HomeMy WebLinkAboutSITE LEASE BETWEEN AUGUSTA, GEORGIA AND AUGUSTA WASTE TO ENERGY, LLC SITE LEASE
between
AUGUSTA, GEORGIA
and
AUGUSTA WASTE TO ENERGY, LLC
Dated as of September 26, 2017
SITE LEASE AGREEMENT
THIS SITE LEASE(this "Lease") is made this 26th day of September, 2017 by and between
AUGUSTA, GEORGIA, a political subdivision of the State of Georgia, with its offices located
at 535 Telfair Street, Augusta, Georgia 30901 (the "Lessor"), and AUGUSTA WASTE TO
ENERGY, LLC, a Nevada limited liability company with principal offices located at 1506
Klondike Road, Suite 150, Conyers, Georgia 30094 (the "Lessee").
WITNESSETH:
Whereas, Lessee has agreed to lease the Processing Site for use as a recycling and manufacturing
facility; and
Whereas, Lessor desires to lease the Processing Site to Lessee, and Lessee desires to lease the
Processing Site from Lessor for the term and at the rental amount set forth herein; and
Whereas, Lessor desires to reduce the amount of municipal solid waste that Lessor disposes of in
its landfill through Lessee's recovery of recyclables and other beneficial products from such waste;
and
Whereas, Lessor desires to allow Lessee to install cutting-edge technology at the Processing Site
to recycle and obtain other beneficial products from municipal solid waste; and
Whereas, Lessee desires to create recyclables and other beneficial products as set forth in this
Lease.
Whereas, Lessee has not employed or retained any person or selling agency to solicit or secure
this Lease upon an agreement or understanding for a commission, percentage, brokerage, or
contingent fee, excepting bona fide employees or bona fide established commercial or selling
agencies maintained by Lessee for the purpose of securing business, and Lessee has not received
any non-Lessor fee related to this Lease without the prior written consent of the Lessor. Lessee
acknowledges that any breach or violation of the foregoing provides the Lessor with the right to
annul this Lease without liability or, at its discretion, to deduct from Lessor payments of
consideration, if any, the full amount of such commission, percentage, brokerage or contingent
fee.
Now, therefore, Lessor and Lessee agree to the terms of this Lease.
1. DEFINITIONS. Unless otherwise specifically required by the context in which any
defined term appears, the following terms shall have the meaning assigned to them in
this Section for all purposes:
a. Lessee's Equipment has the meaning set forth in Section 5. 2.
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b. Environmental Attributes means any and all credits,benefits, emissions reductions,
environmental air quality credits, emission reduction credits, renewable energy
credits, renewable energy certificates, offsets, and allowances attributable to the
generation, destruction,purchase, sale, or use of LFG from the Landfill, including,
but not limited to, tags, certificates, credits, allowances, offsets, and similar
products or rights attributable to the generation, destruction, purchase, sale, or use
of LFG from the Landfill that can be used to claim responsibility for, ownership of,
or any avoidance or reduction of emissions or pollutants, including,but not limited
to, carbon dioxide, mercury, nitrogen oxide, sulfur oxide, carbon monoxide,
particulate matter or similar pollutants or contaminants of air, water or soil, under
any governmental, regulatory or voluntary program, including the United Nations
Framework Convention on Climate Change and related Kyoto Protocol or other
program.
c. Force Majeure means acts of God, fires, storms, lightning, floods, hurricanes,high
water washouts, earthquakes, landslides, explosions, war, blockade, public
disorder, acts of the public enemy, terrorist act(s), insurrections, riots, epidemics,
accidents, casualty, labor disturbances, arrests and restraints of governments and
people, catastrophic events such as explosions, breakage or accident to equipment
caused by an event of Force Majeure, or any other event of similar cause not
reasonably within the control of the affected party and which, by the exercise of
reasonable diligence, such party is unable to prevent or overcome in a timely
fashion. Force Majeure shall not include the unavailability of or delays in delivery
of any product,labor, fuel,service or materials unless caused by an event that would
otherwise be defined herein as an event of Force Majeure or other unusual
circumstances. Force Majeure shall in no event include (a) any change in the
economy or in the markets, pricing or demand for products manufactured at the
Processing Site or for recycled materials, processed or unprocessed, that affects
Lessee's or Lessor's ability to use municipal solid waste,processed or unprocessed,
or any component or product thereof, or the price at which recovered materials can
be sold, or (b) increases in the cost of constructing or operating Lessee's
Equipment.
d. Good Engineering Practice shall mean practices, methods, or acts which, in the
exercise of reasonable judgment in light of the facts known, would have been
expected to accomplish the desired result in a manner consistent with reliability,
safety, project economics, and applicable laws and regulations for similar projects
in the State of Georgia. This term is not intended to be limited to one practice or
method to the exclusion of all others.
e. Governmental Authority means any federal, state, or city government, any political
subdivision thereof, or any judicial authority.
f. Hazardous Materials means all materials which have been determined to be
hazardous to health or the environment by virtue of being defined by the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
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Compensation and Liability Act, regulated by the Toxic Substances Control Act,
the Federal Insecticide, Fungicide and Rodenticide Act, or regulated by any other
applicable federal, state, or local law. Reference to specific statutes includes
amendments as they are made from time to time, as well as the regulations
promulgated thereunder.
g. Holiday means New Year's Day, Martin Luther King, Jr. Day, Good Friday,
Memorial Day Monday, Independence Day, Labor Day, Veterans Day,
Thanksgiving Day, Day after Thanksgiving, Christmas Eve and Christmas Day.
h. Landfill shall mean the Lessor's Deans Bridge Road Municipal Solid Waste
Landfill and any supporting, contiguous or adjacent real property owned by Lessor
in Blythe, Georgia.
i. Landfill Gas or LFG means any and all gases resulting from the anaerobic
decomposition of refuse material within the Landfill disposal cells, consisting
principally of methane, carbon dioxide, and other constituent gases.
j. Legal Requirements means any applicable law, order, judgment, current Lessor
code, ordinance, rule and/or regulation and any permit of any Governmental
Authority.
k. Municipal Solid Waste or MSW means solid waste accepted and acceptable for
disposal at the Landfill, including garbage and trash from single family and
multifamily residences, hotels and motels, bunkhouses, campgrounds, picnic
grounds, and day use recreation areas, yard trimmings and commercial solid waste.
