ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
Stonebridge Data Center Campus
Loudoun County, Virginia
by and between
STONEBRIDGE CAMPUS HOLDINGS LLC (a Virginia limited liability company)
as Owner
and
TITAN-McALLISTER CONSTRUCTION GROUP, LLC (a Maryland limited liability company)
as Contractor
[__], 2025
DRAFT — Subject to Negotiation
Calderwood & Harkness LLP Matter No. 1043-00002
CONFIDENTIAL — This draft agreement is subject to ongoing negotiation between the parties and does not constitute a binding commitment unless and until duly executed and delivered by all parties. This document is protected by the attorney-client privilege and the work product doctrine. Distribution is limited to authorized recipients.
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
This Engineering, Procurement and Construction Agreement (this "Agreement") is entered into as of [__], 2025 (the "Effective Date"), by and between:
STONEBRIDGE CAMPUS HOLDINGS LLC, a Virginia limited liability company, with its principal office c/o Ironhaven Data Centers LLC, 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147 (hereinafter referred to as "Owner"),
and
TITAN-McALLISTER CONSTRUCTION GROUP, LLC, a Maryland limited liability company, with its principal office at 7900 Harkins Road, Suite 100, Lanham, Maryland 20706 (hereinafter referred to as "Contractor").
Owner and Contractor are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Stonebridge Campus Holdings LLC ("Owner") is a Virginia limited liability company formed as a single-purpose entity wholly owned by Ironhaven Data Centers LLC ("IHDC"), a Delaware limited liability company headquartered at 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147, which is a portfolio company of Ridgeline Capital Partners Fund IV, LP, a Delaware limited partnership, acting through its general partner RCP Digital Holdings LLC, a Delaware limited liability company;
WHEREAS, Owner is the fee simple owner (or will be at or prior to the date of the Notice to Proceed) of approximately 81.4 acres of real property consisting of (i) a 62.0-acre parcel located at Loudoun County Tax Map Reference /95-4A-1///, northeast corner of Belmont Ridge Road and Stonebridge Boulevard, Ashburn, Virginia 20148 (the "Stonebridge Parcel"), and (ii) a 19.4-acre parcel located at Loudoun County Tax Map Reference /95-4A-2///, adjacent to the Stonebridge Parcel on the east, Ashburn, Virginia 20148 (the "Meridian Parcel," and together with the Stonebridge Parcel, the "Project Site");
WHEREAS, Owner desires to develop a ground-up data center campus on the Project Site known as the "Stonebridge Data Center Campus" (the "Project"), consisting of four (4) data center buildings (Buildings A, B, C, and D), a central utility plant, site civil work, and structured parking, with a total designed critical IT load capacity of ninety-six megawatts (96 MW) (twenty-four megawatts (24 MW) per building) and a total gross floor area of approximately four hundred eighty thousand (480,000) square feet;
WHEREAS, Titan-McAllister Construction Group, LLC ("Contractor"), a Maryland limited liability company with its principal office at 7900 Harkins Road, Suite 100, Lanham, Maryland 20706, specializes in mission-critical facility construction and has significant experience in the design and construction of hyperscale and enterprise data center facilities, and desires to serve as the engineering, procurement, and construction contractor for the Project;
WHEREAS, the total project budget for the Stonebridge Data Center Campus is Six Hundred Million Dollars ($600,000,000), of which the engineering, procurement, and construction hard costs constitute Four Hundred Twelve Million Dollars ($412,000,000), with the balance allocated to land acquisition, soft costs, owner-furnished equipment, entitlements, financing costs, and contingency reserves;
WHEREAS, the Project is being financed in part by a Three Hundred Ninety Million Dollar ($390,000,000) senior secured construction loan facility (the "Construction Loan") led by Summit National Bank, N.A. as Administrative Agent, with Cascade Commercial Lending Corp. and Harborview Trust Company as participating lenders (collectively, the "Lender Group"), and Owner's obligations under this Agreement are subject to certain requirements and conditions imposed by Owner's lenders (the "Lender Requirements"); and
WHEREAS, Owner's equity investment in the Project is being funded by Ridgeline Capital Partners Fund IV, LP in an aggregate amount of Two Hundred Ten Million Dollars ($210,000,000), channeled through RCP Digital Holdings LLC and IHDC;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them elsewhere in this Agreement or in the Exhibits attached hereto.
"Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. For purposes of this definition, "control" (including the terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise, and shall in any event include ownership of more than fifty percent (50%) of the outstanding voting interests of such Person.
"Agreement" means this Engineering, Procurement and Construction Agreement, together with all Exhibits, schedules, and Change Orders executed pursuant hereto, as the same may be amended, modified, supplemented, or restated from time to time in accordance with the terms hereof.
"Applicable Laws" means all federal, Commonwealth of Virginia, Loudoun County, and other local laws, statutes, codes, ordinances, rules, regulations, executive orders, permits, approvals, authorizations, and governmental requirements applicable to the Work, the Project, or the Project Site, including without limitation the Virginia Uniform Statewide Building Code, the International Building Code (as adopted), the National Electrical Code (NFPA 70), NFPA 75 (Standard for the Fire Protection of Information Technology Equipment), OSHA regulations (29 CFR Parts 1910 and 1926), the Americans with Disabilities Act, the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Loudoun County Zoning Ordinance (as modified by ZMOD-2025-0038), and all conditions of land use permits, proffers, and special exceptions applicable to the Project Site.
"Applicable Permits" means all permits, licenses, approvals, authorizations, and consents required under Applicable Laws for the performance of the Work, including without limitation building permits, grading permits, land disturbance permits, stormwater management permits, erosion and sediment control permits, fire marshal approvals, and certificates of occupancy.
"Architect" means the design architect for the Project, as designated by Owner and identified in the Contract Documents. As of the Effective Date, the Architect has not been formally designated and shall be confirmed by Owner in writing prior to the issuance of the Notice to Proceed.
"Building" or "Buildings" means, individually or collectively, Building A, Building B, Building C, and Building D, each of which is a data center building of approximately one hundred twenty thousand (120,000) square feet of shell space with a designed critical IT load capacity of twenty-four megawatts (24 MW).
"Calendar Day" or "Day" means a calendar day, including Saturdays, Sundays, and holidays, unless otherwise specified. When a period of time measured in Days ends on a Saturday, Sunday, or Commonwealth of Virginia legal holiday, such period shall be extended to the next Business Day.
"Central Utility Plant" or "CUP" means the central utility plant to be constructed as part of the Work, serving all four Buildings with chilled water, condenser water, and other utility services as described in Exhibit A.
"Change of Control" has the meaning set forth in Section 16.1.
"Change Order" means a written instrument signed by both Owner and Contractor (and, where required under Section 18.4, acknowledged by the Administrative Agent) modifying the GMP, the Construction Schedule, the Scope of Work, or any combination thereof, in accordance with Article 8.
"Change Order Request" means a written request submitted by Contractor to Owner in accordance with Section 8.2 requesting a Change Order.
"Commencement Date" means the date of issuance of the Notice to Proceed by Owner to Contractor. The target Commencement Date is November 1, 2025.
"Commissioning" means the systematic process of verifying and documenting that all building systems, including mechanical, electrical, plumbing, fire protection, and life safety systems, are installed, functionally tested, and perform in accordance with the design intent, the Contract Documents, and the applicable performance criteria set forth in Exhibit A.
"Construction Loan" means the Three Hundred Ninety Million Dollar ($390,000,000) senior secured construction loan facility provided to Owner by the Lender Group pursuant to the Construction Loan Agreement dated as of [__], 2025, among Owner, as borrower, IHDC, as guarantor, and Summit National Bank, N.A., as Administrative Agent, Cascade Commercial Lending Corp., and Harborview Trust Company, as lenders.
"Construction Loan Agreement" means the credit agreement governing the Construction Loan, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Construction Schedule" means the schedule of Work set forth in Exhibit C attached hereto, providing for a total construction duration of twenty-four (24) months from the Notice to Proceed to Substantial Completion of the final Building (Buildings B, C, and D), as such schedule may be modified from time to time by Change Order or as otherwise expressly permitted under this Agreement.
"Contract Documents" means this Agreement, Exhibits A through I, all Change Orders, the Construction Schedule, drawings, specifications, addenda, and all other documents listed in Section 2.3, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.
