HomeMy WebLinkAboutSubmittal License Agmt IISUBMITTED INTO THE
PUBLIC RECORD FOR
LICENSE AGREEMENT I TE p p2 "
THIS LICENSE AGREEMENT, (the "Agreement") is made and entered into this 16}i`
day of Gc%b*R. , 2006 (the "Effective Date"), by and between TRG-Downtown Loft III, Ltd.,
a Florida limited partnership (the "Licensee") and the Department of Off -Street Parking of the
City of Miami ("City"), an agency and instrumentality of the City, d/b/a Miami Parking
Authority, (the "Authority").
WITNES SETH
WHEREAS, the Authority provides parking services within the City; and
WHEREAS, the Authority issued a Request for Applications ("RFA 06-01-Workforce
Housing Parking License Agreement") in order to provide for the procurement of parking
services ("Services").
WHEREAS, this Agreement is a license to use parking spaces which creates a
licensor/licensee relationship between the Authority and Licensee.
NOW, THEREFORE, and in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE 1
Use of Municipal Garage No. 3
1.1 The Authority hereby grants a license and makes available to the Licensee the
non-exclusive use of four hundred ninety five (495) unassigned parking spaces (each, a "Space"
and collectively, the "Spaces") within Municipal Garage No. 3 by providing Licensee with four
hundred ninety five (495) access cards (each, an "Access Card" and collectively, the "Access
Cards") which Access Cards will then be provided to the owners of units (the "Unit Owners")
within the condominium project (the "Project") to be constructed on 200 NE 3`d Street (the
"Property"). Each Space (and the corresponding Access Cards) shall be issued to the Licensee
following such time as the City building official issues the first Temporary Certificate of
Occupancy ("T.C.O.") for the Project to the Licensee, as requested by Licensee in advance of
the closing of the sale of the corresponding unit within the Project (each, a "Unit" and
collectively, the "Units"); provided, however, that all Spaces (and the corresponding Access
Cards) shall be issued to Licensee no later than the date that is six (6) months following the date
the first T.C.O. is issued.
1.2 Each Space (and each corresponding Access Card) shall be available to Licensee
(and the individual Unit Owner) until the expiration of one (1) year following the
date the specific Space (and corresponding Access Card) is made available to
Licensee (this initial period of availability shall hereinafter be referred to as the
"First Year"). The individual Unit Owners shall have the ability to extend the
availability of each Space (and the corresponding Access Card) following the
of 77 MIA 1792020v11 10/16/2006
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expiration of the First Year for successive one (1) year periods (each, an
"Extended Availability Period"), in such Unit Owner's sole and absolute
discretion, for as long as Municipal Garage No. 3 is still being operated as a
garage by the Authority, by providing written notice to the Authority at least sixty
(60) days prior to the expiration of the First Year and, thereafter, at least sixty
(60) days prior to the expiration of the applicable Extended Availability Period.
Notwithstanding anything to the contrary contained in this License Agreement, if
the first T.C.O. for the Project has not been issued to the Licensee on or before
five (5) years after the Effective Date, this License Agreement, and any options or
rights hereunder shall automatically be null and void on that date without the
necessity of further action and without recourse. In addition to the right to
terminate this License Agreement in the event of a default, which continues
beyond all applicable notice and cure periods as provided in this License
Agreement, the Licensee and the Authority may at any time exercise, by mutual,
written consent, a mutual decision to terminate this License Agreement by
executing a written instrument employing all the same formalities as were used in
execution of this License Agreement, providing for such a termination upon such
terms and conditions which are mutually acceptable to the parties. Such a
termination must, at minimum, include terms that provide for a reimbursement to
Licensee of any prepaid Initial License Fee (as hereinafter defined) on a pro -rated
basis through the date of termination. Subject to the requirements set forth herein,
in the event of execution by the parties of such an instrument of cancellation, this
License Agreement shall be of no further operative force or effect and the parties
shall be released from all further obligations hereunder, except as may be
otherwise provided in the instrument providing for such cancellation. This
cancellation will be effective not less than thirty (30) days following a written
instrument signed by the parties jointly stipulating to such earlier termination
date. A termination accomplished under this Section 1.2 shall be without recourse
by either party.
1.3 Licensee agrees that this Agreement has been issued by the Authority to authorize
Licensee to occupy the Spaces solely for the limited purpose of the Services and
no other purpose. The parties hereby agree that the provisions of this Agreement
do not constitute a lease and the rights of Licensee hereunder are not those of a
tenant but are a mere personal privilege to do certain acts of a temporary character
and to otherwise use the Spaces subject to the terms of this Agreement. No
leasehold interest in the Spaces is conferred upon Licensee under the provisions
hereof and Licensee does not and shall not claim at any time any leasehold estate
or ownership interest in the Spaces by virtue of this Agreement or its use of the
Spaces hereunder. Additionally, Licensee does not and shall not claim at any
time any interest or estate of any kind or extent whatsoever in the Spaces.