MSW does not include construction or demolition waste or debris, bulk pickup
waste(other than yard waste or trimmings), white goods, tires, sanitary waste from
septic tanks, publicly-owned treatment works sludge or other sludges or residue,
solid waste from mining/industrial processes or operations, biomedical waste,
special or manifested waste, recovered materials and recyclables segregated prior
to collection.
1. Permit(s) means all actions, reviews, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights, licenses, filings,
zoning changes or variances, and entitlements of whatever kind and however
described which are required under applicable law to be obtained or maintained by
any person with respect to the activities contemplated herein.
m. Processing Site means the real property having an approximate size of ten(10)acres
within the Landfill, as set forth in Exhibit A.
n. Processing System means all buildings, conveyors, screens, pressure vessels,
piping, valves, pumps, monitoring devices, compressors, generators and/or related
equipment installed on the Processing Site and utilized by Lessee to process MSW
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into recyclables and material for product production and one or more products
and/or other beneficial uses.
o. Scheduled Interruptions means an interruption resulting when all or a portion of the
respective Landfill-based systems and/or operations owned by either Lessee or
Lessor is deliberately taken out of service at a selected time for purposes of
maintenance, replacement, repair or construction.
2. LEASE AND SITE DESCRIPTION AND CONDITION.
2.1 Lessor, in consideration of the rent herein stipulated to be paid by Lessee, does
hereby grant, demise and lease unto Lessee, the Processing Site as more fully
described in Exhibit A attached hereto and hereby incorporated herein.
2.2 The Lessor shall cooperate with Lessee's acquisition of electricity, water, sewer
and other utilities to the Processing Site. In addition, Lessor shall support Lessee's
efforts to accomplish, and Lessee shall have the right to undertake, such needed
specifications, upgrades and/or improvements of the Processing Site (all soil and
final grade leveling, compaction and/or other site preparation requirements,
including those activities set forth in Section 3.6), so that Lessee may construct the
Processing System.
2.3 The Processing Site shall not contain, nor be known to have contained, refuse
from landfilling operations, and it shall be free of recognized environmental
conditions, except as otherwise acceptable to Lessee. The Processing Site shall be
on soil believed to be native that is above the 100-year flood elevation and as
otherwise mutually agreed upon by the Lessor and Lessee. If for some
unanticipated reason the initial site mutually agreed upon by the Lessor and
Lessee is not acceptable for the Processing System, the parties shall identify an
alternative site on the Landfill that is mutually acceptable to the parties.
Acceptance of an alternative site, if necessary, shall not be unreasonably refused
by either party. Lessor and Lessee shall cooperate in good faith to facilitate,
coordinate and conduct their respective due diligence investigations of the
feasibility of the Projects to be undertaken, and the parties shall provide each
other with access to information in their possession reasonably related thereto.
2.4 Lessor also shall provide Lessee with suitable road access to the Processing Site
as may be reasonably necessary for Lessee's enjoyment of its rights and
performance of its obligations in this Lease. Any access, including its associated
easements, ingress and egress and/or rights-of-way over Lessor's property shall be
identified through mutual efforts and good faith collaboration by the parties.
Lessor may from time to time change the locations of any such rights of way to
the extent Lessor reasonably deems necessary in connection with Lessor's
operations at the Landfill, in which event Lessor shall reimburse Lessee for the
reasonable cost of relocating any of Lessee's facilities that may be incurred in
connection with such relocation. As to any easements, access, ingress and egress
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and/or rights-of-way over real property not owned or controlled by Lessor, Lessee
shall be obligated to obtain any such right at its cost.
3. PROCESSING SITE RENT, TERM AND CONDITIONS.
3.1 Processing Site Lease Payment. Lessee shall pay Lessor for the use of the
Processing Site Ten Thousand($10,000.00) and no/100 Dollars upon the
execution of this Lease and $833.33 each month that commercial operations have
not commenced. As long as Lessor is in material compliance with its obligations
in this Lease and this Lease is in full force and effect, Lessee, within ten (10) days
of commencement of commercial operations of the Processing System, shall pay
Lessor Forty Thousand ($40,000.00) and no/100 Dollars ("Initial Rent Payment").
Lessee shall pay Lessor Forty Thousand ($40,000.00) and no/100 Dollars each
year thereafter within ten days of the anniversary date of the Initial Rent Payment.
In addition to the foregoing, Lessee shall pay to Lessor as a lease payment(on
each anniversary date) $0.05 per ton for acceptable material delivered by Lessor
and processed by Lessee through its Processing System. Lessor shall not require
Lessee's payment of any other fees or amounts arising out of, or related to, its
lease or use of the Processing Site and/or its Ownership of the Processing System,
except to the extent specifically provided for in this Lease.
3.2 Lease Term. Lessor hereby leases the Processing Site to Lessee, and Lessee hereby
leases the same from Lessor, for an "Initial Term" as specified in Section 4.1.
Sublease. Lessee shall not sublease all or any part of the Processing Site without
Lessor's written consent, which shall not be unreasonably withheld. The granting
of a sublease does not absolve Lessee of any of the obligations contained in this
lease.
3.3 Utilities. Lessee shall pay all charges for water, sewer, gas, electricity, telephone
and other services and utilities used by Lessee on the Processing Site during the
term of this Lease unless otherwise expressly agreed in writing by Lessor. In the
event that any utility or service provided to the Processing Site is not separately
metered, Lessor shall pay the amount due and separately invoice Lessee for
Lessee's pro rata share of the charges. Lessee shall pay such amounts within fifteen
(15) days of invoice. Lessee shall coordinate (and be responsible for) all utility
work and upgrades on the Processing Site as may be required to service Lessee's
Equipment and Processing System after Lessor has delivered all required utilities
(and any required upgrades)to the Processing Site boundary location designated by
Lessee.
3.4 Inspection of Processing Site. Lessee and its agents and representatives shall have
the right to enter upon the proposed Processing Site after the execution of this Lease
to inspect the Processing Site, including inspecting, surveying, engineering, test
boring, performance of environmental tests and such other work as Lessee shall
consider appropriate and shall have the further right to make such inquiries of
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governmental agencies and utility companies, etc., and to make such feasibility
studies and analyses as it considers appropriate (collectively, the "Inspections").
Lessee shall provide copies of the reports and results of any inspections to Lessor.
