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HomeMy WebLinkAbout20240806AgriPower Solar Contract.pdf ENGINEERING,PROCUREMENT AND CONSTRUCTION CONTRACT' This Engineering,Procurement,and Construction Contract(this "Contract'j,dated as of April 23, 2024 (the "Effective Date'), is by and between AgriPower Solar, LLC, a Utah limited liability company ("AgriPower'l and Young Family Farms("Company'l. RECITALS WHEREAS, Company desires to install, own and operate an approximately 583.20kW DC solar photovoltaic power system as more fully described in Exhibit B(the "System')to be located at Blackfootga= . ID 83221 (the "Site(s)'j; WHEREAS, AgriPower designs, engineers, constructs, and installs photovoltaic systems and is able to design,engineer,construct,and install the System; and WHEREAS, Company desires to retain and engage AgriPower to provide,and AgriPower desires to provide,the design,engineering,procurement,construction,and installation services for the System. NOW THEREFORE,in consideration of the mutual promises set forth below,and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties hereby agree as follows: AGREEMENT ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.1 Definitions. As used in this Contract, the following defined terms have the meanings indicated in Exhibit A attached hereto and incorporated by this reference herein. Section 1.2 Interpretation. Unless otherwise required by the context in which any term appears: (a)capitalized terms used in this Contract shall have the respective meanings set forth in Section 1.1. Exhibit A or where otherwise defined in this Agreement; (b)the singular shall include the plural and vice versa;(c)each tense shall be construed to include the masculine,feminine and neuter tenses; (d)the word"including"shall mean"including,without limitation";(e)references to"Articles,""Sections" and"Exhibits" shall be to articles and sections of, and exhibits attached to, this Contract; (f)the words "herein,""hereof,"and"hereunder"shall refer to this Contract as a whole and not to any particular Section; (g)references to this Contract shall include a reference to all Exhibits, as the same may be amended, modified,supplemented or replaced from time to time,and(h)references to "Dollar"and$shall mean the lawful currency of the United States of America. ARTICLE H THE WORK Section 2.1 Performance of the Work. (a) Services. AgriPower shall perform the Work in accordance with the Contract Documents and Industry Standards. AgriPower shall perform the following specific tasks in accordance with the terms herein: (i) Procure or supply all of the Equipment, arrange for the delivery of all Equipment to the Site; Concurrent with the execution of this Contract, the Parties will execute (i) an Operations and Maintenance Agreement (O&M) pursuant to which AgriPower agrees to provide O&M services for the System and a software agreement pursuant to which AgriPower will provide a license for software to manage the System according to the terms outlined in Exhibit D and(ii)a data license from Company to AgriPower pursuant to which AgriPower is granted an irrevocable and perpetual license to the data from the System. 1 (ii) In accordance with Exhibit B, design and provide engineering services with respect to the System; (iii) Provide, install, and complete all labor, Equipment, tools, supplies, construction equipment and machinery, consumables, transportation, and other facilities and services (including any temporary materials, equipment, supplies,and facilities)necessary for the proper execution and completion of the Work; (iv) Subject to Section 2.5, obtain and shall file, on a timely basis, any documents required to obtain any necessary Applicable Permits; and (v) Construct and install any Equipment necessary to complete the System in compliance with the Contract Documents and Applicable Permits, and shall install any Components,all in a manner consistent with Industry Standards. (b) Exclusions. AgriPower shall not perform any work or activity beyond the scope of the Work. In particular,the following shall,without limitation,not be included in the Work: (i) Within thirty (30) days of the execution of this contract, Company shall arrange for and make available access to the Site for AgriPower to perform the Work; (ii) Company shall be responsible for and shall bear payment of any Net Metering Application fees; any zoning and/or special, conditional, or other use permit application fees which may be required by local government agencies for the completion of the work; environmental studies where necessary; any transformer and/or line upgrades which may be required by the utility; additional trenching costs exceeding$4 per linear foot (i.e.due to required rock cutting); and (iii) Company shall be responsible for any environmental liabilities relating to the Site,except any environmental liabilities caused by AgriPower or its subcontractors as set forth in Article XII. (iv) Company shall be responsible for the cost of extending the warranty on inverters beyond the standard ten(10)years. Section 2.2 Representatives. Company designates, and AgriPower agrees to accept, Allen Young as Company's Representative for all matters relating to AgriPower's performance of the Work. Company may, upon written notice to AgriPower, change the designated Company's Representative. AgriPower designates,and Company agrees to accept,Joe Goodman as AgriPower's Representative for all matters relating to AgriPower's performance under this Contract. AgriPower may,upon written notice to Company,change the designated AgriPower's Representative.Each Party shall vest its Representative with sufficient powers to enable such Representative to assume the obligations of,and to exercise the rights of, AgriPower or Company,as applicable,under this Contract. Section 2.3 Estimated Installation Time. AgriPower estimates that the project will be completed approximately 12 to 18 months from the date of receipt of initial 60%down payment.AgriPower makes no warranty of its ability to complete the project by the estimated completion date. Given current global supply chain issues, Company acknowledges that conditions may exist which may prevent AgriPower from completing these projects within the Estimated Installation Time. Section 2.4 Protective Measures. AgriPower shall take all reasonably necessary precautions for the safety of its employees and Subcontractors on the relevant part of the Site where the System is located and prevent accidents or injury to individuals on,about,or adjacent to the premises where the Work is being performed.AgriPower shall be responsible for all injury or damage to individuals or property which may occur as a result of its fault or negligence, or that of its Subcontractors, in connection with the performance of the Work and shall indemnify the Company against any finding of liability arising therefrom. 