"Contractor" means Titan-McAllister Construction Group, LLC, a Maryland limited liability company, and its permitted successors and assigns.
"Contractor's Fee" means the fee payable to Contractor for its services under this Agreement, as set forth in the GMP Schedule (Exhibit B), which fee is included within the GMP and represents Contractor's profit on the Work.
"Contractor's Representative" means Michelle Tran, SVP of Data Center Programs, or such other individual as Contractor may designate with Owner's prior written approval.
"Defective Work" means Work that does not conform to the requirements of the Contract Documents, including Work that is not in accordance with the drawings, specifications, technical standards, or Applicable Laws, or that contains defects in materials or workmanship.
"EPC GMP" or "Guaranteed Maximum Price" or "GMP" means Four Hundred Twelve Million Dollars ($412,000,000), as more fully set forth in Article 5 and the GMP Schedule (Exhibit B), representing the maximum total compensation payable to Contractor for the Work, subject to adjustment only by written Change Order executed in accordance with Article 8.
"Final Completion" means the completion of all punch list items and the satisfaction of all conditions for final payment as set forth in Section 6.5, including delivery of all close-out documents, final lien waivers, as-built drawings, operations and maintenance manuals, warranties, and all required governmental approvals and certifications.
"Force Majeure Event" has the meaning set forth in Section 12.1.
"General Conditions" means Contractor's general conditions costs as itemized in the GMP Schedule (Exhibit B), including without limitation costs for project management staff, site offices, temporary utilities, temporary facilities, safety and security, and other general requirements of the Work.
"GMP Contingency" means the contingency amount included within the GMP as set forth in the GMP Schedule (Exhibit B), which is available for Contractor's use to cover unforeseen costs of the Work that are within the Scope of Work but not specifically identified in the GMP line items, subject to the reporting and documentation requirements set forth in this Agreement.
"GMP Schedule" means the schedule of values and line-item budget for the GMP attached hereto as Exhibit B.
"IHDC" means Ironhaven Data Centers LLC, a Delaware limited liability company, the sole member and parent entity of Owner.
"Key Personnel" means the individuals designated by each Party as set forth in Exhibit I, who are essential to the performance of the Work and may not be reassigned without the prior written consent of the other Party.
"Lender Group" means, collectively, Summit National Bank, N.A. (as Administrative Agent), Cascade Commercial Lending Corp., and Harborview Trust Company, and their respective successors and assigns under the Construction Loan Agreement.
"Lender Requirements" means the requirements, conditions, covenants, and restrictions imposed under the Construction Loan Agreement and related loan documents that relate to or affect the Work, including without limitation requirements relating to draw request procedures, inspections, certifications, reporting, insurance, bonding, and lien waiver documentation.
"Liquidated Damages" means the delay damages payable by Contractor to Owner as provided in Section 7.2.
"Milestone Date" means any date designated in the Construction Schedule (Exhibit C) as a milestone for the achievement of a specified stage of the Work, including without limitation the dates for Substantial Completion of each Building.
"Notice to Proceed" or "NTP" means the written notice issued by Owner to Contractor in the form attached as Exhibit E, authorizing Contractor to commence the Work. The target date for issuance of the NTP is November 1, 2025.
"Owner" means Stonebridge Campus Holdings LLC, a Virginia limited liability company, and its permitted successors and assigns.
"Owner's Representative" means Kestrel Infrastructure Advisors, LLC, a Virginia limited liability company, with its principal office at 1750 Tysons Boulevard, Suite 600, Tysons, Virginia 22102, and specifically its engagement lead Diane Prescott, or such other representative as Owner may designate in writing from time to time.
"Payment Bond" means the payment bond required under Section 10.2, issued by the Surety in the amount of one hundred percent (100%) of the GMP.
"Per-Building GMP Allocation" means One Hundred Three Million Dollars ($103,000,000) per Building, calculated as the GMP divided equally among the four Buildings ($412,000,000 ÷ 4 = $103,000,000).
"Performance Bond" means the performance bond required under Section 10.1, issued by the Surety in the amount of one hundred percent (100%) of the GMP.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, governmental authority, or other entity.
"Project" means the Stonebridge Data Center Campus, consisting of the four Buildings, the Central Utility Plant, site civil work, Structured Parking, and all associated infrastructure, to be constructed on the Project Site.