Lessee shall conduct all inspections, if any, at Lessee's sole expense. Lessee (or
Lessee's Lessees) shall provide evidence of a commercially reasonable policy of
general liability insurance to Lessor prior to entering the Processing Site.
3.5 Security. Lessee agrees to provide manned-security for the premises during non-
operational hours. Such security shall be coordinated with Lessor through the
Environmental Services Departmental Director to ensure that said security
complies with the operational guidelines and requirements of the Georgia
Environmental Division and the Environmental Protection Agency.
3.6 Conditions Precedent to Lessee's Obligation to Lease Processing Site. Lessee's
obligation to lease the Processing Site and to perform all other obligations of Lessee
under the terms and conditions of this Lease are subject to fulfillment of the
following "Conditions Precedent"on or before nine(9)months after the execution
of the Lease, except that any of the same may be waived by Lessee in its sole
discretion, in writing:
(a) The completion of waste study by an independent third party at Lessee's
sole expense to confirm that the volume and/or percentage of recyclables
found in MSW currently being accepted at the Landfill is at an acceptable
level to Lessee.
(b) Satisfactory completion of the Inspections by Lessee to confirm that the
Processing Site is an appropriate location for Lessee to operate a
Processing Facility
(c) Satisfactory ALTA/ACSM survey of the Processing Site and any
improvements (the "Survey");
(d) Satisfactory environmental reports and condition, including a Phase I
report;
(e) Satisfactory soil borings to confirm geotechnical characteristics of the
Processing Site;
(f) Satisfactory cross access and other appropriate easements, which Lessor
shall provide to Lessee as required by Lessee.
(g) Lessor's completion of its obligations set forth in Section 2. 2 above.
Additionally, the obligations of Lessee under this Lease are subject to fulfillment
of the following "Additional Condition Precedent" on or before nine (9) months
after the execution of this Lease: Lessee shall have entered into agreements and
received Permits and all other necessary governmental authorizations on terms and
conditions acceptable to Lessee, in Lessee's sole discretion, that shall: (i) enable
Lessee to accept delivery of Municipal Solid Waste from Lessor and process it in
accordance with Lessee's business model and facility design; and (ii) enable
Lessee to finance, build and operate the Processing Facility on the Processing Site.
3.7 Lessee shall have the option to extend the contingency period with respect to the
Additional Condition Precedent for two (2) ninety (90) days periods (each an
"Extension Option"). An Extension Option shall be exercised, if at all,by delivery
to Lessor of written notice no later than the date of the then expiring contingency
period together with copies of applications delivered to applicable regulatory
agencies (or summaries thereof) and delivery to the Lessor of Ten Thousand
($10,000.00) and no/100 Dollars (each an "Extension Fee")per Extension Option.
Each Extension Fee shall be nonrefundable by Lessor and become part of this
Lease. Lessee may acknowledge satisfaction or waiver of the foregoing Conditions
Precedent and the Additional Condition Precedent, only by delivering written
notice of satisfaction or waiver to Lessor.
3.8 If Lessee does not acknowledge in writing the satisfaction of the foregoing
Conditions Precedent and Additional Condition Precedent (or otherwise waive the
same in writing) on or before the applicable contingency date, the Lessor shall
provide notice of termination to Lessee. If Lessee does not satisfy the foregoing
requirements of this Section 3.8 within thirty(30) days after receipt of the Lessor's
notice, this Lease shall automatically be deemed to be terminated, without action
required of either party, any Extension Fee which shall have been paid will be
retained by Lessor, and Lessee and Lessor shall thereafter be released from any
liability or obligation hereunder. In the event this Lease expires in accordance with
this Section 3.8,the parties shall acknowledge such expiration and termination in a
commercially reasonable writing mutually acceptable to the parties, upon the
request of either party.
4. TERM,TERMINATION,AND DEFAULTS
4.1 Term. Subject to the conditions contained herein,this Lease shall become effective
on the date of execution and shall continue in effect up to,and for a period of twenty
(20) years after, the commencement of commercial operations of the Processing
System ("Initial Term"). No later than twelve (12) months prior to expiration of
this Lease, including the first five (5) year extension thereof(if applicable), the
parties shall confer and negotiate in good faith regarding the extension of the Initial
Term (or the second extension term, if applicable) of this Lease. Any extension
beyond the Initial Term set forth above shall be by agreement between both Lessor
and the Lessee. Upon the expiration of the lease,the parties may renegotiate a new
lease for the premises.
4.2 Lessor's Right to Terminate. Subject to Lessee's right to cure set forth in Section -
4. 2 (f) below, Lessor shall have the right to terminate this Lease by written notice
to Lessee submitted not later than thirty(30) days following the occurrence of any
of the following:
(a) Should Lessee fail to make an annual rental payment required under
this Lease within thirty(30)Days after receipt of a written notice from
Lessor to Lessee that such payment is at least ten(10) days overdue.
(b) Should Lessee commit a material breach of this Lease and such breach
remains uncured following written notice of such breach from Lessor.
(c) Should any involuntary proceeding be initiated against Lessee under
the bankruptcy or insolvency laws, which involuntary proceeding
remains un-dismissed for ninety(90)consecutive days, or in the event
of the initiation by Lessee of a voluntary proceeding under the
bankruptcy or insolvency laws. Neither of the foregoing shall provide
a basis for termination where Lessee assumes this Lease in bankruptcy
and/or continues to perform its obligations under this Lease.
(d) Notwithstanding anything set forth in this Lease to the contrary,
Lessor's right to terminate pursuant to the terms of this Section 4.2
shall be in addition to any damages that Lessor may be entitled to
under this Lease and is not an express limitation of damages related to
Lessee's default or failure to perform its obligations under this Lease.
(e) Lessor may terminate this Lease in the event that Lessee's failures in
the operation of the Processing System cause the final and
unappealable denial of a Lessor permit to operate the Landfill.
(f) Lessor shall promptly notify Lessee of the specifics and circumstances
of any alleged default and,excepting Lessee's rent payment obligation
that shall be due as set forth above in this Section, Lessee shall have
the right to cure,or commence the cure of,any default within the thirty
(30) day period immediately following receipt of Lessor's written
notice of default and, after said period,to diligently pursue the cure to
completion, and complete the cure within 90 days. Where the cure
cannot be completed within ninety (90) days, but Lessee has
commenced the cure and has been diligently pursuing the cure to
completion, Lessee shall have the continuing right to cure such
default.
