 16.2.2.

“Designated Supplier” means (i) with respect to the PV Modules, REC Solar but only to the extent such PV modules are manufactured in Singapore; (ii) with respect to the inverters, Bonfiglioli, but only to the extent that such inverters are manufactured in Germany; and (iii) with respect to the racking system, Unirack, but only to the extent such racking system is manufactured in the United States.

“Disclosing Party” shall have the meaning set forth in Section 23.1.

“Dollars,” “dollars” or “$” means, unless otherwise specified in this Agreement, United States Dollars.

“Effective Date” shall have the meaning set forth in Section 7.1.

“Electrical Subcontractor” means the Subcontractor performing substantially all of the above-ground and below-ground (including trenching and other underground work) electrical installation Work for the Project pursuant to a Subcontract entered into by and between Contractor and such Subcontractor.

“Environmental Attributes” means any and all environmental characteristics that are attributable to renewable energy, including credits; credit towards achieving local, national or international renewable portfolio standards; green tags; renewable energy credits; greenhouse gas or emissions reductions, credits, offsets, allowances or benefits; any avoided emissions of pollutants to the air, soil, or water, including sulfur oxides (SO2), nitrogen oxides (NOx), carbon dioxide (CO2), carbon monoxide (CO), methane (CH4), nitrous oxide, carbon, volatile organic compounds (VOC), mercury, and other emissions; and any and all other green energy or other environmental benefits associated with the generation of solar energy (regardless of how any present or future law or regulation attributes or allocates such characteristics); provided, that Environmental Attributes do not include tax credits.

“Environmental Law” means any Applicable Law relating to the environment, and Hazardous Materials or to occupational health and safety.

“Event of Default” means either a Contractor Event of Default or an Owner Event of Default, as the context may require.

“Excluded Taxes” shall have the meaning set forth in Section 5.4.1.

“FERC” means the Federal Energy Regulatory Commission or its successor.

“Final Completion” means satisfaction by Contractor or waiver by Owner of all of the conditions for Final Completion set forth in Section 13.4.

“Final Completion Date” shall have the meaning set forth in Section 13.5.

“Final Completion Payment” means the Milestone Payment associated with the achievement of Final Completion, which shall be equal to [***].

“Final Lien Waiver” means, as applicable, (i) a lien waiver to be delivered by Contractor pursuant to Section 27.2 in the form of Exhibit F-3 to this Agreement and (ii) a lien waiver to be delivered by all Subcontractors pursuant to Section 27.2 in the form of Exhibit F-4 to this Agreement.

“Final Contractor’s Invoice” shall have the meaning set forth in Section 6.6.

“Five Consecutive Day Operational Test” shall have the meaning set forth in Exhibit H.

“Five Day Performance Ratio Test” shall have the meaning set forth in Exhibit H.

“Force Majeure Event” means any occurrence, nonoccurrence or set of circumstances that prevents a Party, in whole or in part, from performing any of its obligations or satisfying any conditions under this Agreement and that is beyond the reasonable control of such Party and is not caused by such Party’s negligence, lack of due diligence, or failure to follow Prudent Industry Practices. The term Force Majeure Event shall not include: (i) the inability to comply

with Applicable Law or an Applicable Permit or a change in any Applicable Law or Applicable Permit; (ii) a site-specific strike, walkout, lockout or other labor dispute at the Project; (iii) equipment failure or equipment damage, in the case of the Project only, except where such equipment failure or equipment damage results directly from an event that would otherwise constitute a Force Majeure Event hereunder; (iv) changes in market conditions that affect the cost or availability of equipment, materials, supplies or services, unless such costs or availability changes result directly from an event that would otherwise constitute a Force Majeure Event; (v) failures of Contractor’s Subcontractors or Suppliers, unless such failures are caused by an event that would otherwise constitute a Force Majeure Event if experienced directly by Contractor; (vi) unavailability, variability or lack of adequate solar insolation; or (vii) lack of finances.

“[***] Representatives” means any representative appointed or selected by the Georgia Public Service Commission to monitor the construction of the Project.

“Governmental Authority” means applicable national, federal, state, county, municipal and local governments and all agencies, authorities, departments, instrumentalities, courts, corporations, other authorities lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or other subdivisions of any of the foregoing having a regulatory interest in or jurisdiction over the Site, the Project, the Work or the Parties.

“Guaranteed Performance Ratio” shall have the meaning set forth in Exhibit H.

“Guaranteed Substantial Completion Date” means December 1, 2016.

“Hazardous Materials” means any chemical, substance, emission or material regulated or governed by any Applicable Permit or Applicable Law that is now or hereafter deemed by any Governmental Authority to be a “regulated substance,” “hazardous material,” “hazardous waste,” “hazardous constituent,” “hazardous substance,” “toxic substance,” “radioactive substance” or “pesticide.”

“Indemnitee” shall have the meaning set forth in Section 22.1.

“Industry Standards” means those standards of construction, workmanship, Project Hardware and components specified in Exhibit A. Solely with respect to Section 16.3(a)(1), “Industry Standards” shall mean those standards of care and diligence normally practiced by entities that operate and maintain PV power plants.

“Inspector” shall have the meaning set forth in Section 11.1(c).

“Installation Services Warranty” shall have the meaning set forth in Section 16.1.3.

“Installation Services Warranty Period” shall have the meaning set forth in Section 16.2.3.

“Intellectual Property Claim” means a claim or legal action for actual or alleged misappropriation of any trade secret or infringement of any United States patent, United States copyright, United States trademark or United States service xxxx arising from Contractor’s

performance (or that of its Affiliates or Subcontractors) under this Agreement that: (a) concerns any Project Hardware or other services provided by Contractor, any of its Affiliates, or any Subcontractor under this Agreement; (b) is based upon or arises out of the performance of the Work by Contractor, any of its Affiliates, or any Subcontractor; or (c) is based upon or arises out of the design or construction of any item by Contractor or any of its Affiliates or Subcontractors under this Agreement or the use, operation, maintenance or repair of any item according to directions embodied in Contractor’s final process design, or any revision thereof, prepared or approved by Contractor; provided, that such claim or legal action does not result from (i) Contractor’s following the Written Instructions of Owner to use, incorporate, or install the subject matter of the claim or legal action or offending or infringing process or item; (ii) any modification or alteration of any Project Hardware or the Work that is not performed by Contractor, any of its Affiliates, or any Subcontractor; (iii) the combination of Project Hardware or the Work with any materials not provided by Contractor, any of its Affiliates, or any Subcontractor unless such combination is reasonably contemplated by the Parties, or (iv) Owner’s variation from Contractor’s recommended procedures for using the Project Hardware or Work or any such item, or (v) the Work or such item being manufactured to designs or specifications of Owner, except to the extent such designs or specifications were proposed or suggested by Contractor, any of its Affiliates, or any Subcontractor in writing.

“Intellectual Property Rights” means all trade secrets, copyrights, patents, trademarks and other intellectual property rights necessary or reasonably contemplated for the ownership, use, operation, maintenance and repair of the Project or embodied in Project Hardware (including any associated or embedded software) or the Work.

“Interim Lien Waiver” means, as applicable, (i) a lien waiver to be delivered by Contractor pursuant to Section 27.2 in the form of Exhibit F-1 and (ii) a lien waiver to be delivered by all Subcontractors (except the Suppliers of the PV modules and the inverters for the Project) pursuant to Section 27.2 in the form of Exhibit F-2.

“Investment Tax Credit” means the federal income tax credit for solar energy property under Section 48(a)(5) of the Internal Revenue Code.

“Invention” shall have the meaning set forth in Section 24.1.

“ITC Property” means that portion of the Project that is described in Code section 48(a)(3)(A)(i).

“Labor Dispute” means work stoppages, slowdowns, strikes, disputes, disruptions, boycotts, walkouts and other labor difficulties or shortages.

“Lease” means certain lease agreement providing access to the Site to be entered into by Owner and the Department of the Navy .

“Limited Notice to Proceed” shall have the meaning set forth in Section 7.2.

“LNTP Supplemental Plan” shall have the meaning set forth in Section 7.4.1.

“LNTP Supplemental Plan Cost Cap” shall have the meaning set forth in Section 7.4.1.

“LNTP Supplemental Plan Work” shall have the meaning set forth in Section 7.4.1.

“LNTP Work” shall have the meaning set forth in Section 7.2.

“LNTP Work Cost Cap” shall have the meaning set forth in Section 7.2

“Losses” means, subject to Section 29.1, any and all actions, suits, claims, demands, costs, charges, expenses, liabilities, losses or damages.

“Major Project Component” means the PV modules, the inverters and the racking system for the Project.

“Major Subcontractor” means (a) a Subcontractor who enters into a Subcontract with Contractor for the supply of inverters, PV modules, PV Interconnection Switchgear and PVCS, (b) a Subcontractor that enters into a Subcontract with Contractor for preparing the plan for erosion, sediment, and pollution control pursuant to Applicable Permits, (c) the Electric Subcontractor, (d) the Site Preparation Subcontractor and (e) any Qualifying Subcontractor. An initial list of approved Major Subcontractors is attached as Exhibit K.

“[***] Representative” means an individual or individuals authorized to inspect the Site and the Project pursuant to the Lease.

“Mechanical Completion” means the satisfaction of all of the following conditions: (a) the Project is mechanically, electrically and functionally complete and ready for initial operations, adjustment and testing, except for Non-Critical Deficiencies, and that the Contractor has completed the design, engineering, procurement, permitting, assembly, construction and installation of the same, in accordance with this Agreement, including: (i) the connection of all such equipment to other applicable equipment as required by way of wiring, controls, and safety systems; and (ii) ensuring that all instruments and relays are installed and functional and all required protective and control features are operational; (b) Contractor has commissioned the Project in accordance with the Commissioning Plan; (c) the Meteorological Stations have been installed and placed into operation by Contractor; (d) the telemetry system has been installed and placed into operation by Contractor; and (e) the telecommunications system has been installed and placed into operation by Contractor.

“Mediation Notice” shall have the meaning set forth in Section 30.1.

“Meteorological Stations” means the meteorological stations to be installed at the Site, which shall meet the specifications set forth in Exhibit A.

“Milestone” means a discrete portion of the Work identified as a “Milestone” on the Milestone Payment Schedule.

“Milestone Date” means the dates designated in the Milestone Payment Schedule for achievement of particular Milestones

“Milestone Payment(s)” means a discrete portion of the Contract Price payable pursuant to the Milestone Payment Schedule as a payment due upon completion of a Milestone in accordance with Section 6.1.

“Milestone Payment Schedule” means the Milestone payment schedule attached hereto as Exhibit I.

“MW” means 1,000,000 xxxxx of electric power (expressed as alternating current).

“NERC” means the North American Electric Reliability Corporation or a successor organization that is responsible for establishing reliability criteria and protocols.

“NERC Reliability Requirements” means those requirements set forth in the NERC Reliability Standards for Bulk Electric Systems in North America, as amended from time to time.

“Non-Critical Deficiencies” means each item of Work that: (i) Owner or Contractor identifies as requiring completion or containing defects; (ii) does not impede the safe operation of the Project; and (iii) has an immaterial effect on the capacity, efficiency, reliability, operability, safety or mechanical or electrical integrity of the Project.

“Notice” or “Notification” means a written communication between authorized representatives of the Parties required or permitted by this Agreement and conforming to the requirements of Article 28.

“Notice of Final Completion” means a Notice from Contractor to Owner stating that Contractor has satisfied the requirements for Final Completion under Section 13.6, substantially in the form attached hereto as Exhibit Q-2.

“Notice of Substantial Completion” means a Notice from Contractor to Owner stating that Contractor has satisfied the conditions precedent for Substantial Completion under Section 13.2, substantially in the form attached hereto as Exhibit Q-1.

“Notice to Proceed” shall have the meaning set forth in Section 7.3(a).

“Notify” means to provide a Notice or Notification.

“OFAC” shall have the meaning set forth in Section 3.14.1.

“OSHA” means the Occupational Safety and Health Act of 1970.

“Owner” shall have the meaning set forth in the preamble.

“Owner-Caused Delay” means (i) a failure by Owner to perform any of its obligations under this Agreement, including any failure to timely respond to Notices of Contractor under this Agreement where a specified period is provided (unless a deemed response to such Notice is provided for hereunder), that materially impacts the ability of Contractor to perform the Work or (ii) Owner’s disruption of or interference with the performance of the Work without the right to do so under this Agreement in a manner that materially impacts the ability of Contractor to perform Work.

“Owner Event of Default” shall have the meaning set forth in Section 18.3.

“Owner Financing Party” means (a) any and all Persons, or the agents or trustees representing them, providing senior or subordinated debt, lease or equity financing or refinancing to Owner; or (b) any Person providing letters of credit, guarantees or other credit support to Owner, in each case, in connection with the Project or a portfolio of projects that includes the Project.

“Owner Indemnitee” shall have the meaning set forth in Section 22.1.

“Owner-Instituted Change” shall have the meaning set forth in Section 15.2.

“Owner’s Interconnection Facilities” shall have the meaning set forth in Section 2.2.

“Owner Party” means Owner, its subcontractors (other than Contractor or its Subcontractors) and their respective directors, officers, employees and agents.

“Owner Permits” means all Applicable Permits set forth on Part II of Exhibit C.

“Owner Representative” means the Owner’s representative designated by Owner pursuant to Section 2.1.

“Owner’s Certificate of Final Completion” means a certificate of Owner certifying that Final Completion has occurred.

“Owner’s Certificate of Substantial Completion” means a certificate from Owner certifying that Substantial Completion has occurred.

“Owner’s Engineer” means any engineering firm or firms or other engineer or engineers selected and designated by Owner.

“Party” and “Parties” shall have the meanings set forth in the preamble.

“Performance and Payment Bonds” shall have the meaning set forth in Section 3.17.1.

“Performance Test Procedures” means those procedures for the Performance Tests developed in accordance with Section 12.2.

“Permit Expenses” means the actual costs payable to a Governmental Authority and Clean Water Act mitigation costs incurred in connection with the application for, issuance of, modification of, and maintaining of an Applicable Permit.

“Permit Requirement” means any requirement or condition on or with respect to the issuance, maintenance, renewal, transfer of, or otherwise relating to, any Applicable Permit or any application therefor.

“Person” means any individual, corporation, company, voluntary association, partnership, incorporated organization, trust, limited liability company, or any other entity or organization, including any Governmental Authority. A Person shall include any officer, director, member, manager, employee or agent of such Person.

“Placed in Service” shall mean, unless otherwise agreed to in writing by the Parties, the following have been achieved for the Project: (1) the required licenses and permits relating to the operation of the Project have been obtained; (2) the Project has been synchronized into the electric power grid for generating and transmitting electricity; (3) the critical tests for the various components of the Project have been completed: (4) the Project has been place into the control of Owner by Contractor; and (5) the Project has begun regular daily operation (notwithstanding continuing testing for defects), as these factors have been interpreted and applied under United States federal income tax law.

“Post-2016 ITC” means the energy tax credit under Code section 48(a)(1) for ITC Property that is placed in service after December 31, 2016.

“Pre-2017 ITC” means the energy tax credit under Code section 48(a)(1) for ITC Property that is placed in service prior to January 1, 2017.

“Pre-Existing Contamination” means any Hazardous Materials, coal combustion byproducts or construction and demolition waste or other solid waste present on, at or under the Site that was introduced before the Effective Date.

“Prime Rate” means the prime rate as published in the “The Money Rates” Section of The Wall Street Journal (U.S. Edition); provided that, if the Wall Street Journal (U.S. Edition) is discontinued, the Parties shall use a comparable rate published by a responsible financial periodical reasonably selected by Contractor and reasonably approved by Owner.

“Progress Report” means a written progress report prepared by Contractor addressing the topics set out in Exhibit G.

“Project” means the [***] PV power plant to be designed, engineered, procured, constructed, tested and commissioned under this Agreement.

“Project Hardware” means all materials, supplies, apparatus, devices, equipment, machinery, tools, components, instruments and appliances that are to be incorporated into the Project, whether provided by Contractor or any Subcontractor.

“Property Taxes” means any real or personal property Taxes imposed on the Site, the Project Hardware or any material, equipment or other property that will be incorporated into the Project under this Agreement.

“Proposed Punchlist” shall have the meaning set forth in Section 13.1.1(b).

“Prudent Utility Practice” means any practices, methods and acts (i) required by Industry Standards, the National Electric Safety Code or NERC, whether or not the applicable Party is a member thereof, or (ii) otherwise engaged in or approved by a significant portion of

the utility solar electric generation industry during the relevant time period or any of the practices, methods and acts that in the exercise of commercially reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Prudent Utility Practice is not intended to be the optimum practice, method or act to the exclusion of all others, but rather is intended to be any of the practices, methods and/or actions generally accepted in the region.

“Punchlist” shall have the meaning set forth in Section 13.1.1(c).

“Punchlist Amount” means the cost or estimated cost to complete any Punchlist item as approved or deemed approved by the Parties under Section 13.1.1.

“Punchlist Holdback” means an amount equal to [***] of the Punchlist Amount for each Punchlist item.

“PV” means photovoltaic.

“PV Modules” means the photovoltaic modules to be installed in accordance this Agreement and meeting the technical specifications set forth in Exhibit A.

“PVCS” means the PV combining switchgear which collects the generated power from the power conversion station (which consists of the static power inverters, inverter step up transformers, cabling and grounding systems).

“Qualified Surety” means a surety authorized and licensed to transact suretyship business in the state of Georgia, included on the United States Department of the Treasury list (Department Circular 570) of surety companies qualified to write surety bonds on Federal Government projects, and rated by A.M. Best Company with a financial strength rating of “A-” or better and a financial size rating of Class X or larger.

“Qualifying Subcontractor” means a Subcontractor whose compensation under the respective Subcontract is expected to exceed or actually exceeds five hundred thousand Dollars ($500,000).

“Receiving Party” shall have the meaning set forth in Section 23.1.

“Release” means the release, discharge, deposit, injection, dumping, spilling, leaking or placing of any Hazardous Material into the environment so that such Hazardous Material or any constituent thereof may enter the environment, or be emitted into the air or discharged into any waters, including ground waters under applicable Environmental Law.

“Remedial Plan” shall have the meaning set forth in Section 14.2.1.

“Required Manuals” means operation and maintenance manuals which are reasonably necessary to safely and efficiently operate, maintain and shut down the Project, as set forth on Exhibit B.

“Required Regulatory Approval” shall have the meaning set forth in Section 7.3(b).

“Safety Procedures” means those procedures and protocols set out in the Environmental, Health and Safety Plan in Exhibit D.

“SCADA” means the supervisory control and data acquisition system (including all necessary monitoring/control hardware and software, field instrumentation and communication devices) owned and operated by Owner, and any replacement thereto, as more particularly described in Exhibit A.

“Scope of Work” means the requirements regarding the Work set forth in Exhibit A.

“Senior Management Notice” shall have the meaning set forth in Section 30.1.

“Site” means the Project site, as more particularly described in Exhibit E.

“Site Policies” shall have the meaning set forth in Section 3.10.2.

“Site Preparation Subcontractor” means the Subcontractor performing substantially all of the Site preparation Work at the Site pursuant to a Subcontract entered into by and between Contractor and such Subcontractor, including fencing for the Site.

“Site Representative” shall have the meaning set forth in Section 2.2.

“Subcontract” means any contract for performance of any portion of the Work entered into with a Subcontractor.

“Subcontractor” means any Person, directly or indirectly, and of any tier (other than Contractor, but including any Affiliate of Contractor), including any Supplier, that performs any portion of the Work on behalf of Contractor in furtherance of Contractor’s obligations under this Agreement.

“Substantial Completion” shall have the meaning set forth in Section 13.2.

“Substantial Completion Date” shall have the meaning set forth in Section 13.3.

“Substantial Completion Payment” means the Milestone Payment associated with the achievement of Substantial Completion, which shall be equal to [***].

“Successfully Run” means, as applicable, that (i) the Five Consecutive Day Operational Test was completed in accordance with the procedures, conditions and requirements for the proper performance of such test as set forth in Exhibit H and reflects achievement of the “Reliability Guaranty” as that term is defined in Exhibit H and (ii) the Project has achieve the acceptance criterion for the Five Day Performance Ratio Test as set forth in Exhibit H.

“Supplier” means a Person that supplies Project Hardware directly to Contractor in connection with the performance of the Work (including any Affiliate of Contractor).

“Tax” or “Taxes” means any and all forms of taxation, charges, duties, imposts, levies and rates whenever imposed by any Governmental Authority, including sales tax, use tax, gross receipts tax, income tax, withholding taxes, corporation tax, franchise taxes, capital gains tax, capital tax, capital transfer tax, inheritance tax, value added tax, customs duties, capital duty, excise taxes, betterment levy, stamp duty, stamp duty reserve tax, payroll tax, social security or other similar taxes, and generally any tax, duty, impost, levy, goods and services tax, or rate or other amount, and any interest, penalty, fine or other amount due in connection therewith, but excluding any Permit Expenses.

“Unforeseeable Site Conditions” means the presence or the discovery of Hazardous Materials, archeological artifacts, liens or encumbrances, the presence of endangered or threatened species, or religious, historical, cultural, archeological or biological resources, coal combustion byproducts or construction and demolition waste or other solid waste, or any unknown physical conditions at, above or below the surface of the Site that prevents the performance of any material obligation arising under this Agreement after the Effective Date that could not have been discovered through reasonable diligence by Contractor.

“Warranty” means the Defect Warranty, the Design Warranty or the Installation Services Warranty, as the context requires.

“Warranty Claim Notice” shall have the meaning set forth in Section 16.5.3.

“Warranty Period” means the Defect Warranty Period, the Design Warranty Period or the Installation Services Warranty, as the context requires.

“Work” means all of the obligations, duties, and responsibilities assigned to or undertaken by Contractor under this Agreement to design, procure, construct, test and commission the Project, including those obligations set forth in Exhibit A.

“Working Outstanding Items List” shall have the meaning set forth in Section 13.1.1(a).

“Written Instructions” means instructions by Owner in writing that are prepared at Owner’s volition without input or suggestion from a Contractor Party. Written Instructions do not include this Agreement or any instructions specified in this Agreement.

1.2 Exhibits. This Agreement includes the Exhibits annexed hereto and any reference in this Agreement to an “Exhibit” by letter designation or title shall mean one of the Exhibits identified in the table of contents and such reference shall indicate such Exhibit herein. Each Exhibit attached hereto is incorporated herein in its entirety by this reference.

1.3 Interpretation.

(a)

Terms defined in a given number, tense or form shall have the corresponding meaning when used in this Agreement with initial capitals in another number, tense or form. The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term and vice versa, and words denoting either gender shall include both genders as the context requires. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.

(b)

The terms such as “hereof,” “herein,” “hereto,” “hereinafter” and other terms of like import are not limited in applicability to the specific provision within which such references are set forth but instead refer to this Agreement taken as a whole.

(c)

When a reference is made in this Agreement to an Article, Section, subsection or Exhibit, such reference is to an Article, Section, subsection or Exhibit of this Agreement unless otherwise specified.

(d)

The word “include,” “includes,” and “including” when used in this Agreement shall be deemed to be followed by the words “without limitation,” and, unless otherwise specified shall not be deemed limited by the specific enumeration of items, but shall be deemed without limitation. The term “or” is not exclusive.

(e)

A reference to either Party in this Agreement or in any other agreement or document shall include such Party’s predecessors, successors and permitted assigns.

(f)

A reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or re-enacted, and all rules and regulations promulgated thereunder.

(g)

The Parties have participated jointly in the negotiation and drafting of this Agreement. Any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against either Party by virtue of the authorship of this Agreement shall not apply to the construction and interpretation hereof.

1.4 Headings. All headings or captions contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

1.5 Conflicts in Documentation. This Agreement, including the Exhibits hereto shall be taken as mutually explanatory. If either Party becomes aware of an express conflict between the provisions of this Agreement or any Exhibit hereto, such Party shall promptly Notify the other Party of such conflict. In the event of a conflict between any provision within Articles 1 through 31 of this Agreement and an Exhibit, the provisions of Articles 1 through 31 of this Agreement shall take precedence over Exhibits A and H, Exhibits A and H shall take precedence over Exhibit V and Exhibit V shall in turn take precedence over the remaining Exhibits.

1.6 Documentation Format. This Agreement and all documentation to be supplied hereunder shall be in the English language and all units of measurement in the design process, specifications, drawings and other documents shall be specified in dimensions as customarily used in the United States of America.

RESPONSIBILITIES OF OWNER

Owner shall, at Owner’s cost and expense:

2.1 Owner Representative. Designate (by a Notice delivered to Contractor) an “Owner Representative”, who shall act as the single point of contact on behalf of Owner with respect to the prosecution and scheduling of the Work and any issues relating to this Agreement. Owner may designate a new Owner Representative from time to time by Notice delivered to Contractor.

2.2 Electrical Interconnection. Engineer, design, construct and commission any interconnection facilities needed beyond the generation step up transformer as further described in Exhibit A (“Owner’s Interconnection Facilities”).

2.3 Site Representative. At Owner’s sole discretion, designate (by a Notice delivered to Contractor) a “Site Representative” who shall be permitted, notwithstanding Section 11.1(a) reasonable access to all portions of the Work on Site for purposes of inspection at all reasonable times. At Owner’s sole discretion, the Owner Representative may also serve as the Site Representative or the Inspector. Owner may designate a new Site Representative from time to time by a Notice delivered to Contractor.

2.4 Access to Site. Subject to the other provisions of this Agreement applicable to safety and Site requirements and to the Lease, provide access and use of the Site for the purposes of allowing Contractor to perform its obligations and exercise its rights under this Agreement.

2.5 Cooperation. Cooperate and coordinate with Contractor and the Subcontractors in coordinating the work of any of Owner’s other contractors who may be working at or near the Site with the Work being performed by Contractor and the Subcontractors. Owner shall not allow its, or its Affiliates’, operations and activities on the Site to materially interfere with the performance of the Work by Contractor.

2.6 Owner Permits; Permit Assistance. Owner shall have obtained (or shall obtain in a timely manner) and shall maintain all Owner Permits as specified in Part II of Exhibit C and shall pay or cause to be paid all Permit Expenses applicable to Owner Permits; provided, that Contractor will be responsible for all other obligations under such permits pursuant to Section 3.14. Owner shall cooperate with and provide reasonable assistance to Contractor with obtaining any Contractor Permit and any modification to any Owner Permit necessary for the completion of the Work.

2.7 Review and Approval. Notwithstanding Owner’s review or Owner’s approval of any items submitted to Owner for review or approval in accordance with this Agreement, neither Owner nor any of its representatives or agents reviewing such items, including the Owner’s Engineer, shall have any liability for, under or in connection with the items such Person reviews or approves, and Contractor shall remain responsible for the quality and performance of the Work. Owner’s review or approval of any items shall not constitute a waiver of any claim or right that Owner may then or thereafter have against Contractor. Unless otherwise expressly provided herein, Owner shall not unreasonably delay its review of any item submitted by Contractor for review or approval. The review by Owner of any Subcontractor shall not

constitute any approval of the Work undertaken by any such Person, cause Owner to have any responsibility for the actions, the Work, or payment of such Person or be deemed to be an employer-employee relationship with any such Subcontractor, or in any way relieve Contractor of its responsibilities and obligations under this Agreement.

2.8 Taxes. Remit in a timely manner any and all Property Taxes and any such other Taxes as are Owner’s responsibility under Section 5.4.1. In the event such Taxes are paid by Contractor, or any Subcontractor or Supplier, Owner shall promptly reimburse Contractor for same.

2.9 Other Responsibilities, Duties and Obligations. Perform its other responsibilities, duties and obligations set forth in this Agreement.

RESPONSIBILITIES OF CONTRACTOR

Contractor shall, at Contractor’s sole cost and expense:

3.1 General. Contractor shall perform, furnish and be responsible for all of the Work on a lump sum, turnkey basis; provided, that any work provided with respect to the Project prior to the execution and effectiveness of this Agreement shall be deemed “Work” hereunder and shall be subject to the terms and conditions of this Agreement and shall be required to meet all requirements of this Agreement with respect to the Work and is incorporated into this Agreement by this reference. Contractor acknowledges and agrees that this Agreement constitutes a fixed price (subject to the terms hereof) obligation to engineer, design, procure, construct, test and commission the Project. Except for items that are expressly excluded from the Work, the Work shall be deemed to include all items required or necessary as of the Effective Date for the Work to comply with Applicable Law, Applicable Permits and Prudent Utility Practice, and any Change in Work required for the Work to so comply shall not permit any schedule or additional cost relief for Contractor. Contractor shall, as between Contractor and Owner, be solely responsible for all design, engineering and construction means, methods, techniques, sequences, procedures and safety and security programs in connection with the performance of the Work. Contractor shall design, engineer and construct the Project so that it meets the requirements of the applicable Contractor Deliverables, and is capable, as of the Substantial Completion Date, of operation in compliance with the terms of this Agreement. Contractor shall perform the Work and complete the Project in accordance with (i) the Contractor Deliverables, (ii) all Applicable Laws and Applicable Permits, (iii) Prudent Utility Practice; (iv) NERC Reliability Requirements that are binding, legal requirements applicable to Contractor’s performance of the Work; (v) the Scope of Work; and (vi) the Lease.

