SolarMax Technology, Inc.

Final Completion.

(vii)Conditions Precedent to Final Completion. Final Completion shall mean and will be deemed to have occurred only when:

(1) Substantial Completion has occurred, and all conditions thereto continue to be satisfied;

(2) Owner has received from Contractor the Turnover Package in accordance with the requirements of this Agreement;

(3) All Contractor’s Materials and wastes have been removed from the Site and properly disposed of;

(4) Owner has received (i) from Contractor a conditional Lien Waiver and release on final payment, (ii) either a conditional or unconditional Lien Waiver and release on final payment from each Major Subcontractor, as applicable or as reasonably requested by Owner, and (iii) final Lien Waivers from any Subcontractor with respect to the performance of any services or delivery of any materials that could result in a lien on the Site or the BESS;

(5) All Punch List Items have been completed to Owner’s reasonable satisfaction;

(6) All Defective Work and Materials raised or identified by Owner or Contractor have been corrected to Owner’s reasonable satisfaction; and

(7) Owner has delivered the countersigned Final Completion Certificate to Contractor.

(viii)Owner Acceptance. On the Day on which Contractor believes that Final Completion has been achieved, Contractor shall submit to Owner and Engineer a Final Completion Certificate along with all documentation reasonably necessary for Owner and Engineer to determine if Final Completion has indeed been achieved. Owner shall review such certificate and documentation with Contractor and Engineer. Within ten (10) Business Day of Contractor’s delivery to Owner of the Final Completion Certificate, Owner shall either (i) countersign and deliver to Contractor the Final Completion Certificate to indicate its agreement that Final Completion has been achieved, or (ii) if reasonable cause exists for doing so, notify Contractor of its belief that Final Completion has not been achieved, including Owner’s or Engineer’s reasons for believing the same and advising of the actions it believes are required to achieve Final Completion. The procedures described in this Section 2.2.5 shall be repeated as necessary until Final Completion is achieved. The date when Final Completion is achieved (the “Final Completion Date”) shall be the date on which Owner and Engineer approve and deliver the countersigned Final Completion Certificate to Contractor.

2.2.6Standard of Performance. Contractor shall cause the Work (including the design, engineering, construction, and testing of the BESS) to be performed: (a) in compliance with all requirements of this Agreement and its Exhibits, the specifications of any relevant manufacturer of equipment or materials, and all Laws (including (i) any applicable noise ordinances during the construction of the BESS, and (ii) any applicable lighting ordinance during the construction of the BESS); (b) in accordance with Prudent Industry Practices, all requirements for Contractor Tests, and as necessary to achieve the Performance Criteria; (c) in a safe, expeditious, good, and workmanlike manner; (d) in compliance with the applicable requirements of the Interconnection Agreement; (e) in compliance with the safety regulations and standards applicable to the BESS and adopted under the Occupational Safety and Health Act of 1970, as amended from time to time; (f) in compliance with the Site Requirements. Except as otherwise expressly provided in this Agreement, the standard of performance set forth in this Section 2.2.6 shall apply to all aspects of the Work and the Materials, and this Section 2.2.6 shall be deemed to be incorporated by reference into each provision of this Agreement describing the Work or describing Contractor’s obligations hereunder.

2.2.7No Deemed Acceptance. Contractor acknowledges and agrees that any inspection, testing, or witnessing of any of the Work or tests by Owner, or omission or failure on the part of Owner to inspect any of the Work, shall not be construed as an approval or acceptance of such Work, or as relieving Contractor of its responsibilities pursuant to this Agreement or Law.

2.2.8Damage to Site or Property. Contractor shall be responsible for all damage to the Site and/or Property caused by it or its Subcontractors. Contractor shall not be liable for any adverse environmental issues or conditions found at the Site or Property prior to the Effective Date that were not caused by its acts or omissions. Contractor shall be responsible only for any adverse environmental conditions directly resulting from its own negligent acts, omissions, or willful misconduct during the performance of the Work under this Agreement.

2.2.9Supplier Code of Conduct. Contractor shall use industry standard practices to detect and prevent the use of forced or child labor within its operations and use best efforts to monitor its Subcontractors for all Material used in the Project. In addition to the foregoing Contractor shall comply with industry standard practices to help ensure that all Material used in the Project will be able to clear U.S. Customs. Contractor shall use commercially reasonable efforts to request that its Subcontractors comply with similar standards to ensure that any materials or components originating in any region subject to withhold release order restrictions can be traced through the supply chain. If requested by Owner, Contractor shall promptly provide a supply-chain map and allow a review of its records establishing compliance by an independent auditor retained by Owner to confirm compliance.