2 Section 2.5 Company Obligations. Company shall (a)provide AgriPower with access to the Site and work areas that AgriPower requires for completion of the Work,(b)provide AgriPower access,at no cost to AgriPower, to a secure space on the Site to store the Equipment and materials until Final Completion, (c)provide the same level of protection for the System as it provides for the protection of its own property at the Site,(d)fully cooperate with AgriPower in its efforts to obtain the Applicable Permits, and(e)make the required payment installments within the number of days allowed herein. Section 2.6 Compliance with Applicable Laws.AgriPower shall comply with,and perform the Work in accordance with, Applicable Laws in all material respects. Notwithstanding the foregoing, AgriPower shall not be responsible for any environmental liabilities relating to the relevant part of the Site where the System is located,except for such Hazardous Materials as are brought onto the Site by AgriPower during construction of the System. The removal of any pre-existing Hazardous Material found on the Site shall be the responsibility of and at the cost of Company. Section 2.7 Inspection. All Work performed by AgriPower and all Components and Equipment shall be subject to inspection by Company.Such right of inspection shall not relieve AgriPower of any responsibility for the proper performance of the Work or Components and Equipment to the extent provided under this Contract. Company shall use reasonable efforts to ensure that the inspections do not affect AgriPower's ability to perform its obligations under this Contract. Section 2.8 Performance Tests. AgriPower's technical personnel shall operate the System during the Performance Tests at or prior to the time of System Commissioning.Successful Commissioning by the Utility shall constitute a successful Performance Test and satisfy the requirements thereof.Company (and Company's personnel) shall be entitled to be present during any Performance Tests and shall give written notice to AgriPower within ninety(90) days of the Contract Date if Company intends to have its representative present during testing so that AgriPower may notify the Company in advance of the test. If the System(or any portion thereof)fails to satisfy the Performance Tests,AgriPower shall take all necessary actions to bring the System into compliance with the requirements of Substantial Completion as defined herein. Section 2.9 Renewable Energy Credits and Incentives.Company shall own,and may assign or sell in its sole and absolute discretion, all right,title, and interest in all green attributes,renewable energy credits,production,investment and/or energy tax credits(or grants in lieu of),and any other environmental financial incentives or similar financial rebates or incentives associated with, or resulting from, the development and installation of the System or the production,sale,purchase or use of the energy output of the System.Company shall be solely entitled to and responsible for soliciting and obtaining any subsidies, rebates or other incentives that may be available from any Governmental Authority or local electric utility pursuant to, or in connection with, the purchase of the System or otherwise. If requested by Company, AgriPower shall provide any assistance reasonably necessary to enable Company to obtain such subsidies, rebates, or incentives. Section 2.10 Contingencies. Notwithstanding any other provisions herein, this Contract is contingent upon the occurrence of one or more of the conditions listed below. Upon failure of any listed condition applicable to Company, Company has the option to terminate the Contract by providing written notice to AgriPower within five (5) business days of Company's first notice of any such failure of the described condition(s). If Company fails to provide such notice timely to AgriPower, it waives its option to terminate. (a) Approval by Utility. The relevant utility must approve at least One-hundred 1000/o of the meters identified in the Net Metering Application within 30 days of such application being submitted by Company to the utility. If Net Metering approval is given of at least One-hundred(100% of the meters for which application is submitted,the contract price will be adjusted proportionately to the approved number of meters.If at least One-hundred 1( 00%)is not given,then parties shall have 5 business days to agree upon a revised contract price. 3 (b) Ability to Finance. The Company shall have sixty(60) days from the Effective Date of this contract to verify its ability to obtain the necessary financing to pay for the system. (c) Use Permit Approval.The Company shall have 120 days from the Effective Date of this contract to obtain approval for any special, conditional, or other use permit(s) from the relevant county or counties. (d) seeufe additional eensent from pei4inent diW paFty landowner-s before iffeveeably binding the sites under- eentr-aet. Company shall have thirty(30) days following the emee-uti-en AMC this agr-eefRelit te sue�h ARTICLE III SUBSTANTIAL COMPLETION Section 3.1 Substantial Completion. Within five(5)business days after AgriPower's delivery to Company of written notice that the conditions to the achievement of Substantial Completion have been met accompanied by reasonable evidence of the satisfaction or occurrence of all such conditions,Company shall deliver to AgriPower(a)a Substantial Completion Certificate confirming the Substantial Completion Date, or(b)written notice detailing why Company believes in good faith the requirements of Substantial Completion have not been met.Upon receipt of a written notice from Company detailing the requirements that have not been met,AgriPower shall correct any defects or perform any remaining Work to satisfy the requirements of Substantial Completion.If Company fails to respond to AgriPower's written notice within the five(5)Business Day period, then AgriPower's notice shall be deemed approved and Company shall execute and deliver to AgriPower the Substantial Completion Certificate. Following issuance of the Substantial Completion Certificate,care and custody of the System shall be Company's sole responsibility. Section 3.2 Punch List.At Substantial Completion,if Company believes in good faith that the requirements of substantial completion have not been met, Company and AgriPower shall agree on the punch list items for the System. Section 3.3 The punch list shall be completed no later than five (5) business days after the Substantial Completion Date. Notwithstanding anything in this Contract to the contrary, Substantial Completion shall not be withheld for failure to obtain any Applicable Permits that do not materially affect the lawful and technical operation of the System or any material portion thereof. ARTICLE IV FINAL COMPLETION Section 4.1 Final Completion. Final Completion shall be deemed to have occurred when all punch list items contemplated in Section 3.3 have been completed or waived. Upon Final Completion, AgriPower shall submit to Company a written statement requesting acknowledgement thereof. Such acknowledgment shall be executed by Company within five(5)Business Days after the receipt by Company of such written statement unless Company in good faith provides written notice of AgriPower's failure to achieve Final Completion,following which AgriPower shall correct any defects or perform any remaining Work to satisfy the requirements of Final Completion and shall thereafter resubmit such statement. Execution of the acknowledgment by Company shall constitute Final Completion. Section 4.2 Condition of Site. After Final Completion,AgriPower shall remove debris,unused equipment(other than spare parts) and surplus materials from the portion of the Site where the System is located and leave such portion of the Site in the same condition as it was found upon commencement of the Work,normal wear and tear and installation of the System excepted. 