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APP0049123-New Application-2/1/2012US Army Corps Of Engineers (Portland District) Joint Permit Application Form If applicant is not the property owner, permission to conduct the work must be attached. '` Attach a copy of all tax maps with the project area highlighted. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. v. 07-07-09 AGENCIES WILL ASSIGN NUMBERS Corps Action ID Number Oregon Department of State Lands No L4 1 1 �� SEND ONE SIGNED COPY OF YOUR APPLICATION TO EACH AGENCY US Army Corps of Engineers: DSL - West of the Cascades: DSL - East of the Cascades: Send DSL Application Fees to: District Engineer State of Oregon State of Oregon State of Oregon ATTN: CENWP-OD-GPPO AND Department of State Lands O Department of State Lands Department of State Lands AND Box 2946 775 Summer Street, Suite 100 R 1645 NE Forbes Road. Suite 112 PO Box 4395, Unit 18 Portland, OR 97208-2946 Salem, OR 97301-1279 Bend, Oregon 97701 Portland, OR 97208-4395 503-808-4373 503-986-5200 541-388-6112 (Attach a copy of the first page of the application) (1) APPLICANT INFORMATION Applicant Coyote Island Terminal, LLC Business Phone # 801-539-3788 Name and Address (Oregon Company Registry Home Phone # attached) Fax # 801-539-3789 John Thomas, Secretary Email j.thomas@ambreenergy.com (Certificate of Incumbency attached) Ambre Energy North America 170 S. Main Street, Suite 700 Salt Lake City, Utah 84101 Authorized Agent Business Phone # Name and Address Cell Phone # Fax # Check one Email Consultant ❑ Contractor ❑ Property Owner Port of Morrow Business Phone # 541-481-7678 Name and Address Gary Neal, General Manager Home Phone # If different from above` 2 Marine Drive Fax # 541-481-2679 P.O. Box 200 Email garyn@portofmorrow.com Boardman, Oregon 97818 (See attached lease from Port to Ambre Energy) (2) PROJECT LOCATION Street, Road or Other Descriptive Location Legal Description (attach tax lot map*) Lewis and Clark Drive (see Figure 2), Township Range Section Quarter/Quarter Port of Morrow Complex, 4N 25E 2 SE/NW Boardman, Oregon In or near (City or Town) County Tax Map # Tax Lot # Boardman, Oregon Morrow 4N 25 2 100 Wetland/Waterway (pick one) River Mile (if known) Latitude (in DD.DDDD formatl Longitude (in DD.DDDD formatl Columbia River 271 45.8596 -119.6608 Directions to the site From I-84, take Exit 165. Proceed north on Laurel Lane and then right on Columbia Avenue (traveling east) to Lewis and Clark Drive. Tum left onto Lewis and Clark Drive (traveling north) and proceed approximately 1,200 feet to the site. If applicant is not the property owner, permission to conduct the work must be attached. '` Attach a copy of all tax maps with the project area highlighted. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. v. 07-07-09 (3) PROPOSED PROJECT INFORMATION Type: Fill ® Excavation (removal) ❑ In -Water Structure ® Maintain/Repair an Existing Structure ❑ Brief Description: In -water work associated with the project includes installing seven (6 -pile) breasting dolphins, two (6 -pile) mooring dolphins, and piles to support a walkway, conveyor, and dock structure at the Port of Morrow. Over -water work includes an expanded metal walkway and dock, as well as an enclosed conveyor. Work in and over the water is needed at the site to facilitate the operation of an enclosed coal transfer facility at the Port of Morrow. This work is a facilitating component of the Morrow Pacific project (described in Section 4 below). Fill Riprap ❑ Rock ❑ Gravel ❑ Organics ❑ Sand ❑ Silt ❑ Clay ❑ Other: E Metal Piles Wetlands Permanent (cy) Temporary (cy) X Total cubic yards for project (including outside OHW/wetlands) N/A N/A N/A Impact Area in Acres Dimensions (feet) N/A L' I N/A I W' I N/A H' I N/A Waters below OHW Permanent (cy) Temporary (cy) Total cubic yards for project (including outside OHW/wetlands) 52,940 (total permanent/temporary, of which 51,916 is the upland site and bents above the ordinary high water elevation [OHWE]) 572 256.5 Impact Area in Acres Dimensions (feet) 0.36 L' L(walkTy) W' 4 30 H' 9 50 Removal Wetlands Permanent (cy) Temporary (cy) Total cubic yards for project (including outside OHW/wetlands) N/A N/A N/A Impact Area in Acres Dimensions (feet) N/A L' I N/A I W' N/A H' N/A Waters below OHW Permanent (cy) Temporary (cy) Total cubic yards for project (including outside OHW/wetlands) N/A N/A N/A Impact Area in Acres Dimensions (feet) N/A L' N/A W' N/A H' N/A Total acres of construction related ground disturbance (If 1 acre or more a 1200-C permit may be required from DEQ) 35 acres Is the disposal area upland? Yes ® No ❑ Impervious surface created? <1 acre Are you aware of any state or federally listed species on the project site? Are you aware of any Cultural/Historic Resources on the project site? Is the project site within a national Wild & Scenic River? Is the project site within a State Scenic State Scenic Waterway?* Yes No X X X X ❑ >1 acre? If yes, please explain in the project description (in block 4) (4) PROPOSED PROJECT PURPOSE AND DESCRIPTION Purpose and Need: Provide a description of the public, social, economic, or environmental benefits of the project along with any supporting formal actions of a public body (e.g. city or county government), as appropriate. * Purpose. The purpose of the proposed Morrow Pacific project is to develop and successfully operate an environmentally responsible coal transfer facility in the Pacific Northwest for export of low -sulfur Montana/Wyoming coal to United States (US) trade allies in Asia. The project has been designed to minimize train traffic through urban areas, reduce the exposure of coal to the atmosphere, and utilize existing infrastructure while minimizing impacts to the environment. The permittable action, including the in- and over -water work at the Port of Morrow in the John Day Pool, is a facilitating component of the larger Morrow Pacific project. Specifically, the in -water work associated with this project, including installing dolphins as well as a dock, walkway, and conveyor pilings, is needed to transfer coal from enclosed buildings to covered barges at the Port of Morrow, near Boardman, Oregon. The loading dock facility has been designed to allow the moorage and loading of a four -barge tow (approximately 14,000 short tons). Need. Projections by the Federal Government consistently show global energy use growing by 50 percent over the next 25 years. Despite the growth of renewable energy resources, the use of coal globally is anticipated to increase significantly during this time period to meet the world's energy needs. Demand for coal is increasing, particularly among our Asian trade allies such as Taiwan, South Korea, and Japan. These countries, which lack sufficient resources of coal, require stable consistent imports of low sulfur coal to meet energy needs. The US has significant reserves of low -sulfur coal • Italicized areas are not required by the Corps for a complete application, but may be necessaryprior to final permit decision by the Corps. 2 v.07-07-09 in western states. Currently, relatively small volumes of low -sulfur coal from the US are exported through terminals in Canada. This is due, in part, to the lack of cost-effective infrastructure at port facilities on the West Coast to reliably and safely export low -sulfur coal to Asian markets. A coal transfer/transloading facility at the Port of Morrow, with an in -stream marine transloading facility at an existing dock at Port Westward, will establish an environmentally responsible means of shipping low -sulfur coal to US trade allies in Asia. The upstream siting of the facility at the Port of Morrow reduces the distance traveled and number of urban areas traveled through by coal trains. At the transfer/transloading facility, coal is nearly fully enclosed as it moves from train to storage facility to covered barge, minimizing exposure of coal or coal dust to humans or the environment. At the Port of Morrow through to Port Westward, the Morrow Pacific project creates local, family -wage jobs in Oregon, supports mining -related jobs nationally, and provides low -sulfur coal to Asian countries to generate electricity. On May 16, 2011, the Port of Morrow Commission approved the development of the coal transfer/transloading facility at the proposed site (See Figure IA, Location and Vicinity Maps). Numerous elected and appointed officials in Morrow and Umatilla Counties have shown support for the project, including: • The Honorable David & Mrs. Alice Nelson (Oregon State Senate) • Commissioner Ken Grieb, Morrow County Court • Mayor Chet Phillips, City of Boardman • City of Boardman • President John Turner, Blue Mountain Community College and Port of Umatilla • Kim Puzey, Port of Umatilla, General Manager • President Jeff Bailey, Bank of Eastern Oregon • Port of Morrow Commissioners (Russell, Padberg, Lindsay, Taylor, and Healy) • Mrs. Karen Pettigrew, City of Boardman City Manager • Mr. Marc Rogelstad, City of Boardman Fire Chief and Mrs. Brenda Rogelstad, Boardman • Mr. Steve Eldrige, Umatilla Electric Cooperative Manager Project Description: Please describe in detail the proposed removal and fill activities, including the following information: ■ Volumes and acreages of all fill and removal activities in waterway or wetland separately ■ Permanent and temporary impacts ■ Types of materials (e.g., gravel, silt, clay, etc.) ■ How the project will be accomplished (i.e., describe construction methods, equipment, site access) ■ Describe any changes that the project may make to the hydraulic and hydrologic characteristics (e.g., general direction of stream and surface water flow, estimated winter and summer flow volumes.) of the waters of the state, and an explanation of measures taken to avoid or minimize any adverse effects of those changes. ■ Is any of the work already complete? Yes ❑ No ® If yes, please describe the completed work. N/A PROJECT DESCRIPTION Morrow Pacific Project. The Morrow Pacific project involves operating an environmentally responsible coal transfer facility in the Pacific Northwest for export of low -sulfur Montana/Wyoming coal to US trade allies in Asia. The Morrow Pacific project consists of accepting coal from trains arriving on existing rail lines to the Port of Morrow. The coal will be offloaded into enclosed buildings and transferred into covered barges by enclosed conveyors. The coal will be shipped down the Columbia River, in covered barges on existing barge routes, to Port Westward in Columbia County, Oregon, where it will be transloaded onto ocean-going vessels. The project corridor is shown on Figure 113. No in- or over -water work is needed at Port Westward. Proposed Action Description. The proposed action for this permit application includes the construction of a commercial loading dock facility (see Figure IA) at the Port of Morrow, near Boardman, to facilitate operations of the Morrow Pacific project. All in -water work will take place during the Oregon Department of Fish and Wildlife (ODFW) in -water work window for the project area. Currently, the preferred in -water work window is December 1 through March 31. Major Components of Work. The loading dock facility will incorporate the following major components of work and new in -water structures: 1. Construction staging 2. In -water work area isolation 3. Fish salvage 4. Construction of an elevated, fixed dock and conveyor system supported by four, two -pile dock support bents as well as concrete capped conveyor support bents. The dock deck will be expanded metal. 5. Construction of an elevated, fixed operation personnel access (walkway) supported by 12 bents, each consisting of two 14 -inch diameter round steel piles with expanded metal deck. This structure will provide a safe walkway for workers mooring and loading barges. 6. Construction of nine dolphins installed adjacent to the walkway to assist in vessel mooring activities. • Italicized areas are not required by the Corps fora complete application, but may be necessary prior to final permit decision by the Corps. 3 v. 07-07-09 7. Restoration The riverward edge of the loading dock facility is located 190 feet from the OHWE of 268 feet at a depth of approximately 28 feet. Construction Staging and Access. Prior to commencing construction, an Erosion and Sediment Control Plan (ESCP) will be prepared and approved by the Oregon Department of Environmental Quality (DEQ). Sediment fence and other erosion control methods will be installed prior to site disturbance to prevent construction debris and sediment from entering the river. Primary construction of the commercial dock facility and staging will occur from three barges, one for the crane and pile driving equipment and two for materials delivery and staging. One barge will have two spuds that will be used throughout the project; the materials barges will be tied to the first barge and will not require the use of spuds. Spuds are heavy steel piles used to moor the barge. The pile is in a well at the bottom of the barge and acts in the same function as would an anchor. Crews will access the barges daily on a 16 -foot aluminum crew boat launched from the Port of Morrow recreational dock approximately 2 miles downstream. An upland staging and access area will also be used, as shown on Figure 2. No disposal is anticipated. In -water Work Area Isolation. Sediment fencing will be placed around the perimeter of the upland excavation area, and floating sediment curtains will be installed surrounding the immediate in -water work area. In -water pile driving will be approached in sections with approximately 7,800 square feet (SF) (130 feet by 60 feet) being isolated in each section (see Figure 8). The total in -water isolation area is approximately 66,000 SF. This in - water work area will isolate the in -water construction activities from the active flows of the main channel and allow fish salvage to take place. Fish Salvage. Once the work area has been isolated, fish removal methods will involve the use of seines or trawl nets within the in -water construction area to minimize effects to Endangered Species Act (ESA) -listed species. An ODFW fish biologist or equivalent biologist experienced with fish salvage techniques will supervise all handling of fish and relocation methods to minimize effects to fish. Captured fish will be placed in aerated buckets, examined, identified, and released outside of the project area in habitat similar to that from which they were obtained. Elevated Fixed Dock and Conveyor Structure (See Sheet MS -02 and MS -04). The elevated, fixed dock will be 6 feet wide and 275.5 feet long supported by up to four bents. Each support bent consists of two 16 -inch diameter round steel piles that will be installed with a vibratory hammer mounted on a barge and supported by two supply barges. Piles will be installed to a depth of approximately 35 feet Prior to installation of each bent, two 16 -inch diameter temporary template piles will be installed with a vibratory hammer to support the installation of the permanent piles. Once the permanent piles have been installed, the template piles will be removed. Six permanent piles will be installed below the OHWE and two will be installed above. The elevation of the top of the fixed dock will be set to allow a clearance of at least 9 feet in between the dock and the water surface at the OHWE to allow more light penetration under the dock. In addition, the surface of the dock will be grated. The total above -water surface area of the elevated fixed dock is 990 SF, and the total area of impact at the water surface is 8.4 SF. The elevated conveyor will be 30 feet wide and 270 feet long (above water) supported by up to three reinforced concrete capped support bents. The conveyor will be elevated between 50 and 90 feet above the water surface. The landward support bent will be entirely above the OHWE and will consist of thirty-two 16 -inch diameter round steel piles that will be installed with an impact hammer to a depth of 35 feet. The support bent may be installed using a land-based crane located 150 feet upland from the OHWE. The support bent will be constructed near the top of the existing bank above the OHWE to provide a transition between the shore and the fixed dock. Two concrete capped support bents will be installed over the water. The support bents consist of ten 24 -inch diameter round steel piles installed to a minimum depth of 35 feet. The total area of impact at the water surface is 62.8 SF. Prior to installation of each bent, four 16 -inch diameter temporary template piles will be installed with a vibratory hammer to support the installation of the permanent piles. Once the permanent piles have been installed, the template piles will be removed. Due to the dense substrate in the work area, it is anticipated that an impact and vibratory hammer will be used for the installation of all of the 24 -inch piles. A vibratory hammer will be used to the extent feasible. Both will be mounted on a barge supported by two supply barges. Prior to using the impact hammer, either a confined or unconfined bubble curtain (as specified by the National Marine Fisheries Service [NMFS]) will be installed around the 24 -inch piles to reduce peak decibel (dB) levels. Based on pile driving logs from adjacent facilities, it is estimated that the 24 -inch piles will each require up to 150 strikes per pile. A total of up to 1,500 strikes per day will occur during the pile driving process for the support bents. Total use of the impact hammer for installation of the bents is less than two hours per week over the course of one week. The completed conveyor will be enclosed and will have a retractable chute to eliminate potential fugitive dust. The enclosed conveyor will create a non -grated, solid metal surface above the water of 8,100 SF. In addition, the concrete pile caps will create an above -water surface area of 960 feet. The elevation of the top of the conveyor will be set to allow a clearance of at least 50 feet in between the conveyor and the water surface at the OHWE. This elevation was chosen for operability as well as to limit shadow casting under the conveyor. The total above -water surface area of the elevated conveyor and pile caps is 9,060 SF, and the total area of impact at the water surface is 71 SF. Elevated Fixed Dock and Conveyor Summary: Permanent fill below the OHWE: 144 cubic yards (CY) Temporary fill below the OHWE: 37.5 CY • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 4 v. 07-07-09 Total above -water grated surface area: 990 SF Total above -water non -grated surface area: 9,060 SF Total impact area at the OHWE: 71 SF Elevated Fixed Walkway. The elevated fixed walkway will be four feet wide and 1,160 feet long, supported by 30 support bents. Each support bent will consist of two 14 -inch diameter round steel piles that will be installed with a vibratory hammer mounted on a barge supported by two supply barges. Piles will be installed to a depth of approximately 25 feet. Prior to installation of each bent, two 16 -inch diameter temporary template piles will be installed with a vibratory hammer to support the installation of the permanent piles. Once the permanent piles have been installed, the template piles will be removed. All piles will be installed below the OHWE. The surface of the walkway will consist of grated expanded metal decking. The elevation of the top of the walkway will be set to allow a clearance of at least 9 feet in between the walkway and the water surface at the OHWE to allow more light penetration under the walkway. The total above -water surface area of the walkway is 4,237 SF, and the total area of impact area at the water surface is 66 SF. Elevated Fixed Walkway Summary: Permanent fill below the OHWE: 142 CY Temporary fill below the OHWE: 137 CY Total above -water grated surface area: 4,237 SF Total impact area at the OHWE: 66 SF Dolphins. In addition to the dock, conveyor, and walkway structures, two mooring dolphins and six breasting dolphins will be constructed. Mooring Dolphins. At the upstream and downstream extent of the structure, one mooring dolphin, for a total of two, will be installed. Each dolphin will consist of six 16 -inch diameter battered steel piles. Prior to installation of the permanent piles, four temporary template piles will be installed with a vibratory hammer to support the installation of the permanent piles. Once the permanent piles have been installed, the template piles will be removed. A metal bracing will be installed two feet above the pool height at the time of construction. Anti - perching devices will be installed atop the piles. Breasting Dolphins. Seven breasting dolphins will be installed between the two mooring dolphins, adjacent to the walkway. The breasting dolphins will be 160 feet apart at the OHWE. Six dolphins will consist of six 16 -inch diameter battered steel piles and one will consist of five 16 -inch diameter battered steel piles. In addition, three 18 -inch diameter high density polyethylene (HDPE) fender piles will be installed on the dolphin face using only a vibratory hammer. Prior to installation of the permanent piles, four temporary template piles will be installed with a vibratory hammer to support the installation of the permanent piles. Once the permanent piles have been installed, the template piles will be removed. A metal bracing will be installed two feet above the pool height at the time of construction. Anti -perching devices will be installed atop the piles. Due to the dense substrate in the work area, it is anticipated that an impact and vibratory hammer will be used for the installation of all the main dolphin piles. A vibratory hammer will be used to the extent feasible. Prior to using the impact hammer, either a confined or unconfined bubble curtain (as specified by the NMFS) will be installed around the dolphin piles to reduce peak dB levels. Based on pile driving logs from adjacent facilities, it is estimated that the dolphin piles will each require up to 150 strikes per pile. A total of approximately 900 strikes per day will occur during the pile driving process. Total use of the impact hammer for installation of the dolphins is approximately 4.5 hours over the course of two weeks. Dolphin Summary: Permanent fill below the OHWE: 286 CY Temporary fill below the OHWE: 82 CY Total above -water surface area: 864 SF Total impact area at the OHWE: 112 SF Restoration. The contractor will limit disturbance of riverbank and upland sites. Removal of vegetation will be kept to the minimum required for construction activities. No woody vegetation will be removed. Once construction is complete, the disturbed areas will be restored to original slopes and planted and seeded with native grass and woody species, as described in Section 5. Additional mitigation for near -shore habitat loss is being considered and, if needed, will be developed in conjunction with other conservation and restoration activities in the area and will be described in the forthcoming Biological Assessment (BA). STREAM SUBSTRATE According to Oregon Water Resources Department well logs and visual observation, the stream substrate is largely sand with some gravel. A number of large rocks are present on the river bottom. At ereater depths, there are lavers of silt, ¢ravel, and rock. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 5 v. 07-07-09 IMPACT SUMMARY EQUIPMENT TO BE USED As previously discussed, in -water work will take place from three floating barges. A photograph and description of equipment to be used is provided in Figure 5, In -Water Construction Equipment. One barge will be mounted with a crane and pile driving equipment, while the others will be used for supplies. One of these will also be used to perform fish salvage. A tug will be on site and used to move barges around the work area. The tug and barges will be equipped with hazardous materials clean-up kits and floating booms and will follow a spill -prevention plan. Barge -mounted pile driving equipment includes: Vibratory hammer. The vibratory hammer is a common technique used to install steel piles in appropriate sediment. This process begins by placing a choker around the pile and lifting it into a vertical position with a crane. Then the pile will be lowered into position and set in place at the mud line. The pile will be held steady while the vibratory hammer installs the pile to the required tip elevation. Impact hammer. In order for load-bearing structures to meet design criteria and ensure proper functioning, piles must often be "proofed" by striking them with an impact hammer. An impact hammer is a large steel device that works with a hydraulic or diesel piston with a guide that holds the hammer in alignment with the pile while the piston moves up and down, striking the top of the pile and driving it into the substrate from the downward force of the hammer on the top of the pile. While the impact hammer is used, an observer will record the distance the pile is embedded with each impact hammer blow. For in -water pile installation, it is expected that an impact hammer will be required for a minimum of 12 hours, since up to 73 piles will need to be proofed with an impact hammer and assuming a maximum time of 10 minutes per pile. The duration of peak noise levels is expected to intermittently occur over a two-week period. A bubble curtain will be employed during impact hammer installation or proofing of steel piles to reduce the peak dB levels, sound exposure levels, and root mean square pressure. In addition, acoustic measurements (monitoring) will be conducted according to the NMFS monitoring protocol. Limited land-based equipment will be used for the construction of the dock facility. A land-based crane may be needed for the placement of the conveyor system. If used, the crane will be located 150 feet above the OHWE in an upland location. The staging area will be secured against spills and erosion. In addition, a loader and backhoe may be used in the upland staging area. CONSTRUCTION SEQUENCE 1. Install and maintain erosion control measures throughout the construction period. 2. Erect traffic control signs and barricades (if needed). 3. Mobilize equipment and barges. 4. Beginning December 1, 2012, construct end bents and upland bents for the dock and conveyor structure. 5. Place construction and salvage barge. 6. Begin sediment/turbidity monitoring once daily (during pile driving). 7. Begin isolating in -water work section number one (see Figure 8). 8. Fish salvage work area number one. 9. Using a vibratory hammer, install template piles in work section number one, followed by permanent piles. 10. Install bubble curtain around 24 -inch piles. 11. Begin acoustic monitoring. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 6 v. 07-07-09 Total Project Fill Volume Summary Tempo a Fill (CY) Permanent Fill (CY) Total Impact Area at the OHWE (SF) Total Above - Water Surface Area (SF) Below the OHWE Above the OHWE Below the Above the OHWE OHWE Dock/Conveyor 37.5 8 144 88 71 10,050 Walkway 137 22 142 23 66 4,237 Dolphins 82 13 286 42 112 864 TOTAL 256.5 43 572 153 249 15,151 EQUIPMENT TO BE USED As previously discussed, in -water work will take place from three floating barges. A photograph and description of equipment to be used is provided in Figure 5, In -Water Construction Equipment. One barge will be mounted with a crane and pile driving equipment, while the others will be used for supplies. One of these will also be used to perform fish salvage. A tug will be on site and used to move barges around the work area. The tug and barges will be equipped with hazardous materials clean-up kits and floating booms and will follow a spill -prevention plan. Barge -mounted pile driving equipment includes: Vibratory hammer. The vibratory hammer is a common technique used to install steel piles in appropriate sediment. This process begins by placing a choker around the pile and lifting it into a vertical position with a crane. Then the pile will be lowered into position and set in place at the mud line. The pile will be held steady while the vibratory hammer installs the pile to the required tip elevation. Impact hammer. In order for load-bearing structures to meet design criteria and ensure proper functioning, piles must often be "proofed" by striking them with an impact hammer. An impact hammer is a large steel device that works with a hydraulic or diesel piston with a guide that holds the hammer in alignment with the pile while the piston moves up and down, striking the top of the pile and driving it into the substrate from the downward force of the hammer on the top of the pile. While the impact hammer is used, an observer will record the distance the pile is embedded with each impact hammer blow. For in -water pile installation, it is expected that an impact hammer will be required for a minimum of 12 hours, since up to 73 piles will need to be proofed with an impact hammer and assuming a maximum time of 10 minutes per pile. The duration of peak noise levels is expected to intermittently occur over a two-week period. A bubble curtain will be employed during impact hammer installation or proofing of steel piles to reduce the peak dB levels, sound exposure levels, and root mean square pressure. In addition, acoustic measurements (monitoring) will be conducted according to the NMFS monitoring protocol. Limited land-based equipment will be used for the construction of the dock facility. A land-based crane may be needed for the placement of the conveyor system. If used, the crane will be located 150 feet above the OHWE in an upland location. The staging area will be secured against spills and erosion. In addition, a loader and backhoe may be used in the upland staging area. CONSTRUCTION SEQUENCE 1. Install and maintain erosion control measures throughout the construction period. 2. Erect traffic control signs and barricades (if needed). 3. Mobilize equipment and barges. 4. Beginning December 1, 2012, construct end bents and upland bents for the dock and conveyor structure. 5. Place construction and salvage barge. 6. Begin sediment/turbidity monitoring once daily (during pile driving). 7. Begin isolating in -water work section number one (see Figure 8). 8. Fish salvage work area number one. 9. Using a vibratory hammer, install template piles in work section number one, followed by permanent piles. 10. Install bubble curtain around 24 -inch piles. 11. Begin acoustic monitoring. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 6 v. 07-07-09 12. Proof 24 -inch conveyor bent piles using an impact hammer. 13. Remove template piles and cut permanent piles to appropriate height. 14. Pour concrete pile cap. 15. Allow sediment to settle and remove sediment curtain. 16. Repeat steps seven through fifteen for work area number two (see Figure 8). 17. Move and restage equipment for first dolphin installation. 18. Begin isolating in -water work section number three (see Figure 8). 19. Fish salvage work area number three. 20. Using a vibratory hammer, install template piles in work section number three. 21. Drive permanent piles (both walkway and dolphin piles) using a vibratory hammer. 22. Install bubble curtain. 23. Begin acoustic monitoring. 24. Proof permanent dolphin piles using an impact hammer. 25. Remove template piles and cut permanent piles to appropriate height; install dolphin bracing. 26. Allow sediment to settle and remove sediment curtain. 27. Repeat steps eighteen through twenty-six up to seven additional times to complete dolphin and walkway pile installation. 28. Place and secure over -water structures atop piles using barge -mounted crane and supply barges. (All work above to be completed in the ODFW in -water work window.) 29. Demobilize in -water equipment. 30. Reshape ground to the practical equivalent of preconstruction conditions, seed all disturbed areas, and plant riparian area. Note: Upland construction of the associated storage facility will be conducted simultaneously. HYDRAULIC AND HYDROLOGIC CHARACTERISTICS The project is located in the John Day Pool of the Columbia River, on which the OHWE (normal full pool) is 268 feet national geodetic vertical datum. The pool is regulated by operations at the John Day Dam. No discernable effect on the direction, volume, or velocity of water movement in the Columbia River is anticipated as a result of this project. Furthermore, the project is not within a floodway and is not expected to increase flooding. Since there are no anticipated impacts to hydraulic and hydrologic characteristics, no mitigation measures will be needed. OTHER INFORMATION US Coast Guard Navigation Targets. Anderson Perry & Associates, Inc. (AP) surveyed the US Coast Guard (USCG) Navigational Targets in the project area. Figure 7 shows the location of navigational targets, shipping channel, and line of sight for these targets in relation to the proposed dock and barge loading locations. Given this information, the proposed dock may have an impact on the line of sight for the Columbia River navigation channel. While the targets will not need to be moved from their current location, they may need to be raised. Coyote Island Terminal will work with the USCG to perform the appropriate mitigation to maintain navigability. Endangered Species Act. The project area is in the main channel of the Columbia River and is used as a migratory corridor and/or rearing habitat by eight federally -listed species of salmonids. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 7 v. 07-07-09 This reach of the Columbia River is designated critical habitat for all eight of these species and contains Essential Fish Habitat (EFH) for Chinook salmon and Coho salmon (Oncorhynchus kisutch). ESA consultation and EFH consultation, along with a discussion of the life histories, presence, and timing in the project area, and potential impacts as a result of the project, will be addressed in the forthcoming BA. Cultural Resources. The Confederated Tribes of the Umatilla Indian Reservation (CTUIR) have been made aware of the project. The applicant will work with the CTUIR to develop a cultural resources study plan. Once a cultural resources survey has been completed, a copy will be sent to the US Army Corps of Engineers (USACE) and the Oregon Department of State Lands (DSL). As part of this project, the applicant also anticipates that consultation with the following tribes may be needed: Grand Ronde, Warm Springs, Siletz, Yakama, Nez Perce, Colville Confederated, Spokane, Kalispel, Kootenai Tribe of Idaho, and Coeur d'Alene. There is an abandoned railroad bed present along the riparian area that may be impacted as part of this project. Due to manipulation, it is unlikely this resource is eligible for listing on the National Register of Historic Places (Register). However, a historic resources report will be completed to determine if the railroad grade, or any other resource in the project area, is eligible for listing on the Register. The current Register listing shows a remnant of the Oregon Trail 13 miles south of the project site. Wild and Scenic Rivers Act. The Columbia River is not a Wild and Scenic River or a State Scenic Waterway. As such, there will be no impacts to Wild and Scenic Rivers or State Scenic Waterways as a result of this project. Environmental Review Document. Additional environmental concerns associated with the Morrow Pacific project will be addressed in the forthcoming Environmental Review Document (ERD) document prepared by AP. State the number of project drawing sheets included with this application: 9 Figures and 12 Plan Sheets A complete application must include a location map, site plan, cross-section drawings and recent aerial photo as follows and as applicable to the project: ■ Location map (must be legible with street names) ■ Site plan including; ■ Entire project site and activity areas ■ Existing and proposed contours ■ Location of ordinary high water, wetland boundaries or other jurisdictional boundaries ■ Identification of temporary and permanent impact areas within waterways or wetlands ■ Map scale or dimensions and north arrow ■ Location of staging areas ■ Location of construction access ■ Location of cross section(s), as applicable ■ Location of mitigation area, if applicable ■ Cross section drawing(s) including; ■ Existing and proposed elevations ■ Identification of temporary and permanent impact areas within waterways or wetlands ■ Ordinary high water and/or wetland boundary or other jurisdictional boundaries ■ Map scale or dimensions ■ Recent Aerial photo (1:200, or if not available for your site, the highest resolution available) Will any construction debris, runoff, etc., enter a wetland or waterway? Yes ❑ No If yes, describe the type of discharge and show the discharge location on the site plan. Significant upland site development will take place in conjunction with the dock construction. A 1200-C Construction Stormwater Permit from the DEQ will be obtained prior to any construction. Sediment fence and other erosion control methods, as specified in the ESCP, will be placed to keep sediment from entering the active waterway. In addition, silt curtains installed during in -water work will avoid sediment release during pile driving. 1 Estimated proiect start date: I December 1, 2012 I Estimated proiect completion date: I March 31, 2013 1 • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 8 v. 07-07-09 Evolutionarily Significant Units (ESU)/ Species Distinct Po ulation Segments DPS Federal Status Upper Columbia River DPS T Steelhead Middle Columbia River DPS T Oncorhynchus mykiss Snake River Basin DPS T Upper Columbia River ESU E Chinook salmon Snake River Fall -run ESU T Oncorhynchus tshawytscha Snake River Spring/summer run ESU T Sockeye salmon Snake River ESU E Oncorhynchus nerka Bull trout Salvelinus con uentus Columbia River DPS T This reach of the Columbia River is designated critical habitat for all eight of these species and contains Essential Fish Habitat (EFH) for Chinook salmon and Coho salmon (Oncorhynchus kisutch). ESA consultation and EFH consultation, along with a discussion of the life histories, presence, and timing in the project area, and potential impacts as a result of the project, will be addressed in the forthcoming BA. Cultural Resources. The Confederated Tribes of the Umatilla Indian Reservation (CTUIR) have been made aware of the project. The applicant will work with the CTUIR to develop a cultural resources study plan. Once a cultural resources survey has been completed, a copy will be sent to the US Army Corps of Engineers (USACE) and the Oregon Department of State Lands (DSL). As part of this project, the applicant also anticipates that consultation with the following tribes may be needed: Grand Ronde, Warm Springs, Siletz, Yakama, Nez Perce, Colville Confederated, Spokane, Kalispel, Kootenai Tribe of Idaho, and Coeur d'Alene. There is an abandoned railroad bed present along the riparian area that may be impacted as part of this project. Due to manipulation, it is unlikely this resource is eligible for listing on the National Register of Historic Places (Register). However, a historic resources report will be completed to determine if the railroad grade, or any other resource in the project area, is eligible for listing on the Register. The current Register listing shows a remnant of the Oregon Trail 13 miles south of the project site. Wild and Scenic Rivers Act. The Columbia River is not a Wild and Scenic River or a State Scenic Waterway. As such, there will be no impacts to Wild and Scenic Rivers or State Scenic Waterways as a result of this project. Environmental Review Document. Additional environmental concerns associated with the Morrow Pacific project will be addressed in the forthcoming Environmental Review Document (ERD) document prepared by AP. State the number of project drawing sheets included with this application: 9 Figures and 12 Plan Sheets A complete application must include a location map, site plan, cross-section drawings and recent aerial photo as follows and as applicable to the project: ■ Location map (must be legible with street names) ■ Site plan including; ■ Entire project site and activity areas ■ Existing and proposed contours ■ Location of ordinary high water, wetland boundaries or other jurisdictional boundaries ■ Identification of temporary and permanent impact areas within waterways or wetlands ■ Map scale or dimensions and north arrow ■ Location of staging areas ■ Location of construction access ■ Location of cross section(s), as applicable ■ Location of mitigation area, if applicable ■ Cross section drawing(s) including; ■ Existing and proposed elevations ■ Identification of temporary and permanent impact areas within waterways or wetlands ■ Ordinary high water and/or wetland boundary or other jurisdictional boundaries ■ Map scale or dimensions ■ Recent Aerial photo (1:200, or if not available for your site, the highest resolution available) Will any construction debris, runoff, etc., enter a wetland or waterway? Yes ❑ No If yes, describe the type of discharge and show the discharge location on the site plan. Significant upland site development will take place in conjunction with the dock construction. A 1200-C Construction Stormwater Permit from the DEQ will be obtained prior to any construction. Sediment fence and other erosion control methods, as specified in the ESCP, will be placed to keep sediment from entering the active waterway. In addition, silt curtains installed during in -water work will avoid sediment release during pile driving. 1 Estimated proiect start date: I December 1, 2012 I Estimated proiect completion date: I March 31, 2013 1 • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 8 v. 07-07-09 (5) PROJECT IMPACTS AND ALTERNATIVES Alternatives Analysis: Describe alternative sites and project designs that were considered to avoid or minimize impacts to the waterway or wetland. (Include alternative design(s) with less impact and reasons why the alternative(s) were not chosen. Reference OAR 141-085-0565 (])through (6) for more information *). This alternatives analysis addresses the alternatives to the permittable action. Additional project alternative analysis is discussed in the ERD documentation. The objective of this permit is to construct a dock and enclosed conveyor system to transport coal from enclosed buildings on the upland site to covered barges on the river. The criteria used to evaluate the best alternative for the new dock facility include: • Ability to enclose structures and limit exposure of coal to the environment • Safety for personnel • Reduced environmental impact • Ability to meet engineering design and load criteria Engineering design criteria for this dock facility include: 1. Building Codes a. International Building Code 2009/OSSC 2010 b. ASCE 7-05 2. Wind/Seismic Loads a. Seismic Design Parameters: i. Ss = 0.47/S1 = 0.15 (MCE values) ii. SDS = 0.45/SD1 = 0.22 (modified — site class D) b. Wind = 95 miles per hour (mph) (3 sec. gust) exposure "C" 3. Gravity Loads a. Dead — calculated per Drawings b. Catwalk live = 50 pounds per square foot (psf) C. Conveyor dead and live loads provided by Mill Creek Engineering 4. Berthing/Mooring Loads/Design Criteria a. Maximum approach velocity = 6"/S b. Maximum approach angle = 5 degrees C. Basic wind speed = 80 mph. Standard operating procedures require barges secured to dock at all times (not able to take on ballast/anchor in main channel). To successfully accomplish these objectives, the conveyor must be enclosed, there must be a walkway along the landward side of the dolphins, the dock must be located in lower quality fish habitat and minimize impact area, and must meet all engineering design and load criteria. Alternative locations considered to fulfill these requirements include: • Alternative 1 — Use of the existing Cemex loader and dock at the Port of Morrow. • Alternative 2 — Use of the existing Tidewater dock at the Port of Morrow. In addition to alternate locations, the following alternate designs to the new proposed dock were considered: • Alternative 3 — New dock facility using "cubes" for end structures and dolphins in between the end cubes (instead of all dolphins) for docking structures. • Alternative 4 — Simpler dock facility by utilizing open coal storage and clam -shell type or other open loader system (similar to existing coal storage and loading operations on the Mississippi River). A no action alternative was also considered as part of the alternatives analysis. A summary of alternatives is described in the following table: • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 9 v. 07-07-09 • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 10 v. 07-07-09 Alternative Advantages Disadvantages Alternative 1 — Use of the existing Cemex • Reduces new construction. • Unable to enclose conveyor loader. • Within low quality habitat utilizing existing structure to The existing loader is approximately 1,700 reach. contain coal dust. feet upstream from the selected site. The • Already permitted for use. • No personnel walkway to allow loader and dock facility were constructed in for barge staging. c 1994 for loading aggregate onto barges. The • Requires additional dolphin facility consists of a 150 -foot by 15 -foot installation, which would crowd a conveyor dock and four dolphins. In this adjacent facility. alternative, coal would be hauled to the Does not meet design criteria. V Cemex loader and unloaded from trucks or a conveyed an extensive distance to the loader. Alternative 2 — Use of the existing • Reduces new construction. • Unable to enclose conveyor Tidewater dock. • Within low quality habitat utilizing existing structure to The existing dock is approximately 700 feet reach. contain coal dust. U upstream from the selected site. The loader • Already permitted for use. • No personnel walkway to allow and dock facility were constructed in 2007 for for barge staging. ' «j loading ethanol onto barges. The facility • Requires additional dolphin consists of a walkway, 24 feet by 24 feet installation, which would crowd platform, and three dolphins. Ethanol adjacent facility. pipelines are placed on and around the dock • Risk created by nearby ethanol facility. In this alternative, coal would be transmission lines. hauled to the ethanol dock and unloaded from • Coal would be hauled trucks or could possibly be conveyed to the uncovered from the storage existing loader using a conveyance system. facility to the loader. • Does not meet design criteria. Alternative 3 — New dock facility using • Stronger dock structure. • All new construction and new "cubes" for end structures and dolphins in • Potentially reduces number impact area. between the end cubes (instead of all of needed piles. • Increased in -water impact area. dolphins) for docking structures. In this • Within low quality habitat • Increased fill material. alternative, coal is transported to the barges in reach. • Increased shading effects of an entirely enclosed system with negative air • Enclosed negative air final structure. Apressure to contain coal dust. pressure coal conveyance 0Higher installation cost. system to contain coal dust. as • Meets design criteria. q Alternative 4 — Simpler dock facility by • Simplifies dock facility • Coal dust not properly Q utilizing open coal storage and clam -shell construction (does not have contained. type or other open loader system (similar to to support an enclosed • Potential for coal spillage into existing coal storage and loading operations loader so fewer piles Columbia River along dock on the Mississippi River). installed). facility. • Lowest cost system to • Does not meet design criteria. complete barge loading of coal. Selected Alternative — New dock facility • Enclosed negative air • All new construction and new with standard dolphins for entire docking pressure coal conveyance impact area. facility. In this alternative, coal is transported system to contain coal dust. to the barges in an entirely enclosed system • Personnel walkway for ' with negative air pressure to contain coal dust. safety and barge staging ca activities • Within low quality habitat reach. • Minimizes impact of alternatives. • Meets design criteria. • Achieves a design that exceeds industry standard Best Management Practices (BMP). No Action. The no action alternative would • No in -water impacts. • Less availability of low -sulfur not accomplish the overall project purpose of coal to Asian markets. c constructing a coal export facility in the • No local job creation. ° w Pacific Northwest. • No additional property tax to be d paid to Morrow County Z • Reduced utilization of Port of Morrow infrastructure and reduced income to the Port of Morrow. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 10 v. 07-07-09 The selected alternative meets the project purpose and objectives by allowing coal to remain covered and enclosed while being transferred from the storage facility to the barges, includes a personnel walkway for safe fleeting, and is located in lower quality fish habitat, between two similar existing facilities. The project has been designed to have the lowest fill and impact area while meeting design criteria. The design incorporates grated walkways to reduce shading impacts and reduces predatory perches where possible. In addition, the dolphins and walkway have been located at depths of 28 feet to minimize near -shore impacts. BMPs including installation of silt curtain, use of a vibratory hammer (to the extent possible), and installation of bubble curtain, will help further reduce impacts. Measures to Minimize Impacts Describe what measures you will use (before and after construction) to minimize impacts to the waterway or wetland. These may include but are not limited to the following: ■ For projects with ground disturbance include an erosion control plan or description of other best management practices (BMP's) as appropriate. (For more information on erosion control practices see DEQ's Oregon Sediment and Erosion Control Manual) ■ For work in waterways where fish or flowing water are likely to be present, discuss how the work area will be isolated from the flowing water. ■ If native migratory fish are present (or were historically present) and you are installing, replacing or abandoning a culvert or other potential obstruction to fish passage, complete and attach a statement of how the Fish Passage Requirements, set by the Oregon Department of Fish and Wildlife will be met. The upland site development will be in excess of one acre and will require an ESCP that will be completed prior to construction. The following BMPs will be used during the project activities: 1. Any spoils material will be disposed of at an upland site (if applicable). 2. A vibratory hammer will be used for installation of piles (to the extent possible) to limit adverse effects. 3. A bubble curtain will be required when an impact hammer is used for pile installation. Acoustic monitoring will take place when pile driving is being accomplished with an impact hammer. Work will cease if dB reach an unacceptable level, as determined by the NMFS. 4. All in -water work will be performed within the ODFW in -water work window. 5. All upland staging, refueling, and storage of heavy equipment will be kept at least 150 feet away from water. For track -mounted equipment, large cranes, and other equipment whose limited mobility makes it impractical to move it for refueling, precautions to minimize the risk of fuel reaching the Regulated Work Area will be taken. Spill prevention measures will be implemented and fuel containment systems will be designed to completely contain a potential spill. Other pollution control devices and measures (such as diapering, parking on absorbent material, etc.) adequate to provide containment of hazardous material will also be used as necessary. Refueling operations will be completed in a way that will minimize the amount of fuel remaining in vehicles stored during non -work times. 6. The contractor will limit alteration or disturbance of riverbank or riparian vegetation to only those areas necessary for construction. 7. A temporary erosion control plan will be used to prevent sediment from entering the water. Sediment control BMPs will include the use of sediment fencing and sediment barriers (i.e., bio -filter, sandbags, straw bales, wattles), and minimizing vegetation removal and covering bare soil and stockpiles, and shall conform to DEQ BMPs for stormwater discharges associated with industrial activities. 8. Erosion control devices will be inspected daily during the rainy season and weekly during the dry season. If inspection reveals that erosions controls are ineffective, the contractor will immediately mobilize work crews during work or non -work hours to make repairs, install replacements, or install additional controls as necessary. 9. Heavy equipment will be checked for leaks prior to the start of the work day. The contractor will complete all necessary repairs prior to commencing work activities. 10. Over -water concrete work will be completely contained and no concrete will be allowed to enter the water. 11. All construction debris and waste will be disposed of in designated sites. Garbage will be disposed of in dumpsters in upland locations. Excess waste materials will not be disposed of in waters. Any debris or garbage that enters water will be retrieved by the contractor. 12. Barges and equipment will carry hazardous materials clean-up kits at all times. The following measures will be taken to isolate and salvage the work area: 1. A floating sediment curtain will be used to isolate all in -water work to the confined areas. Isolation and salvage will take place in 150 - foot by 60 -foot sections and will start from the landward side and move out (see Figure 8). Up to ten isolation sections are anticipated. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 11 v. 07-07-09 The sediment curtain will be made of high strength woven fabric that is impervious to sediment and aquatic species. Curtain installation will include a chain ballast or other weight along the lower edge of the curtain to extend the curtain to the bottom of the channel. The curtain will be placed in a manner to move fish outward to lessen the amount of salvage and fish handling required. 2. Once the sediment curtain has been placed, an ODFW fish biologist or equivalent fish biologist will supervise fish removal from within the work area using a seine or trawl net. All fish handled will be recorded. Captured fish will be placed in aerated buckets, examined, identified, and released outside of the project area in habitat similar to that from which they were obtained. Care will be taken to avoid putting predators (if any are captured) into the same bucket as prey species. The amount of time fish spend in the buckets will be minimized to reduce stress to captured fish. Any federally listed fish will be noted and, if mortality occurs to a listed fish species, it will be collected according to NMFS and US Fish and Wildlife Service requirements. Fish passage will be maintained throughout construction since the work sediment curtain will block only a small portion of the stream channel at any given time while maintaining stream flows and fish passage in the remaining river channel. An ODFW fish passage plan is not required for this project. Description of resources in project area Ocean ❑ Estuary ❑ River ® Lake ❑ Stream E] Freshwater Wetland ❑ Describe the existing physical and biological characteristics of the wetland/waterway site by area and type of resource (Use separate sheets and photos, if necessary). For wetlands, include, as applicable: ■ Cowardin and Hydroeeomotphic(HGM) wetland class(s)* ■ Dominant plant species by layer (herb, shrub, tree) * ■ Whether the wetland is freshwater or tidal ■ Assessment of the functional attributes of the wetland to be impacted* ■ Identify any vernal pools, bogs, fens, mature forested wetland, seasonal mudflats, or native wet prairies in or near the project area.) For waterways, include a description of, as applicable: ■ Channel and bank conditions* ■ Type and condition of riparian vegetation* ■ Channel morphology (i.e., structure and shape)* ■ Stream substrate* ■ Fish and wildlife (type, abundance, period of use, significance of site) ■ General hydrological conditions (e.g. stream flow, seasonal fluctuations)* WETLANDS No wetlands are present in the project area. WATERWAYS One waterway, the Columbia River, is present in the project area. The Columbia River drains a 259,000 -square -mile basin that includes territory in seven states (Oregon, Washington, Idaho, Montana, Nevada, Wyoming, and Utah) and one Canadian province. It flows for more than 1,200 miles, from the base of the Canadian Rockies in southeastern British Columbia to the Pacific Ocean at Astoria, Oregon. The proposed project is located within HUC 1707010105 and in the John Day Pool, 55 river miles (RM) upstream from the John Day Dam and 271 RM from the mouth. The river flows year-round but is controlled by 14 dams, three of which are below the project location. Channel Description, Channel Morphology, and Bank Conditions. The Columbia River, including riparian area and stream channel, has been manipulated by the construction of hydroelectric dams as well as historical use. In the vicinity of the proposed Morrow Pacific dock, the Columbia River is approximately 13,000 feet wide, with meandering bends five miles upstream and four miles downstream. The river is moderately entrenched and flows in a single channel. The banks of the river are steep in this reach (approximately 35 percent) and are poorly vegetated with a mix of native and non-native species. Due to the controlled nature of the river, streambank erosion is stable, as well as channel aggradation and degradation. Riparian Zone. The riparian zone through this reach of the Columbia River is limited. A single willow tree exists near the water elevation at the project site. As shown in Figures 4A and 4B, Site Photographs, the channel transitions from washed gravel to a disturbed bunch grass/shrub-steppe mix. This transitional zone is vegetated cheat grass, sage brush, rabbit brush, and bitterbrush. Stream Substrate. The substrate is unconsolidated, course -grained alluvium, primarily sand with some gravels. Large rocks are located throughout the project area. Pile driving logs from adjacent facilities indicate that bedrock is located at a depth of approximately 35 feet below the mud line. General Hydrological Conditions. The river flows slowly in the project area as a result of hydroelectric dams both up- and downstream. The dams control the hydrology of the river, allow water to be stored, and allow water levels to be altered for a variety of uses including power generation, recreation, navigation, and irrigation. Historically, high flows occurred in the spring as a result of rain and snowmelt, and low flows occurred in the late summer. This historic regime has been altered by the construction of the dams and the result is a more consistent velocity and water level. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 12 v. 07-07-09 Adjacent Uplands and Land Use. The proposed dock location is within the Port of Morrow industrial area. Commercial and industrial development is adjacent to the project area for a reach of approximately 6,000 feet downstream and 3,500 feet upstream. Industrial development, including dock loading facilities, exists 700 feet upstream and 1,000 feet downstream from the project site. The upland site is primarily disturbed bunch grass/shrub-steppe mix, dominated by annual grasses and rabbit brush. Fish and Wildlife. Several listed fish species may be found in the vicinity of the proposed project. The following table describes fish use in the project area. There are no federally -listed terrestrial species in the project area. The limited riparian area and disturbed upland site present poor wildlife habitat. As such, the site is primarily used by small mammals such as rodents, rabbits, and badgers. A site survey indicates that coyotes, skunks, deer, and other species may pass through the site. Migratory bird species that use shrub -steppe habitat may be present seasonally. There are no suitable nesting trees in the project area. Describe the existing navigation, fishing and recreational use of the waterway or wetland. * Navigation. The proposed dock location is within the Port of Morrow industrial area. The primary use in the area is industrial, with barge loading docks both up- and downstream of the proposed facility. Thus, the majority of activity in the area is dominated by shipping and river commerce. The Columbia River, from RM 0 to RM 309, is listed by the USACE as a navigable waterway. As shown on Figure 7, the proposed project may impact navigation targets on the Columbia River. Coyote Island Terminal will work with the USCG to raise the height of targets that may be impacted. The project will result in an increase in the number of tugs and barges moving on the river. Increased river traffic is discussed further in the ERD. Fishing and Recreation. A recreational loading and unloading dock is located approximately 2.5 miles from the proposed facility. As a result, the river is used for fishing, cruising, water sports, hunting, and wildlife viewing. The area is also used for tribal fishing. There is limited bank angler use in the area. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 13 v. 07-07-09 Timing of Fish Presence in the Columbia River at Port of Morrow (RM 271) Species ESU/DPS Jan Feb I Mar I Apr I May Jun Jul Aug Sep Oct Nov Dec ODFW In -water Work Window Upper Columbia Adult River Juvenile Migration and Limited Rearing Middle Columbia Adult Steelhead River Juvenile Migration and Limited Rearing Adult Snake River Basin Juvenile Migration and Limited Rearing Upper Columbia Adult Juvenile Migration and Limited Rearing River Spring -run Chinook Snake River Fall- Adult Juvenile Migration and Limited Rearing Salmon run Snake River Adult Spring/summer run Juvenile Migration and Limited Rearing Sockeye Adult Salmon Snake River Juvenile Migration and Limited Rearing Bull Adult Trout Columbia River Juvenile Migration and Limited Rearing There are no federally -listed terrestrial species in the project area. The limited riparian area and disturbed upland site present poor wildlife habitat. As such, the site is primarily used by small mammals such as rodents, rabbits, and badgers. A site survey indicates that coyotes, skunks, deer, and other species may pass through the site. Migratory bird species that use shrub -steppe habitat may be present seasonally. There are no suitable nesting trees in the project area. Describe the existing navigation, fishing and recreational use of the waterway or wetland. * Navigation. The proposed dock location is within the Port of Morrow industrial area. The primary use in the area is industrial, with barge loading docks both up- and downstream of the proposed facility. Thus, the majority of activity in the area is dominated by shipping and river commerce. The Columbia River, from RM 0 to RM 309, is listed by the USACE as a navigable waterway. As shown on Figure 7, the proposed project may impact navigation targets on the Columbia River. Coyote Island Terminal will work with the USCG to raise the height of targets that may be impacted. The project will result in an increase in the number of tugs and barges moving on the river. Increased river traffic is discussed further in the ERD. Fishing and Recreation. A recreational loading and unloading dock is located approximately 2.5 miles from the proposed facility. As a result, the river is used for fishing, cruising, water sports, hunting, and wildlife viewing. The area is also used for tribal fishing. There is limited bank angler use in the area. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 13 v. 07-07-09 Site Restoration/Rehabilitation ■ For temporary disturbance of soils andlor vegetation in waterways, wetlands or riparian areas, please discuss how you will restore the site after construction including any monitoring, if necessary* Soil disturbance will result from equipment traffic and stockpiling material at an upland site. Disturbed sites will be returned to original contours and reseeded with native grasses. A suggested seed mix is as follows: Species Percent Mix Full Seeding Rate lbs/ac Pure Live Seed Rate/Ac Tufted hairgrass (Descham sia ces itosa) 20 10 2.0 Basin wildr a (Le ymus cinereus) 15 10 1.5 Western wheat ass (Pasco rum smithii) 30 10 3.0 Goldar bluebunch wheatgrass (Pseudoroegneria s icata) 20 10 2.0 Sherman big bluegrass (Poa secunda) 15 10 ] .5 Total 100 Site Preparation: 1. Broadcast seed on all disturbed areas. 2. Utilize post -emergent herbicide as needed to control weeds competing with newly emergent seeded species according to the recommendation of the County Weed Supervisor, County Extension Agent, or licensed applicator. All product labels and state and federal regulations will be strictly followed in the application of any pesticide. Planting Method: 1. Broadcast seed in early spring at 0 to 1/4 inch. In addition, woody species will be planted the length of the affected bank area, approximately 1,100 feet as shown on Figure 9. Species should include cottonwood (Populus deltoids), willows (Salix exigua, S. lasiolepsis, S. geyeriana, S. scouleriana), redosier dogwood (Cornus sericea), and golden currant (Ribes aureum). To the extent possible, species should be locally sourced. Trees should be planted on 6 -foot centers. Plantings will require supplemental water for establishment. The woody species should be watered for three years, or until established. The vegetated areas will be monitored yearly to ensure species establishment. Areas not established after a full growing season should be mitigated by reevaluating the seed mix, including site preparation, and reseeding. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 14 v. 07-07-09 Mitigation Describe the reasonably expected adverse effects of the development of this project and how the effects will be mitigated. ■ For permanent impact to wetlands, complete and attach a Compensatory Wetland Mitigation (CWM) Plan. (See OAR 141-085-0705 for plan requirements) * ■ For permanent impact to waters other than wetlands, complete and attach a Compensatory Non -Wetland Mitigation (CNWM) plan (See OAR 141- 085-0765 for plan requirements)* ■ For permanent impact to estuarine wetlands, you must submit a CWM plan. Permanent Impacts. The project will result in permanent impacts to the shoreline and in -water habitat. Any disturbed areas will be reseeded and the effected shoreline will be planted with locally sourced woody species (see Figure 9). In addition, the project will impact near -shore fish habitat, generally considered to be at depths less than 20 feet. Design elements have been incorporated to minimize these impacts. Such elements include grated surfaces, elevated structures, placement of dolphins at depths greater than 28 feet, and installation of anti -perching devices on piles. Additional mitigation may be needed within the Columbia River subbasin. If deemed necessary, mitigation will occur at a ratio greater than 2:1. Temporary Impacts. Temporary impacts may result from in -water construction, particularly pile driving. Such impacts will be limited in scope and duration to the extent possible. Potential construction impacts are being mitigated by the use of proper equipment, BMPs (discussed above), and monitoring. Mitigation measures include: • Use of vibratory hammer, to the extent possible • Work area isolation and salvage • Sediment curtain • Bubble curtain (when impact hammer is used) • Sediment monitoring • Acoustic monitoring In addition, shoreline restoration described in the above section will provide mitigation for temporary construction disturbance. Mitigation Location Information (Fill out only when mitigation is proposed or required) Proposed ® Onsite Mitigation Type of mitigation: mitigation ❑ Offsite Mitigation ❑ Wetland Mitigation (Check all that apply): ❑ Mitigation Bank ® Mitigation for impacts to other waters ❑ Payment to Provide ❑ Mitigation for impacts to navigation, fishing, or recreation Street, Road or Other Descriptive Location Legal Description (attach tax lot map *) Lewis and Clark Drive (see Figure 2), Quarter/Quarter Section Township Range Port of Morrow Complex, 4N 25E 2 SE/NW Boardman, Oregon In or near (City or Town) County Tax Map # Tax Lot #3 Boardman Morrow 4N 25 2 100 WetlandlWaterway (pick one) River Mile (if known) Latitude (in DD.DDDD format) Longitude (in DD.DDDD format) Columbia River 271 45.8596 -119.6608 Name of waterwaylwatershedlHUC Name of mitigation bank (if applicable) Columbia River HUC1707010105 Proposed ❑ Onsite Mitigation Type of mitigation: mitigation ® Offsite Mitigation ❑ Wetland Mitigation (Check all that apply): ❑ Mitigation Bank ❑ Mitigation for impacts to other waters ❑ Payment to Provide ❑ Mitigation for impacts to navigation, fishing, or recreation Street, Road or Other Descriptive Location Legal Description (attach tax lot map*) Unknown at this time QuarterlQuarter Section Township Range 3 Attach a copy of all tax maps with the project area highlighted. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 15 v. 07-07-09 In or near (City or Town) County Tax Map # Tax Lot e WetlandlWaterway (pick one) River Mile (if known) Latitude (in DD.DDDD format) Longitude lin DD.DDDD format) Name of waterwaylwatershedlHUC Name of mitigation bank (if applicable) (6) ADDITIONAL INFORMATION Adjacent to R-F Site and Physical Mitigation Site Property Owners and Their Address (if more than 5, attach printed labels*) The site is owned by the Port of Morrow. The Port of Morrow owns in fee the submerged and submersible lands above the OHWE of the Columbia River prior to the John Day Dam within the Port's property boundaries. The State of Oregon does not own the submerged and submersible land in the in- water work area, and a DSL Submerged and Submersible Land Lease is not needed. In May 2011, the Port of Morrow entered into a 29-year lease option with Applicant for the Site. Figure 6 shows the lease boundary. The lease is in the name of Ambre Energy. The corporate entity structure is as follows: AE Infrastructure is the 100 percent owner of Coyote Island Terminal, LLC, and Ambre Energy North America is the 100 percent owner of AE Infrastructure. Attached corporate documents show this structure. The Port of Morrow owns Tax Lot 100 on Map 4N25E2 (see Figure 3). The lease is entirely contained within Tax Lot 100 and bordered on all sides, with the exception of Tax Lot 119 southwest of the upland parcel, by Tax Lot 100, including areas above the OHWE of the Columbia River prior to the John Day Dam. ADJACENT LAND OWNERS Map Lot Owner Address Phone 4N25E2 100 Port of Morrow, Gary Neal 2 Marine Drive P.O. Box 200 Boardman, Oregon 97818 - 541-481-7678 4N25E2 119 Port of Morrow, Gary Neal 2 Marine Drive P.O. Box 200 Boardman, Oregon 97818 541-481-7678 Has the proposed activity or any related activity received the attention of the Corps of Engineers or the Department of State Lands in the past, e.g., wetland delineation, violation, permit, lease request, etc.? Yes ❑ No If yes, what identification number(s) were assigned by the respective agencies: Corps # State of Oregon # Has a wetland delineation been completed for this site? Yes ❑ No If yes by whom?* Has the wetland delineation been approved by DSL or the COE? Yes ❑ No ❑ If yes, attach a concurrence letter. Attach a copy of all tax maps with the project area highlighted. • Italicized areas are not required by the Corps for a complete application, but may be necessary prior to final permit decision by the Corps. 16 v. 07-07-09 (7) CITY/COUNTY PLANNING DEPARTMENT AFFIDAVIT (TO BE COMPLETED BY LOCAL PLANNING OFFICIAL) I have reviewed the project outlined in this application and have determined that: ❑ This project is not regulated by the comprehensive plan and land use regulations. This project is consistent with the comprehensive plan and land use regulations. ❑ This project will be consistent with the comprehensive plan and land use regulations when the following local approval(s) are obtained. ❑ Conditional Use Approval ❑ Development Permit ❑ Other This project is not consistent with the comprehensive plan. Consistency requires a ❑ Plan Amendment ❑ Zone Change ❑ Other An application has ❑ has not ❑ been filed for local approvals checked above. Local planning official name Signature Title City / County Date (print) , Comments: • Italicized areas are not required by the Corps for a complete application, but maybe necessary prior to final permit decision by the Corps. 