"Project Site" means the approximately 81.4 acres of real property comprising the Stonebridge Parcel (approximately 62.0 acres) and the Meridian Parcel (approximately 19.4 acres), located in unincorporated Loudoun County, Virginia, as more particularly described in the Recitals.
"Punch List" means the list of minor items of Work to be completed or corrected by Contractor after the date of Substantial Completion of a Building, as mutually agreed upon by Owner and Contractor, which items do not prevent Owner from occupying and using the Building for its intended purpose.
"Retainage" means the amounts withheld from progress payments to Contractor as set forth in Section 6.4.
"Schedule of Values" means the allocation of the GMP to the various portions of the Work, prepared by Contractor and approved by Owner in accordance with Section 6.1, which serves as the basis for Contractor's monthly Applications for Payment.
"Scope of Work" means all of the work, services, labor, materials, equipment, and deliverables to be provided by Contractor under this Agreement, as described in Exhibit A (Scope of Work and Technical Specifications) and as may be modified from time to time by Change Order.
"Structured Parking" means the structured parking facility to be constructed as part of the Work on the Project Site, as more particularly described in Exhibit A.
"Subcontract" means any agreement between Contractor and a Subcontractor for the performance of any portion of the Work.
"Subcontractor" means any person or entity, at any tier, retained by Contractor or by any other Subcontractor to perform any portion of the Work, including without limitation sub-subcontractors, material suppliers, and equipment vendors.
"Substantial Completion" has the meaning set forth in Section 7.1.
"Surety" means Great Basin Surety & Insurance Corp., a Wyoming corporation, the issuer of the Performance Bond and Payment Bond, or such replacement surety as may be designated in accordance with Section 10.3.
"Work" means all engineering, procurement, construction, commissioning, testing, and related services to be provided by Contractor under this Agreement as described in Exhibit A, including all labor, materials, equipment, tools, supplies, temporary facilities, transportation, supervision, management, and other items necessary to complete the Project in accordance with the Contract Documents.
Section 1.2 — Rules of Interpretation
The following rules of interpretation shall apply to this Agreement:
(a) Wherever used herein, the singular shall include the plural and the plural shall include the singular, unless the context otherwise requires. The use of any gender shall include all genders. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(b) References to Articles, Sections, Exhibits, and Schedules are references to Articles, Sections, Exhibits, and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules attached hereto are incorporated herein by this reference and constitute a part of this Agreement.
(c) The headings and captions used in this Agreement are for convenience of reference only and shall not affect the interpretation of any provision of this Agreement.
(d) Unless otherwise specified, all references to dollar amounts are references to United States Dollars.
(e) References to any statute, rule, regulation, or code shall be deemed to include any amendments, successor provisions, or replacement statutes, rules, regulations, or codes.
(f) The terms "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular Article, Section, or provision.
(g) In the event of any conflict or inconsistency between the provisions of this Agreement and the Exhibits attached hereto, the provisions of this Agreement shall control, except as otherwise expressly provided in the order of precedence set forth in Section 2.3.
(h) This Agreement shall not be construed more strictly against either Party by reason of the fact that it may have been drafted by or on behalf of one of the Parties.
ARTICLE 2 — SCOPE OF WORK
Section 2.1 — General Scope
Contractor shall perform all engineering, procurement, and construction services necessary to design and build the Project in accordance with the Contract Documents. The Work shall be performed in a diligent, professional, and workmanlike manner, consistent with the standards of care and skill ordinarily exercised by qualified contractors performing work of a similar nature for mission-critical data center facilities of comparable size, complexity, and scope in the Northern Virginia market.
The Work encompasses the following principal elements:
(a) Four Data Center Buildings (Buildings A, B, C, and D): Each Building shall consist of approximately one hundred twenty thousand (120,000) square feet of shell space, designed and constructed to accommodate a critical IT load capacity of twenty-four megawatts (24 MW). Each Building shall be equipped with a 2N diesel generator configuration for backup power, providing full redundancy for the critical power systems. Generator procurement, installation, testing, and commissioning are included within the GMP scope. The Buildings shall be designed to accommodate tenant fit-out by Owner or Owner's tenants following Substantial Completion.