3.2 Electrical Interconnection. Engineer, design, construct and commission Contractor’s Interconnection Facilities in accordance with the specifications and requirements of Georgia Power Company as transmission provider. Additionally, Contractor shall (i) prior to the Substantial Completion Date, provide Owner with all required drawings, information, documents, specifications and progress reports as required by Owner and (ii) prior to the Substantial Completion Date, perform any testing and subsequent modifications as required by Owner.

3.3 Contractor’s Project Manager. Designate a qualified individual to act as Contractor’s “Project Manager” who shall have full responsibility for the prosecution and scheduling of the Work and any issues relating to this Agreement. Contractor may designate a new qualified individual to act as Contractor’s Project Manager from time to time by a Notice delivered to Owner. Any such Project Manager will be responsible for furnishing information as reasonably requested by Owner, will have the authority to agree upon procedures for coordinating Contractor’s efforts with those of Owner, and shall be present or duly represented at the Site at all times when the Work is being performed.

3.4 Progress Reports and Regulatory Compliance. Until the Substantial Completion Date, provide Progress Reports in accordance with Section 7.6 and any other reports as and when reasonably required by Owner. Contractor shall also assist Owner in providing any information requested by the Georgia Public Service Commission in connection with the Project.

3.5 Inspection and Communication with Owner.

3.5.1 Contractor shall perform all inspection and other like services (such as expediting, quality surveillance and traffic control) required for performance of the Work, including inspecting all Project Hardware. Without limiting the foregoing, Contractor shall be responsible for inspection and, to the extent Contractor deems necessary using its reasonable judgment, testing of the Project Hardware and all components thereof in accordance with Prudent Utility Practice.

3.5.2 Contractor shall perform detailed inspection of Work in progress, as well as expediting and quality surveillance as required for performance of the Work. Contractor shall:

(a)

keep Owner informed in all material respects of the progress and quality of all Work; and

(b)

advise Owner of any material deficiencies revealed through such inspections and of the measures proposed by Contractor to remedy such deficiencies; provided, any such Notice provided pursuant to this Section 3.5.2(b), shall not constitute a request for adjustment, extension or modification of the Contract Schedule or Owner’s consent to any of the same.

3.6 Organization. Contractor shall, in Contractor’s reasonable judgment, maintain staff that are dedicated to the completion of the Work, and that have the technical and managerial expertise to control and execute the Work in accordance with the requirements of this Agreement, including appropriate installation and commissioning representatives, supervising personnel, all equipment, tools, construction and temporary material and all other labor necessary for all of the Work to complete commissioning in accordance with Exhibit H.

3.7 Utilities and Services.

3.7.1 Provision of Services. Subject to Section 6 of Exhibit V, until the Substantial Completion Date, install, connect and maintain at its own expense all utilities, facilities and services required for the performance of the Work, either through adjoining public streets or, if they pass through adjoining private land, do so in accordance with easements (as in existence on the Effective Date) which inure to the benefit of the Owner.

3.7.2 Payment. Pay when due all utility usage charges and arrange with local authorities and utility companies having jurisdiction over the Site for the provision of utilities provided pursuant to Section 3.7.1.

3.7.3 Supply of Construction Facilities. In accordance with Exhibit V, obtain all supplies or services required for the performance of the Work but which do not form a permanent part of the Project.

3.8 Hazardous Materials Disposal System. To the extent required by Applicable Law and subject to Section 26, prepare and maintain accurate and complete documentation of all Hazardous Materials used by Contractor or Subcontractors at the Site in connection with the Project, and of the disposal of any such materials, including transportation documentation and the identity of all Subcontractors providing Hazardous Materials disposal services to Contractor at the Site.

3.9 Maintenance of Site. Contractor shall at all times keep the Site reasonably free from debris, waste, rubbish and Hazardous Material (other than Pre-Existing Contamination), relating to its Work, including clearance of the Site and removal of obstructions for starting the Work. Contractor shall take reasonable steps to maintain the Site in a neat and orderly condition throughout the performance of the Work. Contractor shall employ sufficient personnel to clean its office and Owner’s office at the Site and work areas each working day and shall cooperate with the other Persons working at the Site to keep the Site clean. Subject to Section 3.8 and Section 26 with respect to Hazardous Materials, Contractor shall dispose of any such debris, waste and rubbish on the Site in accordance with Applicable Law, and Prudent Utility Practice. Contractor shall provide for the procurement of or disposal of, as necessary, all soil, gravel and similar materials required for the performance of or otherwise in connection with the Work. Owner shall be conducting other activities on the Site that may require additional coordination and safety precautions on the part of the Contractor. The Contractor shall cooperate and coordinate with, and not interfere with or obstruct, other contractors and/or plant operations and maintenance activities at the Site.

3.10 Site Security.

3.10.1 Safety Procedures. Contractor shall be responsible for the security and safety of the Site at all times prior to Substantial Completion in accordance with Exhibit D and Exhibit V. Without limiting Contractor’s other obligations as set forth in this Agreement, at all times during the performance of the Work on Site, Contractor will comply with and cause the on-Site personnel of any Contractor Party to comply with Contractor’s safety procedures as set forth in Exhibit D. Contractor’s environmental, health and safety program (set forth on Exhibit D) shall meet or exceed the requirements of the “Southern Company Generation Environmental, Health and Safety Policies and Procedures” manual set forth at xxxx://xxx.xxxxxxxxxxxxxxx.xxx/xxxxx-xx/xxxxxxxxx/xxx.xxxxxx.

3.10.2 Site Policies. Until the Substantial Completion Date, provide all necessary and reasonably appropriate security safeguards at the Site for the protection of the Work. Contractor acknowledges that Owner has Site and security rules at its various premises and facilities. Contractor agrees that it will ensure that the personnel of any Contractor Party, while on Site, comply with Owner’s Site and security rules set forth in Exhibit T (the “Site Policies”). If, at any time, Owner concludes that any such personnel of a Contractor Party is not in compliance with the Site Policies, Owner shall provide Contractor notice (which may be oral or by electronic means) of such non-compliance and Contractor shall correct such non-compliance promptly; provided, however, if Contractor does not correct such non-compliance promptly, Owner shall have the right, in its sole discretion, to refuse Site entry to (or to have removed from the Site) such non-compliant personnel of a Contractor Party. Contractor shall notify the Owner Representative upon removal of any person from the Site for violation of the Site Policies. On a bi-weekly basis (i.e., every two (2) weeks), Contractor shall provide to Owner (through the Owner Representative) a list of the on-Site personnel of any Contractor Party.

3.11 Occupational Health and Safety.

3.11.1 Compliance. Consistent with Contractor’s Safety Procedures, Contractor shall take necessary safety and other precautions to protect property and persons from damage, injury or illness arising out of the performance of the Work, and shall be responsible for the compliance by all Contractor Parties with all Applicable Laws governing occupational health and safety.

3.11.2 Notice. Contractor shall provide Owner, within five (5) days following its occurrence, with:

(a)

Notification of all OSHA recordable events;

(b)

Notifications and copies of all citations by Governmental Authorities concerning accidents or safety violations at the Site; and

(c)

copies of written accident reports for lost time accidents.

Contractor shall promptly deliver to Owner any written communication with any Governmental Authority (including any Notices) with respect to accidents that occur at the Site.

3.12 Safety. At all times while any Contractor Parties are on the Site, be responsible for providing them with a safe place of employment, and Contractor shall inspect the places where any such Contractor Party are or may be present on the Site and shall promptly take action to correct conditions which cause or may be reasonably expected to cause the Site to be or become an unsafe place of employment for such Contractor Party. Contractor shall provide to its employees, at its own expense, any and all safety equipment required to protect against injuries during the performance of the Work and shall ensure that all Contractor Parties are knowledgeable of and utilize safe practices in the performance of the Work. In furtherance and not in limitation of the foregoing, Contractor shall comply with the Contractor’s Safety Procedures.

3.13 Handling, Shipping and Importation. Arrange for complete handling, shipping and importation, as necessary, of all Project Hardware and construction equipment, materials and supplies and all manufacturing and related services (whether on or off the Site) for construction of and incorporation into the Project which are required for completion of the Work in accordance with this Agreement, including quality assurance, shipping, loading, unloading, customs clearance (and payment of any customs duties in connection therewith), receiving, and any required storage and claims.

3.14 Applicable Laws and Applicable Permits. Obtain and maintain all Contractor Permits and pay all costs and expenses (including all Permit Expenses) in connection with all Contractor Permits. Contractor shall be responsible for compliance with and implementation of the Owner Permits. Contractor shall provide Owner with (i) copies of all applications and plans related thereto for those Contractor Permits that have not already been obtained as of the Effective Date at least thirty (30) days prior to submission of the application (in the case of those applications not submitted prior to the Effective Date), including the erosion, sedimentation and pollution control plan, and final Contractor Permits and plans related thereto for review and approval by Owner, (ii) all correspondence with Governmental Authorities associated with, and notices of, any alleged violations of an Applicable Permit, (iii) notification of any inspection of the Project by any Governmental Authority and (iv) notice of any dispute regarding any Contractor Permit or, to its knowledge, any Applicable Permit. During performance of the Work, Contractor shall comply, and cause the Subcontractors to comply, with (i) all Applicable Laws and all Applicable Permits relating to the Work, including those Applicable Laws and Applicable Permits relating to fire, safety, health, environmental matters, employment standards and workers’ compensation and (ii) all applicable requirements of NERC and other applicable reliability regulatory agencies relating to the Project and the Work (including those relating to construction and operation of the Project). Contractor’s Georgia contractor’s license number, issued by the Georgia State Licensing Board for Residential and General Contractors, is GCCO001925 and Contractor shall renew or extend such license with the appropriate Governmental Authority as and when required by Applicable Law as necessary for Contractor to perform its obligations under this Agreement. Contractor shall cooperate with and provide reasonable assistance to Owner with obtaining and maintaining any Owner Permit or otherwise complying with any Applicable Law. Without limiting the generality of the foregoing obligation, Contractor agrees that it will adhere to: (a) all labor laws and regulations (including the use of U.S. citizens or properly documented alien workers under the Immigration Act of 1990 and the Immigration and Nationality Act of 1952, as amended, including the Department of Homeland Security’s E-Verify procedures, if required by applicable labor laws and regulations); and (b) all safety and health standards promulgated under OSHA and by any state or local health or safety authority with jurisdiction over the Work performed or to be performed under this Agreement. Contractor shall maintain records regarding its compliance with Applicable Permits, including environmental permits, as required by Applicable Law. Contractor shall make available to Owner for inspection upon reasonable advance written request and during Contractor’s normal business hours all such records.

3.14.1 Foreign Asset Control Compliance. Contractor represents and warrants as follows at all times during the term of this Agreement: (i) it is not, and it does not act on behalf of any other person that is, named on the “List of Specially Designated Nationals and Blocked Persons” maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control

(“OFAC”); (ii) it is not, and it does not act on behalf of any other person that is, the subject of any other sanctions programs administered by OFAC; and (iii) it is in material compliance with all applicable laws and regulations relating to the prevention of money laundering and the financing of terrorism.

3.14.2 Foreign Corrupt Practices Act Compliance. Contractor agrees that it will not corruptly offer, promise or give any pecuniary benefit or other thing of value, whether directly or through intermediaries, in connection with this Agreement and the transactions contemplated hereby, to a Foreign Public Official, for receipt by that Official, or for a third party on behalf of that Official, in order to influence any act or decision of that Official, that the Official act or refrain from acting in violation of the performance of his or her official duties, or in order to obtain or retain business or other improper advantage for Contractor in connection with Contractor’s work related to this Agreement. Contractor warrants and represents that, before the execution of this Agreement, neither it nor its Affiliates took any action with respect to any work related to this Agreement that would have violated this Section 3.14.2 had this Agreement been signed at that time. As used herein: (i) “Foreign Public Official” and “Official” mean any officer or employee of a foreign government, or any department, agency, or instrumentality thereof; any officer or employee of a public international organization; any foreign political party or official thereof, or any candidate for foreign political office; and (ii) “country” includes all levels and subdivisions of a government from national to local.

3.15 Quality Assurance Programs. Contractor has sole responsibility for the quality assurance and quality control of the Work, including all work of its Subcontractors. Contractor shall use effective quality assurance programs throughout the performance of the Work that are substantially similar to those set forth in Exhibit L. Within sixty (60) days after the Effective Date, Contractor shall provide for Owner’s review Site-specific quality assurance program, which program shall meet or exceed the requirements specified in Section 13.1.1 of Exhibit V.

3.16 Commissioning Personnel. Provide or cause to be provided, appropriate installation and commissioning representatives, as necessary supervising personnel, all equipment, tools, construction and temporary material and all other labor necessary for all of the Work to complete commissioning in accordance with Exhibit H.

3.17 Contractor Performance Security.

3.17.1 Contractor shall provide on or before the date on which Owner issues the Notice to Proceed surety performance and payment bonds each with a penal sum equal to the Contract Price (“Performance and Payment Bonds”), in the form of Exhibit M and issued by a Qualified Surety, as security for the Contractor’s performance and payment obligations under this Agreement. Such performance and payment bonds shall be maintained until the expiration of the Warranty Period as defined in Section 1.1 and Section 16.2 of this Agreement.

3.17.2 Owner shall be entitled to draw upon the Performance and Payment Bonds following the occurrence of a Contractor Event of Default, including Contractor’s failure to pay any liquidated damages, in the amount necessary to recover any damages to which Owner is entitled to under this Agreement. All costs associated with the Performance and Payment Bonds shall be included in the Contract Price.

3.17.3 Contractor shall promptly notify Owner of any circumstance that results in Contractor’s failure to be in compliance with the requirements of this Section 3.17. From time to time, at Owner’s written request, Contractor shall provide Owner with such evidence as Owner may reasonably request that the Performance and Payment Bonds remains in full force and effect in accordance with this Agreement.

3.18 Contractor Deliverables. Contractor shall deliver to Owner, the Contractor Deliverables specified in Exhibit B. The Contractor Deliverables shall include all drawings and documentation necessary for Contractor’s performance of the Work. The drawings shall show all features and details of the Work necessary for the proper installation and successful operation of the Project. The Contractor shall identify in the drawings or documentation the originator of the drawings and/or documentation if the originator is other than the Contractor. Owner shall be entitled to review and approve all Contractor Deliverables; provided that if Owner fails to respond within fifteen (15) Business Days of delivery of any Contractor Deliverables, such Contractor Deliverable will be deemed approved. Contractor shall make changes to the Contractor Deliverables as reasonably requested by Owner. Contractor shall Notify Owner in writing of any material amendments to any previously approved Contractor Deliverables and Owner shall be entitled to review and approve any such material amendment; provided that if Owner fails to respond within fifteen (15) Business Days to any such Notification, any such material amendment will be deemed approved.

3.19 Business Practices. Contractor covenants that it will not make any payment or give anything of value to any government official (including any officer or employee of any Governmental Authority) to influence his, her or its decision or to gain any other advantage for Owner or Contractor. Further, Contractor shall not make a direct or indirect contribution of any kind or nature to any Person who may be considered a candidate for the Georgia Public Service Commission, or to any member of the Georgia Public Service Commission, or to any Georgia Public Service Commission employee, on behalf of any officer or employee of Owner.

3.20 Site Conditions. Contractor has inspected and satisfied itself as to all geotechnical and physical conditions at the Site and shall be responsible for all necessary work in relation to, or because of, geotechnical and physical conditions both below and above ground (including archeological, historical, cultural, or religious sites, places and monuments, the presence of endangered species, biological resources, state buffers, waters of the United States, or Pre-Existing Contamination (other than Pre-Existing Contamination that would also constitute an Unforeseeable Site Condition)) at the Site. If Contractor desires to conduct any further investigations, studies, sampling or testing at the Site, any such investigations, studies, sampling, testing and remediation must be approved in advance by Owner (such approval within the sole discretion of Owner), such approval or non-approval to be provided within a reasonable time. No claims by Contractor for termination, additional payment or extensions of time shall be permitted on the ground of any misunderstanding or misapprehension of the matters referred to in this Section 3.20. For the avoidance of doubt, nothing in Exhibit D shall affect Contractor’s obligations under this Section 3.20.

3.21 Unforeseeable Site Conditions; Religious or Archeological Findings. In the event any Unforeseeable Site Conditions are discovered or identified by Contractor at the Site during the performance of the Work, Contractor shall notify Owner of any such discovery as soon as

practicable (other than notification in respect of Hazardous Materials (including Pre-Existing Contamination), which notification obligations are addressed in Section 26.3). In the event any archaeological or religious sites, places, monuments or areas are discovered or identified by Contractor during the performance of Work, Contractor shall comply with all Applicable Laws and Applicable Permits in connection with such discoveries, including, if so required, immediately stopping any Work affecting the area. Contractor shall notify Owner of any such discovery as soon as practicable. All fossils, coins, articles of value or antiquity and structures and other remains or things of geological, archaeological, historical, religious, cultural or similar interest discovered on the Site shall, as between Owner and Contractor, be deemed to be the absolute property of Owner; provided that Owner hereby acknowledges any such items discovered at the Site may belong to a party other than Owner or Contractor. Contractor shall prevent its and its Subcontractors’ personnel and any other Persons from removing or damaging any such article or thing. Any schedule delays incurred by Contractor resulting from Unforeseeable Site Conditions shall be treated as a Force Majeure Event. For the avoidance of doubt, nothing in Exhibit D shall affect Contractor’s obligations under this Section 3.21.

3.22 No Toleration of Unacceptable Behavior (Ethics). Contractor and the on-Site personnel of any Contractor Party must, at all times, conduct their business activities on Site in compliance with all Applicable Laws and must not, at any time, exhibit any of the following behaviors:

3.22.1 harassment or discrimination of any kind or character, including conduct or language that: (i) is derogatory to any individual on the basis of race, gender, color, religion, age, national origin, disability, veteran status, or sexual orientation; or (ii) creates an intimidating, hostile or offensive working environment. Specific examples include, but are not limited to, jokes, pranks, epithets, written or graphic material, or hostility or aversion toward any individual or group;

3.22.2 any conduct or act such as threats or violence that creates a hostile, abusive, or intimidating work environment (examples include fighting, abusive language, inappropriate signage, use or possession of firearms on a work site, destruction of Owner property or Owner employee property, or the threat of any of these behaviors);

3.22.3 use of Owner’s computers, e-mail, telephone, or voice-mail system that in any way involves material that is obscene, pornographic, sexually oriented, threatening, or otherwise derogatory or offensive to any individual on the basis of race, gender, color, religion, age, national origin, disability, veteran status, or sexual orientation;

3.22.4 any conduct or act that violates Section 3.24 herein; or

3.22.5 engagement in any activity that creates a conflict of interest or appearance of the same, or that jeopardizes the integrity of Owner or Contractor (including gifts or gratuities to Owner employees).

Contractor agrees to communicate these required behavior standards to all the on-Site personnel of any Contractor Party that assist Contractor in its performance of the Work under this Agreement. Contractor will, at a minimum, comply with these behavior standards and will

require and ensure that all on-Site personnel of any Contractor Party comply with the same behavior standards in connection with Contractor’s performance under this Agreement. If any on-Site personnel of any Contractor Party observes an Owner employee doing, or is ever asked by an Owner employee to do, something that such on-Site personnel of any Contractor Party considers to be unethical, illegal, or in violation of these behavior standards, Owner expects Contractor to notify Owner management immediately or to call Owner’s workplace ethics hotline at (0-000-000-0000); provided that the failure to so notify Owner management shall not constitute a breach of this Agreement, unless such failure constitutes gross negligence or willful misconduct.

3.23 Rights of Owner. Owner reserves the right to conduct audits if Owner has a good faith belief that Contractor may not be in compliance with Exhibit D, Section 3.24 and Section 3.25 during the term of this Agreement. Neither this reservation of rights, nor the discretion to exercise those rights, will relieve Contractor of its obligation to comply with Exhibit D and Sections 3.24 and 3.25, nor will it constitute control over the manner and means by which Contractor implements this Section 3.23. Owner and its Affiliates retain the exclusive right to waive any or all parts of the requirements for drug and alcohol testing and background investigations. Unless expressly waived as provided in the preceding sentence, no act or omission by Owner or Owner’s Affiliate will operate as a waiver of Owner’s right to enforce Exhibit D and Sections 3.24 and 3.25 or Contractor’s duty to comply thereunder. Notwithstanding the foregoing, in no event shall Owner have any access or audit rights to any records or other documents or information relating to any billing or payment information other than in connection with any Work performed by Contractor on behalf of Owner on (x) a time and materials basis or (y) cost pass-through basis.

3.24 Drug-and Alcohol-Free Work Place. Contractor acknowledges that Owner is committed to maintaining a drug- and alcohol-free workplace and requires that the on-Site personnel of any Contractor Party performing Work that directly impact Owner’s facilities, equipment, processes, operations, or personnel is free from the effects of alcohol or drugs that may impair work performance. Contractor must maintain a safe, secure, and drug- and alcohol-free workplace at all times during the term of this Agreement. All on-Site personnel of any Contractor Party should avoid involvement with drugs or use of alcohol that could compromise their fitness for duty or ability to work safely.

3.25 Non-English Speaking Personnel.

3.25.1 English Speaking Personnel. Contractor shall at all times assure that an English speaking on-Site employee of Contractor is provided for non-English speaking on-Site personnel of any Contractor Party. The English speaking on-Site employee must have the ability to communicate with and translate the foreign language of all non-English speaking on-Site personnel of any Contractor Party to assure that the ability to communicate vital information is readily available. If the non-English speaking on-Site personnel of any Contractor Party are divided into work groups, it shall remain the responsibility of Contractor that an English speaking on-Site employee is provided so as to ensure that the ability to communicate vital information is still readily available to all non-English speaking on-Site personnel of any Contractor Party.

3.25.2 Translation. Contractor will communicate and translate to its non-English speaking on-Site personnel of any Contractor Party all information and training required by Applicable Laws and regulations and all other safety and health requirements to the extent required by such on-Site personnel of any Contractor Party obligations with respect to the Work, in addition to all job related duties of the contract. These requirements include Contractor’s Safety Procedures and any relevant manufacturer’s information such as material safety data sheets.

3.26 Federal Tax Credits. Contractor shall cooperate with Owner to optimize Owner’s ability to claim Investment Tax Credits applicable to the Project, including providing any information necessary for Owner to receive such credits, such as reporting and itemization requirements with respect to qualified property or otherwise.

3.27 Compliance Obligations.

3.27.1 Contractor shall comply with all obligations set forth in Exhibit V and all the terms therof are incorporated herein by reference.

3.27.2 The Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement clauses specified in Exhibit U are hereby incorporated into the Agreement and Contractor shall perform all Work in compliance with such regulations. Notwithstanding the foregoing, the Parties agree that the Contract Price assumes procurement of the Major Project Components from a Designated Supplier. If it is determined that a Major Project Component is required by federal regulation to be procured from a Supplier other than a Designated Supplier, Contractor shall be entitled to seek a Change in Work to reflect the difference (if any) between the actual price of the Major Project Component and the price assumed by Contractor in its proposal to Owner in connection with the Project.

3.27.3 Contractor represents and warrants that none of the products or materials provided to Owner under this Contract or incorporated into the Project will contain any “Conflict Minerals”. “Conflict Mineral” shall have the meaning given to it in Form SD as promulgated under §1502 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. Contractor agrees to procure PV modules procured for the Project from a Supplier that meets the requirements of the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement clauses specified in Exhibit U.

3.27.4 Contractor shall perform the Work in accordance with the standards and regulations set forth in Exhibit W.

COVENANTS, WARRANTIES AND REPRESENTATIONS

4.1 Contractor. Contractor represents and warrants, as of the Effective Date and as of the date of execution and delivery of this Agreement by Contractor, as follows:

4.1.1 Organization, Standing and Qualification. Contractor is a Limited Liability Company duly formed, validly existing and in good standing under the laws of the State of Delaware, and has full power and authority to execute, deliver and perform its obligations hereunder and to engage in the business it presently conducts and contemplates conducting, and

is and will be duly licensed or qualified to do business and in good standing under the laws of each other jurisdiction wherein the nature of the business transacted by it makes such licensing or qualification necessary and where the failure to be licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.

4.1.2 Due Authorization; Enforceability. This Agreement has been duly authorized, executed and delivered by or on behalf of Contractor and is, upon execution and delivery, the legal, valid and binding obligation of Contractor, enforceable against Contractor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

4.1.3 No Conflict. The execution, delivery and performance by Contractor of this Agreement will not conflict with or cause any default under: (a) its organizational documents; (b) any indenture, mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, loan or credit arrangement to which Contractor is a Party or by which it or its properties may be bound or affected; or (c) any Applicable Laws.

4.1.4 Government Approvals. Other than with respect to the Applicable Permits, neither the execution nor delivery by Contractor of this Agreement requires the consent or approval of, or the giving of notice to or registration with, or the taking of any other action in respect of, any Governmental Authority. Contractor represents and warrants that all Applicable Permits required to be in Contractor’s name either (1) have been obtained by Contractor and are in full force and effect on the Effective Date and as of the date of execution and delivery of this Agreement by Contractor or (2) will be obtained and will be in full force and effect on or prior to the date on which they are required, under this Agreement and Applicable Law, so as to permit Contractor to commence and prosecute the Work to completion and that Contractor is in an will maintain material compliance with all Applicable Permits.

4.1.5 No Suits, Proceedings. There are no actions, suits, proceedings, patent or license infringements, or investigations pending or, to Contractor’s knowledge, threatened against it at law or in equity before any court or before any Governmental Authority (whether or not covered by insurance) that individually or in the aggregate could result in a material adverse effect on Contractor’s ability to perform its obligations under this Agreement. Contractor has no knowledge of any violation or default with respect to any Applicable Permit, order, writ, injunction or decree of any court or any Governmental Authority that may result in any such materially adverse effect or such impairment.

4.1.6 Plant Property. All Project Hardware furnished by Contractor shall be new and unused when installed unless the Parties agree otherwise in writing.

4.1.7 Contractor Status. Contractor is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code.

4.2 Owner. Owner represents and warrants, as of the Effective Date and as of the date of execution and delivery of this Agreement by Owner, as follows:

4.2.1 Organization, Standing and Qualification. Owner is a corporation duly formed, validly existing, and in good standing under the laws of the State of Georgia, and has full power and authority to execute, deliver and perform its obligations hereunder and to engage in the business Owner presently conducts and contemplates conducting, and is and will be duly licensed or qualified to do business and in good standing in each jurisdiction wherein the nature of the business transacted by it makes such licensing or qualification necessary and where the failure to be licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.

4.2.1 Due Authorization; Enforceability. This Agreement has been duly authorized, executed and delivered by or on behalf of Owner and is, upon execution and delivery, the legal, valid, and binding obligation of Owner, enforceable against Owner in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

4.2.2 No Conflict. The execution, delivery and performance by Owner of this Agreement will not conflict with or cause any default under: (a) its organizational documents; (b) any indenture, mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, loan or credit arrangement to which it is a Party or by which it or its properties may be bound or affected; or (c) any Applicable Laws.

4.2.3 No Suits, Proceedings. There are no actions, suits, proceedings or investigations pending or, to Owner’s knowledge, threatened against Owner at law or in equity before any court or before any Governmental Authority (whether or not covered by insurance) that individually or in the aggregate could result in a material adverse effect on Owner’s obligations under this Agreement. Owner has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any Governmental Authority to which Owner is subject that may result in any such materially adverse effect or such impairment.

COST OF WORK

5.1 Contract Price. Contractor hereby agrees to accept as compensation for the performance of the Work and its other obligations hereunder, Eighty-Five Million, Three Hundred Seventy-Four Thousand, Seven Hundred Twenty-One Dollars and Eighty-One Cents ($85,374,721.81) (as the same may be adjusted pursuant to the next sentence, the “Contract Price”). Contractor shall not be entitled to any other compensation, reimbursement of expenses or additional payment of any kind without prior written authorization of Owner or as otherwise specifically set forth in this Agreement including in respect of an Owner-Instituted Change or a Change In Work mutually agreed to by the Parties or an Owner-Caused Delay. Payments shall be made at the times and in the manner provided in Article 6.