17 v. 07-07-09 8 COASTAL ZONE CERTIFICATION * If the proposed activity described ut your permit application is within the Oregon coastal zone, the following certification is required before your application can be processed. A public notice will be issued with the certification statement, which will be forwarded to the Oregon Department of Land Conservation and Development for its concurrence or objection. For additional information on the Oregon Coastal Zone Management Program, contact the department at 635 Capitol Street NE, Suite 150, Salem, Oregon 97301 or call 503-373-0050. CERTIFICATION STATEMENT I certify that, to the best of my knowledge and belief, the proposed activity described in this application complies with the approved Oregon Coastal Zone Management Pro rain and oil I be con leled in a manner consist twitlitheprograrn, Print ff�pe Name Title N/A Applicant Signature Date 9 SIGNATURES FOR JOINT APPLICATION Application is hereby made for the activities described herein. i certify that i am familiar with the infonuation contained in the application, and, to the best of my knowledge and belie[ this information is true, complete; and accurate I t-urlher certify that I possess the authority to undertake the proposed activities_ By signing this application l consent to allow Coups or Dept. of State Lands stafrto enter into the above-described property to inspect the project location and to deterniine compliance with an authorization, if granted. 1 hereby authorize the person identified in the authorized agent block below to act in my behalf as nil agent in the processing of this application and to furnish. upon request, supplemental infrnmration in support of this permit application. 1 understand that the granting of other permits by local, county, state or federal agencies does not release me from the requirement of obtaining the permits requested before commencing the project- f itnrlersmtul that Jraynnent of the required .state processingee _ does not guarantee permit issrtance. The fee for the state application nnrst accan any the application for completeness. enclosed 5805 Print /Type Name •fide Print ffy e Name Title John Thomas Secretary Applicant Si nature Late Authorized Agent t Signature Date JOM"Pr -,M/ I Z andanvter signatures: 1 ar projects and /or tniNgation work proposed on Iran! not owned Ly thug applicant, inchrding state-ou rrr d subnrergzd and sn:hnrersible landv. please provide sigrnatrn•ev below. ,q signrma•e by the Department of State Landsfor activities proposed on state-owned snbnierged/srrbnter•sible (ands orrli,grrnrts the applicant consent to applyfor•autlrotizrrtion to cortdttct removallfrll activities on sic/r (muds This signature for activities our state-oxtred subnrer ed aunt ,urbnrer;sible innrfs rants no udrer nndrority, ex cess or im lied. Print ffr e Name Title Print fry e Name Title Gary Neal Gencral Manager Property Owner Signature Date Mifi alion Properij, Onvter Si mature Dale 2:��: / • Italicized areas are not required by the Corps for a complete application, but map he necessary prior to final permit decision by the Corps. 18 %.07-07-09 FIGURES Job# 1199-462-222 Jan. 23, 2012 Ibauer Qli Sgy ta sla Q' , X PROJECT Cy 2 LOCATION Columbia _. 300- 3 00— 0awt 1` �PORT OF MORROW' - _ . & I I AVENUE P��99�5 C4LuMg� 12 OU srRtyo Boardman 1 0 T. 4 N., R. 25 E.,N.M. 40 �NTFRS Ll --350 2000' LOCAT ON TgTB 84 00 Pr Roo; car t f oai � Boardman lune n v"'' MORROW PACIFIC PROJECT JOINT PERMIT APPLICATION FIGURE . q2spasesn.s' anderson PORT OF MORROW SITE 1A viritiiTvMAD LOCATION AND VICINITY MAPS Job# 1199-462-222 Jan. 6, 2012 Ibauer Skokom e O Y.n-r mUanand � II fAalbck SneliORUniv ^y5,ell�aom.13, niJersit • d.'f kUamckw reale, ,... Ro91A� MElum 414—® ` Namael. 'n each, Fgaua Cr M l • akmtwtluP P - Lake R �` Olympia dea a4 SM1oiery A6ehieenk. __ _.. _ itloNeeene.' : ,Nabne Tumwat Lacey t1 Lacsi fj f(apoxsin ( Ellen On }Metlen ktan MeV mage _ L}M onk Jenino Palaavale F. -Pam, -_< _ Royal city / Ee^m fr oakY ...O La d,ande• ., .... c,b kyyt, pavaM P ®l amoklyn Irapa E"' -T }ongm,e -- 1 faadawe M �tM ® 0 � W •sown Bend h0i,l.Nay / kw°oa akima ahbk. fe Ell rton e HanforQ ny : aktlo Vhp �1 ng Beach ypaeu: R e, Ryderw q }unite S. occenb 2, RMx o Fm swarake i \� Sunnyside v dkw ichl nd W: t Astoria 0amlamet Warrenton - Kelso W A S H I N G T 0 NMaGt° nP-- Kenne `f weabon �'' ngview eYum Seaside W ARD Kalama-------' -ga wanawana---`- ~�1 T,oul Lake i . Weodiand .® �, uwm -� Ilton Freewater O G— o Afe"cam,amtHelen K,b oldendale Alderdale man ermiston v Scappoose. ----'i Battle Ground Columba r Stanfield Stevenson g;ver PORT OF n \ Mariza „ 9 MORROW e°woea -� �-....� Arlington ho<kawayBea°n Vancouv Camas�ho - Hood M Rufus �Ce1 F� a _ River �e . Hillsboro• t The Dalle- yl ,Pit an recall 'rllalnooF O Bvert � QUtdale O ' �."1 r° Mama lot Rock / 55 T I ,yy yea"e, region City rWiley --�A Lkande w aape~ S Paeek�ay McMinnville.dburn �� JEV � 0 ora a da^^ klamre a __ za J nea �da„dk }anerack O RRI D 'Walla _ _ i Milia ) Lneoln� - Dallas esamaana i nail ' R .,� 1�1 0 f c.Poa &,y va�eti ^"° ni em €o-rom ✓TT -d.le " j \ J. "`� Slayton M11 c Fates Tr�PnMa anwooa XirroerN mo" mgar ar CRY ' Aeah VJM - _ .o-rterson Cl) 'N Jtlanha - P �_� Nam ong Creek - p - O � a> tldNkk orvalh '.- � � - P x' ema aY �aa,ee �ad.n ;au t Lebanon ) nr=i„'-�-_ p Aro-zry Pmone� CRY wab^ort n. N I GJ 5weelC Hame. -�-2�_ 1IM116rla enWn � . renal:' ... lnonme to pona� . or. edmo dunctiol City II faeiwb McKemro Brldg% Iv/ C} S re Wane e� jvele d.= -'c -ti's-, kae N.T.S. Eem M. C / Eugene pringfield _. f ipka _ emawel`j }ewell MORROW PACIFIC PROJECT ry "'geGfOVP JOINT PERMIT APPLICATION FIGURE R�paknngeFPaemon. w ; b,al°" ry fl �rat�PORT OF MORROW TO PORT WESTWARD B ciates, inc. PROJECT CORRIDOR MAP V z P LLI LU Z U) °tea � a ILEL O a Ua �� v< OO a� �J �WOQ a 0z ~ H Q: O OO 2 a 4R of4 PHOTOGRAPH 1 - Shoreline looking east toward the existing loading facility. Photograph taken by Brad Baird on November 9, 2011. PHOTOGRAPH 2 - Shoreline looking west. Photograph taken by Brad Baird on November 9, 2011. MORROW PACIFIC PROJECT JOINT PERMIT APPLICATION FIGURE O O&ped�rson PORT OF MORROW SITE 4A SITE PHOTOGRAPHS 1 PHOTOGRAPH 3 - Looking west to upland site. Photograph taken by Brad Baird on November 9, 2011. PHOTOGRAPH 4 - Typical bank in project area. Photograph taken by Brad Baird on November 9, 2011. MORROW PACIFIC PROJECT JOINT PERMIT APPLICATION FIGURE 0&pe O dreyrson tes, inc. PORT OF MORROW SITE 4B SITE PHOTOGRAPHS 2 PHOTOGRAPH 5 - Loading facility immediately east of project site. Photograph taken by Brad Baird on November 9, 2011. PHOTOGRAPH 6 - Upland staging area. Photograph taken by Brad Baird on December 22, 2011. ' MORROW PACIFIC PROJECT JOINT PERMIT APPLICATION FIGURE O A edeyrson PORT OF MORROW SITE 4C SITE PHOTOGRAPHS 3 S •� PHOTOGRAPH 7 - Site access. Photograph taken by Brad Baird on December 22, 2011. iM� ., .o-'.1 .u, ;� : PHOTOGRAPH 8 - Facility construction site - spoils area looking south. Photograph taken by Brad Baird on December 22, 2011. MORROW PACIFIC PROJECT JOINT PERMIT APPLICATION FIGURE o aaRedryrson PORT OF MORROW SITE 4D SITE PHOTOGRAPHS 4 DERRICK/CRANE BARGE -An approximately 103 ft. x 50 ft. x 8 ft. barge with a derrick will be used to drive piles. It will have two winch controlled spuds. The barge will carry a hazardous materials kit. The crew size consists of three employees. N MORROW PACIFIC PROJECT N JOINT PERMIT APPLICATION FIGURE q28anderson perry associates, inc. IN -WATER CONSTRUCTION EQUIPMENT 1 5A 0 MATERIALS BARGE - Two materials barges will be used. They will likely be welded steel construction barges, double raked and designed for carrying materials. The barges will have watertight side boards and concrete wear decks. TUG NOVA - A similar tug will be used to move barges in and around the work area. r' MORROW PACIFIC PROJECT JOINT PERMIT APPLICATION FIGURE anderson O O perry 8 aeoc ates, ,nc. IN -WATER CONSTRUCTION EQUIPMENT 2 5B VIBRATORY HAMMERS - One or both sizes of vibratory hammers to be used: APE 100 Vibro and APE 50 Vibro. rl- C (0 N MORROW PACIFIC PROJECT N JOINT PERMIT APPLICATION FIGURE 9panderson 89e °ryes° inc.IN-WATER CONSTRUCTION EQUIPMENT 3 5C 0 Z u2 W w D M WZ HD �O �Z aJ p0 Va �m �Q W aw �w �W a 0 oc Z W oc -) O 0 > 2 aW w Baa; 0 W 0 IL LA L wLU W C7 uj an LU L) wz U) —W CL F- a. 0 R UIC 3::)U) 0- :i (.)[L WD O [Lo- Wz Ewa<11 <g ju Row U.F30 O0J wo 0ow 2 a. LU LU 'CL. o c ca 0 mpp t, u 2 N m N -V ja�, N 0 u no; 190 LJ ow 00 C -O r -;a o;u -1O Z O ;� ft ft 3v �n 2�D� ;u 0 ma aO n� D C Cl) O O ` a� Z0 mm 00 CC N m v P) o � v CD J� N fl mem, 1- 1 p,c� U � c 0 Z D - FE (Va.'s PLAN SHEETS !.® fsy►' .� f+,r' �IYAT X90 roar sY �. `�-...� r5..:�{ r . r/:1�,=,{w +•. < a Aad aac� C a m z I ,..,�,,.,• • ' �'x �, c,t ;_ �r°r it _ a { •84 • _o _, t,sy + I�I R Cl • �•:.� � ,ria � � �� obt 10 • • N W o N N O'fir,, py a U i U 1..7 gs S' � (aaxiij 0 Cdr, O Al • W,- r ' h N � � O O O O O O O O g 1 I I In l In z� I In N I I QQI DESIGN CRITERIA/CODES 1. B 1 IN OD 2009/O a. IBC .S.S.C. 2010. b. ASCE 7-05. 2. ""ND/cE15MIC LOIIJc a. SEISMIC DESIGN PARAMETERS: 1. Ss = 0.47/SI=0.15 (ACE VALUES) 2. Sds = 0.45/Sd1=0.22 (MODIFlD —SITE CLASS D) b. WIND = 95 MPH (3 SEC GUST) D(POSURE 'C' 3, GRAVITY LOADS a. DEAD — CALC'D PER DWGS. b. CATWALK LIVE = 50 PSF c. CONVEYOR DEAD AND LIVE LOADS PROVIDED By MILL CREEK ENGINEERING 4, RFRTI.NG/A,OORING COATIS/DE51 NS,RC �TERa b. MAK APPROACH VEL = B. /S h. MAX APPROACH ANGLE = 5 DEG. C. BASIC WIND SPEED = BOMPH STANDARD OPERATING PROCEDURES REQUIRE BARGES SECURED TO DOCK AT ALL TIMES. (NOT ABLE TO TAKE ON BALLAST/ANCHOR IN MAIN CHANNEL) PILES AND PILE DRIVING 1. DESIGN DATA SpIFICAa. PIUNG EMBEDMENT MB DMENTGREQUUIR MENTS E AS S, TERX EG DTIONSTHED DESIGN DRAWINGS AND ARE BASED ON PAST PROJECTS AT SITE 2 c TI SHOWN IN THE DRAWINGS FOR PILES ARE ESTIMATES ONLY. ACTUAL PILE TIP ELEVATIONS MAY VARY FROM THIS ESTIMATED TIP ELEVATION DUE TO VARYING SOIL CONDITIONS. IF THE CAPACITY OF TH ILE HAS NOT BEENLOAD REACH SHALLD BEARING P AT THE NDIGTD TIP ELEVATION, RIVNG DCAPACITY IS REACHED. D BY . AS DIRECTED ENG NEER• 3. MATERIALS . ALL STEEL PIPE PILING SHALL CONFORM TO ASTM A252 GR. 3 (Fy= 45 KSI MIN). b. ALL STEEL HP PILING SHALL CONFORM TO ASTM A690 (Fy=50 ksi MIN) 5. E%EGunoN . ALL DRMNG EQUIPMENT SHALL BE SUBJECT TO APPROVAL BY THE ALL 13EARING PI HALL BE RIVEN TO RIEFUSAL ONTO BEDROCK REFUSAL IS DEFINED BY MINIMUM OF 10 BLOWS/N. WITH 30.000 FT.LB IMPACT HAMMER. b. PILE SPLICING, IF REQUIRED, SHALL BE A FULL PENETRATION BUTT WELD WITH MIN. 1/4' BACKING RING PER A.W.S. D1.1. ALL WELDERS SHALL BE QUALIFIED FOR THE WORK, AS PRESCRIBED IN AWS D1.1 AND COPIES OF THEIR CERTIFICATION SHALL BE SUBMITTED TO OWNER'S REPRESENTATIVE. C. PILE CUT—OFFS ARE THE PROPERTY OF THE CONTRACTOR. d. PILING SHALL BE INSTALLED TO THE FOLLOWING TOLERANCES UNLESS NOTED: —3' MAIL HORIZONTAL DEVIATION FROM DESIGN LOCATION AT THE CUT OFF ELEVATION. 1% W. VERTICAL /SLOPE DEVIATION FROM DESIGN LOCATION — 3/8' MAIL VERT CUE OFF TOLERANCE. e. ALL 'IN WATER' WORK SHALL BE DONE IN ACCORDANCE WITH CONDITIONS OUTLINED IN U.S. ARMY CORPS OFENGINEERS' PERMIT. CONTRACTOR SHALL MAINTAIN A COPY OF PERMIT ON SNE. 6. a S IT�DDCRIPDONS OF PILE DRIVING EQUIPMENT FOR APPROVAL PRIOR TO COMMENCEMENT OF PILE INSTALLATIONS. IN, DETAILS OF THE PILE HAMMER, POWER PUNT, LEADS, CUSHION MATERIAL AND HELMET. b. SUBMIT MATERIAL TO SPPEECIFICATIONS.ATIONS SHOW GENERAL NOTES CONCRETE 1. CONCRETE SHALL DEVELOP 4000 PSI COMPRESSIVE STRENGTH IN 28 DAYS UNLESS NOTED h CONFORM TO THE FOLLOWING: SLUMP SHALL BE 4' (31 TOL) PER A51M b. C143 TESTING STANDARD. c. CONCRETE SHALL BE AIR ENTRAINED TO CONTAIN 5% AIR (3176 TOL) d. COARSE AGGREGATE SIZE 3/4' MAK.CEMENT SHALL BE TYPE IL 13E DEFORMED BARS 2 REINFORCING STEEL CONFORMING TO ASTM615 GRADE 60, ALL REINFORCING STEEL THAT IS BE WELDED S DEFORMED BARS CONFORM NG0TO ASTM A706 KILL 06.E BE 3. SPLICES SHALL BE LAPPED 42 BAR DIAMETERS OR 2'-0' MIN U.N.O 4. GROUT SHALL BE A NON—SHRINK. NON METALLIC FLOWABLE HIGH—STRENGTH GROUT (5 STAR OR EQUAL). STRUCTURAL STEEL 1. DESIGN FABRICATION AND ERECTION OF STRUCTURAL STEEL SHALL BE IN ACCORDANCE WITH THE 'MANUAL OF CONSTRUCTIONu 13ON •EDRION,EUNLESSNO� WISE STEEL MODIFIED ON THE DRAWING OR IN THE SPECIFICATIONS. 2 BRACNG NEEDED FOR STABILITY UNTIR SHALL PROVIDE ALL L TTHESSTRUCTURE HORING O IS COMPLETED. 3. MATERIAL SHALL MEET THEREQUIREMENTS OF THE FOLLOWING SPECIFICATIONS. UNLESS NOTED OTHERWISE: STRUCTURAL STEEL — ASTM A36 WELDED STEEL — AWS D1.1 ELECTRODES — E70KK _ HIGH STRENGTH BOLTS BOLTS, .32' k WASHERS V. UNLESS OTHERWISE NOTED. 4. ALL STEEL FRAMING IS UNPAINTED U.N. NOTE: OHWE =ORDINARY HIGH WATER ELEVATION RENg➢ 1411E FOR R:RIUMRY PERMS Rom TR STRUCTURAL OBSERVATIONS THE FOLLOWING 'STRUCTURAL OBSERVATIONS' ARE REQUIRED BY THE ENGINEER OF RECORD (EOR), IN ACCORDANCE WITH CHAPTER 17 OF THE I.B.C: 1. THE EOR SHALL OBSERVE CONSTRUCTION AT FOLLOWING e AGES. AT COMPLETION OF BEARING PILE INSTALLATION. b. AT COMPLETION OF ALL STRUCTURAL FRAMING AND BRACING. PRELIMINARY ambre a en rgy 170 SOUTH MAIN STREET SUITE 700 SALTLAKE CITY, UT 84101 SPECIAL INSPECTIONS THE FOLLOWING SPECIAL INSPECTIONS ARE REQUIRED FOR THIS PROJECT IN ACCORDANCE WITH CHAPTER 17 OF THE INTERNATIONAL BUILDING CODE: 1. PIL DRMNG TCONTINUOUST VERIFY ALL PIUNG IS INSTALLED PER DESIGN DRAWINGS/SPECS INCLUD�UATING: c RHED IN BEARING TPILES AS DIRECTED BYLOADI NGTHESENGIINNEER. b. VERIFY THAT THE PROPER EMBEDMENT IS OBTAINED 2.VSTRUCTURALN G IS PERFORMED PER DESIGN DRAWINGS/SPECS. o. ALL WELDERS SHALL BE QUALIFIED FOR THE WORK, AS PRESCRIBED IN A.W.S. D1.1 AND COPIES OF THEIR CERTIFICATION SHALL BE PROVIDED TO THE SPECIAL INSPECTOR. b. THE OWNER SHALL RETAIN A CERTIFIED SPECIAL INSPECTOR TO PERFORM THE INSPECTIONS OUTLINED ABOVE. THE CONTRACTOR SHALL BE RESPONSIBLE FOR NOTIFYING THE INSPECTOR TWO DAYS PRIOR TO ALL REQUIRED INSPECTIONS. c. SEE O.S.S.0 2010 TABLE 1704.3 FOR ADDITIONAL REQUIREMENTS. d. FULL PENETRATION GROVE WELD (I.E. PILES) REQUIRE 'CONTINUOUS INSPECTION. e. SINGLE PASS FILLET WELDS 5 5/16' REQUIRE 'PERIODIC' INSPECTION ONLY. kl AL pm TECHMCALL-`771 n�(sm)m— ml� P�� AMBRE ENERGY BOARDMAN, OREGON PORT OF MORROW BARGE LOADING DOCK GENERAL NOTES /3n /11 0501 -MS -00 1 OF 1 / CONVEYOR �a� \ 7 §|§_�� § C)��^ CONVEYOR �a� \ §k'C> |� � / z uj ^° \ [IIII� |,■ .\ _& ƒ- — ACE: - \ § § § ^ I < ( f—--//--- �; E®�§ ® cc Ra` _ a& _ � _� �_�� _�� / � |■■■■� � ■■■■■< y � " k |::,■t � § , |��)) , ||||| § � » / , -� V § ! )2 2 k§` L �� h ■ _\� $ (§~ \ + -- �} / b _ \�7( � h \ OR \ ■\ E` - /__ $ 2/T � § 1-2 $ k±( !# ' / kk,■■;■■ ( |■■t«■ � i \ t�§-- §a !K» �- §z Ea. -----� !� � \ �§ § � §\ !\ — F - --- -HE )\ � � ----"-- - - Em ° \ƒ K ;! !` / ■§ M ! § � § �$ \§ ) § \ | § • ` \ . ,w A( �■ � ; 2! \ ;- � IIII� |■■ �� !. .■ 2 | § RR 3 , §&§a 5 U2§\ § #: � )( �k A e �2 I ; fy \ \� �( \��=G t « »\ . $ A. -/ � \ \ 5 G 1111 fy \ )■ ( \ 7 _ate z 2 �} Mal 11111111 h ± / ■---.r `� ° a \ � El r §; » -n B■ &\§ �_- | ! a @A a 3 22,.■!��)./ � IN � |§||| 2\ \ c ! )&& \ ) � } � z TZ ® e I.■ § 12- �\ | _ n � \�# ■ � ; � $ 2 ` \ \. Q ; \ � ()\ 2 §22 / E ®e§ cc Gal n �;# » $ y � � / d [ } § ƒ } h ± _ ■---.r `� ° a \ � ■ \ §; » -n B■ &\§ �_- | ! a @A o��_ 22,.■!��)./ � |§||| , \ )&& \ ) � } � z TZ 5 %\ I.■ § 12- �\ | _ � \�# ■ � $ 2 ` Q ; \ � ()\ E ®e§ cc Gal _ ■---.r a \ o 7 � |§||| , \ )&& \ ■\.,�� } � z TZ 5 12- « \�# ■ � `� ° . ■ { 83 � O�%O` N _ � IIIII� ■,■ �� § | _ � � L § E M ® $ 2 % Q ; K ) E ®/§ Ra! / |:■■■■ ,■�■■■ |,::■« § |||| §)|)) |§||§ E(\\(( � ■<.,�� | � z uj § e� _/ - — - — - --------------------- k | =- ---------------------- & �§2 ƒ §/ \ /} m 2 k §01 m )\� CERTIFICATE OF INCUMBENCY ambreenergy Ambre Energy North America, Inc. CERTIFICATE OF INCUMBENCY I, the undersigned Secretary of Ambre Energy North America, Inc., certify that the officers named hereon are qualified and authorized to act on behalf of the corporation, that the signatures opposite the names and titles of said officers are genuine, and that the resolutions electing these officers are in full force and effect. You are authorized to recognize these signatures until you receive our written instructions to the contrary. I further certify that any of the persons listed below are authorized individually to give instructions and sign agreements, permit applications and any other documents with regard to any matters pertaining to the Company's coal export activities at the Port of Morrow, Port of St. Helens or any other location along the Columbia River. Name John Thomas Title Secretary IN WITNESS WHEREOF, I have executed this certificate on January 23, 2012. By: Jo16 Thomas, Secretary 170 South Main Street, Suite 700 Salt Lake City, UT 84101, United States of America t +1 801 539 3788 f +1 801 537 3789 www.ambreenergy.com ambreenergy Coyote Island Terminal, LLC CERTIFICATE OF INCUMBENCY I, the undersigned Secretary of Coyote Island Terminal, LLC, certify that the officers named hereon are qualified and authorized to act on behalf of the corporation, that the signatures opposite the names and titles of said officers are genuine, and that the resolutions electing these officers are in full force and effect. You are authorized to recognize these signatures until you receive our written instructions to the contrary. I further certify that any of the persons listed below are authorized individually to give instructions and sign agreements, permit applications and any other documents with regard to any matters pertaining to the Company's coal export activities at the Port of Morrow, Port of St. Helens or any other location along the Columbia River. Name John Thomas Title Secretary IN WITNESS WHEREOF, I have executed this certificate on Ja Jo 170 South Main Street, Suite 700 Salt Lake City, UT 84101, United States of America t +1 801 539 3788 IF +1 801 537 3789 www.ambreeriergy.com Signa e 7 23, 2012. omas, Secretary ENTITY RELATIONSHIP DOCUMENTS LIMITED LIABILITY COMPANY AGREEMENT OF COYOTE ISLAND TERMINAL, LLC This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of Coyote Island Terminal, LLC (the "Company") is effective as of May 12, 2011. I. Formation of Limited Liability Company. Millennium Belk Logistics, Inc., a Delaware corporation (the "Member"), has formed the company as a limited Iiability company pursuant to the provisions of the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seq., as it may be amended from time to time, and any successor to such statute (the "Act"). The rights and obligations of the Member and the administration and termination of the Company shall be governed by this Agreement and the Act. This Agreement shall be considered the "Limited Liability Company Agreement" of the Company within the meaning of Section 18-101(7) of the Act. To the extent that this Agreement is inconsistent in any respect with the Act, this Agreement shall control. 2. Member. Millennium Bulk Logistics, Inc. is the sole member of the Company. 3. Purpose. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be formed under the Act and to engage in any and all activities necessary or incidental thereto. 4. Name. The name of the Company shall be "Coyote Island Terminal, LLC." 5. Registered�_ Agent and Principal Office. The registered agent and registered office of the Company in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. The Company may have such other offices as the Member may designate from time to time. The Company's principal place of business is located at 170 South Main Street, Suite 700, Salt Lake City, Utah 84101. 6. Term of the Company. The Company shall commence on the date the Certificate of Formation (the "Certificate") was filed with the Secretary of State of the State of Delaware and shall continue in existence in perpetuity unless its business and affairs are earlier wound tip following dissolution at such time as this Agreement may specify. 7. Management of Company. (a) Board of_]vlanaers. The business and af%airs of the Company shall be managed under the direction of the Board of Managers of the Company (the `Board") 376871 and all powers of the Company which are not by this Agreement or the Act required to be exercised by the Member are hereby vested in the Board. The Board shall have the power to delegate authority to the officers and such other employees, agents and representatives of the Company as it may from time to time deem appropriate and in accordance with this Agreement. Any delegation of authority by the Board to take any action must be approved by the Board in the same manner as would be required for the Board to take such action directly. The Member, in its capacity as such, shall have no part in the management of the Company and shall have no authority or right to act on behalf of or bind the Company in connection with any matter, except as required by the Act, as set forth herein and for such matters as deemed necessary or appropriate by the Board. All lawful determinations, decisions and actions made or taken by the Board in accordance with this Agreement shall be conclusive and absolutely binding upon the Company, the Member and its successors and assigns. (b) Board Membership. The constituting the Board shall be three (3). Member. The initial composition of the Michael van Baarle, and Michael Mewing. number of members (the "Managers") The Managers shall be appointed by the Board shall be as follows: Edek Choros, Each Manager appointed shall hold his or her position until his or her successor is designated or until his or her earlier death, resignation or removal and need not be a resident of the State of Delaware. Each Manager shall be subject to removal at any time, with or without cause, by the Member. if any vacancy shall occur on the Board as a result of the death, resignation or removal of a Manager appointed by the Member, the Member shall be entitled to appoint the replacement Manager. Any Manager may resign at any time by giving written notice to the Board. Such resignation shall take effect at the time specified in such notice or, if the time be not specified, upon receipt thereof by the Board. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective. No person shall be elected or appointed a Manager if that person is less than 18 years of age, is of unsound mind and has been found so by a court of competent jurisdiction, is not an individual, or has been adjudged or declared bankrupt or insolvent by a court of competent jurisdiction. Any person appointed as a Manager shall be deemed to have agreed to accept such Manager's rights, authority, duties and obligations hereunder. (c) Meetings and Approval Requirements. (i) Meeting. A meeting of the Board shall be held at the written request of any Manager. Notices of meetings of the Board shall state the date and hour of the meeting and the purpose or purposes for which the meeting is called. Meetings shall be held at the offices of the Company or such other place as shall be agreed to by the Managers. The notice of a meeting shall be given in writing 2 376871 not less than three (3) nor more than twenty (2) days before the date of the meeting by the Manager requesting such meeting to each other Manager. Managers may waive in writing the requirements for notice before, at or after a meeting, and attendance at such a meeting without objection by a Manager shall be deemed a waiver of such notice requirements. (ii) Telephonic Meetings. Any meeting of the Board may be held by conference telephone call or through similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a telephonic meeting held pursuant to this Section shall constitute presence in person at such meeting. If all the participants are participating by conference telephone or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company. (iii) Quorum and Approval: Requirements. At each meeting of the Board, the presence in person or by telephone, as appropriate, of at least a majority of the Managers entitled to vote shall be necessary to constitute a quorum for the transaction of business. Each Manager shall be entitled to one (1) vote. The act of a simple majority of the itilanagers shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Managers present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. No Manager shall be permitted to abstain from attending a meeting if a purpose thereof is to cause a quorum not to be met. (iv) Written Consent. Any action required or permitted to be taken at a meeting of the Board may be taken without a meeting if a simple majority of the Managers consents thereto in writing. Such consents shall be filed with the minutes of the proceedings of the Board. (v) Chairman. The Board may have a Chairman who shall be responsible to chair the meetings of the Board. The position of Chairman, if any, shall be appointed by the Member. (d) Officers of the Company. (i) Officers. The Company may have officers who shall serve at the discretion of, and be chosen by, the Board and may include a Chief Executive Officer, President, Secretary, Treasurer and such other officers as the Board may deem appropriate in its sole discretion, including one or more vice presidents, assistant secretaries and assistant treasurers. Two (2) or more offices may be held by the same individual. Without limiting the generality of the foregoing; the officers shall have the power to bind the Company in the exercise of the officers' authority conferred by the Board or this Agreement. Each officer shall perform such duties as may be prescribed by the Board from time to time. The initial 376871 officers of the Company shall be the persons listed below and each such person shall occupy the office set forth opposite such person's name: Naive Office Michael Klein Secretary Everett King Treasurer 8. Distributions. Each distribution of cash or other property by the Company shall be made 100% to the Member. Each item of income, gain, loss, deduction, and credit of the Company shall be allocated 100% to the Member. 