4 Section 4.3 Technical Contract Documents to be Delivered by AgriPower. No later than sixty (60) days after the date of receipt of Final Payment, AgriPower shall deliver to Company any operation manuals that have been provided to AgriPower in connection with the purchase of Equipment_ ARTICLE V PAYMENT AND CHANGES Section 5.1 Contract Price. Subject to any Change Orders approved in accordance with the terms herein, as full compensation for the performance of the Work and all of AgriPower's obligations hereunder Company shall pay to AgriPower$1,417,500.00(the "Contract Price'l in accordance with the schedule set forth below (the "Payment Schedule'). Except as otherwise set forth herein (including Section 5.5), the Contract Price is not subject to adjustment, and includes all expenses to be incurred by AgriPower including Equipment, Components, and materials, erection, Commissioning,and Performance Tests, inclusive of cost of travel and lodging expenses, related to AgriPower's performance of its obligations under this Contract. Milestone Payment%of Contract Price Initial Downpayment—Payment due upon execution of contract and 60% satisfaction of contingencies where applicable Completion of Foundations—Payment due within 10 days of 20% notification of completion Substantial Completion—Payment due within 10 days of notification 10% of Substantial Completion Final Completion—Payment due within 10 days of notification of Final 10% Completion Section 5.2 Payment. Company shall,promptly following receipt by Company of an invoice from AgriPower indicating the status of the milestone set forth in the Payment Schedule,accompanied by reasonable supporting documentation, if applicable, verify that the System has achieved such milestone, and pay AgriPower the applicable payment within ten (10) days after receipt of AgriPower's invoice. Change Order requests that are permitted or have been approved by Company in each case in accordance with Section 5.5 and the terms herein shall be invoiced upon completion of the Work authorized by or as otherwise set forth in the Change Order. Overdue payment obligations of Company hereunder shall bear interest from the date due until the date paid at a rate per annum equal to the rate published by the Wall Street Journal as the "prime rate"on the date on which such interest begins to accrue plus twelve percent (12%),except in the case of a mechanics'and materialmen's lien(in which case the statutory rate,if higher, applies). (a) If final payment is not made within thirty(30) days of Final Completion Date, AgriPower reserves the right to stow and disable the system until Final Payment is received. Section 5.3 Suspension of the Work. AgriPower may suspend the Work temporarily if Company fails to make any payment within ten(10)days after the date on which such payment is required to be made hereunder or otherwise is in breach of its obligations hereunder,and Company shall bear all the damages,costs,and expenses caused by the suspension. Costs properly incurred by AgriPower(including mobilization costs, insurance fees, and others) shall be added to the Contract Price pursuant to a Change 5 Order,so long as the suspension did not arise due to any act,omission,or default on the part of AgriPower. Failure to make prompt payment installments shall also delay project completion. Section 5.4 Taxes. In addition to the Contract Price,Company assumes liability for and shall pay before delinquency (or reimburse AgriPower for) all federal, state, or local sales, use, value added, excise and other taxes,charges,or contributions,and other similar duties imposed on,or with respect to,or measured by, the Equipment, Components, or other matters contemplated by this Contract; provided, however,that AgriPower shall be liable for all taxes on its net income and all payroll and other employment and compensation taxes related to AgriPower's employees. Section 5.5 Changes. (a) Without invalidating this Contract,Company may initiate a change in the Work to be performed on the System by advising AgriPower in writing of the change believed to be necessary. As soon as practicable after such notice,AgriPower shall prepare and forward to Company in writing the price for the extra or changed Work on the System pursuant to a Change Order and any required adjustment to the Contract Price or any other term or condition of this Contract. Except for minor modifications in the Work not involving extra cost and not inconsistent with the purposes of the Work, and except in an emergency endangering life or property, all authorized extra Work or changes,and the agreed to price,shall be confirmed through a Change Order to this Contract,and no change or extra Work shall be effective without a Change Order signed by Company and accepted in writing by AgriPower. (b) AgriPower may propose Change Orders to Company if those Change Orders would improve the System,reduce costs of the System,or are otherwise advisable for the Work. Unless accepted by Company, such proposals shall not affect the obligation of AgriPower to perform the Work and to deliver the System in the form agreed in this Contract. If a change in Applicable Law(including import duties,tariffs,and similar charges)or conditions at the Site increase AgriPower's costs or expenses in performing the Work; in either case AgriPower provides documentation thereof to Company, then AgriPower shall be entitled to an equitable increase in the Contract Price pursuant to a Change Order and Company shall execute and deliver such Change Order. (c) Upon approval of site location by Company, AgriPower will provide Company with a site map approval form for signature. Company understands that subsequent changes to the designated location of sites or arrays after the execution of the site map approval form can result in significant costs to AgriPower and delays in its ability to complete the Work and will require a signed change order form and corresponding change fees to be submitted by Company to AgriPower. A change order form and change order fee are required for each subsequent change to the approved site map(s).Company shall have five(5)days from the date of transmission of initial Site Map(s)to return a signed copy of the approved site map(s)to AgriPower. Any delays in approving site map(s)by Company will result in potential additional costs,as well as delayed work and Project Completion Date.Both AgriPower and Company will work together to ensure initial correct site placement to avoid any such changes to the degree possible. ARTICLE VI TITLE,LOSS OR DAMAGE,FORCE MAJEURE Section 6.1 Title. Title to all Equipment, Components, materials, and other items comprising the System shall pass to Company upon the earlier of(a)final payment therefore having been received by AgriPower from Company, and (b) the date of Substantial Completion. Notwithstanding the foregoing, both parties agree that AgriPower