5.2 [Reserved]

5.3 Audit. Contractor shall maintain complete and accurate records and books of account, in accordance with generally accepted accounting principles and practices, consistently applied, concerning the performance of the Contract and records required for compliance with all Applicable Law. The accounting and compliance records shall be adequately safeguarded and protected at their source locations for the longer of two (2) years after Substantial Completion or as may be required by Law. Owner, its auditors and other authorized representatives shall be afforded full access to, and shall have the right to review, audit, and copy Contractor’s pertinent books, accounts, employee time sheets, ledgers, bank records, receipts, vouchers, purchase orders, policies and procedures, daily diaries, superintendent reports, drawings, memoranda, employee background check information and other records of Contractor, its parent, affiliates, subsidiaries and any Subcontractor. Contractor agrees to cooperate fully with any audit by Owner, its auditors and other authorized representatives. If such records are maintained by Contractor in electronic format, the Contractor shall provide its accounting and compliance records to Owner’s auditors in electronic format on data disks or other suitable alternative computer data exchange formats.

5.4 Taxes.

5.4.1 Taxes Excluded from Contract Price. The Contract Price excludes (i) Property Taxes and (ii) any Taxes imposed on Owner by any Governmental Authority under Applicable Law as primary obligor, such as sales and use or similar Taxes imposed on the transfer from Contractor to Owner of tangible personal property or taxable services associated with the PV Power Plant, such tangible personal property to include, but shall not be limited to the solar panels, racking systems, inverters, transformer, switches, breakers, wire, and cable, (the Taxes set forth in clauses (i) and (ii), “Excluded Taxes”), which in all cases shall be payable by Owner in accordance with Section 5.4.1.

5.4.2 Taxes Included in Contract Price. The Contract Price includes any and all Taxes imposed on Contractor or Subcontractors under Applicable Law as primary obligor, except for Excluded Taxes. Excluded Taxes shall be the sole responsibility of Owner. For the avoidance of doubt, the Contract Price includes sales and use Taxes imposed on any tangible personal property or taxable service purchased or used by Contractor (or any Subcontractor), which is incorporated into real property associated with the Work and the Project, including concrete, road materials, fencing, and any buildings.

5.4.1 Payment of Taxes. Contractor shall timely pay all Taxes, other than Excluded Taxes, due in connection with Work under this Agreement and shall make any and all payroll deductions required by Applicable Law. Owner shall timely pay all Excluded Taxes. In the event Contractor or the Subcontractors are required under Applicable Law to pay any Excluded Taxes, Contractor or the Subcontractors shall timely pay such amounts and Owner shall promptly reimburse Contractor for the same following receipt by Owner of an invoice for such amounts by Contractor in accordance with Article 6. In the event Contractor is required under Applicable Law to collect or impose any Taxes from or on behalf of Owner under clause (i) or (ii) of Section 5.4.1 on any payment under Article 6, Owner shall pay to Contractor such Taxes and Contractor shall timely remit such Taxes to the applicable Governmental Authority

under Applicable Law. In the event Owner is required under Applicable Law to pay any Taxes for which Contractor is liable under this Agreement, Owner shall timely pay such amounts and Contractor shall promptly reimburse Owner for the same following receipt by Contractor of an invoice for such amounts by Owner in a manner consistent with Article 6.

5.4.2 Contractor and Owner to Cooperate. Contractor and Owner shall reasonably cooperate with each other to minimize the Tax liability of both Parties to the extent legally permissible, including separately stating taxable charges on Contractor’s Invoices and supplying resale and exemption certificates, if applicable, and other information as reasonably requested in all cases by taxing authorities. In addition, to the extent any exemptions, abatements, credits against or deferrals of any Taxes may be available to Owner or Contractor under Applicable Law, the Parties shall reasonably cooperate in order to secure any such exemptions, abatements, credits against, or deferrals of, such Taxes. At the request of either Owner or Contractor, the other Party shall cooperate in order to attempt to qualify for exemption from sales and use Tax in connection with the construction of a competitive project of regional significance pursuant to Georgia Code Annotated §48-8-3(93). Notwithstanding the foregoing, Owner shall provide Contractor with a properly completed and executed “direct pay permit” issued by the Georgia Department of Revenue, which shall relieve Contractor from any Georgia sales and use tax collection obligation on Contractor’s sale of any such tangible personal property or taxable services to Owner with respect to the Project. In order for Owner to properly report any such purchases on its Georgia sales and use tax returns, Contractor shall provide sufficient details of the items of such tangible personal property or taxable services sold to Owner with respect to the Project, including a description of the tangible personal property or taxable services sold to Owner, and the associated purchase price or fair market value. Additionally, upon request, Contractor shall provide Owner such other information as may be required to comply with Applicable Law.

5.4.3 Tax Treatment of Project, Site and Project Hardware. Solely for purposes of this Agreement, Contractor represents and warrants as follows:

(a)

Contractor has not and will not claim the Investment Tax Credit with respect to any portion of the Project or the Work;

(b)

Contractor has not and will not claim depreciation deductions under section 167 or 168 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to any portion of the Project or the Work;

(c)

None of the Project Hardware is described in Code section 168(g)(1)(D);

(d)

Contractor’s intent is to acquire and hold the Project Hardware as “inventory” for federal income Tax purposes in the normal course of its business of constructing solar powered electrical generating facilities to third parties; and

(e)

Contractor does not intend to operate the Project on a regular and continuous basis for the purpose of generating electricity for sale to third parties at wholesale or at retail.

5.4.4 ITC Loss.

(a)

If as a result of Contractor’s failure to perform its obligations under this Agreement or otherwise comply with the terms of this Agreement, the Project is not Placed in Service by 11:59 P.M. on December 31, 2016 and said failure of the Project to be Placed in Service was not caused by or did not arise out of a (i) Force Majeure Event, (ii) an Owner-Caused Delay, including, without limitation, Owner’s failure to provide backfeed power or Owner’s failure to complete Owner’s Interconnection Facilities on or before October 1, 2016 or (iii) any circumstance entitling Contractor to a Change In Work pursuant to Article 15 or (iv) Owner’s failure to provide Site access to Contractor in accordance with this Agreement (but only to the extent outside of Contractor’s control), and as a result Owner is unable to claim the Pre-2017 ITC with respect to the ITC Property, Contractor shall pay Owner as an adjustment to the Contract Price an amount equal to the (i) Pre-2017 ITC to which the ITC Property would have been entitled had the Project been Placed in Service prior to January 1, 2017, less (ii) the amount of Post-2016 ITC to which the ITC property may properly be claimed by Owner.

(b)

When Contractor believes the Project has been Placed in Service, Contractor shall deliver to Owner a certificate in writing declaring that the Project has been Placed in Service. Owner shall within three (3) Business Days after receipt of such Notice, respond in writing either accepting that the Project has been Placed in Service or specifying the conditions to Placed in Service that Contractor has failed to satisfy. Contractor shall take the appropriate corrective action in the event of such failure and any dispute regarding such Notice shall be settled in accordance with Article 30. Upon completion any applicable corrective action, Contractor shall provide to Owner a new certificate in writing declaring that the Project has been Placed in Service and this process shall be repeated on an iterative basis until Contractor has satisfied the conditions to Placed in Service. The date on which the Project is Placed in Service shall be the day on which the last of the conditions of Section 5.4.4(a) was satisfied. This section notwithstanding, if Owner fails to respond in writing to the Contractor within three (3) Business Days after its receipt of a Notice that the Project has been Placed in Service as required in this section, the conditions of Section 5.4.4(a) shall be deemed satisfied and the Project shall be deemed Placed in Service.

(c)

Any Contract Price adjustment required by Section 5.4.4(a) hereof shall be paid by Contractor within thirty (30) Days of Owner providing Contractor a written request setting forth the calculations required by Section 5.4.4(a).

TERMS OF PAYMENT

The Contract Price shall be paid as follows:

6.1 Milestone Payment Schedule. Contractor shall be paid in accordance with the Milestone Payment Schedule as set forth in Exhibit I. Each Milestone Payment shall be due and payable only to the extent it is supported by the completion of the corresponding individual Milestones. Each Milestone does not represent the cost of the Work included in such Milestone; accordingly, the Milestone Payments do not represent an actual measure of the progress of the Work. For the avoidance of doubt, the Milestone Dates are indicative only and shall not affect Contractor’s right to invoice or receive payment for a Milestone Payment for the achievement of the corresponding Milestone in any particular month.

6.2 Milestone Assessment. Representatives of Contractor and Owner shall periodically, and in any event at least once each month, review the Work completed and assess the progress of on-Site Work completed and completion of the related Milestones.

6.3 Contractor’s Invoices. No more than once per calendar month, Contractor shall electronically deliver to Owner a Contractor’s Invoice for each payment owing to Contractor under Article 6 and under any other provision of this Agreement. Each Contractor’s Invoice shall be reasonably detailed and shall be accompanied by reasonable supporting documentation to the extent applicable including the information specified in Section 14.1 of Exhibit V and the following:

6.3.1 prior to submitting its first Invoice, Contractor shall provide a list of all Major Subcontractors performing portions of the Work or otherwise potentially having lien rights against the Project and the amount of outstanding payments owing to such Major Subcontractors, which list shall be updated with each subsequent Invoice submitted;

6.3.2 evidence that Contractor has completed all portions of the Work expressly required to be performed within the period for which payment is requested;

6.3.3 an updated or, as appropriate, revised Contract Schedule;

6.3.4 applicable Lien Waivers based on payments to date; and

6.3.5 any other evidence or documentation reasonably requested by Owner to verify Contractor’s progress in performing the Work and that Contractor has paid for all services, materials and labor used in connection with the performance of this Agreement through the period covered by payments received from Owner.

6.4 Reserved.

6.5 Payments.

6.5.1 Payments. All payments to be made to either Party under this Agreement shall be paid in Dollars and shall be paid electronically (by means of ACH or wire) in immediately available funds. Except as set forth in Section 6.5.1, Section 14.1, and Article 19 all

payments shall be due within twenty-five (25) days after the paying Party’s receipt of the other Party’s invoice or, if such date is not a Business Day, on the immediately succeeding Business Day, to such account as may be designated by such Party from time to time by Notice to the other Party in accordance with Article 28; provided that banking transfer instructions have been provided by such Party to the paying Party at least five (5) Business Days before the first payment of the paying Party is due and payable. With respect to Contractor’s Invoices, Contractor shall provide one (1) Contractor’s Invoice each month. Each such Contractor’s Invoice will identify the Milestones achieved prior to the date of such Contractor’s Invoice and the Milestone Payments due for the achievement of such Milestones (as more further described in this Article 6); provided, however, that Contractor may not invoice Owner for any Milestone that is achieved more than one (1) month ahead of the scheduled date for achievement of such Milestone as set forth on Exhibit I. For the avoidance of doubt, Contractor may deliver a Contractor’s Invoice each month to Owner for Milestone Payments upon the completion of one or more Milestones achieved prior to the date of such Contractor’s Invoice.

6.6 Substantial Completion Payment. On or after the date on which Contractor delivers to Owner a Notice of Substantial Completion accepted (or deemed to have been accepted) by Owner pursuant to Section 13.3, Contractor shall submit a Contractor’s Invoice with respect to achievement of Substantial Completion. Owner shall pay to Contractor the Substantial Completion Payment in accordance with Section 6.5.1, subject to the requirements of Substantial Completion set forth in Section 13.2 having been met in all material respects.

6.7 Final Completion Payment. On or after the date on which Contractor delivers to Owner a Notice of Final Completion accepted (or is deemed to have been accepted) by Owner pursuant to Section 13.5, Contractor shall submit a final Contractor’s Invoice (a “Final Contractor’s Invoice”) which shall set forth all amounts due to Contractor that remain unpaid as of the date of such invoice (including (a) any remaining Punchlist Holdback that has not been released to Contractor in accordance with Section 13.1.3 and (b) any remaining Excluded Taxes for which Owner is liable to indemnify Contractor under this Agreement. Owner shall pay to Contractor the amount due under such Final Contractor’s Invoice (the “Final Completion Payment”) in accordance with Section 6.5.1, subject to the requirements of Final Completion set forth in Section 13.4 having been met in all material respects.

6.8 Owner’s Withholding Rights.

6.8.1 Owner may withhold any payment or, because of subsequently discovered evidence, nullify in whole or in part a payment previously issued, in an amount that is sufficient to pay the direct costs and expenses Owner reasonably expects to incur to protect Owner from liabilities for which Contractor is responsible and that result from:

(a)

defective construction work or materials not remedied in accordance with the terms of this Agreement;

(b)

failure to comply with other material provisions of this Agreement, including failure by Contractor to pay liquidated damages as due;

(c)

third party claims filed or reasonable evidence that a claim will be filed;

(d)

failure of Contractor to make timely payments to Contractor Parties for labor, equipment and materials provided that Owner has made all payment then required in accordance with this Agreement;

(e)

damage to Owner or Owner’s property, including the Project, caused by Contractor or a Contractor Party; or

(f)

reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price.

6.8.2 To the extent Contractor is able to cure, remedy or remove any circumstances set forth in Section 6.6 for which Owner has made a withholding such that Owner has not suffered any liabilities or no longer has any risk of liabilities arising from or relating to the circumstances originally justifying any withholding, Contractor shall include such evidence reasonably requested by Owner demonstrating the cure, remedy or removal of such condition with Contractor’s next Contractor’s Invoice submitted following the cure, remedy or removal of such circumstances. Provided Owner verifies such cure, remedy or removal, Owner shall remit to Contractor such withheld amounts, minus any liabilities incurred by Owner for which Contractor is responsible under this Agreement, together with the next Milestone Payment for which the related Contractor’s Invoice was submitted.

6.9 Disputes Regarding Payments. Failure by Owner to pay any amount disputed in good faith until resolution of such dispute in accordance with this Agreement shall not alleviate, diminish, modify or excuse the performance of Contractor nor relieve Contractor’s obligations to perform hereunder nor, for the avoidance of doubt, constitute an Owner Event of Default. Contractor’s acceptance of any payment (including the Final Completion Payment), and Owner’s payment of any amount under dispute, shall not be deemed to constitute a waiver of amounts that are then in dispute. Contractor and Owner shall use reasonable efforts to resolve all disputed amounts reasonably expeditiously and in any case in accordance with the provisions of Article 30. No payment made hereunder shall be construed to constitute acceptance or approval of that part of the Work to which such payment relates or to relieve Contractor of any of its obligations hereunder. If a Contractor’s Invoice was properly submitted in accordance with all of the provisions of this Agreement and amounts disputed by Owner in regards to such invoice are later resolved in favor of Contractor, Owner shall pay interest on such disputed amounts due to Contractor at the Contract Interest Rate, from the date on which the payment was originally due pursuant to such invoice until the date such payment was received by Contractor. If amounts disputed have been paid by Owner are later resolved in favor of Owner, Contractor shall refund any such payment and pay interest on such payment at the Contract Interest Rate, from the date on which the payment was originally made by Owner until such refunded payment is received by Owner.

6.10 Punchlist Holdback. After Mechanical Completion, as Contractor completes the items on the Punchlist (or is deemed to have completed items on the Punchlist), the Parties shall confirm which items have been completed (or deemed completed) pursuant to the terms of Section 13.1.2, and Owner shall release to Contractor on a weekly basis the Punchlist Amounts from the Punchlist Holdback for such completed (or deemed completed) items in accordance with the applicable Punchlist.

6.11 Set-Off. Either Party may at any time, but shall be under no obligation to, set-off any and all undisputed sums due from the other Party against undisputed sums due to such Party hereunder.

COMMENCEMENT AND SCHEDULING OF THE WORK

7.1 Effectiveness of Agreement. The Agreement shall be effective as of the date of execution (such date being the “Effective Date”).

7.2 Limited Notice to Proceed. Execution of this Agreement shall be deemed a limited notice to proceed (“Limited Notice to Proceed”). Pursuant to such Limited Notice to Proceed, Contractor shall commence with the LNTP Work. “LNTP Work” shall mean the minimal amount of the Work that Contractor, in its sole discretion, deems necessary to ensure that Contractor is able to complete the Work in accordance with the Contract Schedule and all Milestone Dates; provided that Contractor shall exert commercially reasonable efforts to minimize the amount of LNTP Work needed. Owner shall be obligated to pay Contractor for Contractor’s actual and substantiated costs reasonably incurred by Contractor in performing the LNTP Work with no markup or overhead; provided that in no event shall Owner’s liability in connection with the LNTP Work exceed Two Hundred and Twenty-Five Thousand Dollars ($225,000.00) (“LNTP Work Cost Cap”). Contractor shall invoice Owner for the LNTP Work in accordance with Section 6.3 and shall provide reasonable supporting evidence regarding any invoiced amounts. Owner shall pay any undisputed amounts due in connection with the LNTP Work in accordance with Section 6.5. For the avoidance of doubt, any amounts paid by Owner in connection with the LNTP Work shall be credited against the Contract Price.

7.3 Notice to Proceed.

7.3.1 Contractor shall commence with the Work upon receipt from Owner of a written “Notice to Proceed.”

7.3.2 Owner shall not issue the Notice to Proceed until it has received all Required Regulatory Approval. “Required Regulatory Approval” means, as determined by Owner in its sole discretion, all approvals necessary from the Georgia Public Service Commission in order for Owner to operate the Project as intended. Owner shall exert commercially reasonable efforts to obtain all Required Regulatory Approval and shall issue the Notice to Proceed promptly upon receipt of all Required Regulatory Approval; provided, however, that if the Required Regulatory Approval includes any regulatory conditions that require an amendment to the Agreement or a Change Order, Owner shall not be required to issue the Notice to Proceed until such amendment or Change Order is completed or agreed upon by the Parties pursuant to Section 15.5. For the avoidance of doubt, if Owner issues the Notice to Proceed on or before August, 1, 2015, Contractor shall not be entitled to a Change in Work (including any adjustment to the Contract Schedule, the Milestone Dates or the Contract Price) and, for the avoidance of doubt, Owner’s issuance of the Notice to Proceed in accordance with this Section 7.3.2 shall not constitute an Owner-Caused Delay or Force Majeure Event

7.4 Delayed Notice to Proceed and LNTP Supplemental Plan.

7.4.1 If Owner is unable to obtain the Required Regulatory Approval of the Project (without any adverse regulatory conditions) on or before July 21, 2015, Contractor shall provide to Owner in writing an LNTP Supplemental Plan on or before July 23, 2015. The “LNTP Supplemental Plan” shall be a written plan detailing those portions of the Work required during the thirty (30) day period commencing on August 1, 2015 that are required in order for Contractor to maintain the Contract Schedule and all Milestone Dates (such work being the “LNTP Supplemental Plan Work”) and such plan shall include an estimate of the cost required to perform such Work (such cost estimate, the “LNTP Supplemental Plan Cost Cap”). Owner shall provide Notice to Contractor on or before July 31, 2015 whether Owner, in its sole discretion, authorizes the Work pursuant to the LNTP Supplemental Plan. If Owner approves the LNTP Supplemental Plan and issues the Notice to Proceed on or before August 31, 2015, Contractor shall not be entitled to a Change in Work (including any adjustment to the Contract Schedule, the Milestone Dates or the Contract Price) and, for the avoidance of doubt, Owner’s issuance of the Notice to Proceed in accordance with this Section 7.4.1 shall not constitute an Owner-Caused Delay or Force Majeure Event.

7.4.2 Owner may request that Contractor provide a second LNTP Supplemental Plan on or before August 24, 2015. Owner shall provide Notice to Contractor on or before August 31, 2015 whether it authorizes the Work pursuant to the second LNTP Supplemental Plan. If Owner approves the second LNTP Supplemental Plan and issues the Notice to Proceed on or before September 30, 2015, Contractor shall not be entitled to a Change in Work (including any adjustment to the Contract Schedule, the Milestone Dates or the Contract Price) and, for the avoidance of doubt, Owner’s issuance of the Notice to Proceed in accordance with this Section 7.4.2 shall not constitute an Owner-Caused Delay or Force Majeure Event.

7.4.3 During the performance of any LNTP Supplemental Plan Work, Contractor shall make commercially reasonable efforts to minimize the amount of costs it incurs.

7.4.4 Owner shall only be obligated to pay Contractor for Contractor’s actual and substantiated costs reasonably incurred by Contractor in performing the LNTP Supplemental Plan Work, with no markup or overhead; provided that in no event shall Owner’s liability in connection with the LNTP Supplemental Plan Work exceed the applicable LNTP Supplemental Plan Cost Cap. Contractor shall invoice Owner for the LNTP Supplemental Plan Work in accordance with Section 6.3 and shall provide reasonable supporting evidence regarding any invoiced amounts. Owner shall pay any undisputed amounts due in accordance with Section 6.5. For the avoidance of doubt, any amounts paid by Owner in connection with an LNTP Supplemental Plan shall be credited against the Contract Price.

7.4.5 If Owner issues the Notice Proceed after August 1, 2015 but has not authorized the LNTP Supplemental Plan(s) (as applicable), Contractor shall be entitled to request an equitable adjustment to the Contract Schedule, Milestone Dates and Contract Price to the extent that the foregoing are directly impacted by Owner’s delay in issuance of the Notice to Proceed and, in such case, Contractor shall not be obligated to perform the Work until the Parties reach mutual agreement with respect to such request.

7.4.6 Owner shall be entitled to terminate the Agreement at any point prior to the issuance of the Notice to Proceed. In the event of a termination pursuant to this Section 7.4.6, the following shall be Owner’s sole liability:

(a)

In the event that Owner has not approved any LNTP Supplemental Plan, Owner’s sole liability shall be Contractor’s actual and substantiated costs reasonably incurred by Contractor in performing the LNTP Work with no markup or overhead but in no event greater than the LNTP Work Cost Cap.

(b)

In the event that Owner has approved an LNTP Supplemental Plan(s), Owner’s sole liability shall be Contractor’s actual and substantiated costs reasonably incurred by Contractor in performing the LNTP Work and the LNTP Supplemental Plan Work with no markup or overhead but in no event greater than the sum of the LNTP Work Cost Cap and the LNTP Supplemental Plan Cost Cap(s).

7.5 Scheduling of the Work.

7.5.1 The Contract Schedule shall represent a practical plan to achieve Mechanical Completion and Substantial Completion on or before the Guaranteed Substantial Completion Date. The Guaranteed Substantial Completion Date, not the Contract Schedule, shall control in the determination of any Delay Liquidated Damages. Contractor shall prepare and keep current a schedule of submittals as required by this Agreement and that is coordinated with the Contract Schedule.

7.5.2 The Contract Schedule shall meet the following requirements: (i) all schedules, must be suitable for monitoring the progress of the Work, (ii) all schedules must provide necessary data about the timing for Owner decisions and all Owner milestones and (iii) all schedules must be in sufficient detail to demonstrate adequate planning for and completion of the Work.

7.5.3 Acceptance or review of comments about any schedule shall not transfer responsibility for any schedule to Owner, or imply its agreement with (i) any assumption upon which such schedule is based or (ii) any matter underlying or contained in such schedule.

7.5.4 Time is of the essence in the performance of each provision of this Agreement.

7.6 Progress Reporting. From and after issuance of the Notice to Proceed until the Substantial Completion Date, Contractor shall prepare reports as specified in Sections 12.4 and 12.5 and 12.6 of Exhibit V. Owner shall be permitted to amend Exhibit V to reflect any reporting requirements imposed by the Georgia Public Service Commission.

FORCE MAJEURE EVENT

8.1 Certain Events. No failure or omission to carry out or observe any of the terms, provisions or conditions of this Agreement shall give rise to any claim against a Party, or be

deemed to be a breach or an Event of Default under this Agreement, if such failure or omission shall be caused by or arise out of a Force Majeure Event. Notwithstanding anything to the contrary in the foregoing, the obligation to pay money in a timely manner in accordance with the terms hereof shall not be subject to the Force Majeure Event provisions hereof.

8.2 Notice of Force Majeure Event. If a Party’s ability to perform its obligations under this Agreement is affected by a Force Majeure Event, the Party claiming relief shall as soon as practical but no later than five (5) Business Days after the date on which the affected Party has actual knowledge of a Force Majeure Event first prevents or delays performance under this Agreement, give Notice (a “Delay Notice”) describing in detail the particulars of the occurrence giving rise to the claim, including an estimate of the event’s anticipated duration and effect (if reasonably estimable) upon the performance of its obligations, and any action being taken to avoid or minimize its effect. The Party claiming relief due to a Force Majeure Event shall have a continuing obligation to deliver to the other Party regular updated reports and any additional documentation and analysis supporting its claim regarding a Force Majeure promptly after such information becomes available to such Party. If a Party fails to timely Notify the other Party as provided in this Section 8.2 with respect to a Force Majeure Event, such Party’s failure to timely Notify the other Party of a Force Majeure Event, shall constitute a waiver of such Party’s right to relief due to such Force Majeure Event.

8.3 Scope of Suspension; Duty to Mitigate. The suspension of, or impact on, performance due to a Force Majeure Event shall be of no greater scope and no longer duration than is required by such event; provided, that any such suspension shall be at a minimum, on a day-for-day basis, for the period of time of delay due to such Force Majeure Event. The Party claiming relief due to a Force Majeure Event shall use its commercially reasonable efforts:

8.3.1 to limit the duration of any suspension or delay in, or other impact to the performance of its obligations under this Agreement; and

8.3.2 to continue to perform its obligations hereunder not affected by such event.

When the Party claiming relief due to a Force Majeure Event is able to resume performance of its obligations under this Agreement, such Party shall give the other Party Notice to that effect. Following the occurrence of a Force Majeure Event, Owner shall be entitled to request that Contractor take actions to mitigate any schedule delays caused by the Force Majeure Event (“Schedule Mitigation Measures”). In the event that the Parties agree to any Schedule Mitigation Measures (which shall include the specified costs for such measures), Owner shall pay Contractor the agreed upon amount according to an agreed upon payment schedule to compensate Contractor for such Schedule Mitigation Measures.

8.4 Contractor’s Remedies.

8.4.1 Force Majeure Event. As Contractor’s remedy for the occurrence of a Force Majeure Event, Contractor shall be entitled to the following relief: if Contractor is delayed due to such Force Majeure Event, despite Contractor’s commercially reasonable efforts to mitigate any delays pursuant to Section 8.3(a), the Guaranteed Substantial Completion Date shall

be correspondingly extended on a day-for-day basis, by the period of time of delay due to such Force Majeure Event and, for the avoidance of doubt, if any such Force Majeure Event prevents Contractor from having the Project Placed in Service prior to January 1, 2017, Owner shall not be entitled to the Contract Price adjustment set forth in Section 5.4.4.

8.4.2 Changes In Work. Upon the occurrence of a Force Majeure Event for which Contractor is entitled to a change in the Guaranteed Substantial Completion Date and any related modifications to the Work, Contractor and Owner shall prepare a Change Order in accordance with Article 15.

SUBCONTRACTORS

9.1 Use of Subcontractors. The Parties acknowledge and agree that Contractor shall be entitled to engage Subcontractors in respect of the performance of the Work or portion thereof. Contractor shall be solely responsible for paying each Subcontractor for services, equipment, material or supplies in connection with the Work. Subcontractors may include any affiliate of Contractor.

9.2 Owner Consent. Contractor shall not be required to obtain the consent of Owner or deliver any Notice to Owner prior to engaging any Subcontractor other than a Major Subcontractor. The engagement by Contractor of any Major Subcontractor (other than those set forth in Exhibit K) shall be subject to the prior written consent of Owner, which shall not be unreasonably delayed, conditioned or withheld; provided, if Owner fails to respond within ten (10) Business Days to the request for any additional Major Subcontractors to be added to the list, such Subcontractor shall be deemed to be added to the list of Major Subcontractors. As a condition to Owner giving its approval to additions to Exhibit K, Contractor shall provide to Owner such information as is reasonably available on the proposed Major Subcontractor’s experience, safety and net worth as Owner may reasonably request.

9.3 Assignment. No Subcontract or purchase order shall bind or purport to bind Owner. Owner shall not be deemed by virtue of this Agreement to have any contractual obligation to or relationship with any Subcontractor, but each Subcontract and purchase order with a Major Subcontractor shall provide, without requiring the prior consent of the relevant Major Subcontractor, for assignment and delegation of such Subcontracts by Contractor to Owner. If Owner elects to assume by assignment any Subcontract or purchase order with a Major Subcontractor as described in this Section 9.3, then (a) Contractor shall enter into reasonable assignment documentation requested by Owner which may be required to effect such assignment by Owner; and (b) the Parties shall clearly delineate Contractor’s responsibility to indemnify Owner for liabilities arising under such Subcontract prior to the date Owner assumes such Subcontract and Owner’s responsibility to indemnify Contractor for liabilities arising under such Subcontract after the date Owner assumes such Subcontract.

9.4 Effect of Subcontracts. No subcontracting of the Work shall (i) relieve Contractor of its duties, responsibilities, obligations or liabilities hereunder, (ii) relieve Contractor of its responsibility for the performance of any work rendered by any such Subcontractor or (iii) create any relationship between Owner, on the one hand, and any Subcontractor, on the other. As between Owner and Contractor, Contractor shall be solely responsible for the acts, omissions or defaults of its Subcontractors and their employees and agents (with the acts, omissions and defaults of its Subcontractors and their employees and agents being attributable to it).