9. Dissolution and Winding Up. The Company shall dissolve and its business and affairs shall be wound up pursuant to a written instrument executed by the Member. 10. Liability and Indemnification. (a) Except as otherwise provided by the Act, the debts, obligations, and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no lA-lember or delegate of the Members (including, without limitation, any officer or manager) shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or delegate. (b) (i) No Covered Person (as defined below) shall be liable to the Company or any other Covered Person for any loss, damage or claire incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person's gross negligence or willful misconduct. (ii) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person as to matters the Covered Person reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. (c) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage, or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person (including alleged breaches of fiduciary duty) in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person 376871 shall be entitled to be indemnified in respect of any loss, damage, or claim incurred by such Covered Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section_ 10(c) shall be provided out of and to the extent of Company assets only. (d) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 10(c) hereof. (e) The Company may purchase and maintain insurance, on behalf of Covered Persons and such other persons as the Member shall determine, against any liability that may be asserted against or expenses that may be incurred by any such person in connection with the activities of the Company or such indemnities, regardless of whether the Company would have the power to indemnify such person against such liability under the provisions of this Agreement. The Company may enter into indemnity contracts with Covered Persons and such other persons as the Member shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations hereunder and containing such other procedures regarding indemnification as are appropriate, For purpose of this Agreement, a "Covered Person" means a Member, Manager, officer or• employee of the Company and any officer, director, agent, liquidator, affiliate, partner, stockholder, manager, or employee of any of the foregoing. 11. Amendments. This Agreement may be amended or modified from time to time only by a written instrument executed by the Member. 12. Governing Law. The validity and enforceability of this Agreement shall be governed by and construed in accordance with the taws of the State of Delaware without regard to otherwise governing principles of conflicts of lase. 13. 'Transfer. The Member's membership interest is transferable either voluntarily or by operation of law. Upon the transfer of a Member's entire membership interest (other than a temporary transfer or transfer as a pledge or security interest) the Member shall cease to be a Member and shall have no further rights or obligations under this Agreement, except that the Member shall: have the right to such information as may be necessary for the computation of the Member's tax liability. 14. Admission of Additional Members. The Member may admit additional Members and determine the capital contributions of such additional members. 5 374137 1 ex mber has. dvily ecuwd and del.vered this IN W*I,T,Nir-,SS WHEREOF the Me be cfWfive as of fhe date fifst Witte --1 a'hoN'e Agreement of the date ,c.jR)Ah below to N1 EN SES ,'R, c ji1lennium Bulk. Logis-ti Delaware cOrPc)rati(-r* r /had K in, Sec. ciary 4 c , - V- - /- I I)ate: may U, '01 6 LIMITED LIABILITY COMPANY AGREEMENT OF AE INFRASTRUCTURE, LLC This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of AE Coal, LLC (the "Connpany") is effective as of June 29, 2011. 1. Formation of Limited Liability Company. AE Group Holdings. Inc.; a Delaware corporation (the "Member'), has formed the company as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act; 6 Del. C. § 18-101, et seq.. as it may be amended from time to time, and any successor to such statute (the "Act"). The rights and obligations of the Member and the administration and termination of the Company shall be governed by this Agreement and the Act. This Agreement shall be considered the "Limited Liability Company Agreement" of the Cornpany within the meaning of Section 18-101(7) of the Act. To the extent that this Agreement is inconsistent in any respect with the Act, this Agreement shall control. 2. Le-rnben AE Group Holdings. Inc. is the sole member of the Company. 3. Pur ose. Tile purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be formed under the Act and to engage in any and all activities necessary or incidental thereto. 4. Narne. The name of the Company shall be "AE infrastructure, LLC". 5. Roistered Agent and Principal Office. The registered agent and registered office of the Company in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. The Company may have such other offices its the Member may designate from time to time. The Company's principal place of business is located at 170 South Main Street, Suite 700, Salt Lake City, Utah 84101. 6. Term of the Company. The Company shall commence on June 29, 2011 and shall continue in existence in perpetuity unless its business and affairs are earlier wound up following dissolution at such tirne as this Agreement may specify. 7. Management of Company. (a) Board of Managers. The business and affairs of the Company shall be managed under the direction of the Board of Managers of the Company (the "Board") and all powers of the Company which are not by this Agreement or the Act required to be exercised by the Member are hereby vested in the Board. The Board shall have the power to delegate authority to the officers and such other employees, agents and representatives of the Company as it may from time to time deem appropriate and in 3801277 accordance with this Agreement. Any delegation of authority by the Board to take any action must be approved by the Board in the same manner as would be required for the Board to take such action directly. The Member, in its capacity as such, shall have no part in the management of the Company and shall have no authority or right to act on behalf of or bind the Company in connection with any matter, except as required by the Act, as set forth herein and for such matters as deemed necessary or appropriate by the Board. All lawful determinations, decisions and actions made or taken by the Board in accordance with this Agreement shall be conclusive and absolutely binding; upon the Company, the Member and its successors and assigns. (b) Board Membemhip. The constituting the Board shall be three (3). Member. The initial composition of the Michael van Baarle, and Michael 'viewing. number of members (the "Managers") The Managers shall be appointed by the Board shall be as follows: Edek Choros, Each Manager appointed shall hold his or her position until his or her successor is designated or until his or her earlier death, resignation or removal and need not be a resident of the State of Delaware. Each Manager shall be subject to removal at any time, with or v✓ithout cause, by the Member. If any vacancy shall occur on the Board as a result of the death, resignation or removal of a Manager appointed by the Member, the Member shall be entitled to appoint the replacement Manager. Any Manager may resign at any time by giving; written notice to the Board. Such resignation shall take effect at the time specified in such notice or, if the time be not specified, upon receipt thereof by the Board. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective. No person shall be elected or appointed a Manager if that person is less than IS years of age, is of unsound mind and has been found so by a court of competent jurisdiction, is not an individual, or has been adjudged or declared bankrupt or insolvent by a court of competent jurisdiction. Any person appointed as a Manager shall be deemed to have agreed to accept such Manager's rights, authority, duties and obligations hereunder. (e) Meetings and Approval Requirements. (i) Meetin T. A meeting of the Board shall be held at the written request of any Manager. Notices of meetings of the Board shall state the date and hour of the meeting and the purpose or purposes for which the meeting is called. Meetings shall be held at the offices of the Company or such other place as shall be agreed to by the Managers. The notice of a sheeting shall be given in writing not less than three (3) nor more than twenty (20) days before the date of` the meeting by the Manager requesting such meeting to each other Manager. Managers may waive in writing the requirements for notice before, at or after a 380277 meeting, and attendance at such a rneeting without objection by a Manager shall be deemed a waiver of such notice requirements. (ii) Telephonic Vlcetin s. Any meeting of the Board may be held by conference telephone call or through similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a telephonic meeting held pursuant to this Section shall constitute presence in person at such meeting. If all the participants are participating by conference telephone or similar communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company. (iii) Quorum and pprovel Requirements. At each meeting of the Board, the presence in person or by telephone, as appropriate, of at least a majority of the Managers entitled to vote shall be necessary to constitute a quorum for the transaction of business. Each Manager shall be entitled to one (1) vote. The act of a simple majority of the Managers shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Managers present thereat ►nay adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. No Manager shall be permitted to abstain from attending a meeting if a purpose thereof is to cause a quorum not to be met. (iv) Written Consent. Any action required or permitted to be taken at a meeting of the Board may be taken without a meeting if a simple majority of the Managers consents thereto to writing. Such consents shall be filed with the minutes of the proceedings of the Board. (v) Chairman. The Board may have a Chairman who shall be responsible to chair the meetings of the Board. 'rhe position of Chairman, if any. shall be appointed by the Member. (d) Officers of the Company. (i) Officers. The Company may have officers who shall serve at the discretion of, and be chosen by, the Board and may include a Chief Executive Officer, President, Secretary, Treasurer and such other officers as the Board may deem appropriate in its sole discretion, including one or more vice presidents, assistant secretaries and assistant treasurers. Two (2) or more offices may be held by the sarne individual. Without limiting the generality of the foregoing, the officers shall have the power to bind the Company in the exercise of the officers authority conferred by the Board or this Agreement. Each officer shall perform such duties as may be prescribed by the Board from time: to time. The initial officers of the Company shall be the persons listed below and each such person shall occupy tyre office set forth opposite such person's narne: Name Office. 390277 Michael Klein Secretary Everett King Treasurer Edek Choros President Claris Moseley Chief Operating Officer 8. Distributions. Each distribution of cash or other property by the Company shall be made 100% to the Member. Each item of income, gain, loss, deduction, and credit of the Company shall be allocated 100% to the Member. 9. Dissolution and Winding Up. The Company shall dissolve and its business and affairs shall be wound up pursuant to a written instrument executed by the Member. 10. Liability and Indemnification. (a) Except as otherwise provided by the ;pct, the debts, obligations, and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member or delegate of the Members (including, without limitation, any officer or manager) shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or delegate. (b) (i) No Covered Person (as defined below) shall be liable to the Company or anv other Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person's gross negligence or willful misconduct. (ii) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person as to matters the Covered Person reasonably believes are within such other person's professional or expert competence and who l -as been selected with reasonable care by or on behalf of the Company. (c) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage, or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person (including alleged breaches of fiduciary duty) in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person 4 380277 shall be entitled to be indemnified in respect of any loss, damage, or claim incurred by such Covered Person by reason of gross negligence or willful y� ally indemnity under this Section 10 such acts or omissions; provided, however, that sconduct with respect e assets onl shall be provided out of and to the extent of Company y• (d) To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand oicti t, suit Or proceeding shall, from time to time, be advanced by the Company prior receipt e. the disposition of such claim, demand, actioal n, suit or proceeding to repay such amount Company of an undertaking aytor on behalf red Pere overedPe not ent lred to b indemnified as if it shall be determined authorized in Sectio ) hereof. red (e) The Company may purchase and maintaierter nine`�againsce, on tany 1 ab littyehalf of ethat Persons and such other persons as the Member shall incurred by any such person in may be asserted against or expenses that may behether connection with the activities of the Company ar+sruch person against sucdll liability under the Company would have the power to in demm.� s mnity contracts with the provisions of this Agreement. The Company mayeT st'1eele and adopt written ten Covered Persons and such other persons as the Member procedures pursuant to which arrangements contarr containing de such othhe erprocedures regarding neci-nent of expenses and the funding of obligations hereunder indemnification as are appropriate. For purpose of this Agreement, a ,Covered P iectnet Manager, officer or employee of the Company and ay doagnliquidator, affiliate, partner, stockholder, manager, or employee of any of the foregoing. 11. Amendments. This Agreement, e y be mended or modified from time to time only by a vvritten instrument executed by s 12. �Tove I-avv• The validity and be the lau[sLof he115taterof Delawarebe governed by and construed in accordance of conflicts Of Law. without regard to otherwise governing principles ra 13 • Tra_ nsfer, The Member's membership sfer of a Member s tentire membership le either voluntarily or by operation of law. Upon the r or trans intere.t) the interest (other than a temporary transfeVe no furthergrights ore or lobl obligations sunder Member shall cease to be a Member and shall have this Agreement, except that the Member shall have the right to such information as may be necessary for the computation of the Member's tax liability. 14, Admission of Additional Members. The Member may admit additional Members and determine the capital contributions of such additional members. 3802'•7 IN WUNESS WI-1111REOFII-w Member has duly executed and dolivored this Agreement as of the date set forth below to be e0ective as of the date first Aiitten above. 6 M,02 y 7 MEMBER.: ME, Group Holdings, lnc.,,,i Delaware corporation B ------------- v: X -------------- Moil, Secretaly Dated . June'2 7, 2011 the T first State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "AE GROUP HOLDINGS, INC,", CHANGING ITS NAME FROM "AE GROUP HOLDINGS, INC." TO "AMBRE ENERGY NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF JUNE, A.D. 2011, AT 1 OrCLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF AMENDMENT IS THE TWENTY-NINTH DAY OF JUNE, A.D. 2011. 4856478 8100 110769788 You mayvarify this certificate online at corp.deiawarn.gov/authver.shtml Jeffrey W. Bullock, Secretaryof State AUTHEN C TION: 8868446 DATE: 06-28-11 State of Delaware Secreta y of State Division or Cor Delivered 01:11 PM 06/28/201.1 FILED 01:00 PM 06/28/2011 SRV 110769788 - 4856478 FILE CERTIFICATE OF AMENDM13NT OF CERTIFICATE OF INCORPORATION (Pursuant to Section 242) AE Croup Holdings, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation'), t DOES HEREBY CERTIFY, FIRST: That the Certificate of Incorporation of the Corporation (the "Certificate of Incorporation"), is amended as follows: I. Article FIRST thereof is amended to change the name of the Corporation such that Article FIRST, as amended, reads in its entirety as follows: FIRST: The name of this corporation is Ambre Energy North America, Inc. (the "Corporation"),. SECOND: That the Board of Directors of the Corporation by unanimous wrltten consent, has duly adopted a resolution in which the foregoing amendment to the Certificate of Incorporation was set forth, declaring said amendment to be advisable and directing that it be submitted for action thereon by the sole stockholder of the Corporation. THIRD: That the sole stockholder of the Corporation, by written consent, approved the foregoing amendment to the Certificate of incorporation. FOURTH: That the foregoing amendment to the Certificate of Incorporation was in all respects duly adopted in accordance with the Delaware General Corporation Law. 2011, FIF'ITI-I: Thlt the effective date of this Certificate of Amendment shall be June 29, IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed on June 27, 2011. AI GROUP MOLDINGS, INC., a Delaware corporation 'lrtt chael Kleit ,t-2r—etlairy 3SONi Delaware the First State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CONVERSION OF A DELAWARE CORPORATION UNDER THE NAME OF "MILLENNIUM BULK LOGISTICS, INC." TO A DELAWARE LIMITED LIABILITY COMPANY, CHANGING ITS NAME FROM "MILLENNIUM BULK LOGISTICS, INC." TO "AE INFRASTRUCTURE, LLC", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF JUNE, A.D. 2011, AT 1:11 O'CLOCK P.M_ AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF CONVERSION IS THE TWENTY-NINTH DAY OF JUNE, A.D. 2011_ 4843833 8100V 110769716 You mayverify this certificate on-line at corp.delaware,gov/authver.shtml Jeffrey W. Bullock, Secretary of State AUTHEN C TION: 6870207 DATE: 06-29-11 State of Delaware Secretary of State Division of Co.tporations Delivered 01:11 PM 06/28/2011 FILED 01:11 PM 06/28/2011 SRV 110769716 - 4843833 FILE STATE OF DELAWARE CERTIFICATE OF CONVERSION FROM A CORPORATION TO A LIMI'T'ED LIABILITY COMPANY PURSUANT TO SECTION 18-214 OF THE DELAWARE LIMITED LIABILITY COMPANY ACT 1. The ;urisdictior, where Millennium Bulk Logistics, Inc. (the "Corporation") was fii;A formed is Delaware. 2. The jurisdiction immediately prior to Cling this Certificate is Delaware. 3. The date (lie Corporation was formed is July 1, 2010. 4. The name of the Corporation immediately prior to :cling this Certificate of Conversion is Millennium bulk Logistics, Inc. S. The name of the limited liability company as set forth in the Certificate of Formation is AE Infrastructure, LLC, 6. The effective date of this Certificate of Conversion shall be June 29, 2011. IN WITNESS WHEREOF, the undersigned has executed this Certificate on the 2-101 day of June, 2011, MILLENNIUM BULK LOGISTICS, INC,, a Delaware corporation )vlichael, T loin, Secretary M92a-1 Delaware The First State PAGE 2 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF CERTIFICATE OF FORMATION OF "AE INFRASTRUCTURE, LLC" FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF JUNE, A.D. 2011, AT 1:11 O'CLOCK P.M. AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF FORMATION IS THE TWENTY-NINTH DAY OF JUNE, A.D. 2011. 4843833 8100V 110769716 You mayverify this certificate online at corp.delaware.gov/avthver.shtml L;��'�(_�_�____ Jeffrey W. Bullock, Secretary of State AUTHEN C TION: 8870207 DATE: 06-29-11 State of Delaware Secretary of State Division or Corporations Delxed 1:F11ED 01:111PM 6%281201111 SRV 110769716 - 4843833 FH STATE OF DELAWARE LIMIT] D LIABILITY COMPANY CERTIFICATE OF FORMATION This CERTIFICATE OF FORMATION is executed by the undersigned in order to form a limited liability company (tthe "Company") under the Delaware I. rnited Liability Company Act, Delaware Code Annotated, Title 6, Section 18-101, et seq. FIRST: Name: The name of the Company formed hereby is: AE Infrastructure, LLC SECOND: Registered Office and Agent: The address of the registered office of the Company in the State of Delaware is 1209 Oc.,'uzge Street, Wilmington, Delaware 19801, and the name of the registered agent for service of process on the Company in the State of Delaware at such address is The Corporation 'frust Company, THIRD: I?ffectiveDate: The effective date of this Certificate of Formation shall be June 29, 2011, TIIC 1JNDC1ZSIGNED has executed this G3rti 11cate of Formation on the 27`h day of June, 2011, By: -- ichael Klein, Authorized Person 175929 AE INFRASTRUCTURE, LLC TOINT UNANIMOUS 'WRITTEN CONSENT OF THE ME?VIBER AND THE MANAGERS TO ACTIONS TAKEN WITHOUT A MEETING (4 0c�06.2.r ,2011 Pursuant to the provisions of the Delaware Limited Liability Company Act, the undersigned, being the sole member (the "Member") and all of the managers (the "Managers") of AE Infrastructure, LLC, a Delaware limited liability company (the "Company"), do hereby take the following actions without a meeting, by consent of said Member and said Managers as set forth in the following resolutions, as if taken by vote of the Member at a Special Meeting of the Member at which the Member was present and as if taken by unanimous vote of the Managers at a Special Meeting of the Managers at which all of the Managers were present: Officer WHEREAS, the Managers have determined that it is advisable and in the best interests of the Company to remove Michael Klein as the Secretary of the Company and appoint John H. Thomas to the office of Secretary of the Company; it is hereby RESOLVED BY THE MANAGERS that Michael Klein be and hereby is removed as the Secretary of the Company and John H. Thomas be and hereby is appointed to the office of Secretary of the Company to serve until the earlier of his death, resignation, removal or the appointment and qualification of his successor. Amendment to Limited Liability Company Agreement WHEREAS, the Member has determined that it is advisable and in the best interests of the Company for the Company's Limited Liability Company Agreement to be amended to (i) set forth the names of the current officers of the Company and (ii) state that the Member shall not be required to make any capital contributions to the Company or to restore a deficit capital account without its prior written consent; itis hereby RESOLVED BY THE MEMBER that the Amendment No. 1 to Limited Liability Company Agreement, which is attached hereto as Exhibit .A. and incorporated herein by this reference and which (i) sets forth the names of the current officers of the Company and (ii) states that the Member shall not be required to make any capital contributions to the Company or to restore a deficit capital account without its prior written consent, be and hereby is approved and adopted. Miscellaneous WHEREAS, the Member and the Managers wish to carry out the intent and purposes of the foregoing resolutions; it is hereby RESOLVED BY THE MANI AGERS that any officer of the Company (each an "Authorized Officer") is hereby authorized and directed, in the name and on behalf of the Company, to pay all fees and expenses incurred in connection with carrying out the foregoing resolutions, including, but not limited to, all fees and expenses of the accountants, legal counsel and other agents of the Company; and to make all payrrents as any such Authorized Officer shall determine to be appropriate, such payment to be conclusive evidence of their determination, FURTHER. RESOLVED BY THE MANAGERS that any Authorized Officer is hereby authorized and directed to execute and deliver to any person deemed appropriate by any such Authorized Officer, any and all certificates, agreements, instruments, documents, filings or undertakings of any kind and nature whatsoever to evidence the actions contemplated by the foregoing resolutions, the authorization and approval of the Company to be conclusively evidenced by any such Authorized Officer's execution thereof, and to do and perform or cause to be done and performed all acts, deeds and things, in the name and on behalf of the Company or otherwise as such Authorized Officer may deem necessary, appropriate or advisable for the foregoing purposes. FUR'T'HER RESOLVED BY THE MEMBER AND THE MANAGERS that this Unanimous Written Consent to the adoption of the foregoing resolutions may be executed in counterparts and by facsimile, all of which taken together shall constitute but one and the same original. [Remainder ofpage is blank; signature page follows.] 