2.2.10Compliance with Laws. Contractor shall comply with, and shall cause all its Subcontractors to comply with, all applicable Laws in performing Contractor’s obligations under this Agreement.

2.3****Final Design and “As-Built” Documents; O&M Manual; Submittals.

2.3.1 As a condition to Final Completion, Contractor shall deliver to Owner the following items, which all shall be written in the English language:

Final and sealed (i) “as-built” plans and line diagrams/drawings, and (ii) shop drawings and test reports, including performance test reports and commissioning documents, in sufficient detail to allow the operation and maintenance of the BESS and reflecting any changes in design (the “Design”);

Electronic copy of the final and complete Operations and Maintenance Manual, which shall include the above-referenced final, signed and sealed “as-built” plans and line diagrams/drawings, equipment specification sheets, warranty information, material safety data sheets, applicable health and safety documentation, specific maintenance schedules required to comply with the Work Warranty, and testing and commissioning reports; and

Electronic copy of the final and complete Turnover Package, reviewed and approved by Owner in accordance with Section 2.3.3.

2.3.2 Not later than fifteen (15) Days prior to the Substantial Completion Date, Contractor shall deliver to Owner an electronic copy (in a format reasonably acceptable to Owner and written in the English language) of the Operations and Maintenance Manual (in draft form) relating to Materials supplied by Contractor and each of the Subcontractors. Within fifteen (15) Days of submission of the draft Operations and Maintenance Manual, Owner shall notify Contractor of Owner’s approval of the draft, or Owner’s reasonable revisions thereto and the reasons for its rejection of all or any portion thereof. In the event of such total or partial rejection or revisions of the draft Operations and Maintenance Manual, within five (5) Days after receipt of notice of such revisions or rejection Contractor shall make appropriate changes to the draft to respond to Owner’s revisions or reasons for rejection and shall resubmit such draft to Owner. Such procedure shall be repeated until Contractor receives written approval by Owner of the Operations and Maintenance Manual. Substantial Completion may occur during the process of finalization of the Operations Maintenance Manual contemplated by this Section 2.3.2.

2.3.3 Not later than fifteen (15) Days after the applicable Substantial Completion Date, Contractor shall deliver to Owner an electronic copy of the semi-final draft (as complete as practicable given the then-current status of the Work) of the Turnover Package, either in Turnover Package format or in a form and format available as a result of the design and construction process, as appropriate. The Turnover Package shall be prepared in the English language only. Where any of the information in the Turnover Package was produced by computer-aided design and is available to Contractor or any Subcontractor, Contractor shall provide or cause to be provided to Owner an electronic copy of such information in an Intergraph- or AutoCad-compatible format. Within fifteen (15) Days of submission of the draft Turnover Package, Owner shall notify Contractor of Owner’s approval of the draft, or Owner’s reasonable revisions thereto and the reasons for its rejection of all or any portion thereof. In the event of such total or partial rejection or revisions of the draft Turnover Package, within five (5) Days after receipt of notice of such revisions or rejection Contractor shall make appropriate changes to the draft to respond to Owner’s revisions or reasons for rejection and shall resubmit such draft to Owner. Such procedure shall be repeated until Contractor receives written approval by Owner of the Turnover Package.

2.3.4 Contractor shall prepare all Submittals in accordance with Prudent Industry Practices.

2.3.5 Contractor shall deliver all Submittals to Owner Representative in accordance with and in order to meet the Project Schedule. Contractor shall review all Submittals before submission to Owner Representative, such review to be indicated by date and a signature of the responsible and qualified member of Contractor Personnel who conducted the review. By this review, Contractor will be deemed to represent that it has determined and verified all necessary requirements including field measurements, field construction criteria, materials, catalogue numbers and similar data and has checked and coordinated all Submittals with all requirements or specifications for the Work as set forth within this Agreement. Together with any Submittal, Contractor shall notify Owner Representative of, and clearly show or describe, any material deviation known by Contractor, of that Submittal from any requirement under this Agreement.

2.3.6 All Submittals shall be delivered to Owner Representative. For greater certainty, no change shall be incorporated in the Work or Materials unless expressly agreed to in writing by Owner in accordance with Section 6.1.

2.4****Investment Incentives.

