Common use of Clearing and Grading Clause in Contracts

Clearing and Grading. The JDA initially contracted for the clearing, grubbing and mass grading of a pad site originally estimated as a 500-acre portion of the Facility Site shown on the Exhibit A-11-1 (the “Current Grading Plan”). Grading on the Facility Site commenced in October of 2022. Actual site conditions discovered during the course of such grading work and additional due diligence have necessitated expanding the area of the Facility Site to be graded by approximately an additional 180 acres (the “Additional Grading Work”) in order to better stabilize the site. The plan for the Additional Grading Work prepared by ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Engineering, Inc. (“T&H”) at the direction of the JDA is attached hereto at Exhibit A-11-2 (the “Additional Grading Plan”). The grading contemplated under the Current Grading Plan and the Additional Grading Plan shall collectively be referred to as the “Comprehensive Grading Work.” The State shall pay for the costs associated with all work described in the Current Grading Plan. The State and the Company have agreed to reallocate the sum of $10,000,000 from the Project Development Grant to the JDA Grant to pay the costs of the Additional Grading Work, including the costs of contract administration, construction oversight, engineering, site stabilization, insurance, and grading contractor costs associated with performance of the Additional Grading Work set forth on the Additional Grading Plan, and shall use such reallocated sum to pay costs of the Additional Grading Work. In the event there are changes in scope or costs for the Additional Grading Work which exceed the reallocated sum of $10,000,000, the JDA shall require T&H to provide a copy of the change order which addresses the work required to be done in connection with such changes (a “Change Order”) to the State, JDA and the Company no later than ten days prior to the JDA’s regular monthly meeting which is the fourth Tuesday of each month. The State and the Company shall have four (4) days to approve or reject the applicable Change Order, or the Change Order shall be deemed rejected and will not be included on the JDA’s agenda for consideration. If the Change Order is approved by the State and Company within the required timeframe, the JDA shall include it in its meeting packet distributed to JDA members the Thursday prior to its meeting and on its agenda for consideration at its monthly meeting on the fourth Tuesday. Upon approval of a Change Order by the State, JDA and the Company, the Company shall bear any costs in excess of the reallocated sum of $10,000,000 for the Additional Grading Work as set forth in such approved Change Order. In the event of an approved Change Order with respect to the Additional Grading Work, the State (at the Company’s request after consultation with the JDA and State), will reallocate additional funds from the Project Development Grant to the JDA Grant, or alternatively the Company may pay for such costs from its own sources. The Comprehensive Grading Work shall be performed in accordance with the standards and specifications agreed to by the Parties and within the locations set forth in the Current Grading Plan and Additional Grading Plan. The JDA will cause to be included in the contract for the Comprehensive Grading Work a liquidated damages clause with terms determined by the JDA in reasonable consultation with the Company. The contract for the Comprehensive Grading Work shall make the Company a third-party beneficiary with regard to the warranties and indemnities set forth therein as well as the enforcement of the liquidated damages clause, and the Company shall be entitled to receive any amounts recovered as a result of its efforts to enforce the liquidated damages clause and the JDA’s efforts to enforce the liquidated damages clause, after payment of or reimbursement to the JDA of any third-party costs or expenses of such efforts, including reasonable attorneys’ fees. The JDA and the State shall use their commercially reasonable efforts to cause the Comprehensive Grading Work to be completed by December 31, 2023. If the Comprehensive Grading Work is not completed by the date which is ninety (90) days after December 31, 2023, then the Company, upon written notice to the JDA and the State, shall have the right to complete the Comprehensive Grading Work at its sole cost and expense. (i) [reserved],”.