shall maintain control of the System for the first twelve (12) months following Substantial Completion Date. Section 6.2 Risk of Loss. 6 (a) From the Effective Date until the Substantial Completion Date, and except as otherwise set forth herein,AgriPower assumes risk of loss and full responsibility for the cost of replacing or repairing any damage to the System and all materials, Components, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies)regardless of whether Company has title thereto, subject to Section 2.5,provided, however, that the foregoing shall not apply with respect to any loss or damage that is caused by the acts or omissions of Company or its agents, employees or representatives. Company shall bear the risk of loss and full responsibility for the System and all materials, Components, Equipment, supplies, and maintenance equipment(including temporary materials, equipment, and supplies) from and after the Substantial Completion Date, and prior to such date with respect to any loss or damage that is caused by the acts or omissions of Company or its agents, employees, or representatives. If any Component or Equipment is lost or damaged for whatever reason from and after the Substantial Completion Date,then AgriPower may agree,pursuant to a Change Order signed by both Parties, to restore or rebuild any such lost or damaged Component or Equipment and complete the Work in accordance with this Contract(and pursuant to such Change Order)at the cost and expense of Company. (b) In order for AgriPower to perform the Work hereunder, Company shall make available, at no additional cost or expense to AgriPower a segregated and secure storage area in which AgriPower may store the Components, Equipment, supplies, tools, and other materials (including temporary materials, equipment, and supplies) when not in use by AgriPower until the Components, Equipment and other materials are installed as part of the System or removed from the Site following Final Completion, as applicable. Company shall take reasonable steps to protect and secure such Components and Equipment from damage. Section 6.3 Ownership of Plans,Data,Reports and Material.AgriPower shall own the Design Package, its working papers, preexisting materials, software and associated source code, trade secrets, intellectual property, general skills, know-how, and processes (collectively, "AgriPower Materials'). AgriPower hereby grants to Company a limited, nonexclusive, worldwide, royalty-free, non-transferable (except in accordance with Article 12)right and license to the Design Package solely to the extent necessary for Company to operate,maintain, and repair the System. The license granted to Company in this Section 6.3 shall be irrevocable with respect to the System,unless AgriPower terminates this Agreement pursuant to Section 7.2. Section 6.4 Force Majeure.No Party shall be liable to the other Party,nor be deemed to have breached this Contract, for any failure or delay in performing its obligations hereunder (except for any obligations to make payments hereunder), when and to the extent the failure or delay results from acts beyond the impacted parry's ("Impacted Party'l reasonable control ("Force Majeure Events'l. The Impacted Party shall give notice to the other Party within ten(10)Business Days after the Impacted Party becomes aware of the Force Majeure Event, stating the period of time the occurrence is expected to continue.The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized.Any Work done or materials furnished by AgriPower in restoring or rebuilding the System following a Force Majeure Event will be paid for by Company as extra work pursuant to a Change Order. ARTICLE VII DEFAULT; TERMINATION Section 7.1 Events of Default. The following shall constitute an "Event of Default"of either Party: (a)a Party fails to make any undisputed payment required hereunder within 10 days after written notice thereof from the other Party;(b)a Party fails to comply with any material provision of this Contract not otherwise set forth as an Event of Default in this Section 7.1 and fails to cure or remedy such failure within 30 days after written notice from the other Party, provided that if such failure is not reasonably 7 capable of being cured during such period,such period shall be extended so long as the defaulting Party is working diligently to remedy such failure,such cure period not to exceed 120 days in the aggregate;or(c)a Party becomes insolvent or files, or has filed against it (which is not dismissed within 90 days of such filing),a petition for voluntary or involuntary bankruptcy or under any other insolvency law,makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to,the appointment of a trustee,receiver,or custodian for a substantial part of its property,or is generally unable to pay its debts as they become due. Section 7.2 Remedies Upon an Event of Default. Upon the occurrence and continuation of an Event of Default on the part of the defaulting Party, the non-defaulting Party has the right, upon written notice,to suspend its performance of this Contract or terminate this Contract upon ten(10)days' notice to the defaulting Party. Section 7.3 Termination of Contract on Completion. Subject to Section 13.7, this Contract shall terminate and be of no fiu-ther force and effect upon satisfaction of the conditions set forth in Section 4.1 and receipt by AgriPower of the remainder of the Contract Price. Section 7.4 Remedies. The remedies in this Article VII shall be inclusive and additional to any other remedies that may be available under Applicable Law, and no action by a non-defaulting Party shall constitute a waiver of any such right or remedy. ARTICLE VIII REPRESENTATIONS AND WARRANTIES Section 8.1 Mutual Representations and Warranties.Each Party represents and warrants to the other Party that the execution and delivery of this Contract(a)has been duly authorized by all necessary procedures,(b)does not violate any provision of the Party's governing documents or Law,and(c)does not result in the breach of any agreement or permit by which such Party is bound. Section 8.2 Representations and Warranties of AgriPower. AgriPower represents and warrants to Company that AgriPower has (either directly or through its Subcontractors) all the required authority, ability,skills,experience,and capacity necessary to perform the Work. Section 8.3 Representations and Warranties of Company. Company represents and warrants to AgriPower that Company(a)possesses all requisite power,authority,and solvency to engage AgriPower to perform the Work,(b)has not received written notice of any claim and there is no pending or threatened claim against Company which seeks the issuance of an order restraining,enjoining,or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Contract, and(c)has sufficient funds to satisfy its payment obligations hereunder. ARTICLE IX WARRANTIES Section 9.1 General. Subject to the exclusions set forth in Section 9.2 and the limitations set forth in Section 9.3,AgriPower warrants for a period of one(1)year from the date of Final Completion(the "Warranty Period') that (a)all Work will be performed in accordance with Industry Standards and all requirements of this Contract, (b)the installation and