2.4.1 The EPC Contractor shall, at its own cost and expense, perform the Work in strict compliance with all applicable federal, state, and local Laws, statutes, rules, regulations, and guidance, including, without limitation, those promulgated under or in connection with the IRA, as may be amended from time to time, to enable the Owner to qualify for, obtain, and transfer, sell, or monetize any and all available federal tax credits, incentives, or other benefits, including but not limited to ITCs, and any associated bonus credits (collectively, the “Investment Incentives”).

2.4.2 Contractor, at its own cost and expense, shall provide commercially reasonable assistance to Owner in the preparation and submittal of all documents necessary for Owner to pursue any Investment Incentives available to Owner, including but not limited to all documentation, certifications, affidavits, and information, and shall take all actions, as may be reasonably requested by Owner to demonstrate compliance or support Owner's application for, qualification for, or transfer of such tax credits or equivalent benefits. Such documentation and actions shall include, without limitation, providing evidence of compliance with Prevailing Wage Requirements, Apprenticeship Requirements, domestic content, energy community, and any other requirements or conditions imposed by the IRA or any subsequent related law or regulation.

2.4.3 Neither Contractor nor its Subcontractors shall directly or indirectly utilize a “Prohibited Foreign Entity” as that term is defined in the One Big Beautiful Bill Act for the performance of this Agreement. Violation of this provision shall constitute a material breach of this Agreement.

2.4.4 Contractor acknowledges that Owner shall have all right, title and interest in and to all Investment Incentives which are available as a result of the construction or ownership of the BESS or electricity being commercialized by the BESS.

2.4.5 Contractor shall employ Laborers and Mechanics that comply with ITC requirements.

2.4.6 Contractor’s obligations hereunder shall survive completion of the Work to the extent necessary for Owner to realize, transfer, or sell such tax credits, and Contractor shall defend, indemnify, and hold harmless Owner from and against any and all losses, liabilities, damages, costs, or expenses (including reasonable attorneys’ fees) arising from or related to Contractor’s failure to comply with this section 2.4, to the extent such failure results in Owner’s inability to obtain, realize, transfer, or sell any tax credits or incentives available under the IRA or related legislation.

2.5****Project Schedule, Guaranteed Completion Dates, Liquidated Damages.

2.5.1Baseline Project Schedule. The agreed upon schedule for the performance of the Work and procurement of the Materials is provided in Gantt chart form as Chart C-1 of Exhibit C (the “Baseline Project Schedule”). Additionally, a table listing the Project’s major milestones and the dates by when such milestones must be achieved is provided in Table C-1 of Exhibit C (the “Project Milestones”). Table C-1 also includes the date by which Contractor shall achieve Mechanical Completion, Substantial Completion and Final Completion (respectively, the “Guaranteed Mechanical Completion Date,” the “Guaranteed Substantial Completion Date” and the “Guaranteed Final Completion Date” and collectively, the “Guaranteed Completion Dates”). Contractor shall schedule its work tasks ensuring the BESS is built substantially in accordance with the Project Schedule and that all Project Milestones are achieved on or before the corresponding Guaranteed Completion Dates.

2.5.2Periodic Progress Meetings and Look-Ahead Schedule**.** From and after the Commencement Date until the Substantial Completion Date, Contractor shall hold weekly progress meetings with Owner's Project Manager or Owner Representative, to assess and verify actual progress, to predict future progress and to review and, if possible, resolve any construction-related issues that Owner or Contractor may wish to discuss. Prior to each such meeting Contractor shall update the progress achieved in the Work and prepare an updated version of the schedule in Gantt chart form (the “Project Schedule”). Such meetings shall include the review of the following matters, as applicable and necessary: (i) status of the Project as at the date of the meeting; (ii) Project look-ahead schedule of all Work activities for the ensuing three (3) weeks or until the next scheduled meeting, whichever would be later; (iii) progress reports with respect to the Log; (iv) number and status of all employees and contractors of Contractor and each Subcontractor engaged in the Project as at the date of the meeting; (v) status of delivery of any Materials to be delivered; (vi) any proposed or anticipated changes in the Work or Materials; (vii) any safety issues or incentives; (viii) the status of the Remedial Action Plan, if applicable; and (ix) any other matters as may be requested by Owner's Project Manager or Owner Representative, acting reasonably. These meetings may also include the Representative, Subcontractors and/or the Engineer.