(b) Central Utility Plant (CUP): Contractor shall construct the Central Utility Plant serving all four Buildings, including chilled water production and distribution systems, condenser water systems, cooling towers, pumps, heat exchangers, and all associated mechanical, electrical, and controls infrastructure.
(c) Site Civil Work: Contractor shall perform all site civil work, including mass grading, site preparation, roadways, curbing, sidewalks, underground utilities (sanitary sewer, domestic water, fire water, storm drainage), stormwater management facilities, erosion and sediment control measures, perimeter fencing and security infrastructure, site lighting, and landscaping, all in accordance with the approved site plans and the conditions of the applicable land use permits.
(d) Structured Parking: Contractor shall construct the Structured Parking facility on the Project Site, as more particularly described in Exhibit A, providing parking for the operational staff and visitors of the completed campus.
(e) Associated Infrastructure: Contractor shall construct all associated infrastructure required for the operation of the campus, including electrical switchgear rooms, transformer pads, fuel storage and delivery systems for the diesel generators, fire protection systems, building management and monitoring systems, access control infrastructure, and all other systems and components described in Exhibit A.
The total gross floor area of the four Buildings is approximately four hundred eighty thousand (480,000) square feet (4 × 120,000 square feet). The total designed critical IT load capacity of the campus is ninety-six megawatts (96 MW) (4 × 24 MW per Building). The detailed Scope of Work, including technical specifications and performance standards, is set forth in Exhibit A (Scope of Work and Technical Specifications).
Section 2.2 — Exclusions from Scope
The following items are expressly excluded from the Scope of Work and are not included within the GMP:
(a) IT equipment, cabling (including structured cabling, fiber optic cabling, and copper cabling within tenant spaces), network infrastructure, and tenant fit-out of the data halls and support spaces within the Buildings;
(b) Owner-furnished equipment, except as expressly identified in Exhibit A as Contractor-furnished;
(c) Utility provider work performed by Vantage Power Cooperative ("VPC") for the construction, installation, and energization of the dedicated 230kV/34.5kV electrical substation on the Meridian Parcel, subject to Contractor's coordination obligations under Section 2.5;
(d) Owner's line extension contribution of Eighteen Million Five Hundred Thousand Dollars ($18,500,000) to VPC in connection with the electrical service to the Project Site;
(e) Furniture, fixtures, and equipment not identified in Exhibit A;
(f) Owner's soft costs, including architectural and engineering fees for the design of tenant improvements, legal fees, entitlement costs, proffer obligations, impact fees, and Owner's internal project management costs;
(g) Environmental remediation of pre-existing contamination at the Project Site, including without limitation potential residual pesticide contamination in the northwest quadrant of the Stonebridge Parcel, an area of approximately 4.2 acres, as identified in the Phase II Environmental Site Assessment prepared by Pendleton Environmental Associates, Inc. dated April 14, 2025 (the "Phase II ESA"). For the avoidance of doubt, if Contractor encounters pre-existing contamination during the performance of the Work, Contractor's obligations shall be limited to those set forth in Section 21.3; and
(h) Any work, services, equipment, or materials not expressly included in Exhibit A or otherwise required by the Contract Documents.
Section 2.3 — Contract Documents
The Contract Documents consist of the following, which are collectively incorporated herein by this reference:
(a) This Agreement (including all Articles and Sections);
(b) Exhibit A — Scope of Work and Technical Specifications;
(c) Exhibit B — GMP Schedule and Budget;
(d) Exhibit C — Construction Schedule and Milestone Dates;
(e) Exhibit D — Insurance Requirements;
(f) Exhibit E — Form of Notice to Proceed;
(g) Exhibit F — Form of Change Order;
(h) Exhibit G — Form of Application for Payment;
(i) Exhibit H — Form of Lien Waiver;
(j) Exhibit I — Key Personnel;
(k) All Change Orders duly executed in accordance with Article 8;
(l) All drawings, specifications, addenda, and other documents issued or approved by Owner and Contractor in connection with the Work; and
(m) Such other documents as may be listed in a supplemental document index agreed to by both Parties.