2 Each, ilt the Member and. the Managers, by his or its sign-atu're below, hereby. lWaive,, wxitten notice of the time, placc and pluposes Of a �pcci.ai Mec€ing of the .M.ember and the time, place aad purposes of a Special Meeting of the .�ianageM . Consents to the transaction of the business set fail 'a herein; , , Affirms thathe or its r x4se f;3entative has mad the, egoing Resolutions; and 4. 1k-pproves, .adopts aiid r_atif es the 1'�4soluticYr_ts and all acts taken or authorized therein. J,N WITNESS WHEREOF, each of the und Migncd has executed this l traniniolls Wl itten Consent to be elTeetive as of the date fust set i'arth: abo-ve. .AMBRI rR,NFRCY NORTH, AMERICA, INC., a Delaware coij-�oralion By: Edek C pros r , Ib�iclisel �� sarle . iuiichael Mewing 3 EXH�A AMEND MENT NO.1 TO LIMITED LIABILITY COMPANY AGREEMENT AMENDMENT NO. i TO THE LIMITED LIABILITY COMPANY A�.GREEMENT O AE INFRASTRUCTURE, LLC �ta„a�rement of Comnanv. The last sentence of Section 7(d)(i) of the Limited l , ement" is amended to read Liability Company Agreement of AE Infrastructure: LLC (the "LLC Agxe ) as follows: The officers of the Comp Y .,hall be the persons listed below and each such person site such person's shall occupy the office set forth oppooreamm� until his successor: of such person's death, resignation, removal or the app ons and Distributions. Section 8 ofthe LLC Agreement is amended to read 2, Contributi a5 fU11UWs: Contributions and s to the Com The to resteorshall a defic t capitau� to without any capital contributions to the Company' or property b the Company prior written consentaee sbuEachoitem of into cash or �e, gain, los-, deduction, and shall be made 100% t credit of the Company shall be allocated 100% to the Member. 3 • Effect of Amendment. Except as amended by the terms of this Amendment, the LLC Agreement continues in full force and effect. Offres Name president Edek Choros Treasurer Everett King Secretary john 14. Thomas Chief Operating Officer Clark MoselP* ons and Distributions. Section 8 ofthe LLC Agreement is amended to read 2, Contributi a5 fU11UWs: Contributions and s to the Com The to resteorshall a defic t capitau� to without any capital contributions to the Company' or property b the Company prior written consentaee sbuEachoitem of into cash or �e, gain, los-, deduction, and shall be made 100% t credit of the Company shall be allocated 100% to the Member. 3 • Effect of Amendment. Except as amended by the terms of this Amendment, the LLC Agreement continues in full force and effect. OREGON COMPANY REGISTRY RX Datelftne 01120/2012 16:54 JAN -20-2012 FRI 03:54 PM UNISEARCH-OR Secretary of State Corporation Division 255 Capitol Street NE, .Suite 151 _ Salem, OR 97310-1327 Phone:(503)986-2200 wwwAlInginoregon.com COYOTE ISLAND TERMINAL, LLC 170 SOUTH MAIN ST STE 700 SALT LAKE CITY UT 84101 503 378 7870 P.002 FAX NO. 503 378 7870 P. 02 Registry Number: 828112-91 Type: FOREIGN LIMITED LIABILITY COMPANY Next Renewal Date: 01/2012013 Acknowledgment Letter The document you submitted was recorded as shown below, Please review and verify the Information listed for accuracy. Document APPLICATION FOR AUTHORITY Filled On Jurisdiction 01/20/2012 DELAWARE Name COYOTE ISLAND TERMINAL, LLC Principal Place of Business 170 SOUTH MAIN ST STE 700 SALT LAKE CITY UT 84101 Mailing Address 170 SOUTH MAIN ST STE 700 SALT LAKE CITY UT 84101 HEAPRE ACK 01120/2012 Registered Agent 0 T CORPORATION SYSTEM 388 STATE ST STE 420 SALEM OR 97301 RX Date/Time 0112012012 16:54 503 378 7870 JAN -20-2012 FRI 03,54 PM UNISEARCH-OR P.003 FAX NO, 503 378 7870 P, 03 Applfoo0on for AuthDAW to Transact BUBiness - Foreign Limited L1abi ty Compa"Y Beo�lary of 8l•t•- Oarpordl■n CMdon • td10�IId mL NO, fluke tel �9eign Wi Yro161-hllpdAvw�.FlUnOhlCtr■0•n,■■�■ Phana (w6) gae-BYOB FILED R5010710NUMBSIM _ u a JAN 2 0 2012 U NAmw Coyote Island T-erminat, LLQ ante,.. a Awemalodaaord,'Undud .rce,araun.emi.wunx�.La� erixwld+oturo�m■•ntn■o.aYwwia.b.uaag.e�e� Pj BTATN OR COUNTRY Or OROAIMUTION1 Dulavyars pd,oiom May 12f 2011 B) C6IRT MATe or EXl6TdNoECR DCMICILL 9TAYNICOUNIRY fIUINTRTNopliftt (1 hN apPllq■AW1 swathe uaompatled hyellh•r 0 ■ed11100Of eN■t•n•a, emuM Qlan an dop of dGWoj to We DMdw411080 M br the dmdel Itis" oedo�dpyoffho aotparde no■tds In the luN■4udond Fln■orponNdn la W eurleMnplelN num`ar lenxd by th• do Is r4dehov1,4Y1 © ATIADI ArE Ra ®R6°INn`Y 4881785 A7fAdtm NUAtaAR 4 QL1kgYM (bolo ahook mw.) ❑ IMM d,U upon wMoh Ua enU1y )� to deeolv.I■ Or M Uy*n shit bn parpeWeh 7) RNdIlTeRBD AO8fT16 PU"LY AVAILABLE ADDR6661 �lhe ■n On6on Bhr•st Awou, which In IdeniWia the ►epl■terod.peere 6edneu eRRe3 39$ State St Wt, Suite 42D Warn, OR 97301 9) ADORNtte QP PRIRo1PAL OFFIOII OF TNN BU8100E1 170 SoutKMaln Street, Supe 700 Suit Lake City, UT 84101 g) AXMIMe VUHo" Ta WGION MAY MAIL NOTICee1 170 south Main Street, suite 700 It Lake Clty, UT 84101 B) TIUB VaRNION LIMITED UAWL ITY COMPANYBAReWE9 THE 10) Hoyt' WILL Two UielTeoUABIUTY COMPANY BY MANAoeo7 NvctL1R4inLNTs or ORS 81,714(3), 0 NAME Or OREODH ReOieTBReo Amr. 1 WI LLO velli be molnber-managed by one or mord memberv, CT Cotpore lon SysteYn ( 7h1s LLO wlA bo martegar-mapaged by one or mom menagere, 11) EWU'pCNI(RInlet onomanherorMw ormudOWO Ry rW elpnelws. I dedlere as an eulhatlzad autally, Ina! We 00 Nee been 0XIM111ed by me and le, to the beet of my knO Wedge and ballet, Irue, portent, eml oompleb. MakUlg late statements In ft donrananl U agalnet (ire IaW and may be pepalmd by Anes, lmpdsafment of both. 4atulal Printed NUM111 T1Ual �o a.)/1.1Ql0 �o1Q�os Manager CoNTAOT Wile (To m*. quednone w(h We on.) Suadn Allen Pt1on NUMeems (Inoludo arta sed.,) 801-532.7840 lagdndPmaed6Pu MIS aordnMral Oepf (�a,arq Is ProogdApr•e■ereno■anaddde. rival MA *Mk"Putro,00eaetlwbWNpe' Tto-Appkk§glot AumodgrtoTRIflod lBuslmss-"or,UntedU4b*Ognpvv(Otlt2) RX Date/Time 0112012012 16:54 503 378 7870 JAN -20-2012 FRI 03:65 PM UNI5EARCH-OR FAX NO. 503 378 7870 Delaware A.. 1 UM qhe First State I, JEFFREY N. BULLOCK, SECRETARY OF STATE OF TAE STATE OF DELAWARE, DO HEREBY CERTIFY "COYOTE ISLAND TERMINAL, LLC" IS DULY FOPJMD UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, A5 OF THE TWENTIETH DAY OF JANUARY, A.D. 2012. AND I DO HEREBY FURTHER CERTIFY THAT THE SAID "COYOTE ISLAND TERMINAL, LLC" WAS FORMED ON THE TWELFTH DAY OF MAY, A.D. 2011. AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT .BEEN ASSESSED TO DATE. 4981785 8300 120068972 You may verity this certificate o 13ne at wrp.deiawars.gor/satdver.shcw \/ -c () f �79 Jeffiey w. Bullock SepEtary of State AUTHEN TION: 9310084 DATE: 01-20-12 P.004 P. 04 PORT OF MORROW LEASE TO AMBRE Port of Morrow - Ambre Energy North America The Port of Morrow, a Quasi Municipal entity. Option Lot 1 Description (Upland) A 23.81 Acre portion, more or less, for the development of Ambre Energy NorthAmerica Facility, located in Section 2, Township 4 North, Range 25, East of the Willamette Meridian located within Morrow County, Oregon, more particularly described as follows: Commencing at a Point on the East Right of Way of the East Beach Rail Loop, said point being North 260 04' 06" West a distance of 2253.87 feet from the South Quarter Corner of Section 2, in Township 4 North, Range 25 East, said point being the Northwest corner of Pacific Ethanol Lot; Thence along the Northwest Line of Pacific Ethanol Lot, North 38° 56' 09" East a distance of 16.52 feet to the Point of Beginning of this description; Thence continuing North 38° 56' 09" East along the Northwest Line of Pacific Ethanol Lot a distance of 1301.48 feet to the North Right of Way of Dewey West Lane; Thence North 51 ° 03' 51" West a distance of 811.75 feet to the South right of way line of the East Beach Rail Loop; Thence along the South Right of Way line of the East Beach Rail Loop through the following courses & distances, along a 60.12 foot curve to the Left, said curve having a radius of 555.00 feet, an internal angle of 06° 12' 23" and a chord which bears South 42° 02' 19" West a distance of 60.09 feet; South 38° 56' 09" West a distance of 756.63 feet; along a 991.54 foot curve to the Left, said curve having a radius of 540.00 feet, an internal angle of 105° 12' 20" and a chord which bears South 13° 40' 02" East a distance of 858.01 feet; Thence South 66° 16' 13" East a distance of 138.19 feet to the Point of Beginning; all being located in Section 2 of Township 4 North, Range 25, East of the Willamette Meridian, Morrow County, Oregon, Containing 23.81 acres more or less. Port of Morrow - Ambre Energy North America The Port of Morrow, a Quasi Municipal entity. Option Lot 2 Description (Shore -side) A 16.68 Acre portion, more or less, for the development of Ambre Energy NorthAmerica Facility, located in Section 2, Township 4 North, Range 25, East of the Willamette Meridian located within Morrow County, Oregon, more particularly described as follows: Beginning at a Point on the North Right of Way of Lewis & Clark Drive, said point being North 38° 26' 51" West a distance of 3102.69 feet from the South Quarter Corner of Section 2, in Township 4 North, Range 25 East, Thence along the North Right of Way of Lewis & Clark Drive, North 380 56' 09" East a distance of 1200.00 feet; Thence North 51° 03' 51" West a distance of 551.3 feet more or less to the Ordinary High Water Line of the Columbia River prior to the John Day Dam; Thence Southwesterly along the Ordinary High Water Line of the Columbia River prior to the John Day Dam a distance of 1380.20 feet more or less; Thence South 51° 03' 51" East a distance of 300.00 feet; Thence North 38° 56' 09" East a distance of 180.00 feet; Thence South 51° 03' 51" East a distance of 273.00 feet more or less, to the North Right of Way of Lewis & Clark Drive and Point of Beginning; all being located in Section 2 of Township 4 North, Range 25, East of the Willamette Meridian, Morrow County, Oregon, Containing 16.68 acres more or less. PORT OF MORROW LEASE OPTION AND GROUND LEASE Date: May 16, 2011. Between: Port of Morrow ("Port") P.O. Box 200 Boardman, OR 97818 And: Coyote Island Terminal, LLC ("Optionee") 170 South Main Street, Suite 700 Salt Lake City, UT 84101 LEASE OPTION Section 1. Option to Lease 1.1 Grant of Option. Port hereby grants to Optionce an exclusive option (the "Lease Option'), to be exercised as described in Section 1.3 at any time within the Option Term (as defined in Section 1.2), to enter into an exclusive ground lease as described hereunder covering the real property located in Morrow County, Oregon more particularly described on the attached Exhibit A as "Upland" and "Waterfront' property and incorporated herein by this reference (the "Premises"). Optionee desires to plan, permit, construct, own, and operate on the Premises a marine terminal business capable of handling and transporting coal and other products via rail, truck and barge together with all related facilities and equipment (the "Marine Terminal'). Upon the execution of this Port of Morrow Lease Option and Ground Lease (this "Agreement'), if requested by Optionce, Port and Optionee (collectively, the "Parties") will execute a memorandum of the Lease Option, which Optionee may record in the real property records of Morrow County, Oregon. This Agreement may not be recorded. 1.2 Option Term. The term of the Lease Option shall commence on May 16, 2011 and continue for a period of one (1) year or until such time as Optionee exercises the Lease Option in accordance with Section 1.3 whichever is earlier(the "Option Term"). Subject to Optionee exercising all reasonable diligence to obtain permits, if Optionce has not received all necessary permits to construct or operate the Marine Terminal within the Option Term, the Option Term shall be extended for one (1) additional year. 1.3 Exercise of Option. Optionee may exercise the Lease Option for all or a portion of the Premises by written notice to Port given not less than thirty (30) days prior to the last day of the Option Term. Optionee will exercise the Lease Option for only that portion of the entire Premises that match its volume loadout analysis and throughput expectations. If Optionee exercises the Lease Option for less than the entire Premises, the Port and Optionce shall jointly prepare an amended Exhibit A describing; the real property subject to the exclusive ground lease as agreed to by the Parties. Upon delivery by Optionce of'such notice of exercise and amended Exhibit A (if any) the ground lease set forth in this Agreement (the "Lease") shall be in full force and effect and binding on the Parties and the Premises for the Initial Term (as defined in Section 2.O without further act by either party. 1.4 Permitted Uses during the Option Terve. During the Option Term, Optionce shall have the right to access the Premises and to conduct on the Premises those activities described in Section 5.1(1). 1.5 Termination of Option. If, by May 15, 2012, the Option Term has not been extended in accordance with Section 1.2, then Port shall have the right to terminate this Agreement and the Lease Option. If the Option Term has been extended in accordance with Section 1.2, then if by May 15, 2013 Optionce has not exercised the Lease Option, then the Lease Option, this Agreement, and Optionee's rights to develop the Premises shall terminate. During the Option Term, Optionee may terminate this Agreement at any time upon delivery of written notice to Port. 1.6 Option Fee. During the Option Term, Optionce shall pay to Port as consideration for the Lease Option the sum of Eighty -Five Dollars ($85) per acre per month for Upland and the sum ofTirree Hundred Dollars ($300) per acre per month for Waterfront (the "Option Fee"). The Option Fee shall be paid quarterly for the forthcoming calendar quarter at the address given for Port in the preamble to this Agreement. Optionce shall pay the first Option Fee payment no later than May 20, 2011. The Option Fee payment for any partial quarter shall be prorated. GROUND LEASE Between: Port of Morrow ("Port") P. 0. Box 200 Boardman, OR 97818 And: Coyote Island Terminal, LLC ("Tenant") 170 South Main Street, Suite 700 Salt Lake City, UT 84101 Section 2. Occupancy 2.1 Initial Term. The initial term of the Lease shall commence immediately upon exercise of the Lease Option as described in Section 1.3 and continue for a period of twenty- nine (29) years, unless sooner terminated as hereinafter provided (the "Initial Term"). 2.2 Possession. Tenant's exclusive right to possession and Tenant's obligations under the Lease shall commence upon exercise of the Option as described in Section 1.3. 2.3 Renewal Option. As set forth in this Section 2.3, Tenant shall have the option to renew the Lease for fourteen (14) successive terms of five (5) years each (each, a "Renewal Term" and such option, the "Renewal Option"), provided there is no Event of Default (as defined in Section I 5) at the time Tenant exercises the Renewal Option and at the time each applicable Renewal Term commences. (1) Each Renewal Term shall commence on the day following expiration of the Initial Term or preceding Renewal 'Perm, as applicable. (2) The Renewal Option may be exercised by written notice from Tenant to Port given not fewer than ninety (90) days prior to the last day of the expiring Initial Term or Renewal Term, as applicable. The giving of such notice shall be sufficient to make the Lease binding for the Renewal Term without further act of the Parties. Poll and Tenant shall then be bound to take the steps required in connection with the determination of rent as specified below. (3) The terms and conditions of the Lease for each Renewal Term shall be identical with the Initial Term except for rent, as described herein, and except that Tenant will no longer have any Renewal Option that has been exercised. Rent for each Renewal Term shall be the greater of (a) the Base Rent (as defined in Section 3.1) for the preceding Initial Term or Renewal Tenn or (b) commercially reasonable rental for the ensuing Renewal Term. (4) If the Parties do not agree on the rent within sixty (60) days after notice to Port of Tenant's election to renew, the rent shall be determined by arbitration as provided in Section 19. 2.4 Termination. In the event Tenant has not commenced construction of the Marine Terminal by December 31, 2016, then Port may, but shall not be obligated to terminate this Agreement and Tenant's future rights to develop the Premises. Section 3. Rent 3.1; Base Rent. During the Initial Term, Tenant shall pay to Port as base rent the sum of Three Hundred Dollars ($300) per acre per month for Upland and the sum of Eight Hundred Seven Dollars ($807) per acre per month for Watertront (`Base Rent"). Base Rent shall be paid on the first day of each quarter for the forthcoming quarter at the address given for Port in the preamble to this Agreement. 3.2 llntentionally Deletedl 3.3 Additional Rent. All taxes, insurance costs, or utility charges borne by Port that are directly attributable to the Marine Terminal will be charged as additional rent and paid by Tenant. 3.4 Supplemental Rent. In addition to the rent described above, Tenant will pay to Port as "Supplemental Rent" a rail tariff of $15 per rail car delivering coal to the Premises ("Rail Tariff') and a wharfage fee of $.10 per ton for coal passing from land to barge ("Wharfage Fee"). Tenant shall keep daily records satisfactory to Port showing (i) the number of rail cars delivering coal to the Premises and (ii) the amount of coal passing fi-om land to barge, and ori a calendar month basis provide these records to the Port. The records will be provided within 10 days of the end of each calendar month along with payment of the Supplemental Rent. Tenant shall upon request provide Port access to all records which would aid Port in auditing the Supplemental Rent due. 3.5 Minimum Supplemental Rent. Commencing calendar year 2014, in the event. Supplemental Rent is less than One Hundred Thousand Dollars ($100,000) per year as adjusted by Section 3.6 ("Minimum Supplentental Rent"), Tenant shall have the option to either (i) pay to Port within ten (10) days after the end of the calendar year the deficiency, so Port will receive no less than the Minimum Supplemental Rent annually; or (ii) terminate the Lease. Termination under this Section 3.5 shall not be a default or an Event of Default. 3.6 Escalation. The Base Rent, Rail Tariff, Wharfage Fee and Minimum Supplemental Rent shall increase annually on January 31 by a percentage equal to the percentage change in the Consumer Price Index published by the United States Bureau of Labor Statistics of the United States Department of Labor. Comparisons shall be made using the index entitled "U.S. City Average --All Items and Major Group Figures for All Urban Consumers (1982-84 = 100)," or the nearest comparable data on changes in the cost of living it'such index is no longer published. The change shall be determined by comparing the figure for 2010 with that of each succeeding year. In no event, however, shall Base Rent for any year of the Lease be less than Three Hundred Dollars ($300) per acre per month; the Rail Tariff be less than $15 per rail car; and the Wharfage Fee be less than $0.10 per ton for coal passim; from land to barge. Section 4, f Intentionally Deleted] Section 5. Use of the Premises 5.1 Permitted Use. The Premises shall be used exclusively for the permitting, construction, ownership, and operation of a Marine Terminal including, but not limited to conducting any of the following activities (collectively, "Operations"): (1) Surveys, studies and analyses and the gathering of all information required in Tenant's judgment to satisfy the requirements for obtaining governmental approvals and permits for the Marine Terminal; (2) The receipt, moving, handling, storing, and transporting of coal and other products by conveyor, rail, road, barge or other acceptable means on, over, across, above and under the Premises; (3) The construction, reconstruction, lay -down, erection, installation, using, owning, replacing, relocating; and removing from time to time, and maintaining, repairing, preserving, servicing, overhauling, improving and operating, the Marine Terminal; and (4) Undertaking any other activities related to Tenant's rights or obligations under this Agreement, or that T(manl reasonably determines arc necessary or appropriate to facilitate or accomplish any of the foregoing Operations. 5.2 likgress and Egress. This Agreement shall include the right of ingress and egress over and across the Premises by means of any existing roads and driveways on the Premises, and by such other roads or routes as Tenant or any sub -tenant or assignee may construct from time to time on the Premises or such other real property owned by Port and used by Tenant in connection with its Operations with Pot's consent (any such properly, "Additional Lands") , for the benefit of and for purposes incidental to Operations on the Premises or such Additional Lands. The construction by Tenant of new access roads on the Premises will be kept to a practical minimum. Any new roads constructed by Tenant on the Premises will meet the requirements of the County of Morrow and any permit granted Tenant related thereto with respect to grade and road widths. 5.3 Additional Uses. Without limiting the generality of the rights granted hereunder, Tenant shall have use of the Premises and any portion thereof in connection with, for the benefit of, and for purposes incidental to Tenant's Operations, whether located on the Premises or Additional Lands, for installation and maintenance of (1) Overhead and underground transmission lines and facilities; (2) Overhead and underground communications lines and facilities; (3) Water pipelines; (4) Substations, meteorological equipment, and control, maintenance and administration buildings; (5) Natural gas pipelines; (ti) Mooring facilities; (7) Rail; and (8) Storm water control facilities. 5.4 Restrictions on Use. In connection with the use and occupation of the Premises, Tenant shall: (1) Comply with all applicable laws and regulations of any public authority affecting the Premises and Tenant's Operations, and correct at Tenant's own expense any failure of compliance created through Tenant's fault or by reason of the Operations, but Tenant shall not be required to make any structural changes to effect such compliance unless such changes are required because of Tenant's specific use. (2) Operate the Marine Terminal according to prudent practice. For purposes of this Section 5.4(2), "prudent practice" means the practices, methods and standards of professional care, skill and diligence engaged in or approved by a significant portion of marine terminal industry for facilities of�similar size, type, and design, that, in the exercise of reasonable judgment, in light of the facts known at the time, would have been expected to accomplish results consistent with Law, reliability, safety, environmental protection, applicable codes, and standards ofeeonomy and expedition. 