2.5.3Delay Notice and Remedial Action Plan**.** If Owner determines in its reasonable discretion that Contractor is more than ten (10) Days behind schedule and such delay is reasonably likely to lead to a delay in achievement of Substantial Completion by the Guaranteed Substantial Completion Date, then Owner may notify Contractor of such determination (the “Delay Notice”) and within five (5) Business Days of its receipt of the Delay Notice, Contractor shall submit to Owner a written plan demonstrating to Owner’s reasonable satisfaction the measures that Contractor has taken or will take in order to ensure that Substantial Completion will occur no later than the Guaranteed Substantial Completion Date (such plan, a “Remedial Action Plan”). A Remedial Action Plan that conforms to current industry standards and customary procedures shall be deemed a reasonable plan. Upon receipt of a Remedial Action Plan, Owner shall review and provide comments, if applicable. Contractor shall consider all comments of Owner and, within three (3) Business Days of its receipt of Owner’s comments, resubmit the Remedial Action Plan for Owner’s approval. Contractor shall begin to implement the Remedial Action Plan within three (3) Business Days of its initial submission of the Remedial Action Plan to Owner, and will adhere to such Remedial Action Plan (as may be updated from time to time) in order to regain compliance to the Project Schedule, including the utilization of additional shifts, additional manpower, overtime and the re-sequencing of activities.

2.5.4 Contractor shall achieve (i) Mechanical Completion on or before the Guaranteed Mechanical Completion Date, (ii) Substantial Completion on or before the Guaranteed Substantial Completion Date, and (iii) Final Completion on or before the Guaranteed Final Completion Date ((i), (ii), and (iii), each a “Completion” and collectively, the “Completions”), provided that the Guaranteed Completion Dates may be equitably extended for any delays caused by (i) a Force Majeure Event, (ii) an insurable casualty for which delayed completion is covered and paid to Owner, (iii) the acts or omissions of Owner, its employees, agents, contractors, and subcontractors or other third parties, including the Utility, that constitute a Material Event pursuant to Section 6.1.3, (iv) Owner’s failure to issue the Notice to Proceed on or prior to the Outside NTP Date, (v) Contractor suspending Work pursuant to Section 9.3.5, or (vi) Owner suspending Work pursuant to Section 9.6 (each, an “Excusable Delay”). If Contractor’s Work is delayed for any Excusable Delay, Contractor shall, as soon as practicable (but not exceeding Five (5) Business Days after Contractor knows or should have known of such Excusable Delay) notify Owner in writing of any such alleged Excusable Delay and shall promptly request a Change Order pursuant to Section 6.1. Failure to provide such required notice shall constitute a waiver of any claims associated therewith.

2.5.5Liquidated Damages for Delay. Ifall required equipment arrives on site, and Contractor fails to achieve the Completions by the respective Guaranteed Completion Dates of Table C-1 of Exhibit C, Contractor shall pay to Owner, as liquidated damages and not as a penalty, the following:

(i) for Mechanical Completion: liquidated damages in an amount equal to five thousand Dollars ($5,000) per Day.

(ii) for Substantial Completion: liquidated damages in an amount equal to ten thousand Dollars ($10,000) per Day.

(iii) for Final Completion: liquidated damages in an amount equal to twenty thousand Dollars ($20,000) per Day.

The total amount of liquidated damages Contractor shall be liable for as a result of delays in achieving the Guaranteed Completion Dates shall not exceed eight hundred thousand Dollars ($800,000).

If Contractor fails to achieve Mechanical Completion on time, liquidated damages shall accrue daily at the rate specified above until the earlier of the Mechanical Completion Date or the Guaranteed Substantial Completion Date. If Contractor fails to achieve Substantial Completion on time, liquidated damages shall accrue daily at the rate specified above until the earlier of the Substantial Completion Date or the Guaranteed Final Completion Date. If Contractor fails to achieve Final Completion on time, liquidated damages shall accrue daily at the rate specified above until the earlier of the Final Completion Date or the date when the delay triggers an Event of Default pursuant to Section 9.1.13.

If Contractor (a) fails to achieve Mechanical Completion and/or Substantial Completion on time and as a result pays liquidated damages to Owner and (b) achieves Final Completion on time, Owner shall return promptly to Contractor the total amount paid in liquidated damages.

If Owner causes delays in the timing of the project, owner shall pay for any rental equipment costs, living expenses and salaries of team members who have relocated to be near the job site.(Insertion rejected because this is already addressed at the end of paragraph 2.5.4.)