(g) Should Lessor have the right, and Lessor exercises such right(subject
to Lessee's right to challenge such right/exercise), to terminate this
Lease under any State of Georgia statute or other law, at no fault of
the Lessee, then Lessor shall be obligated to pay to Lessee at the time
of such termination, the following: the fair market value of the value
of Lessee's improvements to the site, (as measured at the time of the
termination) and all costs and expenditures incurred by Lessee in
connection with the termination of this project(e.g., costs incurred in
shutdown, clean-up and close-out). However, should Lessor exercise
its right to terminate this Lease based upon Lessee's default, Lessor
shall not be obligated to pay any unamortized costs or any costs and
expenditures incurred by Lessee in connection with the termination of
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this project. (The unamortized costs' portion of this payment shall be
the historical cost of any asset less only any depreciation that Lessee
has been able to benefit from in its tax filings.) Provided, however,
Lessee shall have the right to remove any Lessee improvement
(owned and/or paid for by Lessee).
In the event the Lessee's improvements located on the Processing Site are partially
or totally damaged or destroyed and Lessee has not undertaken steps to repair or
replace such improvements, Lessor may elect to terminate this Lease by giving
notice to Lessee no earlier than ninety(90)days following the date of such damage
or destruction.
4.3 Lessee's Right to Terminate. Subject to Lessor's right to cure set forth in Section
4. 3(e) below, Lessee shall have the right to terminate this Lease by written notice
to Lessor, submitted no later than thirty(30) days following the occurrence of the
following:
(a) Should Lessor commit a material breach of this Lease and such
breach remains uncured following written notice of such breach from
Lessee.
(b) Should any involuntary proceeding be initiated against Lessor under
the bankruptcy or insolvency laws, which involuntary proceeding
remains un-dismissed for ninety (90) consecutive days, or in the
event of the initiation by Lessor of a voluntary proceeding under the
bankruptcy or insolvency laws. Neither of the foregoing shall
provide a basis for termination where Lessor assumes this Lease in
bankruptcy and continues to perform its obligations under the Lease.
(c) Notwithstanding anything set forth in this Lease to the contrary,
Lessee's right to terminate pursuant to the terms of this Section 4. 3
shall be in addition to Lessee's right to seek injunctive relief, specific
performance, and/or any damages that Lessee may be entitled to
under this Lease, law or equity, and Lessee's right to terminate is not
an express or implied limitation of equitable or legal relief or
damages related to Lessor's default or failure to perform its
obligations under this Lease.
(d) Lessee shall promptly notify Lessor of the specifics and
circumstances of any alleged default, and Lessor shall have the right
to cure, or commence the cure of, any default within the thirty (30)
day period immediately following receipt of Lessee's written notice
of default and, after said period, to diligently pursue the cure to
completion, and complete the cure within 90 days. Where the cure
cannot be completed within ninety (90) days, but Lessor has
commenced the cure and has been diligently pursuing the cure to
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completion, Lessor shall have the continuing right to cure such
default.
In the event the Lessee's improvements located on the Premises are partially or
totally damaged or destroyed, Lessee may elect to terminate this Lease as of the
date of the damage or destruction, by giving notice to Lessor no more than ninety
(90) days following the date of such damage or destruction.
4.4 Improvements. Lessor and Lessee intend and agree that, subject to the terms and
conditions of this Lease, the Lessee's improvements including the Processing
System, shall be and remain the personal property of Lessee, and shall at no time
become a fixture with respect to the Processing Site. Upon termination or
expiration of this Lease, title to any improvements situated or erected on the
Processing Site, and any alteration, change or addition thereto, shall remain solely
in Lessee. Within one hundred and eighty (180) days of the expiration or earlier
termination of the Initial Term(or any extension thereof), all processing equipment
installed, including any building or other improvement, shall, at the option of
Lessee: remain the property of the Lessee and be removed; Lessee may demolish
and dispose of any or all of the foregoing; and/or Lessee may abandon the same on
the Processing Site if the Lessor has consented to such abandonment in writing.
Provided, however, should the Lessor desire that any of the foregoing
improvements remain at the Processing Site despite Lessee's desire to remove the
same, Lessor shall pay Lessee the fair market value, as determined at the time of
the acquisition, for such improvement(s). Should Lessee decide to remove any
equipment and/or other improvement, such removal shall be done in such a manner
that it does not damage the integrity of any abandoned or purchased improvement
that the Lessor has elected to retain.
4.5 Effect of Termination or Expiration.Any provision of this Lease which specifically
states it survives the termination or expiration of this Lease, shall survive any
termination or expiration of this Lease.
5. EQUIPMENT AND CONSTRUCTION OF PROCESSING SYSTEM.
5.1 Lessor's Equipment. Lessor shall be solely responsible and liable for designing,
constructing, operating, maintaining, and repairing the scales for the Landfill, the
Landfill and meeting all Legal Requirements applicable to the Landfill.
5.2 Lessee's Equipment and Processing System. Lessee has the right to, and Lessee
shall at its sole cost, construct, own and operate the Processing System. Lessee
shall be solely responsible and liable for designing, constructing, operating,
maintaining, and repairing any equipment and facility necessary to process the
MSW as required for its performance of its obligations under this Lease. Lessee
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shall commence the construction of the Processing System on or before three (3)
years from the date of this Lease.
Lessee may segregate the Processing Site and/or its Processing System for one or
more operations including, but not limited to, a "recovered materials processing
facility," as defined by law. Lessee shall be responsible for obtaining all Permits
relating to the construction and operation of the Processing System, subject to
Section 5.3 below.
The Processing Site may be used by Lessee for any purposes consistent with this
Lease, and Lessee shall have the right to enter the Processing Site at any time as
Lessee deems necessary, in Lessee's sole judgment, for Lessee's conduct of its
operations. Lessee has the right to erect,maintain and operate on the Processing Site
the Processing System, communications facilities, utility lines, fences, transmission
lines, and supporting equipment and structures thereto, as Lessee deems necessary,
in Lessee's sole judgment, for Lessee's conduct of its operations, subject to mutual
agreements regarding utility easements.
5.3 Mutual Support. Each party shall exercise reasonable efforts to support and assist
the other party in making application for and obtaining all Permits and
authorizations and in fulfilling the obligations described above. Such support shall
include participating in regulatory proceedings and providing information
concerning each party's operations to the extent required.