5.5 Hazardous Substances. Tenant shall not cause or permit any Hazardous Substance to be spilled, leaked, disposed of, or otherwise released on or under the Premises. Tenant may use or otherwise handle on the Premises only those hazardous Substances typically used or sold in the prudent and safe conduct of Operations specified in Section 5.1. Tenant may store such Hazardous Substances on the Premises only in quantities necessary to satisfy Tenant's reasonably anticipated needs. Tenant shall comply with all Environmental Laws and exercise the highest degree of care in the use, handling, and storage of Hazardous Substances and shall take all practicable measures to minimize the quantity and toxicity of Hazardous Substances used, handled, or stored on the Premises. Upon the expiration or termination of this Agreement, Tenant shall remove all Hazardous Substances fi-om the Premises. The term "Environmental Law" shall mean any federal, state, or local statute, regulation, or ordinance or any judicial or other governmental order pertaining to the protection of health, safety or the environment. The term "Hazardous Substance" shall mean any hazardous, toxic, infectious or radioactive substance, waste, and material as defined or listed by any Environmental Law and shall include, without limitation, petroleum oil and its fractions. 5.6 Asbestos. The Premises are unimproved property. Port is not aware of any asbestos on the Premises. Section 6. Repairs and Maintenance 6.1 Port's Obligations. Port shall be under no obligation to make or pert<n-m any repairs, maintenance, replacements, alterations, or improvements on or to the Premises. 6.2 Tenant's Obligations. Tenant, at its expense, shall construct, own, maintain, and operate a Marine Terminal, and keep the Premises and Marine Terminal in good order in accordance with prudent marine terminal practice. Tenant's obligations include taking all action necessary to control erosion of any type including water and wind erosion and control ofsand blows. This shall include, if necessary, the creation of barriers and the planting of cover so as to control erosion. 6.3 [intentionally Deleted] 6.4 Reimbursement for Repairs Assumed. Tenant shall be solely responsible for the maintenance and repair, of the Marine Terminal on the Premises and for erosion control on the Premises. If Tenant fails or refuses to maintain the Marine Terminal, or fails or refuses to control wind and water erosion or control sand blows on the Premises, Port may take any necessary maintenance or erosion control measures, and charge the actual costs of such measures to Tenant. Such expenditures by Port shall be reimbursed by Tenant on demand together with interest at the rate of 12% per annum from the date of expenditure by Port. Except in an emergency creating an immediate risk of personal injury or property damage, Port shall not perform repairs that are the obligation of Tenant <und charge Tenant for the resulting expense unless (a) at least 20 days before work is commenced, and (b) Tenant is given notice in writing outlining with reasonable particularity the repairs required, and fails within that time to initiate such repairs in good faith. 6.5 Inspection of Premises. Port shall have the right to inspect the Premises at any reasonable time or times to determine the necessity of erosion or sand control measures. Whether or not such inspection is made, the duty of Port to control erosion shall not mature until a reasonable time after Port has received fi-om Tenant written notice of the repairs that are required. Section 7. Improvements and Alterations 7.1 Authorized Improvements and Alterations. Tenant shall make no improvements or alterations on the Premises of any kind other than the construction, maintenance and replacement of a Marine Terminal without first obtaining the Port's written consent. The Marine Terminal and all alterations related thereto shall be constructed in a good and workmanlike manner, and in compliance with applicable laws and building codes. 7.2 [Intentionally Deleted] 7.3 Ownership and Removal of Improvements and Alterations. The Marine Terminal shall be the property of Tenant unless otherwise identified on the work sheet attached to and made a part of this Agreement (the "Work Sheet") as the property of Port. Improvements and alterations installed by Tenant shalt be removed by Tenant and the Premises restored unless the Work Sheet specifically provides otherwise. 7.4 Waiver. Port may condition its consent to installation of work of visual art in the Premises, as defined in the Visual Artists Rights Act of 1990 (VARA) at 17 USC ' 101, on Tenant's delivery to Port of a written waiver of moral rights under the VARA executed by the artist and to be executed by Port acknowledging that the work may be subject to destruction upon removal. Section 8. Insurance 8.1 Insurance Required. Tenant shall keep the Premises insured at Tenant's expense against fire and other risks covered by a standard fire insurance policy with an endorsement for extended coverage. Tenant shall bear the expense of any insurance insuring the property of Tenant on the Premises against such risks. Certificates evidencing such insurance shall be furnished to Port prior to Tenant's occupancy of the Premises. 8.2 Waiver of Subrogation. Neither party shall be liable to the other (or to the other's successors or assigns) for any loss or darnage caused by fire or any of the risks enumerated in a standard fire insurance policy with an extended coverage endorsement, and in the event of insured loss, neither party's insurance company shall have a subrogated claim against the other. This waiver shall be valid only if the insurance policy in question expressly permits waiver of subrogation or if the insurance company agrees in writing that such a waiver will not affect coverage under the policies. Each party agrees to use best efforts to obtain such an agreement fi•om its insurer if the policy docs not expressly permit a waiver of subrogation. Section 9. Taxes; Utilities 9.1 Property Taxes. Tenant shall pay as due all taxes on the Marine Terminal and its personal property located on the Premises. Tenant shall pay as due all real property taxes and special assessments levied against the Premises. As used herein, real property taxes include any fee or charge relating to the ownership, use, or rental of the Premises. 9.2 Special Assessments. If an assessment for a public improvement is made against the Premises, Port may elect to cause such assessment to be paid in installments, in which case all of the installments payable with respect to the lease term shall be treated the same as general real property taxes for purposes of Section 9.1. 9.3 Contest of Taxes. Tenant shall be permitted to contest the amount of any tax or assessment so long as such contest is conducted in a mariner that does not cause any risk that Pod's interest in the Premises will be foreclosed for nonpayment. Port shall cooperate in any reasonable manner with such contest by Tenant. 9.4 Proration of Taxes. The Premises are presently exempt fi•om real property taxes. Tenant shall pay all real property taxes and assessments for the years in which this Agreement is in effect. 9.5 New Charges or Fees. If a now charge or fee relating to the ownership or use of the Premises or the receipt of rental there from or in lieu of property taxes is assessed or imposed, then, to the extent permitted by law, Tenant shall pay such charge or fee. Tenant, however, shall have no obligation to pay any income, profits, or franchise tax levied on the net income derived by Port fiom this Agreement. 9.6 [Intentionally Deleted] 9.7 Port Utilities. Should Port and Tenant wish to enter a utility services agreement, Port will provide to Tenant utilities similar to the utilities Port provides to similarly situated users of Port utilities under terms and conditions set out in Port utility ordinances in effect during the teen oflhis Agreement. Section 10. Damage and Destruction 10.1 Partial Damage. lfthe Marine Terminal is partly damaged and Section 10.2 does not apply, the Marine Terminal shall be repaired by Tenant at Tenant's expense. Repairs shall be accomplished with all reasonable dispatch subject to interruptions and delays from labor disputes and matters beyond the control of Port. 10.2 Force Majeure. if performance of this Agreement or of any obligation hereunder is prevented by reason of an event of "Force Majeure" (defined below), the affected party, upon giving written notice to the other party, shall be excused fi-om such performance to the extent of and for the duration of such prevention, restriction or interference. The affected party shall use its reasonable efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder whenever such causes are removed. "Force Majeure" means fire, earthquake, flood or other casualty or accident; strikes or labor disputes; war, civil strife or other violence, any law, order, proclamation, regulation, ordinance, action, demand or requirement of any government agency or utility, or any other act or condition beyond the reasonable control of a party hereto. 10.3 Rent Abatement. Rent shall not be abated during the repair of any damage to the Marine Terminal. 10.4 Damage Late in -Perm. If an Event of Force Majeure occurs within one year before the end of the then -current lease term, Tenant may elect to terminate the Lease by written notice to Port given within 30 days after the date of the damage. Section 11. Condemnation. 11.1 Interests of Parties. if any portion of the Premises is taken for public or quasi - public purposes by condemnation in any action or proceeding in eminent domain, or is transferred in lieu ofcondemnation to any authority entitled to exercise the power ofeminent domain, the interests of Port and Tenant in the award or consideration for the taking or transfer and the effect of the taking or transfer on this Agreement shall be governed by this Section 11. 11.2 Termination on Total or Partial Taking. In the event Port receives notification of any condemnation proceedings affecting the Premises, or any part thereof, Port will provide notice of the proceedings to Tenant within ten (10) business days. If a condemning authority takes the Premises or any part thereof that is sufficient, in Tenant's sole determination, to render the Premises unsuitable for Tenant's activities under this Agreement, then this Agreement will terminate as of the date the title vests in the condemning authority; provided however, that if the leasehold interest in this Agreement is condemned, then the condemning authority will succeed to the interest of Tenant as provided by law and this Agreement will continue in effect. In the event this Agreement is not terminated by Tenant as provided for in the previous sentence, their this Agreement shall continue in effect as to the portion of the Premises not taken or transferred. 11.3 Allocation of Just Compensation. In the event of an award of just compensation with respect to this Agreement, Port and Tenant will each be entitled to an allocation of such award in accordance with their respective interests. Port's interest shall be determined by capitalizing the income being received and projected to be received under the Lease, using a capitalization rate of eight percent (8%), Tenant's interest shall be determined by selecting the greater of (i) the depreciated value of the Marine Terminal in place as an ongoing operation; (ii) the replacement cost of the Marine Terminal; or (iii) the value calculated by capitalizing the income being received and projected to be received by Tenant Operations, using a capitalization rate of eight percent (8%). Tenant shall have the right to make a claim for revenue lost as a result of the taking. It is specifically recognized by the Parties that Port's capitalized rent revenue and Tenant's improvement value may or may not add up to the amount ofthe just compensation award. In such a case, the allocation of the award or any settlement shall be based upon the ratio of the Port's interest to Tenant's interest as determined above, with that ratio multiplied times the award or settlement, with each Party to receive their proportionate share of the award. 11.4 Sale in Lieu of Condemnation. Sale of all or part of the Premises to a purchaser with the power of eminent domain in the face of a threat or probability of the exercise of the power shall be treated for the purposes of this Section 11 l as a taking by condemnation. Section 12. Liability and Indemnity 12.1 Liens (1) Except with respect to activities for which Port is responsible, Tenant shall pay as due all claims for work done on and for services rendered or material furnished to the Premises, and shall keep the Premises fi-ee fi-om any liens. If Tenant fails to pay any such claims or to discharge any lien, Port may do so and collect the cost as additional rent. Any amount so added shall bear interest at the rate of 12% per annum fiorn the date expended by Port and shall be payable on demand. Such action by Port shall not constitute a waiver of any right or remedy which Pott may have on account of an Event of Default by Tenant. (2) Tenant may withhold payment of any claire in connection with a good -faith dispute over the obligation to pay, as long as Port's property interests are not jeopardized. If a lien is filed as a result of nonpayment, Tenant shall, within 10 days after knowledge of the filing, secure the discharge of the lien or deposit with Port cash or sufficient corporate surety bond or other surety satisfactory to Port in an amount sufficient to discharge the lien plus any costs, attorney fees, and other charges that could accrue as a result of a foreclosure or sale under the lien. 12.2 Indemnification. Tenant shall indemnify and defend Port fi-om any claim, loss, or liability arising out of or related to any activity ofTenant on the Premises. Pott shall have no liability to Tenant for any injury, loss, or damage caused by third parties or by any condition of the Premises, except to the extent caused by the negligence or willful misconduct of Pott, its employees, agents, or contractors. 10 12.3 Liability Insurance. Before going into possession of the Premises, Tenant shall procure and thereafter during the terns of the Lease shall continue to carry the following insurance at Tenant's cost: comprehensive general liability insurance in a responsible company with limits of not less than $1,000,000 for injury to one person, $3,000,000 for injury to two or more persons in one occurrence, and $500,000 for damage to property. Such coverage shall be written on an ISO occurrence Sorin, or equivalent, providing coverage for bodily injury, including death, personal injury liability, advertising liability, blanket contractual liability, products and completed operations liability and broad form property damage. The Lessee shall also provide coverage for sudden and accidental pollution arising out of the Lessee's operations at the Premises including the use, operation, loading and unloading of any leased equipment, under policy terms standard in the insurance industry. Such insurance shall name Port as an additional insured. Certificates evidencing such insurance shall be furnished to Port prior to Tenant's occupancy of the Premises. if during the term of this Agreement or any extension thereof the potential exposure of Port to liability ciainls exceeds the amount of insurance set ftlr the above, Poll may require Tenant to provide reasonable amounts of additional insurance to adequately protect its interest. 12.4 Hazardous Materials. Port shall not violate, and shall indemnify Tenant for, from and against any violation (past, present or future) by Port, Port's agents or contractors, and Port's predecessors in interest, of any federal, state or local law, ordinance or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation or presence of any substance, material or waste that is now or hereafter classified as hazardous or toxic, or that is regulated under current or future federal, state or local laws or regulations, oil or under the Premises. Section 13. Quiet Enjoyment; Lender Protection 13.1 Port's Warranty. Port warrants that it is the owner of the Premises and has the right to lease the Premises free of all encumbrances except those set forth on the attached schedule entitled "Exceptions to Title". Subject to the Exceptions to 'Title, Port will defend Tenant's right to quiet enjoyment of the Premises fi•orn the lawful claims of all persons during the Lease tern. Without limiting the generality of the foregoing, Port and Tenant acknowledge and agree that the Premises are located within the boundaries of the West Extension Irrigation District (the "Irrigation District"). Port shall pay any and all assessments, fees, or any other amounts due or owing to the Irrigation District or any other patty relating thereto, and shall indemnify and hold harmless Tenant for and from any claim or lawsuit arising fi-oin or related to the inclusion of the Premises in the Irrigation District boundaries. 13.2 Lender Protection (l) Hypothecation. Tenant shall be entitled to hypothecate, mortgage or pledge all or any portion of Tenant's right, title or interest under this Agreement and/or any of its Marine Terminal to a lender (the "Lender") as security for the repayment of any indebtedness and/or 11 performance of any obligation relating in whole or in part to Tenant's Marine Terminal and/or to the Operations on the Premises ("Lender's Lien"); provided, however, that in no event shall any Lender's Lien affect or encumber any right, title or interest of the Porl in the Premises. Upon Tenant giving the Lender a Lender's Lien, Tenant or the Lender shall give; notice of the same (including the address of the Lender) to the Port; provided, however, that the failure to give notice shall not constitute a default under this Agreement, but rather shall only have the effect of not binding the Port with respect to the I.,ender or Lender's Lien until the notice shall have been given. (2) Lender May Mace Payments. Lender shall have the right, but not the obligation, to make any payments due from Tenant under this Agreement and to do any other act or thing that may be necessary or appropriate to be clone by Tenant in the performance and observance of the terms of this Agreement. All payments so made and all things so done and performed by the Lender shall be as effective to prevent or cure an Event of Default under this Agreement as they would have been if made, done and pertbi-med by Tenant, and the Pont agrees to accept the Lender's performance, payment and cure. (3) Amendment. The Port and 'Tenant agree for the benefit of the Lender that they will not, without the prior written consent of the Lender: amend or modify, or take any action causing, consenting to or accepting the amendment or modification of this Agreement, if the amendment or modification would reduce the rights or remedies of the Lender or impair or reduce the security of the Lenders Lien or by agreement with Tenant, cancel, terminate or suspend, or take any action causing, consenting to or accepting the cancellation, termination or suspension of, this Agreement. (4) Notices of Default to Lender. The Port sliall deliver to the Lender a duplicate copy of any and all Notices of Default that the Port may fi-om time to time deliver to Tenant hereunder, and the copies shall be delivered to the Lender at the same time Notices of Default are delivered to Tenant. No Notice of Default shall be deemed to have been given to 'Tenant hereunder unless and until a copy thereof shall have been given to the Lender. (5) Additional Right of Lender to Cure. Upon Tenant's failure to cure any Event of Default hereunder within the time provided in Section 15.1 hereof, the Lender shall have an additional forty-five (45) days thereafter to cure the Event of Default; provided, however, that if the Event of Default is non -monetary and cannot reasonably be cured within the additional forty- five (45) -day period, then the Lender shall have the additional time to cure the Event of Default as may be reasonably necessary. Any Event of Default that cannot be cured by the Lender shall be subject to an extended cure period if oil or before forty-five (45) days after receiving the Notice of Default from the Port, the Lender shall have acquired Tenant's then -remaining right, title and interest in the Agreement, or shall have commenced foreclosure or other appropriate proceedings for the purposes and shall be prosecuting the proceedings to completion with commercially reasonable diligence; the Lender shall have fully cured within the forty-five (45) - day period any failure to perform any monetary obligations of Tenant hereunder and shalt thereafter continue to perform the monetary obligations; and after obtaining Tenant's then - remaining right, title and interest in the Agreement, the Lender commences performance of the 3.2 obligations of Tenant, including the cure of any non -monetary obligations then in default under this Agreement. All rights of the Port to terminate this Agreement as a result of the occurrence of an Event of Default in accordance with Section 15.2 shall be expressly conditioned upon the Lender having first received a copy of the Notice of Default as and when provided in Section 13.2(4) hereof and the Lender having tailed to cure the Event ot'Default or acquire possession of this Agreement or commence foreclosure or other appropriate proceedings as set forth, and within the time specified, in this Section 13.2(5). (6) Period of Bankruptcy. If the Lender is prohibited by Any process or injunction issued by, or by reason of any action of, any court having jurisdiction over any bankruptcy, reorganization, insolvency orotlux debtor -relief proceeding from commencing or prosecuting foreclosure or other appropriate proceedings, then [lie times specified in Section 13.2(5) hereof for commencing or prosecuting the foreclosure or other proceedings shall be extended for the period of the prohibition; provided, however, that the Lender shall have fully cured, within the time specified in Section 13.2(5) hereof, any failure to perform any monetary obligations of Tenant hereunder, and shall thereafter continue to perform the monetary obligations when and as due. (7) Foreclosure Sale. The transfer of Tenant's interest under this Agreement to the Lender and/or to one or more purchasers at a foreclosure sale by judicial or non -judicial foreclosure and sale; by a conveyance by Tenant in lieu of foreclosure; or by any other assignment or conveyance, including, without limitation, by the Lender following foreclosure and sale; or as a result of any other legal proceeding, shall non require (lie consent of the Port, and the Port agrees that upon foreclosure, sale, conveyance, assignment or other proceeding, they will recognize the Lender or other purchaser(s) as the successor to Tenant under this Agreement. (8) Further Opportunity to Cure. In the event that this Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding, or if this Agreement is terminated for any reason other than an Event of Default which could have been but was not cured by the Lender as provided in this Section 13, and if, within forty-five (45) days after receiving notice of such rejection or termination, the Lender shall so request, then the Pott shall execute and deliver to the Lender or its designee a new agreement, which new agreement shall be of the same priority, on the same terms and conditions and provide the same rights and interest as this Agreement for the remaining term of this Agreement, before giving effect to the rejection or termination. (9) Performance By Lender. The Lender shall not have any duty, obligation 01- liability rliability under this Agreement prior to the time of its acquiring Tenant's rights under this Agreement or its commencement of performance of Tenant's obligations under this Agreement or under a new agreement entered into as provided in Section 13.2(8) hereof. In the event that the Lender elects to perform Tenant's obligations under this Agreement or to enter uito a new agreement as provided in Section 13.2(8) hereof, then there shall be no recourse against the Lender or any of its stockholders or other owners, officers, directors or employees, for any liability to the Port arising in connection with any breach or default under this Agreement, and the sole recourse of the Port in seeking the enforcement of the obligations shall be to the 13 Lender's interest in this Agreement, the Marine Terminal, and 't'enant's rights and interests hereunder. In the event that the Lender assigns its interest in this Agreement or in a new agreement entered into pursuant to Section 13.2(8) hereof to any person or entity, then, provided that the transferee assumes the obligations of Tenant, or the Lender, as the case may be, under this Agreement, the Lender shall be released from any further liability hereunder. (l 0) Amendment. The Parties shall cooperate, by means of a suitable amendment, with respect to any provision which the Lender or any proposed lender reasonably requests for the purpose of implementing or amending the provisions of this Section 13_2 or affording the Lender or proposed Lender reasonable protection of its Lenders Lien in the event of a default by Tenant. The Port, however, shall not be required to include herein any additional term or provision that materially limits, reduces or impairs the rights of the Pott under this Agreement, or obligations of the Parties hereunder. All costs associated with the amendment shall be borne by Tenant. The Parties agree to execute and deliver and to acknowledge any document or instrument reasonably necessary to give effect to the foregoing provision. 