2.5.6Adjustments to the Guaranteed Completion Dates. Table C-2 of Exhibit C lists the equipment components with critical delivery dates. In the event one or more of the equipment components listed in Table C-2 is/are delivered to the Site more than 3 (three) Days after the corresponding delivery date(s) indicated in Table C-2, Contractor shall be entitled to submit a Change Order requesting that the affected Guaranteed Completion Date(s) be adjusted by the same number of Days as the delivery delay and Owner shall approve such adjustment(s).

2.5.7Monthly Project Status Report. Until the Substantial Completion Date, Contractor shall prepare and submit to Owner monthly project status, including the incorporation of delay and acceleration analyses where appropriate;provided, however, Contractor shall not be relieved from the obligation to meet any Guaranteed Date set forth in the Project Schedule unless such date is extended pursuant to a Change Order as set forth in this Agreement. Every Project Schedule update shall include issues lists, risk and other information required to enable Owner to verify adherence to the Project Schedule. Each update shall include a safety report stating any emergencies (and actions taken in response thereto), cumulative hours worked onsite up to the date of the report, and work-related accidents, injuries or near misses occurred at the Site and/or the Property during period immediately preceding the safety report.

2.5.8RFI Log. Until the Substantial Completion Date, Contractor shall maintain, keep and update a log (the “Log”) in respect of all requests for information for the Project (each, an “RFI”) in both paper and electronic versions (in Excel or Word format), and prior to Final Completion shall provide Owner with the computerized copy of such Log and, on reasonable notice to Contractor, ensure that Owner shall have access to the paper copy of such Log during Contractor’s normal business hours. Contractor agrees to provide progress reports to Owner with respect to the Log at a meeting, by telephone conference or in writing as may be reasonably requested by Owner from time to time.

2.5.9Meeting Location. Meetings of Contractor and Owner Representative shall be held at the Site or such other place as the Parties may agree (including via telephone, conference call, or other virtual meeting method).

2.6****Risk of Loss. Prior to and including the Substantial Completion Date, notwithstanding passage of title as provided in Section 5.3.2, Contractor shall bear the risk of loss and damage and shall be obligated to repair, replace, or reconstruct any portion of the Work or Materials comprising the Project that is lost, stolen, damaged, or destroyed. Following the Substantial Completion Date, Contractor shall be responsible for any damages caused by Contractor or its Subcontractors up to and including the Final Completion Date.

2.7****Clean-Up. Contractor shall at all times perform the Work and keep the Site in a safe and orderly condition, as appropriate in accordance with Prudent Industry Practices, to avoid danger to persons on the Site and in the immediate vicinity of the Site and shall take reasonable measures in accordance with Prudent Industry Practices to prevent access to the Site of any persons not authorized to be there. Contractor shall at all times keep the Site reasonably free from waste materials or rubbish caused by its activities. From the Substantial Completion Date to the Final Completion Date, Contractor’s performance of the Work shall not unreasonably interfere with the operation of the BESS so long as Contractor can safely and efficiently perform its Work without such interference. As soon as practicable after the completion of all Punch List Items, Contractor shall remove all of its equipment and materials not constituting part of the Project and complete removal of all waste material rubbish, and other scrap material from and around the Site. All waste material and rubbish resulting from the Work shall be properly handled and recycled or disposed of by Contractor at its own expense in accordance with applicable Laws. Contractor shall provide to Owner copies of all waste disposal manifests, if any. Without limiting the foregoing, Contractor shall use reasonable efforts to ensure compliance with Owner’s goal of zero waste discharge such that all materials that come onto Site that are not incorporated into the Work shall be collected and recycled through Contractor-provided containers. Contractor shall be responsible for properly separating waste materials into the appropriate recycling containers. All obligations with respect to waste material and rubbish that are Hazardous Materials shall be governed by Section 2.9. Should Contractor fail to maintain a clean and orderly site, Owner shall notify Contractor of such deficiencies, and Contractor shall within two (2) Days remedy such deficiencies and provide notice to Owner that such deficiencies have been rectified.

2.8 Hazardous Materials.

2.8.1 Contractor shall not, nor shall it permit any of its Subcontractors to bring, use, generate or release any Hazardous Materials on the Site, other than either the Materials or any Hazardous Materials to be used by Contractor or any of its Subcontractors on the Site in a manner that both (a) does not violate or contribute to a violation of, or whether individually or on an aggregate basis require reporting or disclosure to any Governmental Authority, Owner or third party, under any Environmental Laws, and (b) is consistent with Prudent Industry Practices and is required or reasonably necessary for Contractor to perform the Work.