6. LESSOR'S DELIVERY OF MSW, LESSEE'S PROCESSING OF MSW,
RECYCLABLES AND PRODUCT AND LESSOR'S DISPOSAL OBLIGATIONS.
6.1 Lessor's Delivery. As partial consideration for Lessee's lease of the Processing
Site, the Lessor shall supply and tender(or arrange for the supply of and tender)
to Lessee approximately 175,000 tons of the MSW that Lessor accepts at the
Landfill annually. In addition to the $40,000 per year as provided in Section 3.1,
Lessee shall pay$0.05 per ton for such MSW. Lessee shall have the right to
accept more than 175,000 tons annually at a rate of$0.05 per ton over 175,000
tons. Lessor's deliveries to Lessee shall be made five (5) days per week (except
for holidays recognized by Lessor), and Lessor shall deliver MSW to the location
mutually agreed upon by Lessor and Lessee to facilitate Lessee's operations.
Lessor and Lessee agree to regular and frequent communications, including
regarding Lessee's then-existing Processing System throughput capability and
Lessee's direct communications with the Lessor's Landfill scale house, so that
Lessor's deliveries of MSW optimize Lessee's storage and throughput capacities.
Delivery"optimization" shall mean that Lessor(and/or its customer(s)) deliver a
sufficient quantity of MSW to: a) allow Lessee to operate its Processing System at
Lessee's then-scheduled capacity; and b) allow Lessee to maintain compliance
with Permits.
Lessor's deliveries shall commence no later than the date that Lessee specifies as
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its Processing System operational date, which Lessee shall provide to Lessor not
less than five (5) days in advance. Lessor shall tender to Lessee, and Lessee shall
accept and process,all the Municipal Solid Waste that is delivered to the Processing
System, subject to and consistent with this Section 6. Lessee shall have the right to
refuse any volume of MSW tendered by Lessor.
6.2 Quantity of MSW and Lessee's Option. Lessor shall annually make available
approximately 175,000 tons of municipal solid waste to Lessee for Lessee's
maximization of its then-applicable MSW processing capacity, but Lessee shall not be
required to accept or process any particular volume of MSW.
Lessor and Lessee shall communicate regarding the Lessor's long-term management
and/or control of MSW volumes for the potential expansion of Lessee's capacity.
Lessee shall have the right, but not the obligation, to expand its Processing System to
accept such MSW. Prior to any system expansion, Lessee shall specify the amount of
such additional Municipal Solid Waste that it would accept over the long-term, and the
Lessor and Lessee may mutually agree upon the terms for Lessor's delivery to, and
Lessee's acceptance of such volume of MSW.
6.3 Use of Municipal Solid Waste Not Taken. Lessor shall be free to utilize, dispose of, or
sell to a third party all municipal solid waste tendered to Lessee under Section 6.1 and
Section 6.2 above, but not accepted and/or processed by Lessee for any reason.
6.4 Quality of Municipal
Solid Waste. Lessee understands and acknowledges that, due to
the unpredictable nature of municipal solid waste generation, the nature of the MSW
may vary and there may be changes within the MSW. Lessee further understands and
acknowledges that Lessor is not providing any guarantees, warranties, or
representations as to any quality of the MSW delivered to Lessee. Provided,however,
Lessor shall not deliver, and Lessee shall not be obligated to accept, any unacceptable
waste, as described in the MSW definition. Should Lessee and/or Lessor identify loads
that are problematic for Lessee's handling,the parties will take steps to thereafter divert
such loads from the Processing Site.
Lessor may implement household hazardous waste collection efforts to minimize the
amount of such waste delivered to Lessee and/or the Landfill, and Lessor may continue
and increase its efforts to maximize the segregated collection of recyclables and/or
recovered materials.
6.5 Lessee's Processing. Subject to Lessee's rights and the processing and other limitations
set forth in this Lease, as added consideration for its lease of the Processing Site,Lessee
shall undertake one or more of the following: extract recoverable materials from,and/or
recycle, MSW accepted by Lessee at the Processing System; and process, source-
separated recyclables collected or controlled by Lessor. The Processing System shall
be capable of one or more of the foregoing processes to segregate and/or process for
Lessee's sole benefit certain "recoverable materials" and/or "recovered materials," as
defined by law, and/or recyclables, at no cost to Lessor. Lessee shall have title to all
13
such materials and recyclables processed, removed and/or recovered by Lessee. The
Processing System also may develop one or more products from MSW, which
product(s) Lessee may process to obtain refined products, e.g., diesel fuel, to be owned
and controlled by Lessee.
Lessee's processing of recovered materials or source-separated recyclables and/or
extraction of recoverable materials from, and/or recycling, MSW accepted by Lessee
at the Processing System shall be limited to the extent that such processing, extraction
and/or recycling is commercially practicable and consistent with Lessee's operation of
its Processing System.
6.6 Operating Standard. Lessee shall install, operate, and maintain Lessee's Equipment in
accordance with Good Engineering Practice. Lessee shall operate the Processing
System in accordance with its Permits. Notices of violations or consent orders for
Lessee's failure to operate in accordance with any permits, laws, or regulations as
related to the Lessee's operations shall be communicated to the Lessor, and Lessee
shall promptly comply with its Permits and orders.
6.7 Municipal Solid Waste's and Recyclables' Residuals and Gray Water. Lessor shall
accept and dispose of, at no cost to Lessee, all MSW, all MSW and/or recyclables
processing residuals and any product production and/or any product residuals from the
Processing Site or the Processing System. Lessee will transport all residual waste to
Lessor to be disposed of. Lessor shall have the right, but not the obligation, to accept
and use and/or dispose of, at no cost to (or payment to) Lessee, all gray water(or other
water)generated by Lessee at the Processing Site,currently estimated to be four million
four hundred thousand (4,400,000) gallons per year. The parties expect that the gray
water may be used for dust control and/or other such beneficial use. Lessor understands
and acknowledges that, due to the unpredictable nature of Municipal Solid Waste
delivered to Lessee, the constituents and the nature of the gray water may vary over
time. The parties shall arrange for efficient delivery of the gray water to the Lessor on
the Processing Site. If the Lessor does not exercise its right to accept the gray water,
the Lessor shall reasonably cooperate with Lessee to accomplish the disposal of the
gray water, but Lessee shall pay for its disposal, if necessary.