10.

LABOR RELATIONS

10.1 General Management of Employees. Notwithstanding the provisions of Section 10.2, Contractor shall preserve its rights to exercise and shall exercise its management rights in performing the Work. Such management rights shall include the rights to hire, discharge, promote and transfer employees; to select and remove persons or supervision; to establish and enforce reasonable standards of production; to introduce labor saving Project Hardware; to determine the number of craftsmen necessary to perform a task, job or project; and to establish, maintain and enforce rules and regulations conducive to efficient and productive operations.

10.2 Personnel Documents. Contractor shall ensure that at the time of hiring and at all times while on the Site, all Contractor Parties performing the Work on the Site are in possession of all such documents as may be required by any and all Applicable Laws.

11.

INSPECTION

11.1 Inspection.

11.1.1 Owner and its representatives (including Owner’s Engineer), [***] Representatives and the [***] Representative shall have the right to reasonably observe and inspect the Work at the Site, including design drawings and documents with respect to all aspects of the Project (including Contractor’s Interconnection Facilities), including all Contractor Deliverables, or the factories or other locations of any Supplier, such observations and inspections to be arranged at reasonable times. Subject to the terms of this Agreement or any Subcontract, in no case shall Contractor or any Subcontractor be obligated to disclose any of its know-how, trade secrets or other proprietary information.

11.1.2 Contractor shall provide Owner and its representatives (including Owner’s Engineer) with reasonable advance notice of any factory acceptance tests or other similar tests being performed by its Major Subcontractors that supply the inverters, transformers, PV modules, PV interconnection Switchgear or PVCS at the relevant off-Site locations and Owner and its representatives (including Owner’s Engineer) shall, subject to entering into a non-disclosure agreement with such Major Subcontractor, if required, have the right to attend and observe such tests; provided that Owner shall be solely responsible for all costs associated with Owner or it representatives attending such off-Site tests. Subject to the terms of this Agreement or any Subcontract, in no case shall Contractor or any Subcontractor be obligated to disclose any of its know-how, trade secrets or other proprietary information in connection with any such attendance or observation of such tests.

11.1.3 Owner reserves the right, but shall not be obligated, to appoint an inspector (the “Inspector”) to follow the progress of the Work. Owner may designate the Owner Representative or Site Representative to serve as the Inspector. The inspection by the Inspector shall not relieve Contractor of any responsibility for furnishing and installing the Project Hardware or performing the Work in accordance with this Agreement. Inspection by the Inspector shall not be deemed to be supervision by Owner of Contractor or any Contractor Party,

but shall be only for the purpose of reviewing the Project Hardware and the Work. The Inspector may report to the Contractor any unsafe or improper conditions or practices observed at the Site and Contractor shall take action pursuant to this Agreement to correct such conditions or practices. Notwithstanding Section 11.1(a), subject to the Inspector having completed Contractor’s safety training, the Inspector shall have free access to the Project Hardware and the Work at the Site during all hours that Contractor or its Subcontractors are on Site performing Work and the Inspector may observe the Work at the Site during such time period subject to compliance with Contractor’s Safety Procedures.

(a)

Prior to Substantial Completion, Owner may reject any Work (including any Project Hardware) that does not comply with the Agreement and the requirements hereunder. Any acceptance, approval or any failure to reject by Owner shall in no event to be deemed to constitute acceptance of the Work for any purposes of this Agreement. If Owner’s inspection reveals any such non-compliance or any other defects in any portion of Work and Owner submits a written request to Contractor to correct such defective Work, Contractor shall promptly replace or reperform all portions of such rejected Project Hardware and Work to be in compliance with this Agreement.

12.

COMMISSIONING AND TESTING

12.1 Commissioning Plan. Contractor shall develop a commissioning plan in accordance with Exhibit H (“Commissioning Plan”) and shall provide a Commissioning Plan, for Owner’s review and approval, as soon as reasonably practicable (but in no event later than sixty (60) days prior to the commencement of commissioning of the Project). Owner shall have thirty (30) days from the date it receives the Commissioning Plan to review and provide comments to Contractor. Contractor shall incorporate all of Owner’s reasonable comments into the final Commissioning Plan, which shall be approved by Owner (such approval not to be unreasonably withheld). If Owner fails to provide its comments within such thirty (30) day period, then Owner shall be deemed to have approved the Commissioning Plan. Contractor shall perform its commissioning activities in accordance with the final approved Commissioning Plan. Subject to Section 11.1, Owner and GPSC Representative shall have the right to be present during any commission activities performed pursuant to this Agreement.

12.2 Test Procedures and Schedule

12.2.1 Performance Test Procedures. Contractor shall develop the Performance Test Procedures (for both the Five Consecutive Day Operational Test and the Five Day Performance Ratio Test) in accordance with Exhibit H and shall provide the Performance Test Procedures for Owner’s review and approval, as soon as reasonably practicable after Contractor’s receipt of the Notice to Proceed (but in no event later than sixty (60) days prior to the commencement of the first Performance to be conducted by Contractor hereunder). Owner shall have thirty (30) days from the date it receives the Performance Test Procedures to review and provide comments to Contractor. Contractor shall incorporate all of Owner’s reasonable comments into the final Performance Test Procedures, which shall be approved by Owner (such approval not to be unreasonably withheld). If Owner fails to provide its comments within such

thirty (30) day period, then Owner shall be deemed to have approved the Performance Test Procedures. Contractor shall perform each Performance Test in accordance with the final approved Performance Test Procedures.

12.2.2 Performance Test Schedule. Contractor shall give advance Notice to Owner of the first Performance Tests at least fourteen (14) days prior to commencing such test. Contractor shall keep Owner continuously apprised of the schedule for Performance Tests and changes in the schedule, the commencement and performance of Performance Tests, and shall give Owner at least two (2) Business Days advance Notice of the re-performance of any Performance Test.

12.2.3 Performance Tests. Contractor shall conduct the Performance Tests for the Project in accordance with this Article 12 (including the Performance Test Procedures) and Exhibit H. Contractor shall provide on-line, real-time access to the Performance Test data to Owner, Owner’s Engineer (if applicable) at all times throughout the performance of the Performance Tests. Contractor must submit a test report for each Performance Test within three (3) Business Days after the completion thereof to Owner and Owner’s Engineer (if applicable), which test report shall include a summary of the applicable Performance Test results, including all calculations.

12.2.4 Test Observation. Subject to Section 11.1, Owner and GPSC Representative shall have the right to be present during the Performance Tests conducted in accordance with this Article 12.

12.3 Output During Start-Up, Testing and Commissioning. At all times during start-up, testing, and commissioning of the Project, the Project’s output of electricity and all Environmental Attributes attributable thereto shall be owned by Owner. Any output of electricity and any Environmental Attributes attributable thereto generated by the Project at any time, and all proceeds from the sale thereof, shall be the property of Owner.

13.

SUBSTANTIAL COMPLETION AND FINAL COMPLETION

13.1 Punchlist.

13.1.1 Creation of Punchlists.

(a)

When Contractor believes that the Project has achieved Mechanical Completion and is ready for start-up, Contractor may prepare and submit to Owner a working outstanding items list, which list (a “Working Outstanding Items List”), may include those items of Work remaining to be completed. Each Party acknowledges that any such Working Outstanding Items List is not a Punchlist, regardless of any title or moniker written thereon. Initially, such Working Outstanding Items List may serve as a working tool for Contractor to track all outstanding Work, and such Working Outstanding Items List may include not only Non-Critical Deficiencies but other uncompleted or defective Work which would not otherwise qualify as a Non-Critical Deficiency; provided, however, that any such inclusion shall be solely to accommodate

Contractor and shall act neither as an agreement by Owner that such item qualifies as a Non-Critical Deficiency nor waive Owner’s right to require all defective Work or otherwise uncompleted Work which would not qualify as a Non-Critical Deficiency to be completed as a requirement to achieving Mechanical Completion.

(b)

Once Contractor believes that a finalized punchlist containing only Non-Critical Deficiencies is ready for Owner review and approval, Contractor and Owner shall jointly walk-down the Project and confer together as to the items which should be included on the finalized punchlist. Contractor shall then update the Working Outstanding Items List or create a new list to reflect the result of such joint walk down and deliver the same to Owner for its review and approval, which submitted list shall be explicitly designated as the “Proposed Punchlist”. Such Proposed Punchlist shall include only Non-Critical Deficiencies and shall include a Punchlist Amount for the completion or repair of each such Non-Critical Deficiency.

(c)

If Owner does not deliver any changes to the Proposed Punchlist to Contractor within five (5) Business Days after the later to occur of (a) Contractor’s submission to Owner of such Proposed Punchlist, and (b) the day that the joint walk-down occurred, then such Proposed Punchlist shall be deemed approved. If Owner timely delivers any changes to the Proposed Punchlist to Contractor, then Owner and Contractor shall discuss such changes and Contractor shall deliver a revised Proposed Punchlist to Owner for its review in accordance with this subsection. This procedure shall be repeated until the Proposed Punchlist is approved or deemed to have been approved by Owner. The Proposed Punchlist that is ultimately approved or deemed to have been approved by Owner shall be referred to as the “Punchlist”. If the Punchlist is not approved or deemed to have been approved by Owner pursuant hereto by the Guaranteed Substantial Completion Date, the Proposed Punchlist as modified by Owner shall be deemed the Punchlist for all purposes hereunder until the Parties resolve such dispute and otherwise finalize the Punchlist. Contractor shall note on such Punchlist the items under dispute.

13.1.2 Contractor shall proceed promptly to complete and correct all items on the Punchlist. On a weekly basis after the Punchlist is finalized in accordance with Section 13.1.1, Contractor shall revise and update the Punchlist to include the date(s) that items listed on such Punchlist are completed by Contractor and submit such updated Punchlist to Owner for acceptance. Within ten (10) Business Days of receipt of each updated Punchlist Owner shall inspect the completed Non-Critical Deficiencies and acknowledge, by notation on the updated Punchlist, that such item of Work is complete (or dispute completion of the applicable items of Work if not accepted). If Owner does not so inspect and deliver such notations on the updated Punchlist to Contractor (or dispute completion of the applicable items of Work if not accepted) within ten (10) Business Days after Contractor submits the updated Punchlist containing such

Punchlist item to Owner, and Contractor has actually completed and corrected any Punchlist item listed on such Punchlist as being completed, such Punchlist items shall be deemed to have been confirmed as completed by Owner.

13.1.3 Following confirmation (or deemed confirmation) by Owner pursuant to Section 13.1.2 that items on the Punchlist have been completed, Owner shall release to Contractor, the Punchlist Holdback withheld for such completed items in accordance with Section 6.9.

13.2 Substantial Completion. The following are the conditions precedent for the Project to achieve Substantial Completion:

13.2.1 the Project has achieved Mechanical Completion;

13.2.2 the Punchlist shall be in final form or be deemed approved as provided for in Section 13.1.2 and only Non-Critical Deficiencies remain on the Punchlist;

13.2.3 the Five Consecutive Day Operational Test and the Five Day Performance Ratio Test have been Successfully Run;

13.2.4 Owner has received all Contractor Deliverables (if any) as required to be delivered by the Substantial Completion Date pursuant to the Contractor Deliverables Table;

13.2.5 the Project has all Applicable Permits, required for the construction and continuous operation of the Project in accordance with Applicable Laws and

(a)

to the extent required by such permits or Applicable Law, such permits are in the name of Owner;

(b)

copies of each such permit are attached to such certificate;

(c)

the Project is capable of operating in compliance with such permits and Applicable Laws;

13.2.6 the Owner’s Engineer has certified that the Project has been completed in all material respects in accordance with this Agreement and has achieved Substantial Completion; and

13.2.7 no Contractor Liens have been filed against the Project and/or Site; provided that Contractor shall be deemed to have satisfied this Section 13.2.8 if Contractor has elected to bond or satisfy such Contractor Lien (in accordance with Article 27).

13.3 Notice of Substantial Completion. When Contractor believes that it has satisfied all of the conditions to Substantial Completion specified in Section 13.2, Contractor shall deliver to Owner a Notice of Substantial Completion for Owner’s review and approval. Owner shall, within five (5) Business Days after receipt of such Notice, issue an Owner’s Certificate of Substantial Completion for the Project, dated to reflect the Substantial Completion Date, or if Owner rejects Contractor’s Notice of Substantial Completion, respond in writing specifying the

conditions to Substantial Completion that Contractor has failed to satisfy as the basis for such rejection and Contractor shall take the appropriate corrective action in the event of such failure. Upon completion of such corrective action, Contractor shall provide to Owner a new Notice of Substantial Completion for approval. This process shall be repeated on an iterative basis until Contractor has satisfied the conditions to Substantial Completion, as applicable, that Owner specified as the basis for its rejection and Owner issues an Owner’s Certificate of Substantial Completion, as applicable. If Contractor contends that Owner has improperly required any such corrective action, Contractor shall proceed as directed by Owner in writing, but shall in all events retain its rights to recover any costs, damages and losses in connection therewith pursuant to Article 30. Notwithstanding any time periods that elapse prior to issuance of the Certificate of Substantial Completion, the “Substantial Completion Date” of the Project, shall be the day on which the last of the conditions of Section 13.2 was approved or deemed approved by Owner in accordance with this Section 13.3. If Owner fails to issue Owner’s Certificate of Substantial Completion within five (5) Business Days after receipt of the Notice of Substantial Completion and does not respond in writing within such five (5) Business Day period specifying the conditions to Substantial Completion that Contractor failed to satisfy as the basis for rejection of Contractor’s Notice of Substantial Completion, then Owner shall be deemed to have approved and acknowledged Substantial Completion and issued the Owner’s Certificate of Substantial Completion.

13.4 Final Completion. “Final Completion” shall be deemed to have occurred only if all of the following have occurred:

13.4.1 Substantial Completion shall have been achieved;

13.4.2 all items on the Punchlist shall have been completed by Contractor;

13.4.3 all Contractor’s and Subcontractors’ personnel shall have left the Site, and all Contractor’s and Subcontractors’ (i) surplus materials, (ii) waste materials, (iii) rubbish and (iv) construction facilities other than those to which Owner holds title shall have been removed from the Site;

13.4.4 Owner shall have received all Contractor Deliverables as set forth on the Contractor Deliverables Table;

13.4.5 Contractor shall have delivered to Owner final record drawings of the Project;

13.4.6 Contractor has completed any work required with respect to any claims under the Warranties for which Contractor has been given Notice prior to completion of the Punchlist;

13.4.7 no Contractor Liens in respect of amounts paid to Contractor hereunder shall be outstanding against the Project and Owner shall have received all required Final Lien Waivers under Section 27.2; and

13.4.8 Contractor has completed performance of all other Work on the Project.

13.5 Notice of Final Completion. When Contractor believes that it has satisfied all of the conditions to Final Completion specified in Section 13.4, Contractor shall deliver to Owner a Notice of Final Completion for Owner’s review and approval. Owner shall, within five (5) Business Days after receipt of such Notice, issue an Owner’s Certificate of Final Completion, dated to reflect the Final Completion Date, or if Owner rejects Contractor’s Notice of Final Completion, respond in writing specifying the conditions to Final Completion that Contractor has failed to satisfy as the basis for such rejection and Contractor shall take the appropriate corrective action. Upon completion of such corrective action, Contractor shall provide to Owner a new Notice of Final Completion for approval. This process shall be repeated on an iterative basis until Contractor has satisfied the conditions to Final Completion that Owner specified as the basis for its rejection and Owner issues an Owner’s Certificate of Final Completion. If Contractor contends that Owner has improperly required any such corrective action, Contractor shall proceed as directed by Owner in writing, but shall in all events retain its rights to recover any costs, damages and losses in connection therewith pursuant to Article 30. The “Final Completion Date” for the Project shall be the day after the date on which the last of the conditions of Section 13.4 was approved or deemed approved by Owner in accordance with this Section 13.3. If Owner fails to issue Owner’s Certificate of Final Completion within five (5) Business Days after receipt of the Notice of Final Completion and does not respond in writing within such five (5) Business Day period to such Notice of Final Completion specifying the conditions to Final Completion that Contractor failed to satisfy as the basis for rejection of Contractor’s Notice of Final Completion, then Owner shall be deemed to have approved Final Completion.

13.6 Contractor’s Access After Substantial Completion to Achieve Final Completion. Following Substantial Completion, Owner shall provide Contractor with reasonable and timely access to the Project to: (x) complete all remaining items on the Punchlist and (y) satisfy the other requirements with respect to the Project for Final Completion. The Parties expect that Contractor shall accomplish any necessary modification, repairs or additional work with minimal interference with commercial operation of the Project or any portion thereof and that reductions in and shut-downs of all or part of the Project’s operations will be required only when necessary, taking into consideration the length of the proposed reduction or shut-down. Provided that the correction of Non-Critical Deficiencies on the Punchlist do not require a shut-down of all or part of the Project, subject to Applicable Law, Owner agrees to permit Contractor unrestricted access to the Project between sunset and sunrise to perform such Work. Notwithstanding the foregoing, (i) should a reduction in or shut-down of all or part of the Project’s operations be required to complete any items on the Punchlist, then such reduction or shut-down shall be scheduled at the reasonable discretion of Owner, and Contractor shall complete such Work during such Owner scheduled reduction or shut-down. Contractor acknowledges that Owner may schedule such reduction or shut-down at any time including off peak hours, nights, weekends and holidays; provided that, in any event, subject to Applicable Law, Contractor shall be permitted to schedule such a reduction or shut-down between sunset and sunrise, to the extent requested by Contractor; and provided further that the Project is back on-line by sunrise of the next day.

14.

LIQUIDATED DAMAGES

14.1 Delay Liquidated Damages. Contractor agrees that if Substantial Completion is not achieved by the Guaranteed Substantial Completion Date, then Contractor shall pay the

amount of Delay Liquidated Damages set out in the definition thereof to Owner for each day beginning on the first day after the Guaranteed Substantial Completion Date up to but not including the Substantial Completion Date. Contractor shall pay the net amount (if any) of Delay Liquidated Damages to Owner, subject to the limitations set forth in Article 29, and such amount shall be due and payable within twenty-five (25) days after Contractor’s receipt of Owner’s invoice for such net amount submitted at the end of the month following the missed Guaranteed Substantial Completion Date and each month thereafter until the achievement of Substantial Completion, as applicable.

14.2 Remedial Plan.

14.2.1 Remedial Plan. Without affecting the requirements of Section 7.5, if Contractor fails to achieve any Milestone by the date that is ten (10) days after the date corresponding thereto in the Milestone Payment Schedule, Contractor shall submit a Remedial Plan to Owner, which shall specify the corrective actions Contractor will take and the commencement date of such corrective action, for Owner’s approval, which shall not be unreasonably withheld or delayed. The corrective actions described in the Remedial Plan that Contractor proposes to undertake with respect to the Work must be designed and intended to achieve Substantial Completion by the Guaranteed Substantial Completion Date without a material risk of damaging or diminishing the performance of any of the Work.

14.2.2 Prosecution of Remedial Plan. Contractor shall promptly and diligently pursue completion of the Remedial Plan.

14.3 Sole Remedy; Liquidated Damages Not a Penalty. The amounts, if any, payable under Section 14.1, as limited by Article 29, and the other remedies provided for in this Article 14, shall be the sole and exclusive remedies of Owner for failure of Contractor or the Project to achieve Substantial Completion by the Guaranteed Substantial Completion Date. The Parties agree that Owner’s actual damages in the event of such delays or failures would be extremely difficult or impracticable to determine. After negotiation, the Parties have agreed that the Delay Liquidated Damages are in the nature of liquidated damages and are a reasonable and appropriate measure of the damages that Owner would incur as a result of such delays or failures, and do not represent a penalty.

14.4 Enforceability. The Parties explicitly agree and intend that the provisions of this Article 14 shall be fully enforceable by any court exercising jurisdiction over any dispute between the Parties arising under this Agreement. Each Party hereby irrevocably waives any defenses available to it under law or equity relating to the enforceability of the liquidated damages provisions set forth in this Article 14.

15.

CHANGES IN THE WORK

15.1 Change In Work. A “Change In Work” shall result from one of the following:

15.1.1 changes in the Work required by Owner as further described in Section 15.2;

15.1.2 the addition to, modification of, or deletion from the Work (performed or yet to be performed) during the performance of the Work, in all cases, if mutually agreed to by the Parties in writing;

15.1.3 the occurrence of a Force Majeure Event (as and only to the extent permitted by Section 8.4.1); or

15.1.4 an Owner-Caused Delay.

15.2 By Owner. Subject to Section 15.4, Owner shall have the right to make non-material changes in the Work, within the general scope thereof, whether such changes are modifications, alterations or additions to the Work, but in no event shall reductions to the Project’s expected capacity be permitted (each such change, an “Owner-Instituted Change”). All Owner-Instituted Changes shall be made in accordance with this Article 15, shall be documented in accordance with Section 15.4 and shall be considered, for all purposes of this Agreement, as part of the Work. Notwithstanding the foregoing, in no event shall Owner have the right to make any Owner-Instituted Changes, whether individually or in the aggregate, that would result in:

15.2.1 any portion of the Project being located at a site other than the Site;

15.2.2 any adverse effect on any portion of the Project being able to conduct or satisfy any of the tests provided for in this Agreement, including any Performance Test, or any other adverse effect whatsoever on the capacity or energy performance or potential capacity or energy performance of any portion of the Project or the ability of Contractor to cure any shortfalls in such capacity; or

15.2.3 any adverse effect on Contractor’s ability to comply with its Warranty obligations or any of its other obligations under this Agreement or Contractor’s ability to enforce any of its rights and remedies hereunder.

15.3 Adjustment to Dates and Contract Price Due to Force Majeure Events and Owner-Caused Delay. If a Force Majeure Event and Owner-Caused Delay occurs, the Guaranteed Substantial Completion Date and the Contract Price, as applicable, shall be adjusted as and to the extent provided in Section 8.4, as the case may be set forth in the Change Order to which Contractor is entitled.

15.4 Preparation of Change Order.

15.4.1 Due to Owner-Initiated Change In Work or Change in Work Agreed to by the Parties. Upon the occurrence of any of the events set forth in Section 15.1.1 or Section 15.1.2, Owner or Contractor, as applicable, shall provide the other Party with a Notice of the occurrence of such event, and Contractor shall, as soon as practicable, prepare and submit to Owner a preliminary written estimate relating to the proposed Change In Work, including (a) any projected change in the cost of the performance of the Work and any projected modification of the Contract Price occasioned by such Change In Work, (b) the effect such Change In Work could be expected to have on the Milestone Dates, including the Guaranteed Substantial Completion Date and any related modifications to the Work (including adjustments necessary

regarding the schedule for performing the Performance Tests in order to provide the necessary stabilization period to mitigate any transient effects on the PV modules resulting from being stored, idled or unutilized), and (c) the potential effect of such Change In Work in respect of the prohibitions set forth in Section 15.2. Contractor’s cost of any such Change in Work shall include and identify all elements of cost (without the cost of each such element) and a total lump sum cost calculated as follows: (x) the actual and substantiated costs reasonably incurred by Contractor (including all Taxes other than Taxes based on Contractor’s net income); plus (y) ten percent (10%) of such costs. All amounts payable pursuant to Change In Work issued or agreed, as applicable, pursuant to this Section 15.4.1, shall be invoiced by Contractor and paid by Owner pursuant to Article 6. Upon Owner’s request, Contractor shall prepare and provide reasonable calculations of any such charges and Subcontractor invoices, time sheets and other documents to support any such costs set forth for any Change In Work. Owner reserves the right to contest the validity or amount of any such costs. If the Parties cannot reach agreement on the matters set forth in a Change In Work pursuant to this Section 15.4.1, then such matter shall be referred to dispute resolution under Article 30.

15.4.2 Due to a Force Majeure Event or Owner-Caused Delay.

(a)

Upon the occurrence of any of the events set forth in Section 15.1.3 or Section 15.1.4, Contractor shall, as soon as practicable, prepare and submit to Owner in accordance with this Article 15 or as otherwise contemplated in Section 15.1 a proposed Change In Work, which shall include (a) any projected change in the Contract Price occasioned by such Change In Work with respect to an Owner-Caused Delay, and (b) the effect such Change In Work could be expected to have on the Guaranteed Substantial Completion Date and any related modifications to the Work, in each case all as and to the extent provided in Section 8.4.1 (with respect to a Force Majeure Event) or as otherwise contemplated in Section 15.1 and as set forth in the Change Order to which Contractor is entitled. With respect to a Force Majeure Event, Owner shall be entitled to require that Contractor expedite the schedule of the Work as a part of a Change of Work instead of a delay in the Contract Schedule, provided that expediting the schedule is not impracticable (taking into account the availability of labor, equipment and materials (though additional cost shall not be a factor if agreed to be paid by Owner pursuant to this Section 15.4.2) and the requirements of Applicable Law or Applicable Permits) and Owner and Contractor agree on the terms of any payment and scope of work for such acceleration of the Work, and upon such agreement, the scheduled dates noted above will not be extended and the Contractor will be required to continue to meet the schedule and perform the Work as agreed to by the Parties. If Contractor and Owner reach agreement on the matters that constitute the Change In Work, then the Parties shall execute a Change Order. If the Parties cannot reach agreement on the matters listed in the Change Order submitted pursuant to this Section 15.4.2, then such matter shall be referred to dispute resolution under Article 30. Contractor shall not be required to perform any Work pursuant to a Change In Work proposed pursuant to this Section 15.4.2, unless and until the Parties have agreed to the terms of payment for any of the Work in the proposed Change In Work.

(b)

The burden of proof as to whether a Force Majeure Event or Owner-Caused Delay has occurred and whether such Force Majeure Event or Owner-Caused Delay permits a Party to seek a Change Order under this Section 15.4.2 shall be upon the Party claiming relief.

15.5 No Change Order Necessary for Emergency. Contractor shall not be obligated or required to obtain an executed Change Order if immediate action is reasonably required to address an emergency, including an emergency which endangers human health or property.

15.6 Change for Contractor’s Convenience. Without limiting Contractor’s obligations to perform the Work in accordance with this Agreement, Contractor shall have the right, at its own cost and expense, to take any action, including changing Project Hardware or making design changes, that is immaterial and generally consistent with this Agreement and that Contractor determines to be reasonably necessary to meet the requirements of this Agreement.

16.

WARRANTIES CONCERNING THE WORK

16.1 Warranties. Contractor warrants to Owner:

16.1.1 Defect Warranty. That all Project Hardware shall:

(a)

be free from defects in material and workmanship;

(b)

be new and unused (when installed) unless the Parties agree otherwise in advance and in writing;

(c)

be of good quality and good condition (when installed); and

(d)

conform to the applicable requirements of the Scope of Work (collectively, the “Defect Warranty”).

16.1.2 Design Warranty. That the design services included as part of the Work furnished by Contractor or any Subcontractors hereunder shall be free from any defects in achieving the design requirements set forth in the Scope of Work (the “Design Warranty”).

16.1.3 Installation Services Warranty. The installation services included as part of the Work furnished by Contractor or any Subcontractors hereunder shall be free from any defects in workmanship (the “Installation Services Warranty”).

16.2 Warranty Periods.

16.2.1 Defect Warranty Period. The warranty period with respect to the Defect Warranty applicable to the Project shall commence on the Substantial Complete Date and expire three (3) years following the Substantial Completion Date (such period, a “Defect Warranty Period”); provided that the Defect Warranty Period for any portion of the Work, Project

Hardware, item or part required to be re-performed, repaired, corrected or replaced following discovery of a defect or other non-compliance with the Defect Warranty during the applicable Defect Warranty Period shall continue until the end of the later of (x) the expiration of such Defect Warranty Period and (y) one (1) year from the date of completion of such repair or replacement.

16.2.2 Design Warranty Period. The warranty period with respect to the Design Warranty applicable to the Project shall commence on the Substantial Completion Date and expire three (3) years following the Substantial Completion Date (such period, a “Design Warranty Period”); provided that the Design Warranty Period for any portion of the Work required to be re-performed following discovery of a defect or other non-compliance with the Design Warranty during the Design Warranty Period shall continue until the end of the later of (x) the expiration of such Design Warranty Period and (y) one (1) year from the date of completion of such re-performance.

16.2.3 Installation Services Warranty Period. The warranty period with respect to the Installation Services Warranty applicable to the Project shall commence on the Substantial Completion Date and expire three (3) years following the Substantial Completion Date (such period, an “Installation Services Warranty Period”); provided that the Installation Services Warranty Period for any portion of the Work required to be re-performed following discovery of a defect or other non-compliance with the Installation Services Warranty during the Installation Services Warranty Period shall continue until the end of the later of (x) the expiration of such Installation Services Warranty Period and (y) one (1) year from the date of completion of such re-performance.