In the event of any conflict or inconsistency among the Contract Documents, the following order of precedence shall govern, with the document listed first having the highest priority:
(i) Change Orders (in reverse chronological order, with the most recent Change Order having the highest priority);
(ii) This Agreement (Articles 1 through 24);
(iii) Exhibit A — Scope of Work and Technical Specifications;
(iv) Exhibit B — GMP Schedule and Budget;
(v) Exhibit C — Construction Schedule and Milestone Dates;
(vi) Exhibits D through I; and
(vii) Drawings and specifications (with specifications governing over drawings in the event of conflict, and large-scale details governing over small-scale drawings).
Notwithstanding the foregoing order of precedence, in all cases where a higher-priority document is silent on a matter addressed by a lower-priority document, the lower-priority document shall control with respect to such matter. Contractor shall promptly notify Owner of any conflict, inconsistency, error, or omission in the Contract Documents upon discovery thereof, and Owner shall issue written direction to Contractor resolving such conflict, inconsistency, error, or omission.
Section 2.4 — Design Responsibilities
Contractor's design responsibilities under this Agreement include the development and completion of all construction documents, shop drawings, and engineering necessary to construct the Project in accordance with the Contract Documents and Applicable Laws. Contractor shall coordinate its design activities with Owner's Architect and shall obtain Owner's approval of all design deliverables at each stage of design development, including schematic design, design development, and construction document phases.
Contractor shall be responsible for ensuring that the design of the Project complies with all Applicable Laws, including without limitation the Loudoun County Zoning Ordinance (as modified by Zoning Map Amendment ZMOD-2025-0038, which is anticipated to receive approval from the Loudoun County Board of Supervisors in October 2025), the Virginia Uniform Statewide Building Code, all conditions of the applicable land use permits and proffers, and all applicable building codes, fire codes, electrical codes, and accessibility standards.
Contractor shall engage licensed professional engineers and architects, as necessary, to prepare and seal all design documents in accordance with the requirements of the Commonwealth of Virginia. All design professionals engaged by Contractor shall carry professional liability insurance in amounts not less than those specified in Exhibit D.
Section 2.5 — Coordination with Utility Provider
Contractor shall coordinate its construction activities with Vantage Power Cooperative ("VPC") relating to VPC's construction of the dedicated 230kV/34.5kV electrical substation on the Meridian Parcel. Such coordination shall include, without limitation:
(a) Providing VPC and its contractors with reasonable access to the Meridian Parcel and designated staging areas for the substation construction, in accordance with the access plan to be agreed upon by Owner, Contractor, and VPC;
(b) Coordinating the Construction Schedule with VPC's substation construction schedule to avoid conflicts, interference, and delays, with a target substation energization date of June 1, 2027;
(c) Constructing foundations, conduit runs, ductbanks, and other infrastructure on the Meridian Parcel necessary to interconnect the substation with the campus electrical distribution system, to the extent such work is included within the Scope of Work as described in Exhibit A;
(d) Participating in regular coordination meetings with VPC's project manager and engineering team; and
(e) Promptly notifying Owner of any scheduling conflict, delay, or impediment relating to VPC's substation construction that may affect the Construction Schedule or the Work.
For the avoidance of doubt, Contractor is not responsible for VPC's scope of work with respect to the substation, including the procurement and installation of transformers, switchgear, and high-voltage equipment within the substation fence line. Contractor shall not be liable for delays caused by VPC's failure to complete the substation on schedule, provided that Contractor has fulfilled its coordination obligations under this Section 2.5. Any delay to the Work caused by VPC's failure to achieve substation energization by June 1, 2027 shall be addressed as a potential basis for a Change Order request by Contractor, subject to the provisions of Article 8.
Section 2.6 — Owner's Representative
Owner hereby designates Kestrel Infrastructure Advisors, LLC ("KIA"), a Virginia limited liability company, with its principal office at 1750 Tysons Boulevard, Suite 600, Tysons, Virginia 22102, as the Owner's Representative for the day-to-day administration of this Agreement. Diane Prescott shall serve as the Engagement Lead for KIA and shall be the primary point of contact for Contractor in connection with the administration of this Agreement.