2.8.2 Contractor shall bear all responsibility and liability for Hazardous Materials used, generated or released on the Site by Contractor, or any of its Subcontractors, whether such Hazardous Materials are permitted to be brought on the Site pursuant to this Section 2.9 or are brought on the Site in violation of this Section 2.9; provided, Owner shall bear the responsibility and liability with respect to the Materials and any Hazardous Materials released by Owner, Owner’s other contractors, or third parties acting under the control of Owner. Contractor shall not be responsible for any pre-existing Hazardous Materials encountered at the Site;*provided, however,*that Contractor shall be responsible for any improper or negligent mishandling or disturbance by Contractor or any of its Subcontractors of any pre-existing Hazardous Materials encountered at the Site. If such pre-existing Hazardous Materials are encountered at the Site by Contractor, Contractor shall promptly, upon recognizing such condition (a) stop the Work in the area of the Site known by Contractor to be affected, and (b) report such condition to Owner in writing. Contractor acknowledges that if the Site may contain subsurface Hazardous Materials, there may be only limited use of ground penetration as set forth in Exhibit A. For the purposes of this Section 2.9, pre-existing Hazardous Materials shall mean Hazardous Materials that were present or existed at or in the Site prior to the date Contractor or any of its Subcontractors began the Work on the Site.

2.8.3 Contractor shall reasonably minimize the use of Hazardous Materials in performance of the Work and shall not utilize, or permit or cause any of its Subcontractors to utilize, such Hazardous Materials, whether in their entirety or in such quantities or concentrations, as are prohibited under any Law, including Environmental Law, from being imported into or used in the United States. Contractor shall maintain an updated file of all material safety data sheets for all Hazardous Materials used in connection with performance of the Work at or near the Site or at any construction area related to the Project. Contractor shall maintain an accurate record and current inventory of all Hazardous Materials used in performance of the Work at or near the Site or at any construction area related to the Project, which record shall identify quantities and concentrations, location of storage, use and final disposition of such Hazardous Materials. Copies of updated files, records and inventories related to Hazardous Materials shall be provided to Owner within ten (10) Business Days after the end of each month.

2.8.4 Subject to the provisions of Section 2.9.2, Contractor shall be solely responsible for compliance with Environmental Law pertaining to Hazardous Materials brought, used, generated or released in violation of Environmental Law to the extent such violation is caused by Contractor, or any of its Subcontractors, at the Site and for disposing of all Hazardous Materials brought to or used on the Site by Contractor, or any of its Subcontractors in accordance with this Section 2.9 through a reputable waste disposal service in compliance with all Environmental Law, and Contractor shall maintain written records of such disposal to the extent required by Environmental Law.

2.9 Subcontractors.

2.9.1 Contractor may engage one or more subcontractors, suppliers, vendors or consultants (collectively, “Subcontractors”) to perform its obligations (including the Work) under this Agreement; provided that Contractor shall remain liable for the performance of all of Contractor’s obligations hereunder; and Contractor shall ensure that all Contractor Personnel, Subcontractors, or any other Persons engaged by Contractor to perform services hereunder (including for labor and supervision) are properly licensed and qualified to perform the work that they are engaged to perform. Any Subcontractor whose services are valued in excess of five hundred thousand Dollars ($500,000) shall be considered a “Major Subcontractor.”

2.9.2 As between Owner and Contractor, Contractor agrees that it shall be fully responsible to Owner for the acts and omissions of the Subcontractors and of any Persons directly or indirectly Employed by them occurring during the course of their performance of the Work, to the extent and as if such Persons were directly Employed by Contractor. Contractor shall be solely liable for any costs or expenses incurred in connection with any Subcontractor, and Owner shall have no liability therefor.

2.9.3Reserved

2.9.4 Contractor shall not engage Subcontractors that do not agree to the following conditions (or such conditions have been waived in writing by Owner):

Such engagement is in writing;

All contracts with a Subcontractor shall impose obligations on such Subcontractors as is commercially reasonable in accordance with Prudent Industry Practices given the particular scope of work of such Subcontractor,provided that Contractor shall attempt to obtain terms from each Major Subcontractor at least as stringent as the obligations of Contractor contained herein, including with respect to the standard of performance, the Project Schedule, Work and Material warranties and guarantees, and audit and inspection rights of Owner;

All Subcontractors shall comply with the Prevailing Wage Requirements, and all contracts with any Subcontractor shall impose obligations on Subcontractors in substantially the same form and substance as imposed on Contractor pursuant to Section 2.17 herein, including the delivery of Monthly Compliance Reports pursuant to Section 2.13.1;

All Subcontractors shall comply with the insurance requirements set forth in this Agreement. Subcontractors may maintain insurance with lower coverage amounts than provided for herein and therein as appropriate for such Subcontractor’s scope of work,provided that Contractor shall obtain Owner’s prior written approval of the waiver of the insurance requirements for such Subcontractor;

2.9.5 Nothing contained herein shall create any contractual relationship between any Subcontractor and Owner with respect to the Work or the Project. No Subcontractor is intended to be, or shall be deemed to be, a third-party beneficiary of this Agreement.

