HomeMy WebLinkAboutExhibit 1SUBMERGED AREA PERMANENT MAINTENANCE AGREEMENT (PARCEL E)
THIS SUBMERGED AREA PERMANENT MAINTENANCE AGREEMENT ("Agreement") is
made as of , 2005 by and between THE CITY OF MIAMI, a municipal corporation of the
State of Florida ("Cy"), and FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability
company, f/k/a and successor by merger to Flagstone Properties, LLC, a Florida limited liability company
("Flagstone").
RECITALS
A. City and Flagstone heretofore entered into that certain Agreement to Enter into Ground
Lease dated January 1, 2003 (as may be amended from time to time, the "Agreement to Enter Into
Ground Lease'').
B. Pursuant to the Agreement to Enter Into Ground Lease, City and Flagstone agreed to
enter into a Ground Lease in the form attached thereto as Exhibit "C" (as may be amended from time to
time, the "Ground Lease"), subject to and in accordance with the terms and conditions set forth in the
Agreement to Enter Into Ground Lease. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings given to them in the Ground Lease.
C. City is the owner in fee simple of certain upland on Watson Island (the "Upland") and
certain submerged land located adjacent thereto (the "Submerged Land"), all as more particularly
described in the Ground Lease.
D. Pursuant to the Ground Lease, City will lease to Flagstone, and Flagstone will lease from
City, the Upland and the Submerged Land, and Flagstone or one or more Major Subtenants will develop
and operate the Project thereon. As part of the Project, Flagstone or a Major Subtenant will develop and
operate the Marina within Submerged Land area.
E. Pursuant to a separate written agreement between Flagstone and City, Flagstone will be
conducting dredging activities in the Submerged Land area for the purpose of developing and operating
the Marina.
F. City will derive substantial benefits from the development and operation of the Marina, as
well as from the development and operation of the balance of the Project, of which the Marina is an
essential component.
G. City is also the owner in fee simple of certain submerged land located adjacent to the
Submerged Land, comprising approximately 4.85 acres, as more particularly described or depicted in
Exhibit "A", attached hereto and incorporated herein by this reference (the "Additional Submerged Land
Area")
H. The proper development and operation of the Marina as contemplated by the Ground
Lease requires that certain dredging activities be performed within the Additional Submerged Land Area
from time to time.
City has agreed that Flagstone or the Major Subtenant developing and/or operating the
Marina (the "Marina Major Subtenant") will perform such dredging activities within the Additional
Submerged Land Area on behalf of City, alt as more particularly described herein.
NOW, THEREFORE, in consideration of Ten and No/100 Dollars and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the parties, City and Flagstone
agree as follows:
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AGREEMENTS
1. Recitals. The foregoing recitals are true and correct and are incorporated herein as if set out
in full in the body of this Agreement.
2. Initial Dredging. In connection with the development of the Marina and the balance of the
Project, Flagstone or the Marina Major Subtenant shall perform or cause to be performed, on City's behalf
and for City's benefit, such dredging activities within the Additional Submerged Land Area as Flagstone or
the Marina Major Subtenant deems necessary or appropriate for the development and operation of the
Marina and the balance of the Project pursuant to the Ground Lease (collectively, the "Initial Dredging").
3. Subsequent Dredging. From time to time during the Lease Terrn, it may be become
necessary or appropriate to conduct further dredging activities within the Additional. Submerged Land
Area so as to facilitate the development and operation of the Marina. Accordingly, from time to time
during the Lease Term, Flagstone or the Marina Major Subtenant shall perform or cause to be performed,
on City's behalf and for City's benefit, such further dredging activities within the Additional Submerged
Land Area as Flagstone or the Marina Major Subtenant deems necessary or appropriate for the
development and operation of the Marina and the balance of the Project pursuant to the Ground Lease
(collectively, the "Additional Dredging"). The Initial Dredging and the Additional Dredging are sometimes
hereinafter collectively referred to the as "Dredging".