16.3 Exclusions. The Defect Warranty, Design Warranty and the Installation Services Warranty shall not apply to:

16.3.1 damage to or failure of any Work or Project Hardware to the extent such damage or failure is caused by:

(a)

a failure by Owner or its representatives, agents or contractors to maintain such Work or Project Hardware in accordance with the recommendations set forth in the Required Manuals (except to the extent such failure is due to Contractor, any Affiliate or Subcontractor of Contractor, or any Affiliate of Contractor’s Subcontractor hereunder or under any Operating and Maintenance Agreement;

(b)

operation of such Work or Project Hardware by Owner or its representatives, agents or contractors in excess of or outside of the operating parameters or specifications for such Work or Project Hardware (except to the extent such failure is due to Contractor, any Affiliate or Subcontractor of Contractor, or any Affiliate of Contractor’s Subcontractor hereunder or under any Operating and Maintenance Agreement; or

(c)

a Force Majeure Event; provided, that, for the avoidance of doubt, once repair or replacement work has been completed with respect to a Force Majeure Event, the Warranties provided herein shall apply to such Work for the remainder of the Defect Warranty Period, Design Warranty Period or Installation Services Warranty Period, as applicable.

16.4 Enforcement by Owner; Subcontractor Warranties.

16.4.1 Commencing on the expiration of the Defect Warranty Period, Owner shall be entitled to enforce all unexpired original warranties from Subcontractors, and Contractor shall provide reasonable assistance to Owner in enforcing such warranties against Subcontractors, when and as reasonably requested by Owner. In addition, prior to the expiration of the Defect Warranty Period, Owner, at its option and upon prior Notice to Contractor, may enforce the Defect Warranty against any Subcontractor if a Contractor Event of Default exists after the Substantial Completion Date and this Agreement has been terminated in accordance with Article 19.

16.4.2 Contractor shall obtain original defect warranties for all Project Hardware supplied by a Major Subcontractor on commercially reasonable terms and conditions and, with respect to the defect warranties for the PV modules, inverters and racking, shall be for a term no less than that specified in Exhibit A. If a Contractor Event of Default exists and this Agreement has been terminated in accordance with Section 18.2(a), or otherwise at the end of the Defect Warranty Period, Contractor shall assign to Owner (unless previously assigned), or otherwise hold in trust on behalf of Owner until such assignment shall occur, at the request and direction of Owner, all unexpired and assignable original warranties of such Major Subcontractor, subject to the terms and conditions of any such warranties; provided that, notwithstanding such assignment, Contractor shall be entitled to enforce each such warranty to the exclusion of Owner through the earlier of the termination of this Agreement in accordance with Section 18.2(a) and the end of the applicable Defect Warranty Period. Notwithstanding the foregoing, Contractor shall not be obligated to assign any claims of Contractor with respect to any Major Subcontractors then or thereafter existing so long as Contractor is performing its obligations under this Article 16. At Owner’s request, Contractor shall deliver to Owner, at the end of the Defect Warranty Period (unless previously provided), copies of all subcontracts containing such unexpired and assignable warranties of the Major Subcontractor with appropriate redactions of the financial and other terms thereof.

16.5 Correction of Defects.

16.5.1 Notice of Warranty Claim. Subject to Section 16.2 and Section 16.6, if during the Defect Warranty Period, Design Warranty Period or Installation Warranty Period applicable to such Work (as the case may be) the Owner provides Notice to Contractor that any of the Work fails to satisfy the Defect Warranty during the Defect Warranty Period applicable to such Work, the Design Warranty during the Design Warranty Period applicable to such Work or the Installation Services Warranty during the Installation Services Warranty Period applicable to such Work (as the case may be), then Contractor shall have a reasonable opportunity to inspect such claimed defect, and at Contractor’s own cost and expense as promptly as practicable refinish, repair or replace, at its option, such non-conforming or defective part of the Work to

Owner’s reasonable satisfaction in accordance with Prudent Utility Practice, Applicable Law, Applicable Permits, and this Agreement. Additionally, Contractor shall pay the cost of removing any defect, shipping and installation of replacement parts in respect of a defect and the cost of repairing or replacing such part of the Work as shall be necessary to cause the Work to conform to the applicable Warranty. The timing of and the work to be completed with respect to any such remediation or repair shall be subject to Owner’s approval, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing and subject to Section 16.6, if any of the Work shall fail to satisfy the applicable Warranty during the applicable Warranty Period, and such failure endangers human health or property or materially and adversely affects the operation of the Project, Contractor shall correct the failure as soon as is practicable. Notwithstanding anything to the contrary herein, Contractor shall have the right to dispute any Warranty claim.

16.5.2 Correction of Defects by Owner. Contractor may request Owner to perform all or any portion of Contractor’s obligations with respect to any Warranty claim. Upon such request, Owner may elect to perform such obligations in Owner’s sole discretion, and if Owner elects not to perform such obligations, Contractor shall remain obligated to and shall perform such obligations. Contractor shall reimburse Owner for all actual and substantiated costs and expenses reasonably incurred by Owner and its Affiliates to perform Contractor’s obligations with respect to such Warranty claim within twenty-five (25) days after receiving Owner’s request for payment of such costs. If Owner elects to perform such obligations, Owner shall provide Contractor and its representatives with reasonable access to the Project to observe Owner’s and its Affiliates’ or other third party’s performance of the Warranty work.

16.5.3 Failure of Contractor to Perform Warranty Work. If Contractor does not use its reasonable efforts to proceed to complete the Warranty work, or cause any relevant Subcontractor to proceed to complete the Warranty work, required to satisfy any Warranty claim properly asserted under the terms of this Article 16, Owner shall provide Contractor with a written notice (a “Warranty Claim Notice”) detailing the nature of such Warranty claim, and shall provide Contractor with an opportunity to discuss such claim with Owner (including an opportunity for Contractor to describe why Contractor disagrees with such claim). Within five (5) days after receipt of such Warranty Claim Notice, if Owner is not satisfied that such Warranty claim has been adequately remedied or resolved, or continues to disagree with Contractor regarding such Warranty claim, Owner shall give Contractor a further written notice of Owner’s intent to perform itself or cause to be performed by third parties, the work that is the subject of such claim (an “Owner-Performance Notice”). If Contractor fails to commence, or cause any relevant Subcontractor to commence, design, engineering, procurement or other work related to such obligation within five (5) days after its receipt of such Owner-Performance Notice, Owner shall have the right to perform the necessary work or have third parties perform such work and Contractor shall bear the reasonable costs thereof (plus seven percent (7%) of such costs as an allowance for overhead and related costs); provided that Contractor shall be given the opportunity to observe, review and test the performance of such work and/or the results of such work for the purposes of satisfying itself that such work has been correctly performed in accordance with the Scope of Work and the other applicable provisions of this Agreement related to such work that Contractor, had it performed the work itself, would have observed to comply with this Agreement. If any of the Work fails to satisfy the applicable Warranty during the applicable Warranty Period and any such failure occurs under circumstances where there is an immediate need for repairs due to the endangerment of human health or property, Owner may

perform such Warranty work for Contractor’s account without prior Notice to Contractor; provided that, if practicable, Owner provides reasonably prompt Notice to Contractor of such immediate need prior to performing such Warranty work and, if reasonably practicable, gives Contractor the opportunity to perform such Warranty work.

16.6 Limitations On Warranties. EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 3.1, SECTION 3.14, THIS ARTICLE 16, AND SECTION 17.2.1, CONTRACTOR DOES NOT MAKE ANY OTHER EXPRESS WARRANTIES OR REPRESENTATIONS, OR ANY IMPLIED WARRANTIES OR REPRESENTATIONS, OF ANY KIND IN RESPECT OF PROJECT HARDWARE OR THE WORK, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE. THE REMEDIES PROVIDED FOR IN THIS ARTICLE 16 WITH RESPECT TO PROJECT HARDWARE OR ANY WORK WHICH FAILS TO SATISFY THE DEFECT WARRANTY DURING THE APPLICABLE DEFECT WARRANTY PERIOD, THE DESIGN WARRANTY DURING THE APPLICABLE DESIGN WARRANTY PERIOD OR THE INSTALLATION SERVICES WARRANTY DURING THE APPLICABLE INSTALLATION SERVICES WARRANTY PERIOD (AS THE CASE MAY BE) SHALL BE THE SOLE AND EXCLUSIVE REMEDIES FOR OWNER AS A RESULT OF SUCH FAILURE.

17.

EQUIPMENT IMPORTATION; TITLE

17.1 Importation of Project Hardware. Contractor, at its own cost and expense, shall make all arrangements, including the processing of all documentation, necessary to import the Project Hardware to be incorporated into the Project. In no event shall Owner be responsible for any delays in custom clearance or any resulting delays in performance of the Work; provided, that the Contractor may be relieved there from pursuant to a claim of a Force Majeure Event, to the extent applicable.

17.2 Title.

17.2.1 Condition. Subject to Section 17.2.2, Contractor warrants good and marketable title, free and clear of all liens, claims, charges, security interests, and encumbrances whatsoever (other than those created by Owner, any third-party (other than a Subcontractor or Affiliate of Contractor or any of its subcontractors) or that result from Owner’s failure to pay Excluded Taxes hereunder), to all Work, Project Hardware and other items furnished by Contractor or any of the Subcontractors that become part of the Project or that are to be used for the operation, maintenance or repair thereof.

17.2.2 Transfer. Title to the Project Hardware and other items that become part of the Project shall pass to Owner in accordance with Section 17.2.1 upon the earlier of (i) payment for such Project Hardware or other items or (ii) delivery of such Project Hardware or other items to the Site.

17.2.3 Custody During Performance. Contractor shall have care, custody, risk of loss, and control of all Project Hardware and other items that have been installed until the earlier of (i) the Substantial Completion Date and (ii) the date of termination of this Agreement.

17.3 Transfer of Care, Custody and Control.

17.3.1 Upon Turnover. On the Substantial Completion Date, Owner shall take complete possession, care, custody, risk of loss and control and assume responsibility for the daily ownership, operation and maintenance of the Project.

17.3.2 Upon Early Termination. Upon the termination of this Agreement, Owner shall have care, custody and control of all Project Hardware and other items that have been installed as part of the Project.

18.

DEFAULTS AND REMEDIES

18.1 Contractor Events of Default. Contractor shall be in default of its obligations pursuant to this Agreement upon the occurrence of any one or more events of default set forth below (each, a “Contractor Event of Default”):

18.1.1 Contractor or Contractor’s Surety becomes Bankrupt;

18.1.2 Contractor assigns or transfers this Agreement or any right or interest herein except in accordance with Article 25;

18.1.3 Contractor fails to maintain any insurance coverages required of it in accordance with Article 20 and Contractor fails to remedy such breach within thirty (30) days after the date on which Contractor first receives a Notice from Owner with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes and completes such cure within sixty (60) days thereafter;

18.1.4 Contractor fails to perform any provision of this Agreement providing for the payment of money to Owner, except for any amounts disputed by Contractor in good faith, and such failure continues for twenty (20) days after Contractor has received a Notice of such payment default from Owner;

18.1.5 Contractor fails to perform any material provision of this Agreement not otherwise addressed in this Section 18.1 and such failure continues for thirty (30) days after Notice from Owner, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes and completes such cure within sixty (60) days, in each case after the date on which Contractor first receives a Notice from Owner with respect thereto;

18.1.6 Contractor’s liability for Delay Liquidated Damages exceeds the relevant cap amounts set forth in Section 29.2.2;

18.1.7 Contractor fails to maintain the Performance and Payment Bonds in accordance with Section 3.17;

18.1.8 Contractor’s Surety defaults in the performance of its obligations under the Performance and Payment Bonds; or

18.1.9 Contractor voluntarily and completely ceases Work for a period of thirty (30) consecutive days and Contractor fails to resume the Work within thirty (30) days after the date on which Contractor first receives a Notice from Owner with respect thereto.

18.2 Owner’s Rights and Remedies. If a Contractor Event of Default occurs, subject to Article 29, Owner shall have the following rights and remedies and may elect to pursue any or all of them, in addition to any other rights and remedies that may be available to Owner hereunder, and Contractor shall have the following obligations:

18.2.1 Owner may terminate this Agreement after having given ten (10) Business Days prior Notice of such termination to Contractor, in which case, Owner shall be compensated in accordance with Section 19.1 and Contractor shall have the following obligations:

(a)

if Owner terminates this Agreement in accordance with the provisions hereof, Contractor shall stop Work, enter into no further obligations related thereto and withdraw from the Site, shall remove such materials, equipment, tools, and instruments used by and any debris or waste materials generated by any Contractor Party in the performance of the Work as Owner may direct, and Owner may take possession of any or all Contractor Deliverables necessary for completion of the Work (whether or not such Contractor Deliverables are complete);

(b)

upon receipt of written Notice from Owner of termination of this Agreement pursuant to Section 18.1, Contractor shall not enter into further subcontracts and purchase orders; and (b) at Owner’s instruction, to the extent Contractor may do so under the terms of such Subcontract, assign its rights under all Subcontracts to Owner or Owner’s designee;

18.2.2 Owner may proceed against the Performance and Payment Bonds;

18.2.3 Owner may seek equitable relief solely to cause Contractor to take action, or to refrain from taking action pursuant to this Agreement; and

18.2.4 Owner may pursue the dispute resolution procedures set forth in Article 30 to enforce the provisions of this Agreement and to seek actual direct damages subject to the limitations of liability set out in this Agreement.

18.3 Owner Event of Default. Owner shall be in default of its obligations pursuant to this Agreement upon the occurrence of any one or more events of default set forth below (each, an “Owner Event of Default”):

18.3.1 Owner becomes Bankrupt;

18.3.2 Owner fails to perform any material provision of this Agreement not otherwise addressed in this Section 18.3 and such failure continues for thirty (30) days after

Notice from Contractor, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Owner commences such cure within such thirty (30) day period and diligently prosecutes and completes such cure within sixty (60) days, in each case after the date on which Owner first receives a Notice from Contractor with respect thereto;

18.3.3 Owner assigns or transfers this Agreement or any right or interest herein, except in accordance with Article 25; or

18.3.4 Owner fails to perform any provision of this Agreement providing for the payment of money to Contractor and such failure continues for sixty (60) days after Owner has received a Notice of such payment default from Contractor.

18.4 Contractor’s Rights and Remedies. If an Owner Event of Default occurs, subject to Article 29, Contractor shall have the following rights and remedies and may elect to pursue any or all of them, in addition to any other rights and remedies that may be available to Contractor hereunder:

18.4.1 Contractor may terminate this Agreement after having given ten (10) Business Days prior Notice of such termination to Owner (in which event Contractor shall be compensated in the manner described in Section 19.2);

18.4.2 Contractor may pursue the dispute resolution procedures set forth in Article 30 to enforce the provisions of this Agreement and to seek actual direct damages subject to the limitations of liability set out in this Agreement; and

18.4.3 Contractor may suspend the Work by giving Notice of such suspension to Owner; provided that such Notice of suspension may be given by Contractor either concurrently or at any time after the Notice described in Section 18.3(d).

Notwithstanding anything to the contrary in this Section 18.4 and without limiting any of Contractor’s other rights pursuant to this Section 18.4, if Owner shall fail to pay any amount due to Contractor hereunder that is not in dispute and such failure has not been cured in full within ten (10) days after Owner receives Notice from Contractor that it failed to pay such payment by the due date, Contractor may suspend performance of the Work until the undisputed portion of such unpaid amount has been paid to Contractor in full.

18.5 Suspension. Owner may, in its sole discretion, order Contractor to suspend the Work, in whole or in part, for a period of time as Owner may determine. The suspension shall commence on the day specified in Owner’s Notice which shall be at least fifteen (15) Business Days after Owner Notifies Contractor concerning such suspension. Upon the commencement of the suspension, Contractor shall stop the performance of the suspended Work except as may be necessary to carry out the suspension and protect and preserve the Work completed prior to the suspension. The provisions of this Agreement related to Owner-Caused Delays shall be applicable to any suspension by Owner pursuant to this Section 18.5. Contractor shall initiate the resumption of any suspended Work within twenty (20) Business Days after Owner gives Contractor Notice to do so and shall use its commercially reasonable efforts to resume the Work fully as soon as reasonably practicable.

18.6 Stop or Slow Work Directive.

18.6.1 Notwithstanding Section 18.5, Owner may issue a stop work or slow work directive where, in the reasonable judgment of Owner:

(a)

Contractor or any Subcontractor is performing the Work materially contrary to the conditions and terms of this Agreement;

(b)

Continued work could cause damage, or render remedial action ineffective for any Work or Project Hardware provided by Contractor or Subcontractors; or

(c)

A safety issue arises that is an imminent threat to Person(s) or property.

18.6.2 Upon receipt of a stop work or slow work directive, Contractor and all Subcontractors shall cease or slow operations, as applicable, including shipments on any specified Project Hardware or Work, to the extent stipulated by the stop or slow work directive. Contractor and Subcontractors shall not resume Work on an activity described in a stop or slow work directive until Contractor has obtained a written authorization from Owner.

19.

TERMINATION

19.1 Termination and Damages for Contractor Event of Default. Subject to Article 29 and except as set forth in Section 19.1, upon a termination of this Agreement in accordance with Section 18.2.1, Owner shall be entitled to recover from Contractor, as damages for loss of bargain and not as a penalty, (and in addition to all other amounts Owner is entitled to recover under this Agreement, including any liquidated damages accrued prior to such termination) an amount equal to the actual and substantiated costs reasonably incurred to complete the Work (including compensation for obtaining a replacement contractor required as a consequence of such Contractor Event of Default) minus the unpaid portion of the Contract Price that would have been payable to Contractor but for such Contractor Event of Default; provided however, that if the unpaid portion of the Contract Price exceeds the cost of completing the Work, then no payment shall be required. At any time following termination and pending final determination of the actual total cost of the remaining Work, Owner may Notify Contractor of its provisional assessment of the net amount (if any) which will be due from Contractor following such final determination of the actual total cost of the remaining Work, and any amount so determined shall be due and payable by Contractor to Owner within thirty (30) days of Contractor’s receipt of Owner’s provisional assessment unless Contractor notifies Owner within such thirty (30) day period that it disputes Owner’s assessment, in which case, Contractor shall pay the undisputed amount. Contractor and Owner shall use reasonable efforts to resolve such disputed amount reasonably expeditiously and in any case in accordance with the provisions of Article 30. Upon determination of the actual total cost of such remaining Work, Owner shall Notify Contractor of the amount, if any, that Contractor shall pay Owner if such costs are more than or less than the provisional assessment. If it is determined for any reason that there was not a Contractor Event of Default or that Owner was not entitled to the remedy against Contractor provided above, Owner will be liable to Contractor (i) for the amount for which Owner would be liable as if Contractor terminated this Agreement pursuant to Section 18.4.1 and (ii) (without duplication) any amounts then payable to Contractor that remain unpaid in connection with the Work as of the date of termination.

19.2 Payment to Contractor in the Event of Termination for Owner Event of Default. If Contractor terminates this Agreement due to an Owner Event of Default, then as sole compensation through the effective date of termination, Owner shall pay to Contractor not later than ten (10) Business Days following receipt of Contractor’s Invoice delivered pursuant to Section 19.4, (a) an amount equal to the value of all Work performed by Contractor up to the time of such termination, including in connection with any Milestones that Contractor has completed or partially completed and for which Contractor has not previously been paid; plus (b) actual and substantiated costs (including sales and use Taxes) reasonably incurred in connection with (to the extent not recovered pursuant to subclause (a) above): (i) equipment and materials ordered for the Work which have been delivered to Contractor or for which Contractor is legally liable to pay or accept delivery (title to all of which shall pass to Owner upon payment for same); (ii) payments made by Contractor to its Subcontractors and Suppliers in connection with the termination of any Subcontracts, including any cancellation charges; (iii) protecting the Work and leaving the Site in a clean and safe condition as directed by Owner; and (iv) satisfying other obligations, commitments and claims which Contractor may have entered into in good faith with third parties directly in connection with this Agreement and which are not otherwise covered herein plus seven percent (7%); provided that Contractor takes reasonable steps to mitigate such costs, losses and damages to the extent reasonably practicable following such termination; (c) any and all demobilization costs, losses and damages incurred by Contractor or any Subcontractor or Supplier in connection with such termination plus seven percent (7%); and (d) any Excluded Taxes imposed on Contractor or any Subcontractor.

19.3 Termination for Failure to Issue Notice to Proceed. If Owner has not issued a Notice to Proceed within one hundred and twenty (120) days of the Effective Date, either Party shall have the right to issue a written notice of termination and the Agreement shall be deemed terminated as of the date of receipt of such notice of termination; provided that if a Notice to Proceed has been issued by Owner prior to Owner’s receipt of notice of termination pursuant to this Section 19.3, then Contractor shall be deemed to have waived any right to terminate this Agreement pursuant to this Section 19.3. In the event of a termination pursuant to this Section 19.3, neither Party shall have any further liability to the other, except that Owner shall be obligated to reimburse Contractor for all actual and substantiated costs reasonably incurred by Contractor but in no event greater than the sum of the LNTP Work Cost Cap and, if Owner authorized any LNTP Supplemental Work pursuant to Section 7.4, the LNTP Supplemental Cost Cap(s).

19.4 Termination Invoices. Contractor shall submit an invoice or invoices (collectively, the “Contractor’s Termination Invoice”) to Owner at any time within sixty (60) days after any termination pursuant to Section 18.4.1 which shall set forth all amounts due to Contractor that remain unpaid in connection with the Project (or, in the event that the Owner Event of Default shall be of the type described in Sections 18.3.1, or 18.3.2, such Contractor’s Termination Invoice shall be deemed to have been given as of the date of the occurrence of such Owner Event of Default). This Section 19.4 and Section 19.2 shall survive termination of this Agreement until the payment due to Contractor has been made.

19.5 Contractor Conduct. Upon issuance of a Notice of termination pursuant to either Section 18.2(a) or Section 18.4(a), Contractor shall: (a) cease operations as directed by Owner in the Notice in the case of termination pursuant to Section 18.2(a) and Section 18.2(b) take action necessary, or that Owner may reasonably direct, for the protection and preservation of the Work.

20.

INSURANCE

Contractor and Owner shall provide and maintain the insurance specified in Exhibit S in accordance with the terms and provisions of Exhibit S.

21.

RISK OF LOSS OR DAMAGE

21.1 Risk of Loss Before Substantial Completion. Until the Substantial Completion Date, subject to the provisions of this Article 21, Contractor assumes risk of loss, and, without limitation of its right to relief pursuant to Article 8, responsibility, for the cost of replacing or repairing any damage to the Project and the Work (including the Project Hardware).

21.2 Risk of Loss After Substantial Completion. Risk of loss to the Project shall pass to Owner from and after the Substantial Completion Date; provided, however, Contractor shall be responsible for damage to the Project that is (i) caused by Contractor or one of its Subcontractors and (ii) any defects covered by the Warranties provided by Contractor pursuant to Section 16.

21.3 Reserved.

22.

INDEMNIFICATION

22.1 By Contractor. Contractor shall defend (if requested), indemnify and hold harmless, Owner and its employees, agents, partners, Affiliates, shareholders, members, directors, officers, managers and permitted assigns (each, an “Indemnitee”), from and against the following:

22.1.1 all Losses for third-party claims for property damage, personal injury, bodily injury or death arising out of or resulting from (i) any negligent, willful, reckless or otherwise tortious act or omission (including strict liability) of any Contractor Party during the performance of the Work or (ii) breach of this Agreement by Contractor (including breach of the safety and behavior standards set forth in Section 3.22);

22.1.2 all Losses arising out of or resulting from employers’ liability or workers’ compensation claims filed by any employees or agents of Contractor or any of its Subcontractors;

22.1.3 claims by any Governmental Authority arising out of or resulting from the failure of Contractor or Subcontractor to pay, as and when due, all Taxes, fees or charges of any kind imposed by any Governmental Authority for which Contractor is obligated to pay pursuant to the terms of this Agreement;

22.1.4 all fines or penalties issued by any Governmental Authority that arise or result from violation of Applicable Law or an Applicable Permit (and any third party out-of-pockets costs incurred by Owner as a direct result of investigating or defending against such fines or penalties) by Contractor, any Subcontractor or Owner as a result of the failure of Contractor or any Subcontractor to comply with Applicable Law or an Applicable Permit; and

22.1.5 without duplication under Section 22.1.4, any and all Losses, including claims for property damage, personal injury or bodily injury or death only with respect to third parties, or claims by a Governmental Authority for remediation or removal of Hazardous Materials, whether or not involving damage to the Project or the Site, arising out of or resulting from the use or Release of Hazardous Materials by a Contractor Party whether lawful or unlawful, during the term of this Agreement. Such use or Release of Hazardous Materials include:

(a)

any use or Release of Hazardous Materials by Contractor Parties in connection with the performance of the Work which use includes the storage, transportation, processing or disposal of such Hazardous Materials by a Contractor Party;

(b)

any Release of a Hazardous Material in connection with the performance of the Work by a Contractor Party;

(c)

any enforcement or compliance proceeding commenced by or in the name of any Governmental Authority or by any third party because of an alleged, threatened or actual violation of any Applicable Law, Environmental Law, Applicable Permit or governmental approval by a Contractor Party, including violations as a result of the use of Hazardous Materials in connection with the performance of the Work; and

(d)

the use or Release of Hazardous Materials at the Site by a Contractor Party or the use or Release of Hazardous Materials at the Project or from any on-Site equipment by a Contractor Party during the term of this Agreement.

22.2 Reserved.

22.3 Patent Infringement and Other Indemnification Rights. Contractor shall defend, indemnify, and hold harmless the Indemnitees against all Losses arising from or related to any Intellectual Property Claim. If Owner provides Notice to Contractor of the receipt of any such claim, Contractor shall, at its own expense settle or defend any such Intellectual Property Claim and pay all associated damages and costs, including reasonable attorney’s fees. If Owner is enjoined by a final, non-appealable judgment of a court of competent jurisdiction or as a result of injunctive relief provided by a court of competent jurisdiction from completing the Project or any part thereof, or from the use, operation, or enjoyment of the Project or any part thereof, as a result of such Intellectual Property Claim, Contractor shall, at its sole expense or discretion, either: (a) procure for Owner, or reimburse Owner for procuring, the right to continue using the infringing service, Project Hardware or other Work; (b) modify the infringing service, Project

Hardware or other Work so that the same becomes non-infringing; or (c) replace the infringing service, Project Hardware or other Work with non-infringing service, Project Hardware or other Work, as applicable, of comparable functionality and quality. If Contractor believes there may be a basis for an Intellectual Property Claim, Contractor may take any of the actions set forth above in (a), (b) or (c) of this Section 22.3. In no event shall Contractor take any action pursuant to (a), (b) or (c) of this Section 22.3 which adversely affects Owner’s continued use and enjoyment of the applicable service, Project Hardware, or other Work without the prior written consent of Owner. Owner’s acceptance of the supplied materials and equipment or other component of the Work shall not be construed to relieve Contractor of any obligation hereunder.

22.4 Electronic Data Files. Except where any Contractor Deliverable shall be in the form of an electronic data file, any other electronic data files furnished to Owner pursuant to this Agreement are provided only for the convenience of Owner. Owner recognizes that such electronic data files not provided to Owner as a Contractor Deliverable may not be adequate or appropriate for Owner’s needs. In the case of any discrepancies between the Contractor Deliverable represented by electronic data files and the plotted hardcopy of such files bearing the seal of Contractor’s registered professional engineer, the sealed hardcopy shall govern. Contractor assumes no responsibility for the accuracy or completeness of the electronic data files not provided to Owner as a Contractor Deliverable, and any use or reuse of such electronic data for any purpose shall be at Owner’s sole risk.

22.5 Claim Notice. An Indemnitee shall provide Notice to the indemnifying Party, within seven (7) days after receiving Notice of the commencement of any legal action or of any claims or threatened claims against such Indemnitee in respect of which indemnification may be sought pursuant to the foregoing provisions of this Article 22 or any other provision of this Agreement providing for an indemnity (such Notice, a “Claim Notice”). The delay or failure of such Indemnitee to provide the Notice required pursuant to this Section 22.6 to the other Party shall not release the indemnifying Party from any indemnification obligation which it may have to such Indemnitee except (i) to the extent that such failure or delay actually and adversely affected the indemnifying Party’s ability to defend such action or increased the amount of the loss, and (ii) that the indemnifying Party shall not be liable for any costs or expenses of the Indemnitee in the defense of the claim, suit, action or proceeding during such period of failure or delay.

22.6 Defense of Claims. In case any such claim or legal action shall be made or brought against an Indemnitee and such Indemnitee shall Notify (by sending a Claim Notice) the indemnifying Party thereof, the indemnifying Party shall, if requested by an Indemnitee, assume and control the defense of the claim (other than any Intellectual Property Claim, which shall, in all cases, be controlled by Contractor unless otherwise agreed by the Parties) that is the subject of such Claim Notice, in which case the indemnifying Party may select counsel acting reasonably, and the indemnifying Party shall pay all expenses of the conduct of such defense.