The Owner's Representative shall have the authority to:
(a) Review and approve (or reject) Contractor's monthly Applications for Payment;
(b) Review and approve (or reject) the Schedule of Values;
(c) Conduct inspections of the Work and attend progress meetings;
(d) Issue requests for information and review Contractor's submittals;
(e) Authorize Minor Changes in the Work in accordance with Section 8.5;
(f) Review Change Order Requests and make recommendations to Owner; and
(g) Perform such other administrative functions as Owner may delegate in writing from time to time.
Notwithstanding the foregoing, the Owner's Representative shall not have the authority to: (i) execute Change Orders (which authority is reserved to Owner); (ii) agree to any modification of the GMP, the Construction Schedule, or the Scope of Work; (iii) waive any provision of this Agreement; (iv) accept Substantial Completion or Final Completion on behalf of Owner; or (v) bind Owner to any obligation or liability not expressly contemplated by this Agreement.
ARTICLE 3 — CONTRACT TIME
Section 3.1 — Notice to Proceed
Owner shall issue the Notice to Proceed ("NTP") to Contractor in the form attached as Exhibit E (Form of Notice to Proceed). The target date for issuance of the NTP is November 1, 2025. Contractor shall not commence the Work, and shall not be entitled to compensation under this Agreement, prior to the issuance of the NTP.
The NTP shall not be issued until the satisfaction or waiver (at Owner's sole discretion) of all of the following conditions precedent:
(a) Execution and delivery of this Agreement by both Parties;
(b) Receipt by Owner of all required permits and governmental approvals necessary to commence the Work, including without limitation the building permit for initial site grading and the land disturbance permit from Loudoun County;
(c) Closing of the Construction Loan and confirmation by the Administrative Agent that initial draw conditions have been satisfied;
(d) Owner's acquisition of fee simple title to the Project Site (both the Stonebridge Parcel and the Meridian Parcel), free and clear of all liens and encumbrances except for Permitted Exceptions (as defined in the Construction Loan Agreement);
(e) Delivery by Contractor to Owner of the Performance Bond and Payment Bond in accordance with Article 10; and
(f) Delivery by Contractor to Owner of all certificates of insurance required under Article 11 and Exhibit D.
If the NTP has not been issued by January 31, 2026, either Party may terminate this Agreement upon thirty (30) days' written notice to the other Party, in which event neither Party shall have any further obligation to the other Party under this Agreement, except for obligations that expressly survive termination.
Section 3.2 — Construction Duration
The total construction duration for the Project shall be twenty-four (24) months from the date of issuance of the NTP to the date of Substantial Completion of the final Building (Buildings B, C, and D), as set forth in the Construction Schedule (Exhibit C). Contractor shall prosecute the Work diligently and continuously, in accordance with the Construction Schedule, using sufficient labor, materials, equipment, and resources to achieve each Milestone Date.
The Construction Schedule is set forth in Exhibit C and includes the sequencing and phasing of the Work across all four Buildings, the Central Utility Plant, site civil work, and Structured Parking. The Construction Schedule shall be updated by Contractor on a monthly basis and submitted to Owner and the Owner's Representative as part of the monthly progress reporting process. Any deviation from the Construction Schedule that would result in a delay to any Milestone Date shall be promptly reported by Contractor to Owner, together with a recovery plan demonstrating how Contractor proposes to regain the schedule.
Section 3.3 — Milestone Dates
The following Milestone Dates shall apply, subject to adjustment only by Change Order or as expressly provided in Article 12 (Force Majeure):
The substation energization coordination milestone of June 1, 2027 is included for scheduling and coordination purposes. Failure by VPC to achieve substation energization by June 1, 2027 shall not, in and of itself, constitute a basis for the imposition of Liquidated Damages on Contractor, provided that Contractor has fulfilled its coordination obligations under Section 2.5.
Section 3.4 — Adjustments to Contract Time
Adjustments to the Construction Schedule and the Milestone Dates shall be permitted only by Change Order executed in accordance with Article 8 or as expressly provided in Article 12 (Force Majeure). No adjustment to the Construction Schedule shall be made for delays caused by Contractor's own acts or omissions, including without limitation delays caused by Contractor's failure to properly plan, schedule, or coordinate the Work, delays caused by Contractor's failure to procure materials or equipment in a timely manner, or delays caused by Contractor's Subcontractors (unless such Subcontractor delays are caused by Owner or constitute Force Majeure Events).