construction services related to the System will be free from defects in installation under normal application,use,and service conditions,and(c)all Equipment fumished in connection with the Work will be new, unused,and undamaged at the time of delivery to the Site (the "Warranty'). As AgriPower's sole obligation and Company's sole remedy for breach of the Warranty, AgriPower will repair, replace, or correct any failures or defects or deficiencies under the Warranty that Company in good faith notifies AgriPower of during the Warranty Period. Section 9.2 Warranty Exclusions. AGRIPOWER DOES NOT MAKE (AND HEREBY EXPRESSLY DISCLAIMS) ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, INCLUDING THE DOLIED WARRANTIES OF MERCHANTABILITY AND 8 FITNESS OF A PARTICULAR PURPOSE. The Warranty obligations of AgriPower do NOT extend to: (a)maintenance of the System or the Equipment, (b)any Equipment or Supplier warranties, or (c)any damage, failure, defect, or deficiencies resulting from(i)the negligent acts or omissions of Company, its contractors or other third parties not under the control of AgriPower, (ii)Force Majeure Events, (iii) The successful installation and commissioning of the System within the Estimated Installation Time,or(iv)the failure of Company to maintain and operate the System or the Equipment materially in accordance with all instructions, practices, and procedures of which Company has been advised herein or in writing by AgriPower. Section 9.3 Limitations of Warranty and Liability. AgriPower makes no warranties whatsoever regarding the Component parts of the system. AgriPower does, for Equipment purchased through AgriPower, hereby assign and pass through to Company all Suppliers' and manufacturers' warranties for Equipment to the greatest extent such warranties are assignable. Section 9.4 Pass-Through Warranties. AgriPower shall provide Company with copies of pass- through warranties provided by Suppliers for the benefit of Company and its assigns. Company shall be responsible for supervising and making claims under such warranties. Section 9.5 Inverter Extended Warranty. Inverters included in the System come with a standard 10-year warranty.Company may elect to purchase an extended warranty from the inverter manufacturer(to a total of 20 years)for an additional$1,250 per inverter. ARTICLE X INSURANCE Section 10.1 AgriPower Insurance. AgriPower shall procure and maintain, in full force and effect,at all times,commencing no later than commencement of the Work at the Site and until the date of Substantial Completion,the following insurance policies:General Contractor Liability Policy in the amount of$5,000,000.00. In addition, AgriPower shall procure and maintain an Installation Floater Policy with coverage limit of$1,000,000.00. Section 10.2 Company Insurance. Company shall procure and maintain,in full force and effect, at all times during the period commencing no later than commencement of the Work at the Site and until the date of Final Completion,the following insurance policy: general liability insurance in an amount not less than$1,000,000,and to provide evidence of the same upon request. Section 10.3 General. Upon a Party's request, the other Party shall provide to the requesting Party certificates of insurance evidencing the insurance set forth in Section 10.1 or Section 10.2, as applicable(the "Required Insurance'l.Each Party shall notify the other Party at least 30 days prior to any cancellation or expiration of any insurance policy provided hereunder.Total responsibility for insuring the system including all of its components will transfer from AgriPower Solar to Company upon the date of Substantial Completion of each individual Site. ARTICLE XI INDEMNIFICATION AND LIMITATION ON LIABILITY Section 11.1 AgriPower Indemnity. To the fullest extent permitted by Applicable Law, AgriPower shall indemnify,hold harmless, and defend Company and its Group from and against any and all losses,costs,and expenses(including reasonable attorneys' fees)incurred by Company or a member of its Group as a result of a third party claim,demand,or action,to the extent arising from(a)physical damage to or physical destruction of property,or death of or bodily injury to any person caused by(1)the negligence or willful misconduct of AgriPower or its Group in connection with the Work or the System,or(2)a breach by AgriPower of its obligations, representations, or warranties contained herein, (b)any unauthorized release by AgriPower of a Hazardous Material brought onto the Site by AgriPower, (c)AgriPower or its Group's infringement,misuse,or misappropriation of any third-party intellectual property rights,(d)claims 9 or liens filed as a result of AgriPower's failure to pay its suppliers or sub-contractors the contracted value of their goods and/or services. Section 11.2 Company Indemnity. To the fullest extent permitted by Applicable Law,Company shall indemnify, hold harmless, and defend AgriPower and its Group from and against any and all losses, costs,and expenses(including reasonable attorneys'fees)incurred by AgriPower or a member of its Group as a result of a third party claim, demand, or action, to the extent arising from (a)physical damage to or physical destruction of property,or death of or bodily injury to any person caused by(1)the negligence,or willful misconduct of Company or its Group in connection with the ownership and use of the System or the Site,(2)a breach by Company of its obligations,representations,or warranties herein,or(3)any condition on the Site, and (b)any unauthorized release by Company of a Hazardous Material or any preexisting Hazardous Materials at the Site. Section 11.3 Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages and covenants that it will use commercially reasonable efforts to minimize any damages it may incur as a result of the other Party's performance or non-performance of this Contract. Section 11.4 Indemnity Procedure. A Party intending to claim indemnification under this Contract("Indemnified Party') shall promptly notify the indemnifying Party("Indemnifying Party') of any claim in respect of which the Indemnified Party intends to claim such indemnification; provided, however,that the failure to provide such prompt notice shall not affect a Party's rights to indemnification if such failure to deliver notice does not materially prejudice the Indemnifying Parry's ability to defend the claim. Indemnifying Party shall have the right to control the defense or settlement of the claim, but Indemnified Party shall cooperate with the Indemnifying Party in the defense of the claim and may have its own counsel present at its own cost.The Indemnifying Party will not be liable for any liabilities associated with the settlement of any claim or action against the Indemnified Party unless the Indemnifying Party has received prior notice of the settlement and has agreed to the terms of the settlement. Section 11.5 Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THIS CONTRACT,AGRIPOWER'S AGGREGATE LIABILITY UNDER OR IN RELATION TO THIS CONTRACT WILL NOT EXCEED THE SUM OF THE TOTAL AMOUNT PAID TO AGRIPOWER BY COMPANY. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST REVENUES OR PROFITS OR ANY SPECIAL,CONSEQUENTIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES (INCLUDING, IN EACH CASE, LOST REVENUES OR PROFITS), WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF SUCH LOSSES/DAMAGES IN ADVANCE, RELATING TO THIS CONTACT OR THE SUBJECT MATTER HEREOF WHETHER SUCH LIABILITY IS IN CONTRACT, TORT(INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY),OR OTHERWISE. ARTICLE XII ASSIGNMENT Section 12.1 No Assignment Without Consent. Except as set forth in Section 12.2, no Party shall be entitled to assign this Contract or any of its rights or obligations under this Contract, nor shall it enter into any transaction as a result of which it may transfer,assign,charge or dispose by any title of any of those rights and obligations,without the prior written consent of the other Party. Section 12.2 Permitted Assignment. Company may assign this Contract without consent of AgriPower to any Person that acquires Company's right, title, and interest in the Site; provided that Company provides AgriPower notice of such assignment and the assignee assumes in writing all of the Company's obligations hereunder. AgriPower may assign this Contract without consent of the Company, in whole or in part,(a)to an affiliate of AgriPower,(b)in connection with a merger,consolidation,or a sale or transfer of all or substantially all of the assets to which this Contract relates,or(c)as collateral;provided that AgriPower under clause (a) or (b) provides Company notice of such assignment and the assignee 10 assumes in writing all of the AgriPower's obligations hereunder.Any assignment in violation of this Section shall be null and void.AgriPower may employ Subcontractors for the performance of portions of the Work, but AgriPower,as between Company and AgriPower,shall,at all times,be fully responsible and liable for all Work performed by,and all acts and omissions of, Subcontractors. ARTICLE XIII MISCELLANEOUS Section 13.1 Governing Law. This Contract shall be governed by the Laws of Utah,excluding any conflicts of law principles. Section 13.2 No Waiver. The failure of either Party to insist upon or enforce, in any instance, strict performance by the other Party of any of the terms of this Contract or to exercise any rights herein conferred shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon any such terms or rights on any future occasion.No waiver shall be valid unless stated in writing. Section 13.3 Notices and Demands.Except for the delivery of invoices and consents and notices in connection with an emergency,all consents or notices hereunder shall be(i)sufficient if given in writing and delivered in person,or by overnight courier,or certified mail to the receiving Party at the address shown below, or to such other address as such Party may have given to the other by notice pursuant to this Section 13.3; and (ii)deemed delivered, given, and received (a)on the date of delivery, in the case of delivery via personal delivery, (b)on the delivery or refusal date, as specified on the return receipt in the case of certified mail,or(c)on the tracking report,in the case of overnight courier: Company: Young Family Farms Address:1543 W Taber Rd,Blackfoot,ID 83221 Attn:Allen Young Phone#: Mobile#: 208-681-3891 Email: allenyoungfarms@gmail.com Alternate Attn:Adam Young Phone#: Mobile#: 208-680-0885 Email: AgriPower Solar,LLC 40 West Truman Ave. Salt Lake City,UT Attn: Office Email: Office@AgriPowersolar.com Section 13.4 Nondisclosure. Subject to the remainder of this Section 13.4, neither Party (the "Receiving Party'l shall disclose the Confidential Information of the other Party(the "Disclosing Party') to third parties without the Disclosing Party's prior approval. "Confidential Information"means the terms and conditions of this Contract and all non-public documents and information designated by the Disclosing Party as "Proprietary"or "Confidential"or that the Receiving Party knows or has reason to know the Disclosing Party treats as confidential. "Confidential Information"shall not include information that was (i)in the public domain, or that subsequently becomes part of the public domain, except by the wrongful disclosure hereunder by the Receiving Party,(ii)in the Receiving Parry's possession prior to receipt of the same hereunder and was not acquired from a third party under any obligation of confidentiality known to the Receiving Party, (iii)received from a third party who had a right to make such disclosure, or (iv)independently developed by the Receiving Party. The Receiving Party may disclose Confidential 11 Information to(a)its banks and lenders, and(b) its third-party professional advisors,potential purchasers and investors that are acting solely for the Receiving Party or the Receiving Party's affiliates' benefit and that have a need to know such information in order to provide advice or services to or evaluate a transaction with the Receiving Party,provided that such third parties agree to not disclose the Confidential Information to any third party without the Disclosing Party's prior consent.If a Receiving Party is compelled to produce Confidential Information of the Disclosing Party by Law, the Receiving Party shall give the Disclosing Party prompt notice of such legal process and shall reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate protection. Section 13.5 Publici1y. Notwithstanding Section 13.4, AgriPower shall have the right to take photographs, videos, and other recordings of the System and use such photographs, videos, and other recordings for AgriPower's marketing and advertising purposes. Section 13.6 Validi1y. The invalidity, in whole or in part, of any provisions hereof shall not affect the validity of any other provisions hereof. Section 13.7 Survival. Sections 5.4 and 6_4, and Articles IX, X XI and XIII and Exhibits referenced in such Articles and Sections shall survive termination of this Contract and shall survive final payment to AgriPower following Final Completion. Section 13.8 Binding Effect. This Contract shall be binding on the Parties and on their respective permitted successors,heirs,and assigns. Section 13.9 No Oral Modifications. No oral or written amendment or modification of this Contract shall be of any force or effect unless such amendment or modification is in writing and is signed by the Party to be bound thereby. Section 13.10 Headings. The headings in this Contract are for convenience of reference only and the words contained therein shall in no way be held to explain,modify,amplify,or aid in the interpretation, construction or meaning of the provisions of this Contract. Section 13.11 Counterparts. This Contract may be executed in counterparts which,taken each of which,when executed, shall be deemed to be an original and all of which together, shall be deemed to be one and the same instrument. Delivery of an executed counterpart of a signature page to this Contract by facsimile or other electronic means(e.g.,electronic mail or.pdf)shall be effective as delivery of an original counterparty to his Contract. Section 13.12 Authori . Each individual executing this Contract on behalf of Company and AgriPower represents and warrants that he or she is duly authorized to execute and deliver this Contract on behalf of said Party and that this Contract is binding upon said Party in accordance with its terms. Section 13.13 Complete Agreement.This Contract constitutes the complete and entire agreement between the Parties and supersedes any previous communications,representations,or agreements,whether oral or written, with respect to the subject matter hereof. There are no additions to, or deletions from, or changes in,any of the provisions hereof,and no understandings,representations or agreements concerning any of the same,which are not expressed herein,unless stated below. Section 13.14 No Agency.This Contract is not intended,and shall not be construed,to create any association,joint venture, agency relationship or partnership between the Parties or to impose any such obligation or liability upon either Party.Neither Party shall have any right,power,or authority to enter into any agreement or undertaking for,or act as or be an agent or representative of,or otherwise bind,the other Party. 