2.10****Safety.

2.10.1 From the Commencement Date to the Final Completion Date, and also with respect to any Work Warranty performed thereafter during the Work Warranty Period, Contractor shall take all necessary precautions (in accordance with Prudent Industry Practice) to prevent damage, injury or loss resulting from the performance of the Work by Contractor to:

Owner and all other Persons who may come into contact with the Site or the Work;

any of the Materials, whether in storage on or off;

the BESS;

any other property on, over or adjacent the Site, including the Property, whether belonging to Owner or to any other Person, including buildings and other structures, facilities, fences, gates, pavements, roadways, sidewalks, walks, vegetation, livestock and utilities that are not designated for removal and disposal in the course of performing the Work; and

the effectiveness or accessibility of the utility, mechanical, electrical, drainage and sewer systems, and other systems installed or located on the Site, unless necessary to perform the Work. Contractor shall determine (using Prudent Industry Practice) the location of underground utilities and shall be wholly liable for any damage to any such utilities caused by Contactor’s failure to follow Prudent Industry Practice.

2.10.2 Contractor shall ensure that all Work carried out by it or on its behalf is conducted under necessary work protection consistent with Prudent Industry Practices and shall ensure that equipment being worked on is safely isolated and de-energized. Contractor shall have a written procedure that details all steps and precautions to safely perform any “hot tap” work and ensure that the Work is performed by personnel trained and qualified to perform such Work. Contractor shall ensure that only suitably trained and qualified Contractor Personnel shall be permitted to perform Work and that such Contractor Personnel will perform the Work in accordance with applicable Laws and Prudent Industry Practices.

2.10.3 Contractor shall initiate and maintain safety precautions and programs in accordance with the Contractor’s Safety Plan provided in Exhibit L and the Utility’s safety plan, if applicable, (collectively, the “Safety Plans”). Contractor shall conduct all Work in accordance with such Safety Plans as applied to the Site, the Property, and the Project. Contractor shall be solely responsible for initiating, maintaining and supervising all safety measures and programs in connection with the performance of Work. Such precautions and programs shall include the commercially reasonably prevention of injury to local flora and fauna. Contractor shall erect and maintain reasonable safeguards for the protection of workers and the public. Contractor shall exercise reasonable efforts to eliminate or abate all reasonably foreseeable safety hazards created by or otherwise resulting from performance of the Work. Contractor shall, and shall cause all of its employees, agents and Subcontractors to, (i) follow the Safety Plans and (ii) follow Utility’s safety and interconnection protocols (to the extent set forth in an Interconnection Agreement(s) to which Utility is a party) during the performance of Work relating to interconnection.

2.10.4 If Contractor becomes aware of any emergency event or circumstance related to the Project or the Work that poses a significant risk to human health or property, Contractor shall immediately take such action as may be necessary to prevent, avoid, or mitigate injury, damage, or loss and shall promptly notify Owner Representative of any such emergency and the related actions taken by Contractor.

2.10.5 Owner may take reasonable precautions to mitigate an emergency event or circumstance described in Section 2.10.4 if such emergency event is caused, or if Owner reasonably believes it may be caused, by Contractor’s non-compliance with its obligations pursuant to Sections 2.10.1 or 2.10.2. Contractor shall reimburse Owner for the costs incurred by Owner in taking such precautions. Any action or inaction by Owner pursuant to this Section 2.10.5 shall in no way limit Contractor’s liability or its obligations under this Agreement.

2.11****Coordination and Right to Inspect.