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SUBMITTED INTO THE
PUBLIC RECOD FOR
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ARTICLE 2
License Fee
SUBMITTED INTO THE
PUBLIC RECORD FOR
ITEM?z. ON 3--t'1.
2.1 The license fee for the First Year shall be $120 per month per Space for a total of
$712,800.00 (the "Initial License Fee"). The Initial License Fee shall be paid by the Licensee to
the Authority as follows: (a) one-third shall be paid on the date which is five (5) business days
following the issuance by the City building official of the first T.C.O. for the Project, (b) one-
third shall be paid on the date which is two (2) months following the issuance by the City
building official of the first T.C.O. for the Project, and (c) one-third shall be paid on the date
which is four (4) months following the issuance by the City building official of the first T.C.O.
for the Project.
2.2 The license fee for the first Extended Availability Period shall be $80 per month
per Space, which amount shall be paid by the individual Unit Owners quarterly, prior to the
commencement of applicable quarter. The license fee for each additional Extended Availability
Period shall be the market rate prescribed in the City's Parking Rate Ordinance for the Central
Business District from time to time, which amount shall be paid by the individual Unit Owners
quarterly, prior to the commencement of the applicable quarter. The license fee during any
Extended Availability Period shall be paid directly by such Unit Owners and the Authority shall
have no recourse against the Licensee for any failure of the Unit Owners to pay such fees when
due. The Licensee and the Authority hereby agree that access cards provided to individual unit
owners who fail to pay the license fee for any Extended Availability Period within ten (10)
business days of the due date shall be returned to the Authority and the Authority may, in its sole
discretion, assign those Spaces to other customers of the Authority.
2.3 The Initial License Fee or other sums due the Authority from Licensee which are
not paid within ten (10) days following the date then due will automatically accrue interest at the
rate of eighteen (18%) percent per annum until paid in full. Such interest payment shall be
deemed to be an additional license fee and it's acceptance by the Authority shall not be deemed
to be a consent by the Authority to late payments, nor a waiver of the Authority's rights to insist
upon timely payments at any time, nor a waiver of any remedies to which the Authority is
entitled to as a result of late payments. In the event the Authority must institute a civil action to
collect the Initial License Fee from the Licensee, or any authorized successor or assignee, the
Authority shall be entitled to terminate this Agreement and recover it's court costs and a
reasonable attorney's fee for their counsel in such a collection action.
ARTICLE 3
Covenants of the Licensee
3.1 Except as otherwise provided in this Article 3, the Licensee shall not sell, transfer,
assign, sublease, or otherwise dispose of its interest in this License Agreement or any portion
thereof without securing the prior written consent of the Authority, which consent may be
reasonably or unreasonably withheld, refused or delayed. In order to approve of any assignment
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the Authority must first be subjectively satisfied in all respects after it makes inquiry, acting m
due diligence, as to the proposed assignee. Notwithstanding the foregoing, Licensee shall be
entitled to assign this License Agreement (in whole or in part), without the consent of the
Authority, to (i) any assignee "Condominium Association" (which term shall have the same
meaning as "Association" as defined by the State of Florida Condominium Act, as amended
from time to time), and (ii) to any entity which acquires title to the Property upon which the
Project is to be constructed, provided such entity develops the Project. Upon any permitted
assignment hereunder, the Authority agrees that the Licensee shall be automatically released
from all liability for any obligations under this License Agreement assumed by the assignee. The
form of assignment and assumption agreement must be pre -approved by the Authority, such
approval not to be unreasonably withheld, conditioned or delayed. Any proposed assignee other
than the Condominium Association referenced above or a successor fee simple owner of the
property upon which the Project is to be developed must sign an assignment/assumption
assignment agreement affirming that the Assignee will comply with every duty and requirement
of this License Agreement in a form reasonably satisfactory to the Authority and approved as to
legal form by the City Attorney before being considered for approval by the Board of the
Authority. The requirements of this Section constitute separate and independent consideration
exchanged between the parties in order to induce the Authority to consider granting approval of
assignments of this License Agreement.
3.2 In connection with the creation of the condominium(s), the Licensee presently
intends on subleasing and/or assigning this License Agreement to a Condominium Association,
which is permitted under Section 3.1 above. Notwithstanding anything to the contrary in this
License Agreement, the Authority agrees that in the event of any default by the Condominium
Association which continues beyond all applicable notice and cure periods, the Authority shall
have all remedies available against such association at law and/or equity.
3.3 Notwithstanding anything to the contrary contained in this License Agreement,
the Access Cards shall be freely transferable by the Unit Owners to subsequent owners of units
within the Project upon the sale of their units within the Project.