4. Expense. Ail Dredging shall be completed in a lien -free manner and at the sole cost and
expense of Flagstone or the Marina Major Subtenant. Costs shall include, but not be limited to, upland
areas used for placement or storage of dredge materials, engineering, legal and technical services,
administration, supervision, inspections, surveys, testing, permitting, equipment, mobilization and
demobilization, demolition, construction, dredging, hauling, and disposal fees.
5. Notices to Chief Executive Officer. Prior to commencing the Initial Dredging and prior to
commencing any Additional Dredging, Flagstone or the Marina Major Subtenant shall give the Chief
Executive Officer or his designee written notice, describing the anticipated commencement date(s),
duration, hours of operation, and completion date(s) for the applicable Dredging and the nature and
extent of such Dredging. Such Additional Dredging shall require the approval of the Chief Executive
Officer as it relates to coordinating such Additional Dredging activities for purposes of minimizing any
impact on the City, its tenants, licensees, agents, successors and assigns and the general public.
6. Compliance With Permits and Laws. In connection with the Dredging, Flagstone or the
Marina Major Subtenant shall: (i) obtain and maintain all required permits and approvals from applicable
Governmental Authorities having jurisdiction or regulatory authority over the Dredging; (ii) comply with all
Applicable Laws with respect to the Dredging, including, but not limited, to Chapter 713, F.S.: and (iii)
comply with the provisions of deed from the Trustees as modified by the Partial Modification of
Restrictions
7. Mechanics' Liens. Flagstone shall not knowingly suffer or permit any mechanics' liens to be
filed against the title to the Additional Submerged Land Area by reason of work, labor, services or materials
supplied to Flagstone or anyone having a right to possession of the Additional Submerged Land Area as a
result of an agreement with Flagstone, acting with or without Flagstone's consent. Nothing in this Agreement
shall be construed as constituting the request of the City, expressed or implied, by inference or otherwise, to
any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of
any materials, for any specific work on the Additional Submerged Land Area nor as giving Flagstone the right,
power or authority to contract for or permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any mechanics' liens against the City's interest in the Additional Submerged
Land Area. If any mechanics' lien shall at any time be filed against the Additional Submerged Land Area by
reason of work, labor service, or materials supplied to Flagstone, its tenants, subtenants, contractors, or
subcontractors, Flagstone shall cause it to be discharged of record (by bonding, notice of bond or otherwise)
within thirty (30) days after the date that it has notice of its filing. Flagstone shall not be required to pay or
discharge any mechanics' lien within the thirty (30) day period, so long as Flagstone shall in good faith
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proceed to contest the lien by appropriate proceedings or shall furnish reasonably satisfactory evidence that
funds are or will be available to pay the amount of the contested hen claim with all interest on it and costs and
expenses, including reasonable attorney fees to be incurred in connection with it. If Flagstone does not; I)
cause a mechanics' lien to be discharged of record within thirty (30) days after the date Flagstone has notice
of the filing of a lien; or li) in good faith proceed to contest the lien by appropriate proceedings within the thirty
(30) day period, then Flagstone shall be in default of this Agreement.
8. Insurance. In connection with the Dredging, Flagstone or the Marina Major Subtenant shall
obtain and maintain or cause to obtained and maintained throughout the term of this Agreement the types
and amounts of insurance coverages set forth in Exhibit B, attached hereto and and incorporated herein
by this reference
9. Indemnity,. The party performing the Dredging or causing the Dredging to be performed,
whether it be Flagstone or the Marina Major Subtenant (the "Indemnifying Party"), shall indemnify, defend
and save harmless City and City's successors, permitted assigns, officials, employees and agents (the
"Lessor Indemnified Parties") from and against any and all claims, actions, proceedings, damages,
losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and
costs),arising out of, or resulting from, any personal injury, loss of life or damage to property, which shall
occur in, on or over the Additional Submerged Land Area, or in any way connected to, the Dredging
performed or caused to be performed by the Indemnifying Party (the "Indemnified Matters"). In case any
action or proceeding is brought against City by reason of any of the Indemnified Matters, the indemnifying
Party, upon sixty (60) days' written notice from City, shall, at the Indemnifying Party's expense, resist or
defend the action or proceeding by counsel reasonably satisfactory to City. City shall also be entitled to
appear, defend, or otherwise take part in such action or proceeding, at its election, and at the sole
expense of City by counsel located within Miami -Dade County, Florida of its own choosing, provided that:
(i) such action by City shall not limit or make void any liability of any insurer of the Indemnifying Party or
City with respect to the claim or matter in question; and (ii) City shall not, without the Indemnifying Party's
prior written consent, settle any such action or proceeding or interfere with the Indemnifying Party's
defense or prosecution of such action or proceeding. The provisions of this Section shall survive the
expiration or termination of this Agreement.
10. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to
the property, improvements, fixtures and/or equipment belonging to or rented by Flagstone, its officers,
agents, employees, contractors, and sub -contractors, or their major subtenants and assigns, invitees or
patrons occurring in or about the Additional Submerged Land Area that may be stolen, destroyed, or in
any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism
or theft which may leak or flow from or into any part of the Additional Submerged Land Area, or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures of the Additional Submerged Land Area, or from hurricane or any act of
God or any act of negligence of any user of the facilities or occupants of the Additional Submerged Land
Area or any person whomsoever whether such damage or injury results from conditions arising upon the
Additional Submerged Land Area or upon other portions of the Additional Submerged Land Area or from
other sources. Flagstone indemnifies the City, its officers, agents and employees from and against any
and all such claims even if the claims, costs, liabilities suits, actions, damages or causes of action arise
from the negligence or alleged negligence (but not gross negligence or willful misconduct) of the City
including any of its employees, agents, or officials acting within their scope of employment (but not as to
any such employees, agents, or officials not acting within the scope of their employment).
11. Eminent Domain. In the event the whole or any part of the Additional Submerged Land Area
shall be taken by right of eminent domain or any similar authority of law (a "Taking"), the entire award for
the value of the land and improvements so taken shall belong to the City, and Flagstone shall not have a
right to claim any portion of such award by virtue of any interest created by this Agreement. Flagstone
may, however, file a collateral claim with the condemning authority over and above the value of the land
being so taken to the extent of any damage suffered by Flagstone resulting from the severance of the
land or improvements so taken if such claim shall not operate to reduce the award allocable to the City for
the Taking.
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12, Term. Flagstone shall provide the Chief Executive Officer with no less than forty-five (45)
days' prior written notice of the date on which Flagstone requires to commence utilizing the Easement
Area. This Agreement and the rights, obligations, and liabilities created herein shall become effective
immediately upon the mutual execution and delivery hereof, and shall remain in full force and effect
unless and until either the Agreement to Enter Into Ground Lease is terminated or expires in accordance
with its terms (without the Ground Lease having been mutually executed and delivered), or the Ground
Lease is terminated or expires in accordance with its terms. Upon termination of this Agreement, all
rights and privileges derived from and all duties and obligations created and imposed by the provisions of
this Agreement shall terminate and have no further force or effect: provided, however, that the termination
of this Agreement shall not limit or affect any remedy at law or in equity that either party may have against
any other party with respect to any liability or obligation arising or to be performed under this Agreement
prior to the date of such termination.
13. Compliance with Environmental Laws. Flagstone represents and warrants that during
the term of this Agreement, it will not use or employ the Additional Submerged Land Area, or any other
City -owned property, to handle, transport, store or dispose of any Hazardous Materials and that it will not
conduct any activity on Additional Submerged Land Area or City -owned property in violation of any
applicable environmental laws. Notwithstanding the foregoing, Flagstone may handle, transport, store or
dispose of Hazardous Materials as necessary for Flagstone's Project on the Additional Submerged Land
Area as long as such handling, transportation, storage and disposal is performed in strict compliance with all
applicable laws and regulations. Flagstone hereby indemnifies and holds harmless the City and its officers,
employees and agents, from and against all actions and liabilities relating to Flagstone's handling,
transportation, storage and disposal of Hazardous Materials on or about the Additional Submerged Land
Area or City -owned property, The requirements of this paragraph shall survive the cancellation, revocation
termination or expiration of this Agreement. In the event of any conflict between the terms of the Ground
Lease and the terms of this Section 13, the terms of the Ground Lease shall control.