Contractor shall use commercially reasonable efforts to mitigate the effect of any delay on the Construction Schedule, including by re-sequencing the Work, increasing labor resources, authorizing overtime, or implementing other reasonable measures to recover lost time. Contractor shall not be entitled to an extension of time unless and until a Change Order granting such extension has been duly executed.
ARTICLE 4 — CONTRACTOR'S REPRESENTATIONS AND WARRANTIES
Section 4.1 — Organization and Authority
Contractor represents and warrants that it is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Maryland, and is qualified to transact business in the Commonwealth of Virginia. Contractor has the full legal power, authority, and capacity to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Contractor have been duly authorized by all necessary action on the part of Contractor, and this Agreement constitutes a valid and binding obligation of Contractor, enforceable against Contractor in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting creditors' rights generally and general principles of equity.
Raymond Okafor, President, is authorized to execute this Agreement on behalf of Contractor. Michelle Tran, Senior Vice President of Data Center Programs, is designated as Contractor's project executive and shall serve as the senior point of contact for the day-to-day management and oversight of the Work.
Section 4.2 — Licenses and Permits
Contractor represents and warrants that it holds all licenses, registrations, and certifications required under Applicable Laws to perform the Work in the Commonwealth of Virginia and Loudoun County, including without limitation a valid Virginia Class A Contractor's license issued by the Virginia Board for Contractors (License No. [__]). Contractor shall maintain all such licenses, registrations, and certifications in good standing throughout the duration of the Work and shall promptly notify Owner of any suspension, revocation, or material change in the status of any such license, registration, or certification.
Section 4.3 — Experience and Qualifications
Contractor represents and warrants that it has the experience, qualifications, expertise, and resources necessary to perform the Work in accordance with the Contract Documents and Applicable Laws. Contractor has successfully completed the construction of mission-critical data center facilities of comparable size, complexity, and scope, and possesses a thorough understanding of the unique requirements of data center construction, including power density design, cooling systems, electrical infrastructure, redundancy configurations, and commissioning protocols. Contractor's relevant project experience and references have been provided to Owner in connection with the procurement process and are incorporated herein by reference.
Section 4.4 — Review of Project Site and Documents
Contractor represents and warrants that it has conducted a thorough review and investigation of the Project Site conditions, including physical characteristics, topography, subsurface conditions, access, and surrounding properties. Contractor acknowledges that it has reviewed and familiarized itself with the following documents and reports:
(a) The geotechnical investigation report prepared by Brannigan Geotechnical Engineering, LLC (Neil Brannigan, P.E., Principal), dated March 22, 2025;
(b) The civil engineering plans and grading study prepared by Lumen Ridge Engineering, PLLC (Carlos Esteban, P.E., Principal), dated May 8, 2025;
(c) The Phase I Environmental Site Assessment prepared by Pendleton Environmental Associates, Inc., dated January 30, 2025;
(d) The Phase II Environmental Site Assessment prepared by Pendleton Environmental Associates, Inc., dated April 14, 2025, including the identification of potential residual pesticide contamination in the northwest quadrant of the Stonebridge Parcel;
(e) The ALTA/NSPS Land Title Survey prepared by Dominion Survey Group, LLC, dated February 15, 2025;
(f) The wetlands delineation report and jurisdictional determination, as applicable; and
(g) The applicable land use entitlements, including ZMOD-2025-0038 (as anticipated to be approved), proffers, and conditions of approval.
Contractor represents that it has satisfied itself as to the nature and extent of the site conditions, the character and quantity of the Work to be performed, the quality and quantity of materials to be furnished, and the requirements of the Contract Documents. Except as otherwise expressly provided in this Agreement (including Contractor's rights under Article 8 for differing site conditions), Contractor assumes the risk of conditions at the Project Site.
Section 4.5 — No Conflicts
Contractor represents and warrants that the execution, delivery, and performance of this Agreement do not and will not: (a) violate any provision of Contractor's organizational documents; (b) conflict with, result in a breach of, or constitute a default under any existing agreement, contract, or obligation to which Contractor is a party or by which it is bound; or (c) violate any Applicable Law, order, judgment, or decree applicable to Contractor.