6.8 Priority of Landfill Operations. Lessee acknowledges and agrees that Lessor's primary
use of the Landfill is as a sanitary landfill. Subject to Lessor's delivery of MSW to
Lessee as set forth in this Lease, at all times during the Term hereof, Lessor shall have
the right to operate the sanitary landfill, and to take all actions at its own cost and
expense that Lessor deems in good faith necessary or appropriate in connection with
the operation and maintenance of the landfill including actions to comply with any
Legal Requirements.
6.9 MSW and Residuals Removal and Disposal and Volume Tracking. Lessor shall
cooperate with Lessee to electronically record weights (by use of the Landfill scales)
of each category of recyclables/recovered materials that Lessee may produce,including
the materials set forth in Section 6. 5 above. If applicable, the gray water may be
14
metered as agreed by the parties. The Lessee shall collect the referenced MSW and
residuals for Lessor's disposal, use and/or sale, free of charge to Lessee.
6.10 Lessee Shall Not Sell the Municipal Solid Waste. Notwithstanding anything to the
contrary set forth in this Lease, Lessee agrees and covenants that it shall not sell,
redirect, redeliver, transport or market the Municipal Solid Waste, or any unprocessed
portion thereof to any third party. Moreover, and without limiting the generality of the
foregoing, Lessee represents and warrants that it shall attempt to process all Municipal
Solid Waste that it accepts at the Processing Site.
7. ENVIRONMENTAL ATTRIBUTES AND MATTERS
7.1 Destruction of Sanitary Landfill LFG or Methane and Benefits. Lessor retains one
hundred percent (100%) of any and all Environmental Attributes associated with the
LFG whether this LFG is sold to Lessee, flared at the Landfill, or otherwise destroyed,
that is, any Environmental Attributes attributable to the generation, destruction,
purchase, sale, or use of LFG from the sanitary landfill. The parties agree that the
responsibility to apply for, qualify for and obtain any LFG emission credits, tax credits,
offsets, demonstrations of regulatory compliance and other rights is the responsibility
of Lessor and Lessor shall be wholly responsible for the costs associated therewith.
Lessee shall not take any action that would in any way reduce the amount, or diminish
or impair the value of the foregoing to which Lessor may be entitled.
7.2 Each party shall obtain any and all required or necessary consents, approvals,permits and
the like from any and all governmental agencies or entities having jurisdiction over their
respective operations.
7.3 If Lessee's unlawful release or disposal at the Processing Site of any Hazardous Materials:
(1) gives rise to liability(including,but not limited to, a response action, remedial action,
or removal action)under federal or state law;or(ii)causes a significant public health effect,
Lessee shall promptly take any and all remedial and removal action necessary to clean up
the Processing Site and mitigate the exposure to liability arising from such unlawful release
or disposal.
Lessee shall indemnify, defend and hold Lessor harmless from all damages and losses
arising from or attributable to any Lessee's release or disposal as set forth above, and
Lessee's obligations under this Section 7.3 shall survive the termination of this Lease.
7.4 Lessee agrees to obtain all required or necessary consents, approvals,permits and the like
from any and all governmental agencies or entities having jurisdiction over the Processing
Site, and Lessee's approvals shall not adversely impact the Landfill's approvals.
7.5 Lessor shall indemnify, defend and hold Lessee harmless from all damages and losses
arising from or attributable to any Lessor's unlawful release or disposal at, or onto, the
Processing Site of any Hazardous Materials that: (1) gives rise to liability(including, but
not limited to,a response action,remedial action, or removal action)under federal or state
15
law; or (ii) causes a significant public health effect, and Lessor's obligations under this
Section 7.5 shall survive the termination of this Lease.
8. COORDINATION OF INTERRUPTIONS
8.1 Scheduled Interruption. Lessee and Lessor shall coordinate timing of any
Scheduled Interruption of their respective systems in order to minimize overall project
downtime. Notice of a Scheduled Interruption by either Lessee or Lessor shall be given
to the other party as soon as practicable and not less than three (3) days prior to
occurrence of the Scheduled Interruption. Notice shall include the reason for and
expected duration of the Scheduled Interruption.
8.2 Unscheduled Interruption. In the event that an Unscheduled Interruption occurs on
either Lessee's Processing Site or Processing System or Lessor's system, notice of the
Unscheduled Interruption including the cause and estimated duration of the
Unscheduled Interruption shall be given to the other party as soon as practicable and
not more than eight(8)hours following the occurrence of the Unscheduled Interruption,
with written notice to follow expeditiously.Notice shall also be given to the other party
as soon as the Unscheduled Interruption has been remedied and regular delivery of
Municipal Solid Waste can resume.
9. TAXES AND BENEFITS
9.1 Credits and other Benefits. Lessee shall have and retain the rights and benefits to any
and all credits, benefits, emissions reductions, environmental air quality credits,
emission reduction credits, renewable energy credits, renewable energy certificates,
offsets, and allowances attributable to, arising out of, or derived from, Lessee's
Equipment, the Processing System, and including their construction, costs,
components, operation and/or products. Lessor shall not take any action that would in
any way reduce the amount, or diminish or impair the value of the foregoing to which
Lessee may be entitled.
9.2 Lessee shall be responsible for all taxes (real and personal) and assessments
allocable to the Processing Site and to the Lessee's improvements situated on the
Processing Site. Lessee shall have the right but not the obligation, to contest the validity
of any assessment of such taxes or assessments.
10. REPRESENTATIONS AND WARRANTIES
10.1 Representations and Warranties of Lessor. Lessor represents and warrants that:
(a) This Lease has been duly and validly authorized by all necessary
action, persons and bodies; Lessor has full power and authority to
enter into this Lease and perform its obligations hereunder; and the
execution and delivery of this Lease by Lessor and the performance
16
of the terms, covenants and conditions contained herein is permitted
under all laws and permits (to which the Lessor is a party).
(b) Lessor is not a party to any litigation, or subject to any judgment,
order, or decree, or party to any other contract, which would
adversely affect its performance of its obligation under this Lease.
(c) The Lessor shall not take any action to divert the volume of municipal
solid waste received by the Landfill, which is needed to fulfill the
Lessee's operational capacities that it will make available at the
Processing Site, to some other site. Lessor shall continue to deliver
MSW to Lessee as required by its capacity, even if the Landfill were
to close. Provided, however, the parties understand that any action
taken by the Lessor to encourage reduction of waste generally,
including but not limited to organic management programs and
product stewardship initiatives, shall not be deemed to be in any way
a violation of the provisions of this Lease.