14. Hazardous Materials. In connection with the Dredging or other activities hereunder,
Flagstone shall, at its sole cost and expense, at all times and in all respects comply with all federal, state
and local laws, statutes, ordinances and regulations, rules rulings, policies, orders and administrative
actions and orders relating to hazardous materials ("Hazardous Materials Laws"), including, without
limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the
use, storage, disposal or transportation of any flammable explosives, toxic substances or other
hazardous, contaminated or polluting materials, substances or wastes, including without limitation, any
"Hazardous Substances", Hazardous Wastes", 'Hazardous Materials" or Toxic Substances" (collectively
"Hazardous Materials"), under any such laws, ordinances or regulations. In connection with the Dredging
or other activities hereunder, Flagstone shall, at its sole cost and expense, procure, maintain in effect and
comply with all conditions of any and all permits, licenses and other governmental and regulatory
approvals relating to the presence of Hazardous Materials within, on, under or about the Additional
Submerged Land Area or required for Flagstone's use of any hazardous materials in or about the
Additional Submerged Land Area in conformity with all applicable Hazardous Materials Laws and prudent
industry practices regarding management of such Hazardous Materials. Upon cancellation, revocation,
termination or expiration of this Agreement, Flagstone shall, at its sole cost and expense, cause all
Hazardous Materials, including their storage devices, placed in or about the Additional Submerged Land
Area by Flagstone or at Flagstone's direction, to be removed from the Additional Submerged Land Area
and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous
Materials Laws. Flagstone may operate according to the custom of the industry so long as the use or
presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with,
all applicable governmental requirements. The requirements of this paragraph shall survive the
cancellation, revocation, termination or expiration of this Agreement.
The City represents that:
(i) To the best of its knowledge there are no environmental violations, whether under
federal, state, or local laws, existing on the Easement Area;
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(ii) To the best of its knowledge there are no Hazardous Materials presently existing on
the Easement Area.
15. Not a Lease or License. This Agreement is not and shall not be deemed to be a lease or to
grant a license or other occupancy rights in favor of Flagstone or the Marina Major Subtenant. This
Agreement is merely an agreement on the part of Flagstone (on behalf of itself and the Marina Major
Subtenant) to perform certain services, namely the Dredging, for and on behalf of City, all as deemed
necessary or appropriate by Flagstone or the Marina Major Subtenant, in accordance with the terms and
conditions of this Agreement.
16. Notices. All notices and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given or made in the manner required by the Agreement to Enter Into
Ground Lease (and after the Ground Lease is mutually executed and delivered, in the manner required by
the Ground Lease).
17, Assignment; Binding_Effect. This Agreement may not be assigned, pledged, transferred or
encumbered except in connection with any such assignment, pledge, transfer or encumbrance of the
Ground Lease as is permitted by the terms of the Ground Lease. Without limiting the generality of the
foregoing, it is acknowledged and agreed that Flagstone may assign this Agreement to the Marina Major
Subtenant, and that Flagstone or the Marina Major Subtenant may pledge and encumber its rights
hereunder in favor of any Approved Mortgagee. This Agreement shall be binding upon and inure to the
benefit of City and Flagstone and their respective successors and permitted assigns. Every agreement,
covenant, promise, undertaking, condition, right, privilege, option and restriction made, granted or
assumed, as the case may be, by any party to this Agreement shall run with the land and constitute an
equitable servitude, and for the benefit of the Project as provided herein. Any transferee of any part of
the land shall automatically be deemed, by acceptance of the title to any part of the parcel, to have
assumed all obligations of this Agreement.