12 The Parties have duly executed and delivered this Contract as of the date first written above. AGRIPOWER SOLAR,LLC, a Utah limited liability company By: C Name-ZoeGoodman Title: CEO Date: Z YOUNG FAMILY FARMS, By: C -V-, Name: AbAM 1 oytj G- Title: 'PAr(Z.Ttif&2 Date: y/:�3/a L1 Please initial next to the inverter warranty option you elect below. I elect to purchase the extended inverter warranty for each of the proposed installation sites listed in Exhibit C ("Installation Sites") at a rate of$1,550 per inverter. Note Ay that the number and type of required inverters is outlined in Exhibit C ("System I Technical Specifications."). I elect NOT to purchase the extended inverter warranty for each of the proposed installation sites and acknowledge that any inverter issues not repairable beyond the standard manufacturer warranty period will require the purchase of a replacement inverter at the retail rate at the time of replacement. i3 EXIMIT A DEFINITIONS to ENGINEERING,PROCUREMENT,AND CONSTRUCTION CONTRACT dated April 23,2024 between AgriPower Solar,LLC and Young Family Farms "AgriPower's Representative"shall mean the individual designated by AgriPower in accordance with Section 2.2. "Applicable Law"shall mean applicable federal, state, and local laws, codes, rules, regulations, and orders of any Governmental Authority. "Applicable Permits"shall mean all permits,waivers,authorizations,and licenses required by any Governmental Authority for the performance of the Work. "Business Day"shall mean any day other than a Saturday, Sunday or other day on which banks are required to close in Idaho. "Change Order" shall mean a document signed by Company and AgriPower authorizing an addition,deletion,or revision to the Work or an adjustment to the Contract Price or Payment Schedule. "Commissioning" shall mean that (i)the System and all related contracts and agreements have been assigned to Company,(ii)the System is connected to the local electric utility's meter,(iii)final electric utility and state safety inspections are passed,and(iv)AgriPower has energized the system and confirmed that system operational parameters are within the design specifications. "Company's Representative" shall mean the individual designated by Company in accordance with Section 2.2. "Components"shall mean the solar panels, inverters, foundations, racking system and parts and data information application for the System that are supplied by AgriPower to Company. "Contract Documents"shall mean this Contract,the Exhibits,and drawings,specifications,plans, calculations, models and designs, including documents that have been prepared by AgriPower or any Subcontractor exclusively for the Work that are part of the Design Package. "Contract Price" shall mean the amount that is payable by Company to AgriPower for the performance of the Work under this Contract set forth in Section 5.1, as the same may be modified from time to time in accordance with the terms hereof. "Design Package"shall include the structural,mechanical, and electrical construction documents and other key documents. "Equipment"shall mean the equipment of the System,including all materials,supplies,apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required for prudent construction or operation of the System in accordance with Industry Standards,excluding the Components. "Final Completion"shall mean satisfaction or waiver of all of the conditions for completion of the System set forth in Section 4.1. "Final Completion Date"shall mean the date on which Final Completion occurs. "Financier"shall mean the individual or financial institution that may provide funding for some or all the cost of the project. A-1 "Force Majeure Event"shall have the meaning set forth in Section 6.4. "Governmental Authority" shall mean any federal, state, or local administrative, regulatory, judicial,or governmental authority. "Group"means a Party's officers,members,managers, directors,members, affiliates, agents and employees. "Hazardous Material"shall mean any substance which is or becomes listed, defined, designated or classified under any Applicable Law as a hazardous material, substance, constituent or waste, toxic material, substance, constituent or waste, radioactive material, substance, constituent or waste, pollutant, contaminant, or special waste, including petroleum, petroleum products, asbestos, urea formaldehyde, or polychlorinated biphenyls. "Industry Standards"shall mean those practices,methods,equipment,specifications,standards of care and diligence as used by a significant portion of solar construction and installation firms in performing services of a similar nature in jurisdictions in which the Work will be performed, and in accordance with good construction practices,Applicable Law,and Applicable Permits. "Meter Base"shall mean the enclosure containing the utility electrical meter for the System. "Nameplate Rating"shall mean the actual DC production capacity of the solar module's front side only. When bifacial modules (modules capable of production from both front and back sides) are used, actual DC production may exceed the nameplate rating. "Parties"shall mean,collectively,Company and AgriPower;and"Party"shall mean,individually, Company or AgriPower. "Performance Tests" shall mean the following tests of the System, or portions thereof, in accordance with Industry Standards: (i) Power generation (ii) Phase voltage and frequency (iii) Tracker performance and(iv)Tracker control. "Person"shall mean any individual,corporation,partnership,company,joint venture,association, trust,unincorporated organization or Governmental Authority. "Representatives" shall mean, collectively, Company's Representative and AgriPower's Representative. "Site"shall mean any installation consisting of one or more AgriPower Solar arrays which meets the requirements of Substantial Completion defined herein. "Site Approval Forms"shall mean the site map of each Site and any accompanying documents that must be reviewed and signed by Company's Representative prior to commencement of work. "Subcontractor" shall mean any Person, other than AgriPower or any Suppliers, retained by AgriPower to perform any portion of the Work in furtherance of AgriPower's obligations under this Contract. "Substantial Completion" shall mean satisfaction or waiver of all of the