22.6.1 The Indemnitee shall have the right to control the defense of such claim (or to reassume control of the defense of such claim if the indemnifying Party, upon request of the Indemnitee, fails to assume or diligently prosecute the defense of any claim) and the fees and expenses of such defense, including reasonable attorneys’ fees of the Indemnitee’s counsel and any judgment or reasonable settlement amount in connection with such claim, shall be borne by the indemnifying Party, provided that the indemnifying Party shall be entitled, at its expense, to participate in (but not control) such defense.

22.6.2 If Indemnitee requests that the indemnifying Party assume the defense of a claim pursuant to this Section 22.6, the indemnifying Party shall control the settlement of all claims, in coordination with any insurer as required under the applicable insurance policies in Article 20 as to which it has assumed the defense; provided that to the extent the indemnifying Party, in relation to such insurer, controls settlement: (i) such settlement shall include a dismissal of the claim and an explicit release from the party bringing such claim or other proceedings of all Indemnitees; and (ii) the indemnifying Party shall not conclude any settlement without the prior approval of the Indemnitee, which approval shall not be unreasonably withheld or delayed.

22.6.3 The Indemnitee shall provide reasonable assistance to the indemnifying Party when the indemnifying Party so requests, at the indemnifying Party’s expense, in connection with such legal action or claim, including executing any powers-of-attorney or other documents required by the indemnifying Party with regard to the defense or indemnity obligations.

22.7 Survival of Indemnity Obligations. The indemnities set forth in this Article 22 shall survive the Final Completion Date or the earlier termination of this Agreement.

23.

CONFIDENTIAL INFORMATION

23.1 Confidential Information. For purposes of this Agreement, the term “Confidential Information” means non-public information concerning the business, operations and assets of Owner or Contractor (as the case may be) or their respective Affiliates (collectively, the “Disclosing Party”) provided to the other Party (the “Receiving Party”), including, without limitation the terms and conditions of this Agreement or any related agreement. Confidential Information must be first disclosed in tangible form (written, electronic, photographic, etc.) and conspicuously marked “Confidential”, “Proprietary”, or the like at the time of disclosure or within thirty (30) days of disclosure; or first disclosed in non-tangible form and orally identified as confidential or proprietary at the time of disclosure or confirmed in writing within thirty (30) days of disclosure. Confidential Information shall not include (a) information known to Receiving Party prior to obtaining the same from Disclosing Party as reflected by the written records of Receiving Party; (b) information in the public domain at the time of disclosure by Disclosing Party; (c) information obtained by Receiving Party from a third party without any obligation of confidentiality who did not receive same, directly or indirectly, from Disclosing Party; or (d) information approved for public release by express prior written consent of an authorized officer of Disclosing Party. The Party claiming that any of the exceptions set forth in clauses (a) through (d) apply shall have the burden of proof to establish such applicability.

23.2 Use of Confidential Information.

23.2.1 Receiving Party hereby agrees that it shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement and not in

any way detrimental to Disclosing Party or its Affiliates. Receiving Party agrees to use the same degree of care to protect Confidential Information received by it as Receiving Party uses with respect to its own proprietary or confidential information, which in any event shall result in a reasonable standard of care to prevent unauthorized use or disclosure of the Confidential Information. Except as otherwise provided herein, Receiving Party shall keep confidential and not disclose or use the Confidential Information.

23.2.2 Notwithstanding the provisions of this Section 23.2, Receiving Party may disclose any of the Confidential Information if, but only to the extent, that, based upon reasonable advice of counsel, Receiving Party is required to do so by the disclosure requirements of any Applicable Laws. Prior to making or permitting any such disclosure, Receiving Party shall provide Disclosing Party with prompt Notice of any such requirement so that Disclosing Party (with Receiving Party’s assistance if requested) may seek a protective order or other appropriate remedy.

23.2.3 Subject to Section 23.2.2, Receiving Party shall not, without the prior written consent of Disclosing Party, disclose to any third party the fact that Confidential Information has been made available to Receiving Party.

23.2.4 Notwithstanding anything contained herein:

(a)

Contractor may provide any and all Confidential Information of Owner to Subcontractors and insurance agents to the extent necessary to perform the Work and its obligations under this Agreement, without the consent of Owner; and

(b)

either Party may provide any and all Confidential Information of the other Party to its advisors, Affiliates, rating agencies, investors and potential investors, lenders and potential lenders and their respective representatives to the extent necessary in connection with the matters contemplated by this Agreement, in each case without the consent of the other Party.

23.2.5 Except for a disclosure pursuant to Section 23.2.2, each Party shall advise each Person to whom it provides the other Party’s Confidential Information under Section 23.2.4 of the confidentiality obligations set forth in this Section 23, and each Party shall be liable to the other Party for any breach of such confidentiality obligations by any such Person to whom it has provided the other Party’s Confidential Information.

23.3 Return of Confidential Information.

23.3.1 Except as is necessary for Contractor to perform the Work and its obligations under this Agreement, and subject to Section 24.1, at any time upon the request of Disclosing Party, Receiving Party shall promptly deliver to Disclosing Party or destroy if so directed by Disclosing Party (with such destruction to be certified by Receiving Party) all documents (and all copies thereof, however stored) furnished to or prepared by Receiving Party that contain Confidential Information and all other documents in Receiving Party’s possession that contain or that are based on or derived from Confidential Information (other than Contractor

Deliverables provided by Contractor to Owner pursuant to this Agreement); provided that the Receiving Party may retain one copy of such Confidential Information solely for the purpose of complying with its audit and document retention policies; and provided further, that all such retained Confidential Information shall be held subject to the terms and conditions of this Agreement.

23.3.2 The terms of this Section 23.3 shall not apply to the Contractor Deliverables.

23.4 Protection of Confidential Information. Notwithstanding the return or destruction of all or any part of the Confidential Information, the confidentiality provisions set forth in this Agreement shall nevertheless remain in full force and effect with respect to specific Confidential Information until the date that is five (5) years after the earlier of (i) the Final Completion Date or (ii) the termination of this Agreement.

23.5 Export. Any export of Confidential Information disclosed under this Agreement shall be prohibited without the express written consent of the Disclosing Party. Before exporting or re-exporting any of the Disclosing Party’s Confidential Information, the Receiving Party must comply with all applicable regulations of the U.S. Department of Commerce Office of Export Administration and any other applicable agencies.

23.6 Confidential Information Remedy. The Parties acknowledge that the Confidential Information is valuable and unique, and that damages would be an inadequate remedy for breach of this Article 23 and the obligations of each Party under this Article 23 are specifically enforceable. Accordingly, the Parties agree that a breach or threatened breach of this Article 23 by either Party, shall entitle the other Party to seek an injunction preventing such breach, without the necessity of proving damages or posting any bond. Any such relief shall be in addition to, and not in lieu of, monetary damages (including consequential damages) or any other legal or equitable remedy available to such Party or its Affiliates.

24.

INVENTIONS AND LICENSES

24.1 Invention; License. Any idea, invention, work of authorship, drawing, design, formula, algorithm, utility, tool, pattern, compilation, program, device, method, technique, process, improvement, development or discovery (collectively, “Invention”), whether or not patentable, copyrightable or entitled to legal protection as a trade secret or otherwise, that Contractor may conceive, make, develop, create, reduce to practice or work on, in whole or in part, in the course of performing the Work, shall be owned and retained by Contractor. Subject to the provisions of Article 23, Contractor hereby grants to Owner, effective with respect to the Project as of the Substantial Completion Date, a perpetual paid-up, irrevocable, non-transferable (except as set forth in Article 25), non-exclusive, non-sublicensable, royalty-free license to use all Inventions, and all Intellectual Property Rights of Contractor which, in each case, are embodied in the Work and/or the Contractor Deliverables for Owner’s use as needed for the operation, maintenance and repair of the Project or components thereof in connection with the Project. Owner shall further have the right to alter the Project or components thereof. Contractor shall, prior to directing any Subcontractor to produce any design or engineering work in connection with the Project, obtain a valid license of any Intellectual Property Rights from such Subcontractor on terms substantially similar to those that obligate Contractor to Owner as expressed in this Section 24.1.

24.2 Suitability of Contract Design, Engineering and Computer Programming Information. All Contractor Deliverables and computer software prepared by Contractor pursuant to this Agreement are instruments of service in respect of the Project. They are not intended or represented to be suitable for reuse by Owner or others on extensions of the Project or on any other project. Without any limitation on the provisions set forth in Article 23, any such unauthorized reuse without prior written verification or adaptation by Contractor for the specific purpose intended will be at Owner’s sole risk and without liability or legal exposure to Contractor. Owner shall defend, indemnify, and hold harmless Contractor against all Losses arising out of or resulting from such reuse.

24.3 Contractor Deliverables. Subject to Section 24.1, upon Substantial Completion of the Project, the Contractor Deliverables accumulated or developed in respect of the Project by Contractor, its employees or any Subcontractors and delivered to Owner prior to or as a condition to Substantial Completion, as applicable, shall become the property of Owner without any further consideration to be provided therefor. Contractor or Subcontractors, as applicable, will maintain ownership of all Intellectual Property Rights and Inventions embodied within the Contractor Deliverables.

24.4 Software Licenses. To the extent Contractor purchases or provides any software, which software is necessary or otherwise desirable for the continued operation of the Project after Substantial Completion, Contractor shall register Owner as the licensee of such software with the applicable Subcontractor and provide any other reasonable assistance necessary to procure the rights for Owner to use such software. In the event that Contractor becomes Bankrupt, or ceases business operations, Contractor shall provide (or cause to be provided) a copy of all object code and all associated source code for all software (other than third party “off the shelf” generally available software) delivered in connection with this Agreement, including all relevant documentation and instructions necessary to maintain, duplicate, and compile the source code.

25.

ASSIGNMENT

25.1 Assignment to Other Persons. Except as otherwise provided in this Section 25.1, neither Party may assign this Agreement to any third party, without the prior written consent of the other Party; provided that nothing in this Agreement shall prevent Contractor from engaging Affiliates or subcontractors in connection with the performance of its obligations under this Agreement (other than its respective payment obligations). Notwithstanding the foregoing, Contractor may assign this Agreement to any Affiliate of Contractor (provided that Owner receives written certification from Contractor’s Surety that the Performance and Payment Bonds remains in full force and effect and that such Affiliate has the requisite expertise to fulfill Contractor’s obligations under this Agreement). Notwithstanding the first sentence of this Section 25.1, Owner may assign this Agreement to another entity that is acquiring the Project, whether through asset acquisition, stock acquisition, merger or otherwise, provided that such entity (x) has the same or better creditworthiness as Owner and (y) has the technical and operational capabilities to perform the obligations of Owner under this Agreement (either by

itself or through a third party). Any attempted assignment or delegation in violation of this Section 25.1 shall be null and void and shall be ineffective to relieve either Party of its obligations hereunder.

25.2 Indemnitees; Successors and Assigns. Upon any assignment by either Owner hereunder, the definition of “Owner Indemnitee” shall be deemed modified to include the assignor and permitted assignee under such assignment and each of their respective employees, agents, partners, Affiliates, shareholders, officers, directors, members, managers and permitted assigns.

26.

HAZARDOUS MATERIALS

26.1 Use by Contractor. Contractor shall not and shall not permit any of the Subcontractors, directly or indirectly, to permit the manufacture, storage, transmission or presence of any Hazardous Materials on the Site, and Contractor shall not and shall not permit any of the Subcontractors to Release or otherwise dispose of any Hazardous Materials on the Site, in each case except in accordance with Applicable Laws and Applicable Permits and this Agreement and as required for the performance of the Work. Neither Contractor nor any Contractor Party shall bring any Hazardous Materials onto the Site without approval from Owner. In the event that it is necessary for Contractor or any Contractor Party to bring Hazardous Materials onto the Site, Contractor shall provide information to Owner regarding the intended use of the Hazardous Materials, expected waste and the safety data sheets and all other relevant records and documentation. Contractor shall be responsible for the proper handling, labeling, use, storage, and management of Hazardous Materials by Contractor and Subcontractors in connection with the Work in compliance with all Applicable Laws and this Agreement. Contractor shall cooperate with all reasonable requests of Owner regarding disposal of any Hazardous Materials used on the Site.

26.2 Remediation by Contractor. Contractor shall be responsible for all investigations, studies, sampling, testing and remediation of the Site as required by Applicable Laws and Applicable Permits in connection with the Release of Hazardous Materials by Contractor or any Subcontractor in breach of this Agreement unless such Release is caused by Owner, any Person for which Owner is responsible, or any third party; provided that for the avoidance of doubt, Contractor shall not responsible for such investigations in connection with Pre-Existing Contamination. Any such investigations, studies, sampling, testing and remediation must be approved in advance by Owner (such approval not to be unreasonably withheld). Contractor shall promptly comply with all lawful orders and directives of all Governmental Authorities regarding Applicable Laws relating to the use, transportation, storage, handling, presence or Release by Contractor, any Subcontractor or any Person acting on its or their behalf or under its or their control of any Hazardous Materials brought onto or generated at the Site by Contractor or any Subcontractor, except to the extent any such orders or directives are being contested in good faith by appropriate proceedings in connection with the Work. Contractor shall not and shall not permit any of its Subcontractors, directly or indirectly, to permit the manufacture, storage, transmission or presence of any Hazardous Materials on the Site, and Contractor shall not and shall not permit any of its Subcontractors to use any Hazardous Materials on the Site, in each case except in compliance with Applicable Laws. To the extent required by Applicable Law, Contractor shall prepare and maintain accurate and complete documentation of all Hazardous

Materials brought onto the Site, generated or used by Contractor or Subcontractors at the Site in connection with the Facility, and of the disposal of any such materials, including transportation documentation and the identity of all Subcontractors providing Hazardous Materials disposal services to Contractor at the Site. Contractor shall not be entitled to any extension of time or additional compensation hereunder for any delay or costs incurred by Contractor as a result of the existence of such Hazardous Materials, except where such Hazardous Materials were Released by an Owner Party, or the presence of such Hazardous Materials is caused by an Owner Party.

26.3 Notice of Hazardous Materials. Contractor will take all measures required under Applicable Laws to prevent the Release of any Hazardous Materials at the Site or adjacent areas in violation of Applicable Laws. If Contractor discovers, encounters or is notified of (i) any Release of any Hazardous Materials or (ii) Pre-Existing Contamination, in each case, at the Site:

26.3.1 Contractor shall immediately contact the Site Representative and also promptly provide written Notification to Owner thereof and restrict access to the area containing such Hazardous Materials or Pre-Existing Contamination, as applicable, as required by Applicable Law or Applicable Permits;

26.3.2 if Contractor or any Subcontractor has brought such Hazardous Materials onto the Site or generated such Hazardous Materials, Contractor shall notify Owner of its remedial plan and, upon approval of such remedial plan by Owner, promptly remove such Hazardous Materials from the Site and remediate the Site in accordance with such plan and all Applicable Laws and Applicable Permits (to the extent the Applicable Permits relate to the Work) in each case at Contractor’s sole cost and expense, except where such materials were Released by an Owner Party; and

26.3.3 if Contractor or any Subcontractor has brought such Hazardous Materials onto the Site or generated such Hazardous Materials, Contractor shall not be entitled to any termination, extension of time or additional compensation hereunder for any delay or costs incurred by Contractor as a result of the existence of such Hazardous Materials, except where such materials were Released by an Owner Party.

27.

NON-PAYMENT CLAIMS

27.1 Liens. To the extent payment by Owner has been made in accordance with Article 6 (including any disputed payments resolved in favor of Contractor): (a) Contractor shall not directly or indirectly create, incur, assume or suffer to be created by it or any Subcontractor, employee, laborer, materialman or other supplier of goods or services any right of retention, mortgage, pledge, assessment, security interest, lease, advance claim, levy, claim, lien, charge or encumbrance on the Work, the Project Hardware, the Project, the Site or any part thereof or interest therein (each a “Contractor Lien”); (b) Contractor shall keep the Work, the Project, the Site and the Project Hardware, including all Subcontractor equipment and materials free of Contractor Liens; and (c) Contractor shall promptly bond, pay or discharge, and discharge of record, any such Contractor Lien or other charges which, if unpaid, might be or become a Contractor Lien. Contractor shall Notify Owner as soon as practicable of the assertion of any such Contractor Lien. If any Owner Indemnitee becomes aware of any such Xxxxxxxxxx Xxxx,

such Owner Indemnitee shall so Notify Contractor, and Contractor shall then, to the extent payment by Owner has been made in accordance with Article 6 bond or satisfy and obtain the release of such Contractor Lien. If Contractor does not within ten (10) Business Days after such Notice, bond or satisfy such Contractor Lien, then any Owner Indemnitee shall have the right, at its option, after Notification to Contractor, and subject to Applicable Law, to cause the release of, pay, or settle such Contractor Lien, and Owner at its sole option may: (1) require Contractor to pay, within five (5) days after request by Owner; or (2) withhold other amounts due or to become due to Contractor (in which case Owner shall, if it is not the applicable Owner Indemnitee, pay such amounts directly to Owner Indemnitee causing the release, payment, or settlement of such liens or claims), all reasonable and direct costs and expenses incurred by Owner Indemnitee in causing the release of, paying, or settling such Contractor Lien, including reasonable administrative costs and reasonable attorneys’ fees. Contractor shall have the right to contest any such Contractor Lien.

27.2 Lien Waivers. Contractor shall deliver, together with each Contractor’s Invoice, (i) an Interim Lien Waiver from Contractor in the form of Exhibit F-1 and (ii) an Interim Lien Waiver from all Subcontractors in the form of Exhibit F-2, each of (i) and (ii) in respect of work performed on the Site and invoiced to Owner pursuant to the applicable Contractor’s Invoice and (iii) a Final Lien Waiver from the Supplier(s) of PV modules for the Project and the Supplier(s) of inverters for the Project in the form of Exhibit F-4 in respect of materials delivered to the Site and invoiced to Owner pursuant to the applicable Contractor’s Invoice. Upon its application for the Final Completion Payment, Contractor shall deliver to Owner (i) a Final Lien Waiver from Contractor in the form of Exhibit F-3 and (ii) a Final Lien Waiver from all Subcontractors in the form of Exhibit F-4.

27.3 Notice of Commencement. Contractor shall, at its expense and prior to the performance of any Work at the Site, prepare and record a properly executed “Notice of Commencement” in the county in which the Project is located, and post a copy of said notice in a prominent location at the Site, in accordance with the Applicable Law. The Notice of Commencement shall indicate the scheduled completion date of the Project and a copy of any required Contractor payment bond shall be attached to the recorded notice. A stamped “filed” copy of the Notice of Commencement, and a photograph of the Notice of Commencement posted at the site, shall be furnished to the Owner prior to the start of any Work at the Site and as a condition precedent to any Contractor right to any payment. Within ten (10) days after a Subcontractor or laborer serve the Contractor with a written request for a copy of the Notice of Commencement, the Contractor shall serve a copy of the Notice of Commencement on the person making the request, simultaneously providing the Owner with a copy of the request and of the Contractor’s reply.

28.

NOTICES AND COMMUNICATIONS

28.1 Requirements. Any Notice made pursuant to the terms and conditions of this Agreement shall be: (a) delivered personally; (b) sent by certified mail, return receipt requested; (c) sent by a recognized overnight mail or courier service, with delivery receipt requested; or (d) sent by confirmed facsimile transmission, followed by confirmation in one of the other accepted methods in parts (a), (b), or (c) of this Section 28.1 to the following addresses:


If to Contractor:		PowerSecure Solar LLC 0000 Xxxxxxxx Xxxxxxxx Xxxxx Xxxx Xxxxxx, XX 00000 Attention: []* Facsimile: Fax: []*

If to Owner:		Georgia Power Company 000 Xxxxx XxXxxx Xxxx XXX 00000 Xxxxxxx, XX Attention: []* Facsimile: []*

with a copy to:		Xxxxxxxx Xxxxxxx LLP 000 Xxxxxxxxx Xxxxxx, XX Xxxxx 0000 Xxxxxxx, XX 00000-0000 Attention: Xxxx Xxxxx Facsimile: (000) 000-0000

28.2 Representatives. Any technical or other communications pertaining to the Work shall be with the Contractor’s Project Manager and the Owner Representative. The Contractor’s Project Manager and the Owner Representative each shall have knowledge of the Work and be available at all reasonable times for consultation. Each such Party’s representative shall be authorized on behalf of such Party to administer this Agreement and agree upon procedures for coordinating the efforts of the Parties.

28.3 Effective Time. Any Notice or Notification given personally, through overnight mail or through certified letter shall be deemed to have been received on delivery, any Notice given by express courier service shall be deemed to have been received the next Business Day after the same shall have been delivered to the relevant courier, and any Notice given by facsimile transmission shall be deemed to have been received on confirmed dispatch.

29.

LIMITATIONS OF LIABILITY AND REMEDIES

29.1 Limitations on Damages. Except (i) for liquidated damages and termination payments expressly set forth in this Agreement, (ii) for any breach by either Party of its obligations under Article 23 or Article 24 resulting in consequential damages, (iii) to the extent a termination payment made pursuant to Section 19.1 or Section 19.2 constitutes consequential damages, (iv) to the extent damages claimed by third parties (other than Owner Indemnitees) for which Contractor or Owner has a duty to indemnify hereunder as expressly provided in Article 22 are shown to be consequential in nature, (v) damages attributable to a Party’s fraud gross negligence or willful misconduct or (vi) to the extent that the Contract Price adjustment contemplated in Section 5.4.4 is deemed to constitute indirect, incidental, consequential, exemplary, punitive or special damages, notwithstanding anything else in this Agreement to the contrary, neither Party (nor that Party’s subcontractors) shall be liable to the other Party for any loss, damage or other liability otherwise equivalent to or in the nature of any indirect, incidental, consequential, exemplary, punitive or special damages arising from performing or a failure to

perform any obligation under this Agreement, whether such liability arises in contract (including breach, indemnity or warranty), tort (including fault, negligence or strict liability), or otherwise, including for any loss of profits, loss of revenue, or loss of use of Project Hardware or the Project, downtime costs, increased expense of operation or maintenance of the Project Hardware or the Project, loss of opportunity or goodwill, cost of purchased or replacement power, loss of use of equipment or systems, cost of capital, claims of customers or counterparties for such damages, or any governmental fines, penalties or sanctions imposed.

29.2 Limitations on Contractor’s Liability

29.2.1 Overall Liability Cap. Prior to Substantial Completion, in no event shall Contractor’s aggregate liability under this Agreement exceed [***]; provided that such maximum aggregate liability shall increase on a dollar for dollar basis for any increase in the Contract Price pursuant to Article 15 or as otherwise agreed to by the Parties. After Substantial Completion, in no event shall Contractor’s aggregate liability under this Agreement exceed [***]; provided that such maximum aggregate liability shall increase by an amount equal to [***] of every dollar of increase in the Contract Price pursuant to Article 15 or as otherwise agreed to by the Parties; provided further that any liability of Contractor in connection with Article 22 arising after the Substantial Completion shall not exceed [***]. [***] for purposes of this Article 29 and the Contract Price for purposes of this Article 29 shall at all times be the initial Contract Price plus, if applicable, any increased pursuant to Article 15 or as otherwise agreed to by the Parties.

29.2.2 Liquidated Damages and ITC Loss Sub-Cap. Notwithstanding anything to the contrary set forth in this Section 29.2, in no event shall the sum of the amounts owed by Contractor to Owner pursuant to (i) Section 5.4.4 as a result of Contractor’s failure to ensure the Project is Placed in Service as required by Section 5.4.4 or (ii) Section 14.1 as result of Contractor’s failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date exceed [***]. Any liquidated or other damages owed by Contractor under this Agreement shall apply toward the caps on liability stated in Sections 29.2.1 and, for the avoidance of doubt, the liability cap described in this Section 29.2.2 does not increase the overall liability cap set forth in Section 29.2.1.

29.3 Releases, Indemnities and Limitations. The releases, indemnities, waivers, subrogation, assumptions of and limitations on liabilities and limitations on remedies expressed in this Agreement, subject to the terms hereof, shall apply even in the event of fault, negligence, or strict liability of the Party released or indemnified, or whose liability is limited or assumed or against whom rights of subrogation are waived and shall extend to such Party’s subcontractors, and in each case to such Party’s and its subcontractors’ Affiliates, officers, directors, members, managers, employees, licensees, agents and partners.

29.4 Limitation on Remedies. Except as otherwise expressly provided herein, the rights and remedies of each Party as set forth in this Agreement shall be the exclusive rights and remedies of the Parties.

30.

DISPUTES

30.1 Management Negotiations. Following notice from either Party setting forth a dispute arising from or relating to this Agreement (“Senior Management Notice”), the Parties shall use good faith efforts to settle disputes through negotiation between authorized members of each Party’s senior management with the power and authority to resolve any such dispute. A meeting at a mutually agreed upon hour and location, whether by phone or in person, between each Party’s senior management shall be held within fifteen (15) Business Days following a Party’s receipt of any Senior Management Notice. If the dispute is not resolved within thirty (30) days of the delivery of any Senior Management Notice, either Party may, by written notice to the other Party, refer the issues set forth in the Senior Management Notice to meditation pursuant to Section 30.2 (“Mediation Notice”).

30.2 Compulsory Mediation. Following any Mediation Notice delivered in accordance with Section 30.1, the Parties shall cooperate in selecting a qualified neutral mediator from among a panel of neutral persons proposed by the American Arbitration Association, or any other mutually acceptable organization, and in scheduling the time and place of the mediation within thirty (30) days from the Mediation Notice. Within ten (10) days from the Mediation Notice, the Parties shall agree on a single neutral mediator. The Parties agree to participate in the mediation in good faith and to share the costs of the mediation, including the mediator’s fee, equally, but such shared costs shall not include each Party’s own attorneys’ fees and costs, which shall be borne solely by such Party. If the Parties are unable to resolve their dispute through mediation within sixty (60) days following the Mediation Notice, then either Party may pursue any other remedies available at law or in equity, including liens, with respect to those issues set forth in the Mediation Notice. Notwithstanding anything to the contrary in this Section 30.2, in the event Contractor’s lien rights under Applicable Law would expire prior to the end of the foregoing sixty-day period following the Mediation Notice, then Contractor shall be entitled to take such actions as are necessary to timely preserve its lien rights under Applicable Law during such sixty-day period.

30.3 Confidentiality. All communication, offers and statements, whether oral or written, and documents and other writings exchanged between the Parties in connection with the management negotiations pursuant to Section 30.1 and any mediation pursuant to Section 30.2 shall be confidential and shall not be discoverable, admissible in evidence or used or referred to in any subsequent binding adjudicatory process between the Parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in such negotiations.

30.4 Work Notwithstanding Disputes. Unless otherwise agreed to in writing, Contractor shall diligently carry on the Work during the pendency of any dispute so long as all undisputed amounts payable to Contractor have been paid. Upon resolution of such dispute, whether by agreement of the Parties or through a dispute proceeding, any amounts found to be owing by either Party will be promptly paid by the Party owing payment to the other Party, together with interest at the Interest Rate or the highest rate permitted by Applicable Laws, from the day following the date of the overpayment or underpayment, as applicable, until and including the date of repayment in full.

31.

MISCELLANEOUS

31.1 Severability. The invalidity or unenforceability of any portion or provision of this Agreement shall in no way affect the validity or enforceability of any other portion or provision hereof. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable portion or provision. If any such provision of this Agreement is so declared invalid, the Parties shall promptly negotiate in good faith new provisions to eliminate such invalidity and to restore this Agreement as near as possible to its original intent and effect.

31.2 Governing Law; Venue; Submission to Jurisdiction. This Agreement shall be governed by the laws of the State of Georgia, without regard to the laws regarding conflict of laws thereof that would require the laws of another jurisdiction to apply. The Parties irrevocably accept and submit to the jurisdiction of the federal courts (and in the absence of jurisdiction therein the Georgia courts) located in Atlanta, Georgia with respect to any suit, action or proceeding in aid of arbitration, including an action for an order of interim, provisional or conservatory measures to maintain the status quo and prevent irreparable harm and for recognition and enforcement of any award rendered by the arbitral tribunal, and the Parties irrevocably waive any objection to the laying of venue or defense that the forum is inconvenient with respect to any such suit, action or proceeding for such purpose. The Parties’ right to apply for such judicial relief in aid of arbitration and the commencement of any such suit, action or proceeding in aid of arbitration shall not be deemed incompatible with, or a waiver of, the Parties’ agreement to arbitrate. This consent to jurisdiction is being given solely for purposes of this Agreement, and it is not intended to, and shall not, confer consent to jurisdiction with respect to any other dispute in which a Party may become involved. The Parties acknowledge and agree that terms and conditions of this Agreement have been freely, fairly and thoroughly negotiated.