18. Headings. The captions and headings contained in this Agreement are for convenience of
reference only and shall not affect the construction of interpretation of this Agreement.
19. Non -Dedication. Nothing contained in this Agreement shall be deemed to be a gift or
dedication of any portion of the Additional Submerged Land to Flagstone it being the intention of the
parties hereto and their successors and assigns that nothing in this Agreement, expressed or implied,
shall confer upon any person other than the parties hereto and their successors and assigns, any rights
or remedies under or by reason of this Agreement.
20. Severabillty. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provision beyond such extent or in any other jurisdiction. It is the intention of the parties to this
Agreement that if any provision of this Agreement is capable of two constructions, one of which would
render the provision void and the other of which would render the provision valid, the provision shall have
the meaning which renders it valid.
21, Responsibility. Notwithstanding anything to the contrary contained in this instrument, each
party to this Agreement shall be liable and responsible for the obligations, covenants, agreements, and
responsibilities created by this Agreement and for any judgment rendered hereon only to the extent of its
respective interest in its land and the improvements thereon.
22, Attorneys' Fees. In the event of any litigation or arbitration between the parties, all
expenses, including reasonable attorneys' fees and court costs at both the trial and appellate levels,
incurred by the prevailing party, shall be paid by the non -prevailing party. The term "attorneys' fees" shall
be deemed to include, without limitation, any paraprofessional fees, investigative fees, administrative
costs and other charges billed by the attorney to the prevailing party (including any fees and costs
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associated with collecting such amounts). The provisions of this Agreement shall survive the expiration
or termination of this Agreement.
23. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally
waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim
based on, or arising out of, under or in connection with this Agreement or any amendment or modification
of this Agreement or any other agreement executed by and between the parties in connection with this
Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of
any party hereto. This waiver of jury trial provision is a material inducement for City and Flagstone to
enter into this Agreement.
24. Arbitration, Any dispute arising under this Agreement shall be submitted to binding
arbitration in the manner set forth in Article XVII of the Ground Lease.
25. No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person,
other than the parties and their respective successors and permitted assigns, any rights or remedies
under or by reason of this Agreement.
26. Construction. Both parties substantially contributed to the preparation and negotiation of
this Agreement. Accordingly, this Agreement shall not be construed against the party responsible for
preparing it.
27. Governing Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, without application of its conflict of law principles.
28. Entire Agreement. This Agreement embodies and constitutes the entire understanding
between City and Flagstone concerning the Dredging within the Additional Submerged Land Area, and all
prior or contemporaneous agreements, understandings, representations, and statements, oral or written,
with respect thereto are merged therein. Nothing in this Agreement shall be construed to make the
parties hereto partners or joint venturers, or render either of said parties liable for the debts or obligations
of the other. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon
any prior representations or agreements, whether oral or written. It is further agreed that any oral
representations or modifications concerning this Agreement shall be of no force or effect. This
Agreement may be modified, altered or amended only by a written amendment duly executed by both
parties hereto or their authorized representatives. The Chief Executive Officer is authorized to amend or
modify this Agreement as he deems necessary or appropriate.
29. Chief Executive Officer Approvals. The approvals of the Chief Executive Officer pursuant
to this Agreement shall be made in accordance with the Chief Executive Officer approval procedures;
provided, however, that any improvements that will remain on the Additional Submerged Land Area after
the expiration of this Agreement shall be subject to the Chief Executive Officer's prior written approval at
the Chief Executive Officer's discretion.
30. Counterparts. This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any party hereto may execute this
Agreement by signing any such counterpart.