2.11.1Right to Inspect. Contractor acknowledges and agrees that Owner, Owner’s authorized representatives, and Engineer (the “Authorized Persons”) shall have the right to observe and inspect the Work and to maintain personnel at the Site for such purpose at all times during the performance of the Work, subject in all cases to Contractor’s reasonable safety precautions and provided said observation or inspection does not interfere with or result in a delay in the performance of the Work. Such Authorized Persons shall have the right to be present during commissioning and testing of the Project and shall, by way of example and not limitation, have reasonable access to test procedures, quality control reports, and test reports and data. Contractor shall make arrangements and provide for such access, and Owner shall be responsible for all costs associated with such observation (except as otherwise expressly set forth in this Agreement). Contractor shall have the right in its sole discretion to restrict access or remove from the Site, any Authorized Person who does not comply, is not capable of complying in Contractor’s reasonable opinion, or otherwise fails to observe or is incapable of observing the requirements of the Safety Plans or other safety restrictions, protocols and instructions of Contractor. Any such action by Contractor to remove or restrict Authorized Persons shall not constitute a breach of this Agreement by Contractor. No observation, inspection or review by Owner shall constitute an approval, endorsement, or confirmation of any drawing, plan, specification, subcontractor, Materials or Work or an acknowledgment by Owner that such drawing, plan, specification, subcontractor, Materials or Work satisfies the requirements of this Agreement; nor shall any such inspection or review relieve Contractor of any of its obligations to perform the Work and furnish the Materials or the Work so that the Project, when complete, satisfy the requirements of this Agreement.

2.11.2Defective Work. Prior to the Final Completion Date, Contractor shall, at its sole cost and expense, correct any part of the Work or Materials that is Defective or otherwise not performed in accordance with the specifications contained within this Agreement regardless of the time or place of discovery of such errors and regardless of whether Owner has previously accepted it through oversight or otherwise. If any part of the Work or Materials is discovered to be in a Defective condition or otherwise not in conformance with the specifications for such Work or Materials as contained within this Agreement after Final Completion, correction of such Defective condition or other nonconformity shall be governed by the Work Warranty. Any equipment failure that causes an error message on the equipment monitoring platform will be investigated and repaired or replaced, as necessary. Contractor’s obligations to correct Defective Work and/or Materials shall include, without limitation, all costs related to: (a) removal of Defective Work and/or Materials from the Site, (b) procurement of replacement equipment and materials (“Replacement Materials”) for the Defective Work and/or Materials, and (c) delivery of the Replacement Materials to the point of installation on the Site. Without limiting the generality of the foregoing, in the event any special equipment or additional labor is required to deliver the Replacement Materials to the point of installation, Contractor shall be responsible for payment of all additional costs relating to such special equipment and additional labor.

2.11.3Coordination. Contractor acknowledges that Owner may have other contractors performing work at or near the Site and/or on the Property, and has an ongoing and continuing business and may be conducting certain activities at the Site and/or on the Property. Contractor agrees to use reasonable efforts to schedule the performance of the Work in a manner that minimizes interference with the activities of Owner’s other contractors and with business and affairs. Owner agrees to cooperate with Contractor and to use reasonable efforts to coordinate the activities of Owner’s other contractors to minimize any interference with the Work or the Project Schedule. Owner shall provide Contractor with reasonably sufficient information concerning the activities of other contractors and allow Contractor to adequately plan the Work in coordination with such activities. Contractor shall perform the Work on the Site in a manner that complies with all Permits and Approvals and Site Requirements. Contractor shall not place any advertising, signs or similar devices of Contractor on the Site and/or Property at any time.

2.12****Labor and Personnel.

Contractor shall appoint, and indicate in writing to Owner, a “Project Manager” for the Project. The Project Manager, who may at any time be changed by Contractor through notification to Owner, shall be engaged in the Work and shall have full supervision over the completion of the Project, and shall act as the primary point of contact with Owner regarding all matters relating to the Project. All communications from Owner to Project Manager shall be deemed to be given to Contractor. In addition to the Project Manager, Contractor shall have a full-time person on the Site during construction.

Contractor shall provide all labor and personnel required in connection with the Work all of whom shall be reasonably competent to perform those portions of the Work each will perform on the Project. Notwithstanding the foregoing, Owner shall have the right to require the immediate removal and permanent expulsion from the Site and from any work associated with the Work of any person that at any time is found under the influence of or in possession of alcohol, marijuana, or illegal drugs while at the Site.

The Contract Price shall include, and Contractor shall have full and exclusive liability for, the payment of any and all taxes and contributions for unemployment insurance, old age retirement benefits, life pensions, annuities, subsistence, health and welfare, vacation, holidays, apprenticeship, or other fringe benefits or other payments to employee funds which are now or may hereafter be imposed or required by the United States or any state or locality or any labor agreement, whether measured by the wages, salaries, or remuneration paid to, or number of hours worked by persons Employed by Contractor or otherwise, for the Work to be performed hereunder.