31.3 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION RELATED TO THIS AGREEMENT. Each Party (i) certifies that no representative of the other Party has represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 31.3.

31.4 No Oral Modification. No oral or written amendment or modification of this Agreement by any officer, agent, member, manager or employee of Contractor or Owner, either before or after execution of this Agreement, shall be of any force or effect unless such amendment or modification is in writing and is signed by a duly authorized representative of the Party to be bound thereby.

31.5 No Waiver. A Party’s waiver of any Event of Default, breach or failure to enforce any of the terms, covenants, conditions or other provisions of this Agreement at any time shall not in any way affect, limit, modify or waive that Party’s right thereafter to enforce or compel strict compliance with every term, covenant, condition or other provision hereof, any course of dealing or custom of the trade notwithstanding. All waivers must be in writing and signed on behalf of Owner and Contractor in accordance with Section 31.5.

31.6 Third Party Beneficiaries. This Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and shall not imply or create any rights on the part of, or obligations to, any other Person.

31.7 Assurances. Owner and Contractor will each use its reasonable efforts to implement the provisions of this Agreement, and for such purpose each, at the reasonable request of the other, will, without further consideration, promptly execute and deliver or cause to be executed and delivered to the other such assistance, or assignments, consents or other instruments in addition to those required by this Agreement, in form and substance satisfactory to the other, as the other may reasonably deem necessary or desirable to implement any provision of this Agreement.

31.8 Binding on Successors, Etc. Subject to Article 25, this Agreement shall be binding on the Parties and on their respective successors, heirs and assigns.

31.9 Merger of Prior Contracts. This Agreement supersedes any other agreements, whether written or oral, that may have been made or entered into between Owner and Contractor or by any office or officer of such Party relating to the Project or the Work. This Agreement and the Exhibits attached hereto constitute the entire agreement between the Parties with respect to the engineering, procurement and construction of the Project, and there are no other agreements or commitments with respect to the Project except as set forth herein and therein.

31.10 Counterparts. This Agreement may be executed in any number of counterparts, and either Party may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement shall become effective when each Party shall have received a counterpart by facsimile or electronic mail hereof signed by the other Party. The Parties agree that the delivery of this Agreement may be effected by means of an exchange of facsimile or emailed signatures.

31.11 Attorneys’ Fees. If any action by legal proceeding shall be instituted between Owner and Contractor in connection with this Agreement, each Party shall bear its own costs and expenses incurred in connection with such action by legal proceeding, including its own attorneys’ fees.

31.12 Announcements; Publications.

31.12.1 Prior Approval. Subject to Section 23.2, Contractor shall not (either directly or indirectly) and Contractor shall not permit any of its Subcontractors or Affiliates to issue or make any public release or announcement with respect to or concerning any matter the subject of, or contemplated by, this Agreement without the prior written consent of Owner and affording Owner a reasonable opportunity to provide comments on such proposed release or announcement; provided that, subject to the provisions of this Section 31.12.1, nothing in this Agreement shall prevent Contractor from independently making such public disclosure or filing as it determines upon reasonable advice of counsel is required by Applicable Law.

31.12.2 Marketing; Advertising; Public Announcements. Notwithstanding anything to the contrary in this Section 31.12, Contractor shall not (either directly or indirectly) and shall not permit any of its Subcontractors or Affiliates to show, by photograph or otherwise, in any marketing, advertising or other materials, the Project under construction or as completed (including any related Project Hardware), without first obtaining the prior consent of Owner. Notwithstanding anything to the contrary herein, Contractor shall not (either directly or indirectly) permit any of its Affiliates to videotape or otherwise record any of the Work, including the installation and/or construction work performed by Contractor hereunder, or show to any other Person any photographs (or similarly recorded images) of such construction or installation work, without obtaining the prior written consent of Owner.

31.13 Independent Contractor. Contractor is an independent contractor, and nothing contained herein shall be construed as constituting any relationship with Owner other than that of owner and independent contractor, or as creating any relationship whatsoever between Owner and Contractor’s employees. Neither Contractor nor any of its employees is or shall be deemed to be an employee of Owner.

(SIGNATURES ON FOLLOWING PAGE)

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Effective Date.


POWERSECURE SOLAR, LLC

By:		/s/ Xxxxxxxx Xxxxxxxxx
Name:		Xxxxxxxx Xxxxxxxxx
Title:		President

GEORGIA POWER COMPANY

By:		/s/ Xxxx X. Xxxxxxxxx
Name:		Xxxx X. Xxxxxxxxx
Title:		Senior Vice President and Senior Production Officer

[[***]—SIGNATURE PAGE TO ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT]

Exhibit A

Scope of Work

[***]

SCOPE OF WORK

EXHIBIT A

Southern Company Generation

Birmingham, Alabama

[***] Solar Facility


1		Rev. A

Exhibit A

Scope of Work

[***]

Contents


1.0	Overview	4

1.1	Site Description	4

1.1.1	Site Layout	4

1.1.2	Geotechnical Information	4

1.1.3	Site Topographic Mapping	4

1.2	Design Criteria	4

1.3	Minimum Operation Requirements	5

1.4	Size and Capacity	5

1.5	Standards	5

1.6	Sound Criteria	5

1.7	Site Design Parameters	5

1.8	Project Milestones/Schedule	6

1.9	Nomenclature	6

2.0	Owner’s Scope of Work	6

2.1	Site Control, Site Access, and Landowner Property Rights	7

2.2	Permitting	7

2.3	Interconnection	7

2.4	Data Communication	7

2.5	Construction Observation	7

2.6	Owner’s Facilities during Construction	7

2.7	Owner Engineer	7

2.8	Metering	8

3.0	Contractor’s Scope of Work	8

3.1	Scope of Work Overview	8

3.1.1	Minimum Photovoltaic Plant Requirements	8

3.2	PV Power Plant Hardware	9

3.2.1	PV Modules	9

3.2.2	PV Mounting System Hardware	9

3.2.3	DC Solar Field	9

3.2.4	Inverter	10

3.2.5	Meteorological Station and Performance Monitoring Equipment	10

3.2.6	SCADA System	10

3.2.7	Security System	10


2				Rev. A

Exhibit A

Scope of Work

[***]


3.2.8	AC Collection (Distribution System)	10

3.2.9	Interconnection	11

3.3	Workmanship	11

3.4	Safety	11

3.5	Equipment Storage	11

3.6	Site Work (Civil Infrastructure)	11

3.7	Site Building	12

3.8	Temporary Construction Telecommunications (Internet and phone service)	13

3.9	Permanent Facilities (Wide Area Network (WAN) and phone service)	13

4.0	General	13

4.1	Project Management	13

4.2	Project Employment and Resources	13

4.3	Site Performance Standards	13

4.4	Public Roads.	13

4.5	Testing	13

4.6	Engineering and Design	14

4.7	Procurement	14

4.8	Construction	14

4.9	Commissioning	15

4.10	Owner Operator Training	15

4.11	Commissioning and Acceptance Testing	15

4.11.1	General Specifications:	15

4.12	Drawing Review and Approval	17

4.12.1	Drawing Review and Approval - General	17

4.12.2	Contractor Specified Equipment Packages	18

4.13	Project Controls Requirement	18

4.13.1	General	18

4.13.2	Scheduling:	18

4.13.3	Progress Information	18

4.13.4	PIMS	18

5.0	Reserved	1


Attachment 1—Minimum Technical Requirements
Attachment 2—Single Line Diagram
Attachment 3—Geotechnical Information
Attachment 4—PVSyst Summary Report
Attachment 5—8760 Output
Attachment 6—Operating Personnel Training Program


3				Rev. A

Exhibit A

Scope of Work

[***]

1.0	Overview

This Scope of Work is a summary description of the work and services required to implement the [***] Solar Facility (“Project”) at [***], and includes all exhibits and attachments referenced herein. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

The Project shall include the development of the Site into one power plant with production of [***] MW-AC from solar photovoltaic modules mounted on a fixed tilt system. The sites require collection of PV plant power to the agreed-upon point of interconnection identified in Attachment 2 to Exhibit A.

The interconnection identified is the proposed Georgia Power Company [***] Solar Substation. The Contractor shall be responsible for collecting the voltage to the dead end structure in Owner’s substation at the Contractor’s specified [***].

As specified in the Agreement, the Project contemplates Owner’s provision of backfeed power no later than 10/01/2016 and a Guaranteed Substantial Completion Date 12/01/2016.

The Owner is not soliciting from Contractors proposals for operations and maintenance (“O&M”) of this project.

The Agreement includes a three-year EPC warranty as further described in the Agreement. Equipment warranties shall be transferred to the Owner and be offered as follows:

•

Module warranty of 10 years for workmanship, 25 years on power output.

•

Inverter warranty of at least 10 years with an option for additional increments.

•

Racking warranty of 20 years (with a longer warranty if standard).

1.1	Site Description

The Site is located on the [***]. The Site is made up of [***]. The Site has been reviewed by both the Owner and Contractor and deemed viable for the Work. The existing structures will stay in place. Owner has no intention of performing construction or demolition prior to Contractor mobilization.

1.1.1

Site Layout

Site layout drawings can be found in Exhibit E to the Agreement. The layout drawings show the Project boundary lines, property line, roadways and other general details.

1.1.2

Geotechnical Information

Geotechnical information has been made available to Contractor and is provided as Attachment 3 to Exhibit A. Prior to performance of any drilling, if deemed necessary by the Contractor, the Contractor shall develop a Geotechnical Investigation Plan for Owner’s review. Copies of boring logs and test data obtained from any investigation shall be provided to Owner for review and inclusion in Owner’s project files.

1.1.3

Site Topographic Mapping

Site contour data will not be provided.

1.2	Design Criteria

Contractor will provide all engineering, including, but not limited to studies, civil, structural and electrical. Engineering shall be made available for Owner’s review prior to permitting or purchase of inverter, modules, and racking unless otherwise agreed to in writing.


4				Rev. A

Exhibit A

Scope of Work

[***]

The facility shall meet or exceed the requirements outlined in Minimum Technical Requirements (MTR) provided in Attachment 1 to Exhibit A, and as specified in Exhibit H to the Agreement.

1.3	Minimum Operation Requirements

In no case will DC grid voltage exceed [***] Volts at lowest expected temperature.

AC interconnection voltage: [***]

Communications network: [***]

Design Useful Life of Facility: [***]

Owner’s Approved Major Subcontractors (Exhibit K to the Agreement) should be referenced during design. Only proven technology is acceptable. Best quality equipment should be used based on plant design. Utility-grade technology is preferred. Exceptions should be noted and technically substantiated.

1.4	Size and Capacity

The Project nameplate capacity is [***].

1.5

Standards

Standards are referenced in the Minimum Technical Requirements (Exhibit A Attachment 1).

1.6	Sound Criteria

The noise level design is not to exceed a maximum sound pressure level of [***] dBA @ 3-ft in all directions.

1.7	Site Design Parameters

All site design parameters per ASCE 7-10; IBC 2012 and Georgia Amendments

Reference Site Parameters:


Substation Coordinates		[***]
Minimum/Maximum Dry Bulb Temperature (ASHRAE 50 year/50 year)		[***]
Minimum/Maximum (ASHRAE annual design conditions)		[***]
Design Maximum Rainfall		[***]
Frost Depth		[***]
Design Snow Load (ground snow load)		[***]
Design Wind Load (3 second gust)		[***])
Site Class		[***]
Soil Profile		[***]
Seismic Design Category		[***]
Occupancy Category		II
Seismic Loading Importance Factor		[***]
Spectral Response Acceleration at Short Periods Ss		[***]
Spectral Response Acceleration at 1-sec Period S1		[***]
Site Coefficient, Fa		[***]
Site Coefficient, Fv		[***]
Short Period (0.2 sec) Design Spectral Acceleration SDS		[***]
One Second (1.0 sec.) Design Spectral Acceleration SD1		[***]
Wetlands		To be avoided by Contractor
Floodplains		To be avoided by Contractor
Corrosion Classification		[***]
Subsurface Conditions		TBD


5				Rev. A

Exhibit A

Scope of Work

[***]

1.8	Project Milestones/Schedule

The Project Milestone Dates and Schedule are referenced in Exhibits I and J.

1.9	Nomenclature


AHJ		Authority Having Jurisdiction

DC		Direct Current

DSS		Document Submittal Specification (Appendix F to MTR)

E&CS		Owner’s Engineer - Engineering & Construction Services

GPC		Georgia Power Company

kV		kilovolts

kW		measure of instantaneous power measured in kilowatts AC

MTR		Minimum Technical Requirements (Attachment 1 to Exhbit A)

PIMS		Southern Company Project Information Management System

POI		Point of Interconnection – defines the location of the physical electrical interconnection to the participating TO

SCADA		Substation Communication and Data Acquisition System that provides data acquisition, monitoring, archiving and operator station functions for the PV power plant

TO		Transmission Organization

2.0	Owner’s Scope of Work

The Owner has already provided facility locations, the preliminary site survey, environmental studies and development permitting. In addition to these documents, the following services and supplies are to be provided by the Owner.


6				Rev. A

Exhibit A

Scope of Work

[***]

2.1	Site Control, Site Access, and Landowner Property Rights

The Owner is responsible for obtaining Site control, providing Site access, and obtaining necessary leases and easements. The Contractor shall be responsible for incorporating the Owner provided lease and easement agreement requirements into the overall Project design and subsequent construction.

2.2	Permitting

The Contractor shall comply with all permits already obtained by the Owner and be responsible for acquisition of and compliance with all required Contractor permits including but not limited to construction permits, transportation permits, road entrance/crossing permits, and utilities crossing permits.

2.3	Interconnection

Owner shall perform all engineering work related to obtaining approvals from the Participating Transmission Organization (“TO”), utility and/or applicable agencies for electrical interconnection with support from Contractor. Owner shall file the necessary documents and pay any associated fees. Owner shall be responsible for all delays resulting from Owner’s failure to provide backfeed power on or before 10/01/2015.

Owner shall be responsible for construction of interconnection facilities for the Project in the Owner’s 200’ x 220’ substation. GPC Transmission will install a dead end structure (or riser if the Contractor builds the tie line underground), switch and surge protection inside of the substation for the Contractor’s point of interconnection and will provide conduit 5’ from the substation fence.

The Contractor shall provide switchgear and DC power outside of the substation.

The substation Main Step-Up transformer (MSU) to be purchased by Owner based upon engineering details provided by the Contractor.

Assume a maximum [***] amp fault interrupting capability (fault current from grid to be confirmed by Owner as part of final design).

Interconnection protection scope required and to be developed with Owner.

Owner shall identify the export power requirements, limits and restrictions (if applicable).

2.4	Data Communication

Owner shall be involved in network architecture design review and approval.

2.5	Construction Observation

The Owner shall have representation with the option to be present at the jobsite at all times during the construction of the Project. The representative(s) shall be responsible for observing the overall construction of the project as well as coordination and communicating with the Contractor’s site team.

2.6	Owner’s Facilities during Construction

Contractor shall provide Owner with an office in one of the Contractor’s field office trailers with electrical, telephone, and internet service.

2.7	Owner Engineer

The Owner shall have engineering representation with the option to review design at 10%, 50% and 90% milestones and have final say on technical requirements. The Owner’s engineering representation shall have the opportunity for surveillance including factory equipment inspection as requested.


7				Rev. A

Exhibit A

Scope of Work

[***]

2.8

Metering

Owner shall provide a revenue grade watt-hour meter, meter socket and meter box near the point of interconnection

3.0	Contractor’s Scope of Work

This Project entails the full scope engineering, procurement and construction of a solar electric generation facility. With the exception of the Owner’s obligations specified herein or in the Agreement, the Contractor’s Scope of Work for the Project includes the provision of all engineering design services, procurement, installation, testing and commissioning.

It is the Contractor’s responsibility to review all pertinent Project requirements and criteria, as contained in the entirety of the RFP or the Agreement. However, the Contractor shall not rely on the physical description contained in the RFP or Agreement to identify all Project components. The Contractor shall determine the full scope of the Project through thorough examination of the supplied documents, the Site, the provided reference materials and any reasonable inferences to be gathered therefrom.

3.1	Scope of Work Overview

The Project shall be engineered and constructed in accordance to the performance and design requirements identified in the Scope of Work, Exhibits and Appendices and other documents referenced herein and shall meet or exceed the technical specifications utilized in the attached PVsyst summary document provided as Attachment 4 to Exhibit A.

The Project shall be designed to meet a minimum [***]-year design life, considering the site specific conditions and expected operating conditions.

The Contractor shall provide or cause to be provided materials, equipment, machinery, tools, labor, demolition, disposal, transportation, construction fuels, chemicals, construction utilities, administration and other services and items required to complete the project per the requirements set forth in the Agreement.

In accordance with the Agreement, the Contractor shall acquire and comply with construction permits for the solar array and comply with all permits obtained by the Owner.

The Contractor has provided an Energy Production Model based upon its proposed design using the latest version of PVSyst simulation software (report and 8760 hourly generation file). 8760 hourly generation reports and excel files shall be provided for [***] years of generation using the basis of [***] annual degradation on the DC energy. The summer PVsyst report is provided as Attachment 4 to this Exhibit A and the 8760 hourly generation report is provided as Attachment 5 to Exhibit A.

Solar Irradiance information should be obtained from National Renewable Energy Laboratory (NREL) Solar Power Prospector at xxxx://xxxx.xxxx.xxx/xxxxxxxxxx, (Average Annual GHI) for the Site.

The Project shall be oriented physically to optimize annual energy production. The PV module arrangement, inverter locations and internal access roads (sufficient to allow module washing as required) shall be determined by Contractor. The Contractor shall design the solar field layout with reference to any required setbacks along the Project property boundary (and sufficient for a security patrol road or inspection around the Project perimeter).

All equipment shall be grounded and bonded in accordance with NEC.

3.1.1

Minimum Photovoltaic Plant Requirements

DC:AC Ratio [***]


8				Rev. A

Exhibit A

Scope of Work

[***]

Tilt: [***]

Fixed Tilt Azimuth: [***]

DC Solar Field shall be fixed tilt

The Project shall be designed for autonomous operation excluding maintenance.

The Plant shall be designed to meet the requirements of the receiving transmission system, including the capability to operate within the power factor range of [***] lagging at the Point of Interconnection with the Participating TO at continuous rated power output and follow a voltage schedule. The Plant shall meet harmonics requirements.

3.2	PV Power Plant Hardware

3.2.1

PV Modules

Contractor shall furnish and install all PV modules. Module supplier must either be an approved supplier included in Exhibit K to the Agreement or approved in writing by Owner.

Section 858 of Pub. L. 113-191 (from NDAA 2015) will apply, but only to solar panels (not racking, inverters, screws, etc). The Trade Agreements Act applies.

Number of modules required shall be determined by Contractor but shall meet the minimum total module nameplate dc installed capacity specified in this Exhbit A.

Owner shall have the option to obtain excess spare modules from Contractor’s original purchase at no additional markup from Contractor.

Modules shall come with a minimum 10 year workmanship warranty and 25 year linear power output warranty. Flash test data and string level IV curve data will be provided as part of turnover.

3.2.2

PV Mounting System Hardware

Contractor shall furnish and install the entirety of the module mounting system.

System shall be installed per manufacturer’s specifications.

Racking system shall be approved by Owner in writing and may be of aluminum or hot dip galvanized steel design.

Provide hot-dipped galvanized steel posts in accordance with ASTM A123 at all exterior exposed structural steel, and associated connections. Galvanize or restore all racking areas where galvanizing is damaged or missing and repair galvanizing to comply with ASTM A780.

3.2.3

DC Solar Field

Contractor shall furnish and install the entirety of the DC Solar Field. The solar field shall consist of PV Modules mounted at a fixed tilt . The rows of modules shall be electrically connected in series, in groups referred to as “Strings.” Groups of Strings shall feed power to a common DC Combiner box.

The Contractor shall develop an optimized design, per final inverter specifications (inclusive of the tracking system requirements if applicable). The Project shall be optimally designed to minimize system losses, maximize reliability and meet all performance requirements.


9				Rev. A

Exhibit A

Scope of Work

[***]

3.2.4

Inverter

Contractor shall furnish and install the entirety of the inverter equipment. This shall include, but is not limited to, inverter, transformers (as required by design), disconnects, fuses, control equipment and associated mounting and electrical equipment (if required).

Inverters shall include “smart inverter” functions.

Contractor shall determine the number and sizing of the inverter equipment.

Each inverter shall not require external control and be fully autonomous. No inverter shall adversely affect other inverters.

Inverter phasing will meet the phasing requirements of the Owner.

3.2.5

Meteorological Station and Performance Monitoring Equipment

Contractor shall furnish and install the entirety of this equipment and interface it to the SCADA system. This equipment shall provide data for determining the performance of the solar array with respect to meteorological conditions. Requirements are provided in Attachment 1 to Exhibit A and Exhibit H.

3.2.6

SCADA System

The Contractor shall provide and install a complete Supervisory Control and Data Acquisition (“SCADA”) system for monitoring aspects of the Project that is fully compatible with third-party O&M services.

The SCADA system shall include: HMI workstation, the Historian server, backup/secondary HMI workstation, alarm/control PLC, telecommunication equipment. The SCADA network switch will be used to communicate with inverters, PLCs, relays and meterological stations.

The SCADA server will provide a database repository for all network connected devices. The SCADA server will also provide the HMI interface for monitoring and controlling plant operations.

All field devices will communicate through Modbus TCP/IP. Primary software utilized to develop HMI/SCADA configuration will be WonderWare Intouch.

[***] will be used as the main point of contact for monitoring the relays and meters in the switchgear. Controls for the breakers will be done through the main PLC.

3.2.7 Security System

Contractor shall be responsible for installing the perimeter fencing meeting the requirements specified in Attachment 1 to Exhibit A. No permanent Security System is required beyond perimeter fencing.

3.2.8

AC Collection (Distribution System)

Contractor shall furnish and install the entirety of the AC Collection system. The AC Collection shall consist of the wiring and associated electrical hardware required to feed power from the inverter stations to the substation.

Outdoor rated medium voltage switchgear shall be used prior to connection with the substation.

The collection system shall primarily consist of buried or overhead power cable and the necessary connections, non-load break elbows, load break elbows, termination kits, junction boxes/sectionalizer cabinets and switchgear to connect the inverter equipment to substation.


10				Rev. A

Exhibit A

Scope of Work

[***]

3.2.9

Interconnection

Contractor shall be responsible for all work to the point of interconnect excluding final termination of the medium voltage cables at the dead end structure in the substation. The point of interconnection shall be the dead end structure in the GPC substation at the Contractor’s specified [***] as shown in Attachment 2 to Exhibit A. Contractor will make final terminations and perform final testing of Contractor supplied cables and equipment.

3.3	Workmanship

All Work shall be in accordance with the latest editions of NFPA 70 (National Electric Code), NFPA 101 (Life Safety Code), National Electric Safety Code, International Building Code and the rules and regulations of State and Local Authorities Having Jurisdiction.

All Work shall be executed in a workmanlike manner and shall present a neat and mechanical appearance upon completion.

All items shall be installed straight and plumb in a workmanlike manner and care shall be exercised so that like items are mounted the same position, heights and general location.

3.4

Safety

The Contractor is solely responsible for project safety. Owner assumes no responsibility for job safety. Maximum consideration shall be given to job safety and only such methods as will reasonably ensure the safety of all persons shall be employed. Contractor will work in strict compliance with OSHA codes and regulations, as well as any other codes, laws and regulations as may be applicable.

3.5	Equipment Storage

Contractor shall store all electrical equipment in dry, covered locations as directed by equipment manufacturers. Contractor shall be responsible for replacing or repairing improperly stored equipment.

3.6	Site Work (Civil Infrastructure)

Contractor shall clear all trees, stumps and grub roots and organic materials from the construction area of the Work Site. Contractor shall remove all existing operations and structures on Work Site. Contractor shall obtain necessary approvals required for burning debris on the site.

Contractor shall cause all civil engineering work to be completed, including grading plans and drainage studies.

The Contractor shall construct infrastructure required to access the Site for construction and construct the Project in a condition to facilitate the long term operations and maintenance of the Project. The Scope of Work and requirements shall include, but not be limited to, the following:

Site preparation including timber removal, xxxxx removal/grubbing/demolition including removal or burning of spoil material and tree trash.

All trees and shading structures from the property adjoining the Work Site that may shade solar panels shall be cleared by Contractor to approximately 200 feet from all photovoltaic modules.

Remove or relocate any existing operations, structures, inactive ground water test xxxxx on work site with prior approval of Owner.

Wildlife relocation as applicable

The drainage study.

Grading plan/finish grading.


11				Rev. A

Exhibit A

Scope of Work

[***]

Additional studies and geotechnical information as the Contractor sees fit.

Transformer oil containment (GSU only).

Permitting requirements as set forth in the Agreement, including Attachment B to the Agreement.

10.

Excavation, filling, backfilling, and disposal of excess soils (SPOIL) if applicable. Site shall comply with GA EPD Permit.

11.

Compliance as required by the site’s GA EPD Permit in coordination with Owner for erosion and sedimentation control throughout the construction period, potentially including but not limited to, site preparation activities, retention ponds, silt fence, crushed xxxxx, xxx rap, temporary seed and straw, soil erosion, sediment control, and final stabilization.

12.

Contractor shall furnish a competent person for BMP inspections as required by the Site’s GA EPD Permit. Deficiencies should be immediately reported to the Owner.

13.

All other Site preparation required, including without limitation erosion control measures in connection with site clearing and site preparation activities, such as retention ponds, silt fence, crushed xxxxx, xxx rap, temporary and permanent seed and straw, etc. Contractor will maintain erosion control installations.

14.

Perimeter and interior roadways. Roads shall be designed to provide access to major equipment and emergency vehicle turnaround. Roadways shall be a minimum of 12’ in width and consist of (2) - 6” lifts of compacted Graded Aggregate Base (GAB) material per Georgia DOT. Perimeter, interior, and driveway aggregate access roads will be designed for HS-20 Loading. Frequency of loading assumed to be low and for aggregate base roads.

15.

Laydown area, as needed, in Owner-approved locations

16.

Temporary stone installation within construction areas, as needed

17.

Restoration of Site including laydown area and roads.

18.

Chemical, hazardous material storage/containment.

19.

All required foundations and equipment pads. Designed to applicable codes and design requirements of the AHJ for wind speed, snow/ice load, importance factors, and seismic requirements.

20.

Concrete testing and pile testing as required.

21.

All project security fencing including gates and appurtenances.

3.7	Site Building

Contractor shall design, construct and fit out a single prefabricated metal building or connex for the site. This building shall be a combination of the plant control center (“PCC”) and other required site building spaces. The PCC shall be expanded to include a separate area for PV plant monitoring and O&M support functions. The PCC shall include a building, control and monitoring workstation, and minimal storage facilities. Contractor shall design and install all utilities, including power, and communications. Potable water and waste water/sewage facilities are not required. The control and monitoring workstation shall be equipped for real-time detailed monitoring of PV Power Plant performance.


12				Rev. A

Exhibit A

Scope of Work

[***]

3.8	Temporary Construction Telecommunications (Internet and phone service)

Contractor will be responsible for providing Internet and telephone for the temporary facilities for Contractor and Owner. Contractor shall calculate ground potential rise for the phone company’s use in selecting their protection equipment.

Consideration should be given to installing a temporary solution which can be converted into the permanent one show below.

3.9	Permanent Facilities (Wide Area Network (WAN) and phone service)

Contractor shall provide underground conduit (approved by service provider) from plant boundary to a point inside the control/office building to be considered the demarcation point for the network interface. Where ever possible, the conduit for the Temporary Construction Telecommunications should be reused.

Local Service Provider will run their lines in Contractor’s conduit up to this demarcation point. Contractor shall provide a Service Provider approved plywood backboard at the demarcation point on which the phone company can mount their termination and protection equipment. All wiring and equipment beyond this point is by Contractor.

Contractor shall calculate ground potential rise for the phone company’s use in selecting their protection equipment.

Contractor will be responsible for arranging WAN and telephone connectivity for the permanent facility from service provider with coordination from Owner.

If the area of the site is so remote that a land based circuit is not feasible and a microwave shot shall have to be established, the Owner’s telecom engineers shall be used by Contractor to design, build, and install the permanent solution.

4.0	General

4.1	Project Management

The Contractor shall serve as the Project Manager and shall provide and lead a project management team.

4.2	Project Employment and Resources

Owner does not have or envision a Project Labor Agreement will be necessary for the Project.

4.3	Site Performance Standards

Contractor shall perform (and cause its Subcontractors to perform) all Work in a safe, diligent, expeditious, and workmanlike manner, using new equipment, parts and components, and in accordance with the Agreement.

4.4	Public Roads.

Contractor shall repair damage to the Public Roads and Access Roads to the condition prior to project mobilization.