31. Default. lf, prior to the mutual execution and delivery of the Ground Lease, Flagstone in
any manner defaults in the performance of this Agreement, the Chief Executive Officer may give written
notice to Flagstone of such default. If Flagstone fails to cure such default within fifteen (15) days after
written notice is given to Flagstone (or such longer period as may be reasonably necessary to cure such
default), the City may elect to: (i) terminate this Agreement: (ii) proceed to enforce the performance
bond(s) obtained in connection with the Dredging; or (iii) pursue any other remedy available at law or in
equity. If, after the mutual execution and delivery of the Ground Lease, Flagstone in any manner defaults
in the performance of this Agreement, the Chief Executive Officer may give written notice to Flagstone of
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such default, and if the Chief Executive Officer does so, the Chief Executive Officer shall
contemporaneously give a copy of such notice to any Approved Mortgagee as to the Marina, provided
that such Approved Mortgagee has theretofore given the City written notice of its address for notices and
acknowledged in writing its cure rights hereunder. If Flagstone or such Approved Mortgagee fails to cure
such default within fifteen (15) days after written notice is given to Flagstone and such Approved
Mortgagee (or such longer period as may be reasonably necessary to cure such default), the City may
elect to: (I) terminate this Agreement: (ii) proceed to enforce the performance bond(s) obtained in
connection with the Dredging; or (iii) exercise such rights and remedies as the City may have under the
Ground Lease on account of Flagstone's failure to perform its obligations hereunder.
32. Security Deposit. The Security Deposit (the "Security") required pursuant to the Agreement
to Enter Into Ground Lease and the Ground Lease, as applicable, shall also serve as security for the
faithful performance by Flagstone of all provisions of this Agreement. If Flagstone is in violation beyond
any applicable notice or cure period, the City may use apply or retain all or any part of the Security for the
payment of (i) any fee or other sum of money which Flagstone was obligated to pay but did not pay, (ii)
any sum expended by City on Flagstone's behalf in accordance with the provisions of this Agreement, or
(iii) any sum which the City may expend or be required to expend as a result of Flagstone's default
hereunder beyond any applicable notice and cure period. The use, application or retention of the Security
or any portion thereof by the City shall not prevent the City from exercising any other right or remedy
provided for under this Agreement or at law and shall not limit any recovery to which the City may be
entitled otherwise. At any time or times when the City has made any such application of all or any part of
the Security Deposit, Flagstone shall deposit the sum or sums equal to the amounts so applied by City
within ten (10) days of written notice by the City.
33. Performance Bond. Draft Note: Language for provision to be provided by City's Risk
Management Department and Office of City Attorney upon execution of Agreement with specific Exhibit E
attachment for Agreement.
IN WITNESS WHEREOF, City and Flagstone have executed this Agreement to Perform Dredging
Services as of the date set forth above.
THE CITY OF MIAMI, a municipal corporation of
the State of Florida
Attest:
By:
Name: Name:
Title: Title:
Date:
APPROVED AS TO FORM AND CORRECTNESS: APPROVED AS TO INSURANCE
REQUIREMENTS:
By: By:
Name: Name:
Title: Title:
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FLAGSTONE ISLAND GARDENS LLC,
a Delaware limited liability company
By: Flagstone Miami Holdings, LLC, a Delaware
limited liability company, as its sole and
managing member
By: Flagstone Property Group, LLC, a
Delaware limited liability company, as
its sole and managing member
By:
Name: Mehmet Bayraktar
Title: Sole and Managing
Member
Date:
STATE OF )
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2005, by
, as the City Manager of the City of Miami, a municipal corporation of the State of
Florida, on behalf of the City.
Personally Known or
Produced Identification
Type of Identification
Produced
Signature:
Name: [Print or type]
Title: Notary Public
Serial No., if any:
My commission expires
STATE OF )
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2005, by
, by Mehmet Bayraktar, as the sole and managing member of Flagstone Property
Group, LLC, a Delaware limited liability company, as the sole and managing member of Flagstone Miami
Holdings, LLC, a Delaware limited liability company, as the sole and managing member of FLAGSTONE
ISLAND GARDENS, LLC, a Delaware limited liability company, on behalf of each company.
Personally Known or
Produced Identification
Type of Identification
Produced
Signature:
Dredging Easement Final 01-03-06
Name: [Print or type]
Title: Notary Public
Serial No., if any:
My commission expires
Dredging Easement Final 01-03-06