13.3 Estoppel Certificate. Either party will, within 30 days after notice from the other, execute and deliver to the other patty a certificate stating whether or not this Agreement has been modified and is in full force and effect and specifying any modifications or alleged breaches by the other party. The certificate shall also state the amount of monthly Base Rent, the dates to which rent has been paid in advance, and the amount of any security deposit or prepaid rent. Failure to deliver the certificate within the specified tirne shall be conclusive upon the party from whom the certificate was requested that the lease is in full force and effect and has not been modified except as represented in the notice requesting; the certificate. Section 14. Assignment and Subletting. No part of the Premises may be assigned, mortgaged, or subleased, not- may a right of use of any portion of the Premises be conferred on any third person by any other means, without the prior written consent of Port except as permitted under Section 13.2. This provision shall apply to all transfers by operation of law. ]f Tenant is a corporation or partnership, this provision shall apply to any transfer of a majority voting interest in stock or partnership interest of Tenant. No consent in one instance shall -prevent the provision fi-om applying to a subsequent instance. Port shall consent to a transaction covered by this provision when withholding such consent would be unreasonable in the circumstances. Section 15. Default 15.1 Event of Default. If either Party shall fail to perform any of its material obligations under this Agreement ("Event of Default"), then that Party shall be in default hereunder unless the defaulting Party shall have cured the Event of Default within thirty (30) days of receipt of written notice of default from the non -defaulting Party ("Notice of Default"); provided, however, that if the nature or extent of the obligation or obligations is non -monetary and is such that more than thirty (30) clays are required for performance of the obiigation(s), then the defaulting Party shall not be in default hereunder if the defaulting Party commences such performance within the 30 day period and thereafter pursues the same to completion with commercially reasonable diligence. 14 The following shall be events of default: 15.2 Default in Rent. Notwithstanding Scctioir 5 5 1, failure of Tenant to pay any rent within 10 days after it is due. 15.3 Default in Other Covenants. Failure ofTenant to comply with any term or condition or fulfill any obligation of the Lease (other than the payment of rent or other charges) within 30 days after written notice by Port specifying the nature of the default with reasonable particularity. If the default is for a default other than the failure to develop the Premises as required in Section 2.4 and if the default is of such it nature that it cannot be completely remedied within the 30 -day period, this provision shall be complied with if Tenant begins correction of the default within the 30 -day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. 15.4 Insolvency. Insolvency of Tenant; an assignment by Tenant for the benefit of creditors; the filing by Tenant of a voluntary petition in bankruptcy; an adjudication that Tenant is bankrupt or the appointment of a receiver of the properties of Tenant; the filing of any involuntary petition of bankruptcy and failure of Tenant to secure a dismissal of the petition within 30 days after filing; attachment of or the levying of execution on the leasehold interest and failure of Tenant to secure discharge of the attachment or release of the levy of execution within 30 days shall constitute a default. If Tenant consists of two or more individuals or business entities, the events of default specified in this Section _15.4 shall apply to each individual unless within 30 days after an Event of Default occurs, the remaining individuals produce evidence satisfactory to Port that they have unconditionally acquired the interest of the one causing the default. If the Lease has been assigned, the Event of Default so specified shall apply only with respect to the one then exercising the rights of Tenant under the Lease. 15.5 Abandonment. Failure of Tenant for 180 days or more to occupy the Premises for one or more of the purposes permitted under this Agreement, unless such failure is excused under other provisions of this Agreement. Section 16. Remedies on Default 16.1 Termination. Subject to the rights of Lender under Section 13, in an Event of Default the Lease may be terminated at the option of Port by written notice to Tenant. Whether or not the Lease is terminated by the election of Port or otherwise, Port shall be entitled to recover damages from Tenant for the default, and Port may reenter, take possession of the Premises, and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages and without having accepted a surrender. 16.2 Reletting. Following reentry or abandonment, Port may relet the Premises and in that connection may make any suitable alterations or refurbish the Premises, or both, or change the character or use of the Premises, but Port shall not he required to relet for any use or purpose other than that specified in the Lease or which Port may reasonably consider injurious to the 15 Premises, or to any tenant that Port may reasonably consider objectionable. Port may relet all or part of the Premises, alone or in conjunction with other properties, for a term longer or shorter than the term of this Agreement, upon any reasonable terms and conditions, including the granting of some rent-free occupancy or other rent concession. 16.3 Damages. In the event of termination or retaking of possession following default, Port shall be entitled to recover immediately, without waiting until the due date of any future rent or until the date fixed for expiration of the lease term then in effect, the following amounts as damages: (1) The loss of rental fi-om the date of default until a new tenant is, or with the exercise of reasonable efforts could have been, secured and paying out. (2) Tile reasonable costs of reentry and reletting including without limitation the cost of any cleanup, refurbishing, removal of Tenant's property and fixtures, costs incurred under Section 16.5, or any other expense occasioned by Tenant's default including but not limited to, any remodeling or repair costs, attorney fees, court costs, broker commissions, and advertising costs. (3) Any excess of the value of the rent and all of Tenant's other obligations under this Agreement over the reasonable expected return from the Premises for the period commencing on the earlier of the date of trial or the date the Premises are relet, and continuing through the end of the Initial Term or Renewal Term then in effect. The present value of future amounts will be computed using a discount rate equal to the prime loan rate of major Oregon banks in effect on the date of trial. 16.4 Right to Sue More than Once. Port may sue periodically to recover damages during the period corresponding to the remainder of the Initial Term or Renewal Term then in effect, and no action for damages shall bar a later action for damages subsequently accruing. 16.5 Port's Right to Cure Defaults. If Tenant fails to perform any nonrnonctary obligation of Tenant under this Agreement, Port shall have the option to do so after 30 days' written notice to Tenant. All of Port's expenditures to correct the default shall be reimbursed by Tenant on demand with interest at the rate of twelve percent (12%) annum from the date of expenditure by Port. Such action by Port shall not waive any other remedies available to Port because of the default. 16.6 Remedies Cumulative. The foregoing remedies shall be in addition to and shall not exclude any other remedy available to Port under applicable law. 16.7 WAIVER OF CONSEQUENTIAL DAMAGES. Notwithstanding anything to the contrary in this Agreement, neither Party shall be entitled to, and each of Port and Tenant hereby waives any and all rights to recover, consequential, incidental, and punitive or exemplary damages, however arising, whether in contract, in tort, or otherwise, under or with respect to any action taken in connection with this Agreement. 16 Section 17. Restoration. 17.1 Surface Restoration. Within twelve (12) months after the expiration or earlier termination of this Agreement, Tenant shall (i) remove from the Premise the Marine Terminal (save and except for any roads or other items identified on the Work Sheet) owned, installed or constructed by Tenant thereon, to a depth of forty-eight(48) inches below ground surface; (ii) fill in and compact all trenches or other borings or excavations made by Tenant on the Premises; (iii) ifrequested in writing by Port, remove all road materials from roads constructed by Tenant; and (iv) leave the surface of the Premises free fi•om debris. During such 12 -month period, the lease shall be a month-to-month lease at a rental rate of one hundred twenty-five percent (125%) of the previous term's rental rate. Rent during such period shall be due on or before the first day of each month, If Tenant fails to remove the Marine Terminal within twelve (12) months of termination of this Agreement, Port may do so, in which case Tenant shall reimburse Port for reasonable and actual costs of removal incurred by Port, less any salvage value received by Port, within thirty (30) days after receipt of an invoice froin Port. Without limiting tine generality of the foregoing, Tenant shall comply with all local, state and federal laws with respect to site restoration of utility facilities. 17.2 [Intentionally Deleted] 17.3 Holdover (1) If Tenant does not vacate the Premises within twelve months after expiration or earlier termination of the Lease, Port shall have the option to treat Tenant as a tenant from month to month, subject to all of the provisions of this Agreement except the provisions for terni and renewal, and at a rental rate equal to one hundred fifty percent (150%) of the rent last paid by Tenant, or to eject "Tenant from the Premises and recover damages caused by wrongful holdover. Failure of Tenant to remove any portion of the Marine Terminal except utility lines, as set forth on the Work Sheet, shall constitute a failure to vacate to which this Section 17.3 shall apply if the property not removed will substantially interfere with occupancy of the Premises by another tenant or with occupancy by Port for any purpose including preparation for a new tenant. (2) If a month -to -ninth tenancy results from. a holdover by Tenant under this Section 17.3, the tenancy shall be terminable at the end of any monthly rental period on written notice frons Port given not less than 10 days prior to the termination date which shall be specified in the notice. Tenant waives any notice that would otherwise be provided by law with respect to a month-to-month tenancy. Section 18. Miscellaneous 18.1 Nonwafver. Waiver by either party of strict performance ofany provision of this Agreement shall not be a waiver of or prejudice the party's right. to require strict performance of the same provision in the future or of any other provision. 17 18.2 Attorney Fees. I fsuit or action is instituted in connection with any controversy arising out of this Agreement, the prevailing party shall be entitled to recover in addition to costs such sum as the court may adjudge reasonable as attorney fees at trial, on petition for review, and on appeal. 18.3 Notices. Any notice required or permitted under this Agreement shall be given when actually delivered or 48 hours after deposited in United States mail as certified mail addressed to the address first given in this Agreement or to such other address as may be specified fi-om time to time by either of the Parties in writing. 18.4 Succession. Subject to the above -stated limitations on transfer of Tenant's interest, this Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and assigns. 18.5 Recordation. Poit shall execute and acknowledge a memorandum of this Agreement in a form suitable for recording, and Tenant may record the memorandum in the real property records of Morrow County, Oregon. 18.6 Entry for Inspection. Port shall have the right to enter upon the Premises upon not less than 24 hours' advanced notice to Tenant to determine Tenant's compliance with this Agreement or to show the Premises to any prospective tenant or purchaser, and, subject to Tenant's right to a Renewal Term as set forth in Section 2_3,shall have the right, at ally time during the last two months of the Lease term then in effect, to place and maintain upon the Premises notices for leasing or selling of the Premises. 18.7 Interest on Rent and Other Charges. Any rent or other payment required of Tenant by this Agreement shall, if not paid within 10 days after it is due, bear interest at the rate of 12% per annum (but not in any event at a rate greater than the maximum rate of interest permitted by law) from the due date until paid. In addition, if Tenant fails to make any rent or other payment required by this Agreement to be paid to Port within five days after it is due, Port may elect to impose a late charge of five cents per dollar of the overdue payment to reimburse Port for the costs of collecting the overdue payment. Tenant shall pay the late charge upon demand by Port. Port may levy and collect a late charge in addition to all other remedies available for Tenant's default, and collection of a late charge shall not waive the breach caused by the late payment. 18.8 Proration of Rent. In the event of commencement or termination of this Agreement at a time other than the beginning or end of one of the specified rental periods, then the rent shall be prorated as of the date of commencement or termination and in the event of ten-nination for reasons other than default, all prepaid rent shall be refunded to Tenant or paid on its account. 18.9 Time of Essence. Time is of the essence of the performance of each of Tenant's obligations under this Agreement. 18 18.10 Entire Agreement. This Agreement embodies the whole agreement between the Parties. There arc no promises, terms, conditions, or obligations other than those contained herein. This Agreement shall supersede all previous communications, representations, or agreements, either oral of written, between the Parties. The Parties specifically acknowledge and agree that the term of the Lease is set fbrth above and that no contact, lease or other agreement exists between the Parties concerning any extension, renewal or additional lease term except as specifically set forth in this Agreement. In the event the Parties mutually agree to modify this Agreement in any way, said modification shall not be effective until reduced to writing and signed by all the Parties. 18.11 [Intentionally Deleted.) 18.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same document. Section 19. Arbitration 19.1 Disputes to Be Arbitrated. If any dispute arises between the Parties, either party may request arbitration and appoint as an arbitrator a person from the list of approved arbitrators of the State of Oregon Circuit Court for Morrow County, an independent real estate appraiser, lawyer or other independent person having knowledge of the matter at issue. The other party shall also choose an arbitrator with such qualifications, and the two arbitrators shall choose a third. If the choice of the second or third arbitrator is not made within 20 days of the choosing of the prior arbitrator, then either party may apply to the presiding judge of the State of Oregon judicial district where the Premises arc located to appoint the required arbitrator. 19.2 Procedure for Arbitration. The arbitrator shall proceed according to the Oregon statutes governing arbitration, and the award of the arbitrators shall have the effect therein provided. The arbitration shall take place in Morrow County, Oregon. Each party shall pay its own attorney fees incurred in connection with the arbitration and the cost of the arbitrator it selected. Unless otherwise determined by the arbitrators, other costs of the arbitration shall be shared equally by the Parties. [SIGNATURE PAGES FOLLOW] 19 IN WITNESS WHEREOF, the Parties have executed this Agreement as of May-, 2011. Dated: ,2011. Dated: MAy fq 12011. 20 Port of Morrow By: Name: % y Its: r �� Coyote Island Terminal, LLC a Delaware Limited Liability Company By: _ Name: MtGNAEIr � • kl.Ettil Its 5Et¢-vT0 ACKNOWLEDGMENTS STATE OF OREGON COUNTY OF MORROW T its i strument was acknowl =ed before me ons , 2011, by =,l - _ as � of the Po it o f Morrow, Oregon, 40reg i uni ipal corporation, on its bchaif. OFFICIAL SEAL *my NORA KATHLEEN AW"AN NOTARY PUBLIC • OREGON COMMISSION N0.462474 COMMISSION EXPIRES OCTOBER 16, 2014 STATE OF U, -A IA } } COUNTY OF S T } o ary Publt , r Oregon My Commission expires: This instrument was acknowledged before me on _W1 A,,A 1,=\ , 2011, by 1e -I. -I I.w _ as S.Cc� u�,-rt � _ of Coyote Island Terminal, LLC, a Delaware limited liability company, on its behalf. LORRIN WALLACE HAMILTON Notary Public State of Lttah Comm. No. 605204 My Comm. Espnt fa 1t. 2015 21 Notary Public for Vc,, My Commission expires: Exhibit A Legal Description of the Premises Port of Morrow - Coyote Islan(I'Terminai, LLC 11►e fort of Morrow, a Quasi Municipal entity. Option Lot ) Description (Upland) A 23.81 ,Acre portion, more or less, for the development of Coyote island Terminal, LLC Facility, located in Section 2, Township 4 North, Range 25, Bast of the Willamette Meridian located within Morrow County, Oregon, more particularly described as follows: Commencing at a Point on the East Right of Way of the East Beach Rail Loop, said point being North 26° 04' 06" West a distance of 2253.87 feet from the South Quarter Corner of Section 2, in Township 4 North, Range 25 East, said point being the Northwest corner of Pacific Ethanol Lot; Thence along the Northwest Line of Pacific Ethanol Lot, North 38° 56' 09" Fast a distance of 16.52 feet to the Point of Beginning of this description; Thence continuing North 38° 56' 09" East along the Northwest Line of Pacific Ethanol Lot a distance of 1301.48 feet to the North Right of Way of Dewey West Lane; Thence North 51° 03' 51" West a distance of 811.75 feet to (lie South right of way tine of the Last Beach Rail Loop; 'Thence along the South Right of Way line of the Fast Beach Rail Loop through the following courses & distances, along a 60.12 foot curve to the Left, said curve having a radius of 555.00 feet, an internal ankle oi'061 12' 23" and a chord which bears South 42° 02' 19" West a distance of 60.09 feel; South 381 56' 09" West a distance of 756.63 feet; along a 991.57 foot curve to the Left, said curve having a radius of 540.00 feet, an internal angle of 105° 12' 22" and a chord which bears South 13° 40' 22" cast a distance of 858.01 feet; Thence South 66° 16' 13" Last a distance of 138.19 feet to the Point of Beginning; all being located in Section 2 of Township 4 North, Range 25, Fast of the Willamette Meridian, Morrow County, Oregon, Containing 23.81 acres more or less. Port of Morrow _Coyote island 'Terminal, LL.0 The Port of Morrow, a Quasi Municipal entity. Option Lot 2 Description (Wa(erfront} A 15.56 Acre portion, more or less, for the development of Coyote Island Terminal, LLC Facility, located in Section 2, Township 4 North, Range 25, East of the Willamette Meridian located within Morrow County, Oregon, more particularly described as follows: Beginning at a Point on the North Right of Way of Lewis & Clark Drive, said point being North 38° 26' 51" West a distance of 3102.69 feet from the South Quarter Corner of Section 2, in Township 4 North, Range 25 East, Thence along the North Right of Way of Lewis & Clark Drive, North 38° 56' 09" East a distance of 1200.00 feet; Thence North 51° 03' 51" West a distance of 565 feet more or less to the Ordinary High Water Line of the Columbia River prior to the John Day Dam; Thence Southwesterly along the Ordinary High Water Line of the Columbia River prior to the John Day Daus a distance of 1200.00 feet more or less; 'Thence South 510 03' 51" West a distance of 565 feet more or less, to the North Right of Way of Lewis & Clark Drive and Point of Beginning; all being located in Section 2 of Township 4 North, Range 25, East of the Willamette Meridian, Morrow County, Oregon, Containing 15.56 acres more or less. EXCEPTIONS TO TITLE Exceptions to'hitle Submerged and Submersible Lands. If (lie Premises include waterfront property, the Premises shall extend to the Ordinary High Water Linc of the Columbia River prior to the John Day Dam. It is mutually agreed and understood that the Port does not lease to Tenant the right to use or build any property below (lie Ordinary High Water Line of the Columbia River prior to the John Day Dam as defined by law. Native American Fishing Sites. Native Americans have fishing rights along the Columbia River. Tenant agrees to undertake any construction and its operations in a manner consistent With file terms and conditions orally law, permit, license, treaty, or other agreement which Por(may enter into or be suhlect to regarding Native American fishing sites and rights. Other )exceptions. None. EXCEP9'ION'S TO 'IITLE WORK S1111"E'1' Attached to and made part of the Port of Morrow Lease Option and Ground Lease (the "Agreement") dated May 16, 2011, between Port of Morrow ("Port") and Coyote Island Terminal, LLC ("Tenant"). 'Ilio following work is to be clone on the Premises by Tenant at 'tenant'~ expense: Construction of marine terminal and all ancillary equipment and facilities required, at Tenant's sole discretion, to construct, operate and maintain the aforementioned marine tenninal. The work shall be commenced by Section 2.4 of the Agreement, 20_, and shall be completed by the date Set forth in Tenant shall at the option of Port be required upon termination of the ]..ease to remove the alterations and improvements effected by the above work and to restore the Premises to (he condition that existed before Tenant constructed the Marine Terminal, excepting the following alterations and improvements which upon termination of the Lease ~Mull become the property of Port: Any access roads to or from the property Any utility service Such IIS elecGicity, communication lines, water, or sewer line Port: Port of Morrow P. O. Box 200 Boardman, OR 97818 "tenant: Coyote Island Terminal, LLC 170 South Main Street, Suite 700 Salt Lake City, UT 84101 WORK SHEET gpotanderson per aSSOCiy eS, inc. engineering - surveying • natural resources TO: Oregon Department of State Lands ATTN: Charles Redon 1645 N.E. Forbes Road, Suite 112 Bend, Oregon 97701 WE ARE SENDING YOU: COPIES DATE DESCRIPTION 1 Joint Permit Application LETTER OF TRANSMITTAL DATE 1/31/2012 J°B NO. 1199-462 RE Morrow Pacific Project Via Hand Delivery EREC I V ED THESE ARE TRANSMITTED AS CHECKED: ❑ As requested ® For review and comment ❑ For your use ❑ For your files ® For approval ❑ For Bids Due REMARKS Charles: f■1 FEB 0 12012 DEPARTMENT OF STATE LANDS Enclosed is the Joint Permit Application form for the Morrow Pacific project. The appropriate permit application fee was mailed to your office on January 30, 2012. If you have any questions or need additional information, please let me know. Thank you. CK/jg cc: File No. 1199-462-24 (w/encl.) Signed: 5 s, Natural rces Specialist ® La Grande, Oregon 97850 / 1901 N. Fir Street, P.O. Box 1107 / 541-963-8309, Fax 541-963-5456 ❑ Walla Walla, Washington 99362 / 214 E. Birch Street, P.O. 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