Contractor shall provide during construction alternative methods for public traffic to by-pass construction activities.

Contractor acknowledges and agrees that the access roads may be used by other persons performing work at the Site.

4.5

Testing

All testing and inspections shall be performed (or caused to be performed) by the Contractor or a Owner-approved third party unless otherwise noted. Contractor shall coordinate testing with Owner and/or representative and schedule testing a minimum of five (5) days in advance of any test. Owner may observe testing at its discretion.


13				Rev. A

Exhibit A

Scope of Work

[***]

4.6	Engineering and Design

Contractor shall be responsible for the engineering and design of the Project. Contractor shall independently research applicable codes and engineering references to comply with City, County, State, and Federal requirements. Contractor shall provide Project design documents for review/comments/acceptance by the Owner per the requirements in the Minimum Technical Requirements and the Agreement.

4.7	Procurement

Contractor shall procure all required equipment in accordance with the final drawings and specifications that are accepted by the Owner. Contractor’s proposal shall include timely order, tracking supply, unloading, staging, managing and secure storage of all equipment and supplies required for the successful completion of the Project. Long lead items should be identified in the submittal’s Project Schedule.

4.8	Construction

Contractor shall provide all services required to construct the Project. This includes, but is not limited to, the following:

Provide temporary facilities required for construction. These facilities may include, but are not limited to, power supply, construction trailers with appropriate accommodations (for Contractor, Subcontractors and Owner), water supply and access

Provide secure storage for Project equipment during construction

Obtain and comply with all permits required for construction

Conduct training of project labor force, subcontractors and staff.

Complete all Project Site work, including grubbing, SWPPP, dust control, earthwork, grading and drainage, fencing and gates

Inspection of site erosion control measures by a competent person and report of any deficiencies to Owner

Provide Site security and required lighting for the Project. Lighting shall be provided at construction entrance and inverter pads.

Install all Project fencing required

Construct and install racking systems

10.

Install all PV modules

11.

Install all AC and DC power collection systems

12.

Install all inverters and inverter pads

13.

Collection system to the dead end structure in the substation

14.

SCADA System

15.

Temporary Construction Telecommunications (Internet and phone service) if applicable with consideration given to installing a temporary service which can be converted into a permanent facility if required.


14				Rev. A

Exhibit A

Scope of Work

[***]

4.9	Commissioning

Contractor shall provide descriptions of the various processes their company have developed in regard to commissioning of a project. All qualifications shall be provided in the proposal. Contractor should provide descriptions of the following at a minimum.

Standards used for coordinating commissioning with the Owner and other parties of interest

PV/Combiner/Inverter testing and commissioning

Pile and racking testing (as applicable)

Start-up and operational testing

Performance testing

Pre-synchronization and Synchronization

Commercial Operation Start-up

Requirements outlined in the MTR (Attachment 1 to Exhibit A) and Testing and Commissioning (Exhibit H to the Agreement)

4.10	Owner Operator Training

Contractor shall provide O&M training to the Owner and/or Operator of the Project after commissioning of the Project but before Final Completion.

Training: Maintenance, operation, programming and calibration training.

SCADA Training: monitoring and configuration access to settings.

Maintenance: Personnel shall be provided with a maximum of one (1) week training involving the PV modules, inverter operation and displays, remote monitoring web-site and receiving alarms and performance reports.

Such training shall also meet the specifications set forth in Attachment 6 to Exhibit A.

4.11	Commissioning and Acceptance Testing

Contractor shall furnish equipment and labor to completely commission the project in accordance with Acceptance Testing requirements set forth in Exhibit H to the Agreement. All test equipment shall have a current NIST traceable calibration. Contractor shall provide data and reports in a timely fashion. Contractor shall provide a program for in process testing and inspections as well as final acceptance and performance testing to prove the system meets the agreed upon performance ratio. Owner reserves the right to bring in a third party to confirm a sampling of the testing and commissioning and verify critical performance sensor measurements.

4.11.1

General Specifications:

Prior to system conveyance, the system shall be commissioned via a set of functional tests undertaken by the Contractor and the equipment suppliers where appropriate. A record of all test results or reports shall be provided to Owner.

Contractor shall provide written certification that testing is in accordance with and in compliance with Exhibit H to the Agreement.

Contractor shall ensure that safety-related design features are executed in the installation.

Contractor shall ensure that all work outlined in the construction documents is complete prior to starting any testing.

Contractor shall ensure that the installation includes all equipment specified in the plan set and that equipment is installed in the configuration specified in the plan set. Any


15				Rev. A

Exhibit A

Scope of Work

[***]

Contractor shall ensure that the installation meets all applicable codes and standards. Plans may show representative or characteristic details for equipment mounting, conduit routing, etc. When this is the case, the Contractor may be permitted to make minor changes in the field to conduit routing, combiner box locations, etc. Any necessary and reasonable deviation from the plans must maintain compliance to applicable codes and standards.

Contractor shall ensure that the installation was completed with acceptable quality/workmanship.

Contractor shall ensure all equipment is labeled for clear identification. Contractor shall ensure arc flash labels are applied to equipment as required.

Contractor shall ensure that the installation includes elements for robustness commensurate with the system’s anticipated lifetime.

10.

The following items shall be considered for the commissioning and acceptance test plan:

All equipment factory test reports are to be acceptable to Owner

All testing and commissioning is to be in accordance with manufacturers standards where applicable to that equipment

SCADA system commissioning and data read

Inverter Commissioning

Meteorological station, performance sensor and data logger commissioning

Proper function of all disconnects and safety devices

Electrical – resistance to ground measurements

High Potential Testing of buried MV AC cables.

Source circuit – open circuit voltage and polarity tests

Combiner box fuse check

String I-V curves on a statistically significant sample for initial baseline of performance

Operating current and voltage test at each string

Verify system reliability prior to Performance Ratio acceptance testing

Final Testing – after SCADA system has been verified and system reliability has been ensured begin testing in accordance with Exhibit H of the Agreement.

4.12	Drawing Review and Approval

4.12.1

Drawing Review and Approval - General

Vendor drawings/documents that are provided “For Review” shall be entered into the Southern Company PIMS System by the vendor, utilizing a Vendor Transmittal Form (VTF). All comments shall be returned to the vendor using PIMS. Turnaround time by Owner will be 15 working days. A detailed document control plan shall be established during the Project Execution phase. Refer to the Document Submittal Specification (DSS) (Appendix F to MTR), for instructions regarding the handling of all project documentation.


16				Rev. A

Exhibit A

Scope of Work

[***]

4.12.2

Contractor Specified Equipment Packages

For procurement packages produced by the Contractor, the Contractor shall function as the “Owner’s engineer” and conduct a thorough review and approval of the drawings/documents to verify specifications are met and to verify interfaces, interferences and details required for BOP engineering. Owner’s internal engineering organization, SCS Engineering and Construction Services (E&CS) shall provide a cursory review of these drawings. The Contractor shall be responsible for consolidating comments prior to returning them back to E&CS Document Control for return to the vendor. A document control plan shall be developed to determine how comments and approvals are returned back to the vendor for Contractor produced procurement packages.

4.13	Project Controls Requirement

4.13.1

General

Owner requires specific Project Controls deliverables in order to assess Contractor’s plan for executing the work. Some of these deliverables are to be submitted with the proposal while others are due after award. In all cases, Contractor is expected to comply with Owner’s requirements.

4.13.2

Scheduling:

Contractor shall supply schedules and schedule updates per the requirements in the Special Conditions in Exhibit V.

4.13.3

Progress Information

Contractor shall submit to Owner written progress reports per the requirements in the Special Conditions in Exhibit V.

4.13.4

PIMS

Contractor shall use Owner’s Project Information Management System (PIMS) as described in the Special Conditions in Exhibit V.


17				Rev. A


Attachment 1
Minimum Technical Requirements		[***]

5.0	Reserved

SOUTHERN COMPANY GENERATION

ENGINEERING AND

CONSTRUCTION SERVICES

MINIMUM TECHNICAL REQUIREMENTS

FOR

[***] SOLAR FACILITY

FOR

GEORGIA POWER COMPANY

PREPARED BY: [***] DATE: 12/05/13

REVIEWED BY:


Title	Initials	Date
Technical Services	[***]	10/25/13
Electrical Design	[***]	10/25/13
Civil Design	[***]	10/25/13
New Generation Projects	[***]	10/25/13

APPROVED BY: [***] DATE: 11/04/14


No.	Description	Prepared By	Reviewed By	Approved By	Date
0	Issued for initial review	[***]	[***]	[***]	7-3-14


Attachment 1
Minimum Technical Requirements		[***]

Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

TABLE OF CONTENTS


1.0	PROJECT OVERVIEW	3

2.0	PLANT SPECIFIC INFORMATION	3

3.0	MINIMUM DESIGN REQUIREMENTS	3

3.1	General	3

3.2	Electrical	3

3.3	Civil	31

3.4	I&C	43

3.5	Engineering Studies	44

4.0	QUALITY ASSURANCE AND QUALITY CONTROL	30

4.1	General	45

4.2	Quality Requirements	45

4.3	Subvendor Work Location and Limitations	45

4.4	Inspection/Surveillance	45

4.5	Quality Surveillance Deficiency Report	47

4.6	Vendor Requests for Deviations from Quality Requirements	47

4.7	Witness/Hold Points and Testing	47

5.0	STARTUP REQUIREMENTS	3

5.1	General	48

6.0	TRAINING	3


Attachment 1
Minimum Technical Requirements		[***]

Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

1.0	PROJECT OVERVIEW

This document and any referenced attachments specify the minimum technical requirements for the design, procurement and installation of the scope of work associated with the Project. Contractor shall coordinate with Owner as appropriate on the content herein.

2.0	PLANT SPECIFIC INFORMATION

Refer to the site specific information provided in the Scope of Work document (Exhibit A).

3.0	MINIMUM DESIGN REQUIREMENTS

[***]

4.0	QUALITY ASSURANCE AND QUALITY CONTROL

[***]

5.0	STARTUP REQUIREMENTS

5.1

General

It is Owner’s expectation that the successful bidder, upon award of the Agreement, shall provide a written, detailed startup plan for Owner to approve.

The detailed startup plan shall outline the recommended startup and commissioning activities and major systems and associated equipment as described in the Scope of Work (Exhibit A). The plan shall also address the following:

A startup activity section in the schedule where key equipment startup milestones dates shall be identified

A formal, documented process for system turnover to Owner which lists exceptions, punch list items, operating issues, and similar items.

A bio of the bidder’s recommended Startup lead.

Owner will review the proposed startup plan and conduct any technical inspection that is deemed appropriate to ensure job safety and quality construction. Owner will define hold and witness points for major equipment startup and system commissioning as part of this review. Contractor will add these hold and witness points to the documents or procedures used to execute the startup activities. Construction may not continue until Owner approves the hold or witness point unless Owner authorizes otherwise. Owner reserves the right to walk down or inspect the project during all phases of construction to ensure project compliance to Owner’s project standards and expectations.


Attachment 1
Minimum Technical Requirements		[***]

Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

Prior to project acceptance, electronic copies of all O&M manuals, spare parts lists, equipment acceptance sheets, system warranty documentation, and so forth will need to be delivered to Owner’s Startup-designated representative or verified in Owner’s Documentum system.

Owner’s Startup group will have a limited role in the direct day-to-day startup of these systems. However, a startup presence will be onsite to review the major equipment startup, system commissioning, and final punch list development to ensure project compliance to Owner’s project standards and expectations.

6.0	TRAINING

A training program for Owner’s personnel covering equipment furnished shall be developed. The training program shall include classroom and on-site instruction. All training shall be completed prior to commencement of the tie-in outage.

All instructors shall be expert operating and maintenance training personnel.

The training program shall include sufficient details to thoroughly familiarize personnel with safety, operating procedures, controls, performance analysis, and maintenance instructions, including assembly and disassembly.

The proposal shall include a preliminary schedule with specific dates for training classes.

A class plan complete with number of instructors, instructor’s qualifications, materials supplied, and lesson plan shall be submitted.

Owner will have duplication rights (written, audio, and video) to all training materials with the understanding that these materials will be restricted to Owner’s internal uses.

APPENDIX B TO MINIMUM TECHNICAL REQUIREMENTS

REQUIRED RELAYS FOR NEW PLANTS AND RETROFIT BUSES

Page 12 of 12

[***]

APPENDIX C TO MINIMUM TECHNICAL REQUIREMENTS

REQUIRED LV TRIP DEVICES

Page 3 of 3

[***]

APPENDIX D TO MINIMUM TECHNICAL REQUIREMENTS

GROUNDING STANDARD

Page 32 of 32

[***]

APPENDIX E TO MINIMUM TECHNICAL REQUIREMENTS

LIGHTNING PROTECTION STANDARD

Page 36 of 36

[***]

APPENDIX F TO MINIMUM TECHNICAL REQUIREMENTS

DOCUMENT SUBMITTAL SPECIFICATION

Page 5 of 5

[***]

APPENDIX G TO MINIMUM TECHNICAL REQUIREMENTS

SUPPLIER QUALITY ASSURANCE REQUIREMENTS

Page 10 of 10

[***]

APPENDIX H TO MINIMUM TECHNICAL REQUIREMENTS

SUPPLIER QUALITY ASSURANCE REQUIREMENTS

INSPECTION PROGRAM REQUIREMENTS

Page 4 of 4

[***]

ATTACHMENT 2 TO EXHIBIT A

SINGLE LINE DIAGRAM

Page 1 of 1

[***]

ATTACHMENT 3 TO EXHIBIT A

GEOTECH REPORT

Pages 1-94 of 94

[***]

ATTACHMENT 4 TO EXHIBIT A

PVSYST SUMMARY

Pages 1-5 of 5

[***]

ATTACHMENT 5 TO EXHIBIT A

8760 PROFILE

Pages 1-104 of 104

[***]

ATTACHMENT 6 TO EXHIBIT A

OPERATING PERSONNEL TRAINING PROGRAM

Pages 1-5 of 5

[***]

EXHIBIT B

CONTRACTOR DELIVERABLES TABLE

The following Contractor Deliverables shall be provided by Contractor to Owner prior to Substantial Completion:

Commercial Information

Equipment Warranties

Module

ii.

Combiner Box

iii.

Re-combiner Box

iv.

Racking

Inverter

vi.

MV Transformer

vii.

MV Collector System

viii.

Substation Protection and Controls (if applicable)

Subcontractor Warranties (if applicable)

Certain Project Design Deliverables

Preliminary O&M Manual

EPC Drawings and Specifications

Interim As-built Drawings (PV system, layout, single-line, etc.)

System Commissioning Report

Insulation Resistance Testing (IRT)

ii.

DC String Combiner Box Commissioning

iii.

DC Re-combiner Commissioning

iv.

AC Distribution Commissioning

Pile Testing

vi.

High Pot/VLF Testing

vii.

Meter Commissioning

viii.

Open Circuit Voltage Test

ix.

Flash Test

Soils and resistivity Testing

xi.

Communications cabling

xii.

Factory Test Documentation

Substantial Completion System Commissioning

AC Distribution Commissioning

ii.

Transformer Commissioning

iii.

Pyranometer Calibration

iv.

Switchgear Commissioning

Inverter Commissioing

vi.

DAS Commissioning

vii.

DC Amperage Test

viii.

Infrared (IR) Scanning

ix.

Power Factor Test

Installation, Operation and Maintenance Manuals

Spare Parts lists

Substantial Completion Tests

All documentation associated with the Performance Tests

Additional reports

Capacity Bank Study Report

ii.

Tap Setting Study Report

iii.

Module Allocation Plan

iv.

Relay Settings Report

Start-up and Energization Plans

Contractor-performed Site Studies (if performed by Contractor)

Cultural Resources Survey

ii.

Phase 1 Environmental Site Assessment

iii.

Geotechnical Report

iv.

Topographical Survey

Solar Production Studies

vi.

Load test

Performance and Operations Reports and Procedures

QA/QC Plan & Collected Data for Construction Activities

Startup Plan & Collected Data

Final Report of the Five Consecutive Day Operational Test

The following Contractor Deliverables shall be provided to Owner prior to Final Completion:

Supplier Documentation

Vendor Instructions, Tests and Certified Drawings and Documents; Training Materials, Operations and Maintenance Manuals; Factory Test data, List of Make and Model Numbers and all other pertinent information to be supplied for the following PV plant components and plant systems:

Racking

ii.

Transformers (MV and Main Power)

iii.

Modules

iv.

Inverters

Metering and Monitoring System

vi.

MV Collector System

vii.

Substation Equipment, Protection, and Controls

viii.

Meteorological Stations

ix.

SCADA/DAS System

Safety Documentation

Final OSHA 300Log

Final Incident Reports

Final First Aid Logs

Final Root Cause Analysis Reports

Final Near Miss Reports

Final Acceptance Deliverables

Final As-Built Engineering Drawings and Specifications

Final Vendor Drawings, Equipment Data, Specifications and Instruction Manuals

All Contractor Permits with copies of close-out records

EXHIBIT C

APPLICABLE PERMITS

Part I: Contractor Permits

Contractor will obtain the following Permits:

Building Permit (local and state) (if applicable)

Oversize/Overweight Roadway Permits

Dust Control Permit

Erosion and Sedimentation Pollution Control Plan

Certificate of Occupancy (if needed)

Part II: Owner Permits

Owner will obtain the following Permits:

[***]

FAA approvals, if needed

Utility/Right-of-Way permits

EXHIBIT D – ENVIRONMENTAL, HEALTH AND SAFETY PLAN

PowerSecure

0000 Xxxxxxxx Xxxxxxxx Xxxxx

Xxxx Xxxxxx XX, 00000

xxx.XxxxxXxxxxx.xxx

NYSE:POWR

Site Safety and Health Plan

Pages 1-180 of 180

Appendix A – Defined feature of work

Appendix B – Daily Job Safety Plan/AHA

Appendix C – Job Site Forms

[***]

Exhibit E

Site Description

Page [1] of [1]

[***]

EXHIBIT F

LIEN WAIVERS

EXHIBIT F-1

CONTRACTOR’S INTERIM WAIVER AND RELEASE UPON PAYMENT

By executing and submitting its interim payment application and the lien waiver below, in consideration for the payment described in the lien waiver below, and for the purpose of inducing Owner to make this interim payment, Contractor, for itself, its employees, subcontractors, sub-subcontractors, mechanics, materialmen and laborers, does hereby represent and warrant as follows:

All Parties Paid. Contractor has been paid all amounts owed for all materials or labor furnished to the Project through the effective date of the interim lien waiver below (the “Effective Date”), and that all parties supplying labor or materials to Contractor in connection with the Project have been paid, or will be paid promptly from the proceeds of this progress payment, for all labor, services, equipment or materials furnished with respect to Work performed prior to the Effective Date.

Waiver of Claims. Upon receipt of the amount set out in the interim lien waiver below, Contractor waives and releases any and all claims, causes of action, suits, damages, judgments, demands of any kind, character and description, whether known or unknown, against, -Owner, , and its directors, officers, employees, agents, subsidiaries, parent and related firms, successors and assigns relating to labor, services, materials, machinery and equipment furnished with respect to Work performed prior to the Effective Date with the exception of claims for retainage withheld under the agreement with Owner, and those claims described below in an amount not to exceed the stated amount:


				$
				$
				$

Representations. Contractor represents that all required insurance coverages remain in effect and unchanged; that warranty obligations are undiminished by any known conditions or circumstances; and that no contract requirements have been waived or changed except by formal change order pursuant to the contract.

STATE OF GEORGIA

COUNTY OF

THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY GEORGIA POWER COMPANY (“OWNER”) TO FURNISH (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT) WHICH IS LOCATED IN THE CITY OF , COUNTY OF , AND IS OWNED BY GEORGIA POWER COMPANY AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

UPON THE RECEIPT OF THE SUM OF $ , THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF (DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES.

GIVEN UNDER HAND AND SEAL THIS DAY OF , .


		(SEAL)


(WITNESS)


(ADDRESS)

NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. SECTION 00-00-000.

EXHIBIT F-2

SUBCONTRACTOR’S INTERIM WAIVER AND RELEASE UPON PAYMENT

By executing and submitting its interim payment application and the lien waiver below, in consideration for the payment described in the lien waiver below, and for the purpose of inducing Contractor and Owner to make this interim payment, the Subcontractor or Supplier, for itself, its employees, subcontractors, sub-subcontractors, mechanics, materialmen and laborers, does hereby represent and warrant as follows:

All Parties Paid. It has been paid all amounts owed for all materials or labor furnished to the Project through the effective date of the interim lien waiver below (“Effective Date”), and that all parties supplying labor or materials to it in connection with the Project have been paid, or will be paid promptly from the proceeds of this progress payment, for all labor, services, equipment or materials furnished with respect to the Project prior to the Effective Date.

Waiver Of Claims. Upon receipt of the amount set out in the interim lien waiver below, it waives and releases any and all claims, causes of action, suits, damages, judgments, demands of any kind, character and description, whether known or unknown, against Owner, the Contractor, and the Contractor’s surety, and their respective directors, officers, employees, agents, subsidiaries, parent and related firms, successors and assigns, arising out of acts or omissions prior to the Effective Date , with the exception of claims for retainage withheld under the agreement with Contractor, and those claims described below in an amount not to exceed the stated amount:


				$
				$
				$

3.	Representations. Subcontractor or Supplier represents that all required insurance coverages remain in effect and unchanged, and that warranty obligations are undiminished by any known conditions or circumstances.

STATE OF GEORGIA

COUNTY OF

THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY (NAME OF CONTRACTOR) TO FURNISH (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT) WHICH IS LOCATED IN THE CITY OF , COUNTY OF , AND IS OWNED BY GEORGIA POWER COMPANY (“OWNER”) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

GIVEN UNDER HAND AND SEAL THIS DAY OF , .


		(SEAL)


(WITNESS)


(ADDRESS)

EXHIBIT F-3

CONTRACTOR’S WAIVER AND RELEASE UPON FINAL PAYMENT

By executing and submitting its payment application and the lien waiver below, in consideration for the final payment described in the lien waiver below, and for the purpose of inducing Owner to make final payment, the Contractor, for itself, its employees, subcontractors, sub-subcontractors, mechanics, materialmen and laborers, does hereby represent and warrant as follows:

1.	All Parties Paid. It has been paid in full all amounts owed for all materials or labor furnished to the Project, and that all parties supplying labor or materials to it in connection with the Project have been paid in full for all labor, services, equipment or materials ordered or supplied.

Waiver Of Claims. Upon receipt of the amount set out in the lien waiver below, it waives and releases any and all payment claims, causes of action, suits, damages, judgments, demands of any kind, character and description, whether known or unknown, against the Owner and its respective directors, officers, principals, partners, employees, agents, subsidiaries, parent and related firms, successors and assigns, arising out of or pertaining in any manner to the Agreement, the property described below, or the Project.

Authorization. It warrants that it is the sole owner of the claims released herein, that it has not sold, assigned or conveyed such claims to any other party, and that the individual whose signature appears below has personal knowledge of these matters and is fully authorized and qualified to make these representations on behalf of the Contractor.

Scope Of Release. The representations and release contained herein are independent covenants and operate, and are effective with respect to, all labor, services, materials or equipment provided by or through the Contractor or Subcontractor or Supplier, under any agreement, whether oral or written, whether extra or additional to any such agreement, and with respect to any further labor, materials, equipment or services to be furnished with respect to the Agreement and the Project.

WAIVER AND RELEASE UPON FINAL PAYMENT

STATE OF GEORGIA

COUNTY OF

(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

UPON THE RECEIPT OF THE SUM OF $ , THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY.

GIVEN UNDER HAND AND SEAL THIS DAY OF , .



Contractor



By:


Printed Name:


Its:



Sworn and subscribed before me this
day of , 200 .


Notary Public
My Commission Expires:

EXHIBIT F-4

SUBCONTRACTOR’S WAIVER AND RELEASE UPON FINAL PAYMENT

By executing and submitting its payment application and the lien waiver below, in consideration for the final payment described in the lien waiver below, and for the purpose of inducing Contractor and the Owner to make final payment, the Subcontractor or Supplier, for itself, its employees, subcontractors, sub-subcontractors, mechanics, materialmen and laborers, does hereby represent and warrant as follows:

All Parties Paid. Upon receipt of the amount set forth in the lien waiver below, it has been paid in full all amounts owed for all materials or labor furnished to the Project, and that all parties supplying labor or materials to it in connection with the Project have been paid in full for all labor, services, equipment or materials ordered or supplied.

2.	Warranty Of Work. It warrants that all work, labor and materials furnished by or through it are free from defects and fully comply with all requirements of the plans, specifications, subcontract, the Agreement and all documents related thereto.

Waiver Of Claims. Upon receipt of the amount set forth in the lien waiver below, it waives and releases any and all payment claims, causes of action, suits, damages, judgments, demands of any kind, character and description, whether known or unknown, against the Contractor, the Contractor’s Surety, the Owner, any construction lender, and their respective directors, officers, principals, partners, employees, agents, subsidiaries, parent and related firms, successors and assigns, arising out of or pertaining in any manner to the Subcontract, the Agreement, the property described below, or the Project.

Authorization. It warrants that it is the sole owner of the payment claims released herein, that it has not sold, assigned or conveyed such claims to any other party, and that the individual whose signature appears below has personal knowledge of these matters and is fully authorized and qualified to make these representations on behalf of the Subcontractor or Supplier.

Scope Of Release. The representations, waiver and release contained herein are independent covenants and operate, and are effective, final and binding and shall not be invalidated by any future occurrence or claim by any person or entity, including any trustee acting on behalf of any person, entity or bankrupt estate.

WAIVER AND RELEASE UPON FINAL PAYMENT

STATE OF GEORGIA

COUNTY OF

THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY (“CONTRACTOR”) TO FURNISH (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS (TITLE OF THE PROJECT OR BUILDING), WHICH IS LOCATED IN THE CITY OF , COUNTY OF , AND IS OWNED BY GEORGIA POWER COMPANY (“OWNER”), AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTIONS, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

UPON THE RECEIPT OF THE SUM OF $ , THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY.

GIVEN UNDER HAND AND SEAL THIS DAY OF , .



Subcontractor/Supplier



By:


Printed Name:


Its:



Sworn and subscribed before me this
day of , 201 .


Notary Public My Commission Expires:

EXHIBIT G

REQUIREMENTS FOR PROGRESS REPORTING

Contractor shall provide regular progress and schedule reporting in accordance with Section 7.5 of the Agreement and Exhibit A - Statement of Work. The Monthly Progress Report shall be organized in accordance with the following Table of Contents:

Executive Summary

Project Team

2.1.

EPC Contractor

2.2.

Major Contractors/Suppliers

Health, Safety and Environment

3.1.

Workforce Report

3.2.

Reportable Incidents

3.3.

Environmental Compliance

Contract Schedule updates and modifications

4.1.

PV Solar Plant

Key Milestone Status

Activities planned for next month

Procurement Progress and Status Report

Construction Progress Curves including at a minimum:

Site Grading

ii.

Post install

iii.

Tilt Bracket install

iv.

Rail install

Module/Cartridge install

vi.

PCS Vault installation

vii.

DC Feeders installation

viii.

AC Feeders installation

ix.

(PCS) Power Conversion Station install

Start-up and Testing progress

Manufacturing Status Report

Arrival of materials at Site and planned deliveries for next 3 months

4.2.

Substations and Transmission – (if applicable)

Key Milestone Status, identification and status of critical path activities (including float)

Activities planned for next month

Procurement Process and Status Report

Step-up Transformer and Switchgear off-Site Functional Test Schedule

Arrival of materials at site and planned deliveries for next 3 months

4.3.

Mobilization of key contractors and planned mobilization for next 3 months

4.4.

Major Accomplishments Project to Date

4.5.

Major Accomplishment This Month

4.6.

Goals for Next Month

Quality Control

5.1.

Shop Inspection and Testing

5.2.

Non-conformance metrics

5.3.

Areas of concern and action plans

Startup and Commissioning Process and Technical discussion

Commercial

7.1.

Change Order Status

7.2.

Payment Status

7.3.

Reforecast of project cash-flow through project completion

7.4.

Monthly cancelation exposure for next three months

Training

Issues and Remedies

10.

Deliverables

10.1.

Current drawing list

10.2.

Current equipment list

11.

Community

12.

Photos

13.

Any other information reasonably requested by Owner

EXHIBIT H

TESTING AND COMMISSIONING

Pages 1-11 of 11

[***]


Contents

1.0	Substantial Completion Testing Overview	3

2.0	Five Consecutive Day Operational Test	3

3.0	Five Day Performance Ratio Test	3

4.0	System Commissioning	7

4.1	Mechanical Completion	7

4.1.1	Insulation Resistance Testing (IRT)	7

4.1.2	DC String Combiner Box Commissioning:	7

4.1.3	DC Re- Combiner Box Commissioning:	7