(d) Lessor shall deliver (or cause to be delivered) to Lessee all MSW
generated within Richmond County that Lessor collects(or causes to
be collected) and any additional volume delivered to the Landfill, all
subject to the then-current capacity that Lessee has available in its
Processing System. If the foregoing volumes are inadequate to meet
the Processing System's capacity, Lessor shall exercise reasonable
efforts to attract the shortfall in MSW volume for delivery to Lessee.
(e) Lessor owns the Processing Site, and Lessee, so long as Lessee pays
the rent, shall lawfully and peaceably hold, occupy and enjoy the
Processing Site during the term hereof.
10.2 Representations and d Warranties of Lessee. Lessee represents and warrants that:
(a) Lessee has done its due diligence and agrees that the municipal solid
waste to be delivered to Processing System will be acceptable for use
in its Processing System. Lessee shall be solely responsible for all
compliance with all Legal Requirements after the municipal solid
waste is delivered to the Processing Site, and shall hold Lessor
harmless from and against all claims, suits, actions, damages, losses,
costs,and expenses of every kind and character arising from each and
every claim of any and all persons against the municipal solid waste
after its delivery to the Processing Site.
(b) This Lease has been duly authorized and Lessee has full power and
authority to enter into this Lease and perform its obligations
hereunder.
(c) Lessee is not a party to any litigation, or subject to any judgment,
order, or decree, or party to any other contract, which would
materially affect its performance of its obligations under this Lease.
17
10.3. Representation and Warranty of Lessor and Lessee. Lessor and Lessee represent
that they have dealt with no broker or agent with respect to this Lease or the
negotiation and execution hereof.
11. FORCE MAJEURE
11.1 Force Majeure. If Lessee or Lessor is rendered unable,wholly or in part,by
an event of Force Majeure to carry out its obligations under this Lease, other than to
make a payment for amounts accrued, such Party shall give to the other Party prompt
written notice of the event of Force Majeure with a detailed description of the events
or circumstances that constitute such Force Majeure, including the nature of the
occurrence and its expected duration, and continue to furnish timely regular reports
with respect thereto during the period of Force Majeure; thereupon, the obligations
of the Party giving the notice so far as they are affected by the Force Majeure shall
be suspended during the continuance of the event (other than accrued - prior to the
Force Majeure event - obligations to make payments, if any); provided that the
suspension of performance is of no greater scope and of no longer duration than is
required by the Force Majeure. A party whose performance is affected by an event
of Force Majeure shall use all reasonable efforts to remove the event of Force
Majeure as quickly as practicable. No Force Majeure event shall extend this Lease
beyond its stated term.
11.2. Strikes and Lockouts. It is understood and agreed that the settlement of
strikes or lockouts shall be entirely within the discretion of the party experiencing
the strike or lockout or having the difficulty, and that the foregoing requirement that
any Force Majeure shall be remedied with all reasonable dispatch shall not require
the settlement of strikes or lockouts by acceding to the demands of the opposing
party when such course is inadvisable in the discretion of the party having the
difficulty.
12. INDEMNITY
12.1. Lessee's Environmental Indemnity. Lessee agrees to indemnify and hold Lessor,
its agents,contractors,subcontractors,employees,or invitees harmless from any and
all claims, damages, fines,judgments, penalties, costs, liabilities, or losses arising
from or due to the presence of Hazardous Materials on Lessee's Processing Site
either existing at the time of or which may have been brought to its property after
the execution of this Agreement,provided that Lessee shall have no obligation under
this Article for Hazardous Materials which are introduced to or released on Lessee's
Processing Site by Lessor, its agents, contractors, subcontractors, employees, or
invitees.
Lessee's Indemnity. Lessee shall indemnify,defend,and hold harmless Lessor from
and against any claims, loss, damage, liabilities, fines, penalties, cost, and expense,
including court costs and reasonable attorneys' fees, incurred or suffered by Lessor:
18
(a) To the extent relating to the municipal solid waste while in Lessee's
control or possession.
(b) For personal injury, death, or property damage caused by Lessee or its
agents' negligent acts or omissions arising from or relating to this
Agreement.
(c) Arising from claims or liens for labor performed or materials furnished
for Lessee's Facility or relating to Lessee's Equipment.
12.2. Lessor's Indemnity. Lessor shall indemnify, defend, and hold harmless Lessee
from and against any claims, loss, damage, liabilities, fines, penalties, cost, and
expense, including court costs and reasonable attorneys' fees, incurred or suffered
by Lessee:
(a) To the extent caused by Lessor's breach of this Lease.
(b) For personal injury, death, or property damage caused by Lessor or its
agents' negligent acts or omissions arising from or relating to this Lease.
12.3. Partial Limitation of Liability. Notwithstanding any other term of this Lease to
the contrary, in no event shall either party be liable to the other for any indirect,
special, incidental, or consequential loss or damage of any type, including, but not
limited to lost profits and damage to goodwill or reputation with respect to any claim,
whether based on contract, tort (including negligence), warranty, strict liability,
implied warranty, or otherwise. Provided,however, notwithstanding the foregoing,
each party shall indemnify, defend and hold the other party harmless from all
damages, costs, losses, expenses arising from, or attributable to, any breach by a
party of any of its warranties or representations in this Lease. Such obligations under
this Section 12. shall survive the termination of this Lease.12.1.
13. INSURANCE
13.1. Lessee's Insurance. Lessee shall at all times carry and maintain, at its own
expense,the minimum insurance coverage set forth in this Section 13. 1. The terms
and conditions of such insurance policies (including the amount, scope of coverage,
deductibles and self-insured retentions) shall be commercially reasonable and the
coverage shall be on an occurrence basis.
(a) Commercial GL: no less than $1,000,000.
(b) Auto Liability — single limit: no less than $1,000,000, including
coverage for owned, non-owned and hired vehicles for both bodily
injury and property damage.
19
(c) Property/Machinery Breakdown"all risk" insurance for replacement
cost for Processing System and shall include business interruption
coverage.
(d) Pollution Liability Coverage: no less than $ 2,000,000.
(e) Worker's Compensation insurance, covering liability under
applicable worker's compensation law, at the statutory coverage
levels; and
(f) 1,000,000 Employer Liability.