following conditions (a)the System is mechanically, electrically, and structurally constructed in accordance with the requirements of Exhibit B'the Work,the Contract Documents,and the Applicable Permits,except for non- critical punch list items; (b)the infrastructure and the grid connection for the System is mechanically, electrically, and functionally complete and capable of interconnection with the local electric utility and AgriPower's Representative provides written notice of satisfaction of such conditions to Company's Representative; (c)Commissioning is completed successfully; (d)all indicia of ownership of the System, together with all contracts, warranties, and agreements related to the System have been transferred to Company;(e)all requirements of the local electric utility for testing and interconnection of the System have A-2 been satisfied, and the System is interconnected; and (f)all Applicable Permits have been received, and copies of the Applicable Permits have been delivered to Company. "Substantial Completion Date"shall mean the actual date on which Substantial Completion has occurred. "Suppliers"shall mean those Equipment suppliers with which AgriPower contracts to provide,or provide and install,Equipment necessary to build the System. "System"please see Exhibit C. "Utility" shall mean the investor-owned utility, the utility co-op, or municipal power company through which the Company purchases power and to whom the Company will submit any Net Metering Application(s)and associated fees. "Work" shall mean the engineering and design, procurement, construction and erection, installation, start up(including calibration, inspection, and start-up operation), and testing with respect to the System to be performed by AgriPower pursuant to this Contract. A-3 EXHIBIT B SYSTEM TECHNICAL SPECIFICATIONS to ENGINEERING,PROCUREMENT,AND CONSTRUCTION CONTRACT dated April 23,2024 between AgriPower Solar,LLC and Youne Family Farms Technical Specifications of System: Project services to be rendered by AgriPower Solar: The Design and Installation of 15 38.88kW DC Renewable Energy System Arrays at 4 physical locations. See Exhibit C for physical installation details including Nameplate Rating and Inverter Configuration. Included: A) Applications for Building and Zoning permits from local and state authorities. B) Applications for Project Approval with Utility. C) Geotech studies to determine appropriate foundation design. D) Installation of 15 custom-engineered foundations to meet soil test criteria. E) Installation of 4 60kW and 4 100kW DC to AC inverters and distributed wireboxes. F) Assembly and installation of 15 AgriPower dual axis tracking arrays including warranty against manufacturer defects and degradation provided by manufacturer that meet or exceed industry norms. G) Installation and electrical connection of 5 AgriPower Control Centers for housing inverters and other electrical components with anemometers and AgriPower Telecommunication System. H) Installation of 5 production Meter Bases if required by Utility. I) Implementation of and Training with AgriPower proprietary monitoring and control software system MyFarmAPS. J) Obtain Final approval and grid connection for net metering with Utility. Customer Obli atg ions: Customer agrees to perform the following(including preparation of property and clearing of hazards): Allow AgriPower Representatives and its agents and subcontractors access to its property for the unloading, assembly, and installation of system components. B-1 EXHIBIT C INSTALLATION SITES to ENGINEERING,PROCUREMENT, AND CONSTRUCTION CONTRACT dated April 23,2024 between AgriPower Solar,LLC and Yount!Family Farms The Net Metering Limit for all sites is determined by the maximum peak demand in 2023.AgriPower has not reviewed peak demand.It is the responsibility of Company to verify that there is adequate demand for the Nameplate Rating for each site below. Site Location Nameplate Site Cost($) O&M Cost Rating ($)* (kW DC) Field#4,0203e0302,Blackfoot,ID 83221 194.40kW $481,500.00 $ 1,925.00 Inverter Configuration 2 x 100kW This site has an additional$15,000 in cable cost due to the length of the cable run(1,300Jt). This is a not-to-exceed value and will be decreased on the final invoice if additional cable costs do not exceed this amount. Field#2,0203e0403,Blackfoot,ID 83221 194.40kW $469,000.00 $ 1,925.00 Inverter Configuration 1 x 100kW 2 x 60kW Talbot,02s33e1601,Blackfoot,ID 83221 116.64kW $280,000.00 $ 1,155.00 Inverter Configuration 2 x 60kW Ritchie,0204e0902,Blackfoot,ID 83221 77.76kW $ 189,500.00 $770.00 Inverter Configuration 1 x 100kW Net Metering limited by pump size or peak demand,whichever is greater. Total Project Cost: $1,420,000.00 Total Maintenance Cost Year Two*: $5,775.00 *Maintenance for the first year is included in the contract price.Maintenance prices are subject to inflationary adjustments. C-1 EXHIBIT D OPERATIONS&MAINTENANCE AGREEMENT to ENGINEERING,PROCUREMENT,AND CONSTRUCTION CONTRACT dated April 23,2024 between AgriPower Solar,LLC and Young Family Farms • O&M Agreement Commencement Date: 12 months following Substantial Completion Date. • Term of Agreement: 1 year with automatic renewal unless terminated in writing 30 days prior to automatic renewal date. • Payment Due Date: First payment is due on the first anniversary of the Substantial Completion date and every year thereafter as long as the agreement is in effect. • Services provided annually: o Grease all Zerk fittings on all arrays o Replace exterior control center filter(s) • Services provided semi-annually: o Perform bolt and nut torque inspection on all arrays and make adjustments as needed. o Vacuum control center including cleaning inverter fan cabinets o Inspect and test anemometers o Inspect ■ External wiring ■ Tracker control panels ■ Communications hardware inside control center ■ Inverter display and fans • Software access: o Company is granted perpetual access to the MyFarmAPS.com web application including remote system control,data monitoring,and data export. (Includes all cellular data transmission costs.) o Software access is contingent upon agreement to terms and conditions at MyFannAPS.com/terms. D-1 EXHIBIT E DELIVERY LOCATIONS) to ENGINEERING,PROCUREMENT,AND CONSTRUCTION CONTRACT dated April 23,2024 between AgriPower Solar, LLC and Young Family Farms One or more delivery locations must be specified for all projects. Projects within an approximate 10-mile radius of each other may utilize the same delivery address. For projects distributed across a greater area, please specify a delivery location for each group of projects. Location Name: &Y241YAlly/ax"',P4IC-^/?- Ihir-L Location Name: Address: q I I N . ) LJ CID Address: City, State, Zip: T)c.A(-Kk r -K-2 City, State, Zip: Authorized Contact: / pbAm Yo\)NC Authorized Contact: Contact Phone: (-DO`6) "Ru - 08 i9S Contact Phone: Contact Email: ��n��u��t�.r- s(crx;,�,,o„, Contact Email: Sites Assigned to this Address: Aw ` Sites Assigned to this Address: Location Name: Location Name: Address: Address: City, State, Zip: City, State, Zip: Authorized Contact: Authorized Contact: Contact Phone: Contact Phone: Contact Email: Contact Email: Sites Assigned to this Address: Sites Assigned to this Address: E-1