14. MISCELLANEOUS PROVISIONS
14.1. Assignability. Subject to the conditions provided for herein, Lessee may
assign this Lease and the rights hereunder with 30 days'notice to Owner, However,
Lessee shall remain bound to all the terms and conditions of this lease and shall
become the guarantor of the Lease. Neither party may at any time transfer, assign,
or delegate its rights or duties under this Lease without the express prior written
consent of the other party, which shall not be unreasonably withheld; and the terms
of this Lease shall be binding on and inure to the benefit of the successors and
assigns of the parties. Any attempted assignment in violation of this Section 14.1
shall be null and void.
14.2. Severability and Non-Waiver. In the event any provision, sentence or section of
this Lease is declared by a court of competent jurisdiction to be invalid or
unenforceable under applicable law, such provision shall, insofar as possible, be
construed or applied in such manner as will permit enforcement, and the balance of
this Lease shall remain in effect. Either party's waiver of any breach, or failure to
enforce any of the terms and conditions of this Lease, shall not in any way affect,
limit, or waive such party's right thereafter to enforce and compel compliance with
every term and condition of this Lease or to terminate this Lease for breach.
14.3. Patents.
(a) The Lessee shall hold and save the Lessor, its engineer and their
agents harmless from liability of any kind, including cost and
expenses, reasonable attorney's fees, for, or on account of, any
patented or unpatented invention, process, article, or appliance
manufactured or used by the Lessee.
(b) If the Lessee uses any design, process, device or materials covered
by letters, trademarks, patent or copyright, the Lessee shall provide
for such use by suitable agreement between the Lessee and the holder
of such patented or copyrighted design, device or material. The
Lessee shall indemnify and save harmless the Lessor,its engineer and
their agents from claims for infringement by reason of the use of such
patented or copyrighted design, process, device or materials or any
trademark or copyright in connection with Work agreed to be
20
performed under this Lease, and shall indemnify the Lessor, its
Engineer and their agents for any cost, expense, damage and
reasonable attorney's fees which it may be obliged to pay by reason
of such infringement, at any time during the prosecution of the Work
or after completion of the Work.
14.4. Rights and Remedies. In the event of a material breach of this Lease by
either party, the non-breaching party shall have the right to non-binding arbitration
in efforts of resolving the breach. If nonbinding arbitration is not successful, the
non-breaching party shall have all rights and remedies available under the laws of
the State of Georgia, except as may be limited in this Lease. All claims, disputes
and other matter in question between the Lessor and the Lessee arising out of or
relating to the Lease, or the breach thereof, shall be decided in the Superior Court of
Richmond County, Georgia. The Lessee, by executing this Lease, specifically
consents to venue in Augusta and waives any right to contest the venue in the
Superior Court of Richmond County, Georgia.
14.5. Notices. Any notice which is permitted or required under this Lease shall
be duly given if in writing and either delivered personally to the person whom it is
required to be given or sent registered or certified mail, return receipt requested,
postage prepaid as follows:
If to Lessee: Allied Energy Services, LLC
1506 Klondike Road, Suite 150
Conyers, Georgia 30094
Attention: C. Dean Alford
If to Lessor: Augusta, Georgia
Office of the Mayor
535 Telfair Street, Suite 200
Augusta, GA 30901
With copy to:
Augusta Environmental Services Department
Deans Bridge Road
Blyth, Georgia 30805
Each Party shall have the right, from time to time, to designate a different address
by notice given in conformity with this Section.
21
14.6. Access. Upon reasonable advance notice (not less than 24 hours), each
party agrees to provide the other, and its agents, representatives, and Lessees with
access to its property and equipment during normal business hours (not including
nights,weekends, and holidays)for the limited purpose of carrying out its rights and
obligations under this Lease. While on Lessee's property, Lessor, its agents, and
Lessees shall conduct themselves in a safe and prudent manner. While on Lessor's
property, Lessee, it agents, and Lessees shall conduct themselves in a safe and
prudent manner. A party's inspection of the other party's records, if any, shall be
limited to tonnage records and, in the event of a Permit non-compliance,the records
applicable to such event.
14.7. Counterparts. This Lease may be executed in several counterparts, and as
executed shall constitute one agreement binding on the parties hereto.
14.8. Captions. Captions in this Lease are solely for the convenience of the
parties and are not part of the Lease, and shall not be used for the interpretation or
determination of the validity of the Lease or any provision thereof.
14.9. Entire Agreement. This Lease, inclusive of all Exhibits attached hereto,
constitutes the entire understanding between the parties with respect to the subject
matter hereof and supersedes all previous written and oral negotiations,
commitments, proposals and writings.
14.10. Governing Law and Venue. This Lease shall be governed by the substantive
laws of the State of Georgia without reference to its conflicts of law provisions.
Should any provision of this Lease shall be determined to be invalid or
unenforceable under applicable law, such provision shall, insofar as possible, be
construed or applied in such manner as will permit enforcement. All claims,disputes
and other matters in question between all parties arising out of or relating to this
Agreement, shall be decided in the Superior Court of Richmond County, Georgia.
14.11 Amendments. This Lease and any part thereof may be amended at any time
by written mutual agreement of the parties; however, no modifications, alteration,
amendment, or revision of this Lease shall be binding upon either party unless
executed in writing by the party to be bound.
14.12 Independent Lessees. Lessor and Lessee are independent Lessees. Neither
party is or shall be deemed an agent, servant, or employee of or a joint venture
with the other party, and neither party shall have the authority to incur debts or
liabilities in the name of the other or otherwise bind the other party to any contract,
debt, or other obligation.
14.13 Educational Considerations. Lessee agrees to participate in internship
programs with local Universities, including the placement of two interns annually.
Selection of interns will be done in partnership with the Lessor as well as the
22
participating University. Additionally, Lessee agrees to work with the Lessor on
providing facility tours to groups of interested parties.
IN WITNESS WHEREOF,the parties have executed this agreement the day and year first
above written.
LESSOR:
AUGUSTA, GEORGIA
/11
117By: �`'
11 Printed Name: ardie Davis, Jr.
/ �/� Title: lV yor A
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By:
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Printed Name$ a ., s-1, t 0
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Title: Clerk of Co s s I' =C,1t,�.'�
AUGUSTA .TE TOE At'/ / L ig
By: A ' / 6
Printed Name: . Dean Alfo
Title: President and CEO
23
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