3.4 The Licensee shall be permitted to assign its rights under this Agreement, without
the prior written consent of the Authority, to any lender providing financing for the acquisition of
the Property and/or the construction or development of the Project (each, a "Lender"). The
Authority agrees to (a) provide each Lender with notice of any Event of Default (as hereinafter
defined) by Licensee hereunder (to the extent the Authority has been provided with the address
for such Lender(s)) and an opportunity to cure any Event of Default, and (b) cooperate in good
faith with each Lender and execute such additional documentation (including, without limitation
an amendment to this License Agreement which does not adversely affect the economics of the
transaction or impose any material liabilities upon the Authority), subject to being in a form
reasonably acceptable to the Authority, in order to provide customary lender protections, to the
extent reasonably requested by such Lender.
3.5 The Licensee shall fully comply with all laws, statutes, ordinances, rules, orders,
regulations and requirements of the federal, state, county and city governments applicable to its
use hereunder. The Licensee represents and warrants that there shall be no unlawful
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discrimination as rovided by federal, state or local law, in connectionr or p �manr�nf
this License Agreement.
ARTICLE 4
Damage or Destruction of the Spaces; Condemnation; Maintenance of Spaces
4.1 If during the First Year the Municipal Garage No. 3 shall be damaged by fire or
other casualty and some or all of the Spaces are rendered unfit or unusable for the use and
purpose for which this License Agreement is granted, the Authority shall promptly notify
Licensee of such damage and the Authority shall, at the Authority's option, either (i) at its sole
cost and expense proceed with reasonable diligence to rebuild and replace the Spaces to their
former condition within Municipal Garage No. 3, or (ii) provide the Licensee with alternative
Spaces within a parking garage either (x) within a 1000 foot radius of the Project or (y) within a
600 foot radius of a metromover station within the Central Business District of the City, so that
the Licensee has the use of four hundred ninety five (495) parking spaces during the First Year.
In the event the Authority elects to reconstruct the Spaces within Municipal Garage No. 3, during
the period of time that the Spaces are being rebuilt, repaired or replaced, the Authority shall
provide the Licensee with alternative Spaces (x) within a 1000 foot radius of the Project or (y)
within a 600 foot radius of a metromover station within the Central Business District of the City,
so that the Licensee has the use of four hundred ninety five (495) parking spaces during the First
Year. Without limiting any remedy available to the Licensee in the event the Authority fails to
comply with its obligations hereunder, Licensee shall be entitled to a refund of a proportionate
amount of the prepaid Initial License Fee equal to the period of time the Authority fails to
provide the Spaces or alternative Spaces as required by this Section 4.1.
4.2 If during the First Year either the entire Municipal Garage No. 3 shall be taken as
a result of the exercise of the power of eminent domain, or a portion of the Municipal Garage
No. 3 shall be so taken such that the full number of Spaces are not available, the Authority shall
provide the Licensee with alternative Spaces within a parking garage either (x) within a 1000
foot radius of the Project or (y) within a 600 foot radius of a metromover station within the
Central Business District of the City, so that the Licensee has the use of four hundred ninety five
(495) parking spaces during the First Year. In the event the Authority fails to comply with its
obligations hereunder, Licensee shall be entitled to a refund of a proportionate amount of the
prepaid Initial License Fee equal to the period of time the Authority fails to provide the Spaces
or alternative Spaces as required by this Section 4.2. Provided the Authority complies with its
obligation hereunder to provide Spaces or alternative Spaces, Licensee acknowledges and agrees
that Licensee shall have no interest or right in and to any condemnation award paid to the
Authority.
4.3 The Authority covenants during the First Year and each Extended Availability
Period, at its sole cost and expense, to maintain the Municipal Garage No. 3 and the Spaces as
now existing or in the future altered or replaced and all fixtures located or to be located therein,
and to keep the same in reasonably good order and condition, except only for wear and tear
incident to the ordinary use for the purposes permitted in this License Agreement. All repairs
shall be performed in material compliance with all laws, rules, statutes, ordinances and
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regulations. Repairs and renovations shall be accomplished by the Authority in a manner so that
the full number of Spaces leased to the Licensee under this License A reement shall always be
available for use by the Licensee. SUMITTED INTO THE
ARTICLE 5 PUBLIC RECORD FOR
5.1
occurs:
Events of Default ITEM T2.1 ON 31 1 p-j
There shall be an "Event of Default" by the Licensee if any one of the following
5.1.1 The Licensee shall fail to pay the Initial License Fee or other sum due the
Authority from the Licensee, including, without limitation, interest on any
late Initial License Fee as required herein, within thirty (30) days of the
date due.
5.1.2 Subject to the time period afforded for curing monetary defaults in Section
5.1.1, if the Licensee shall fail to perform or comply with any term or
provision hereof or with any other agreement Licensee has with the
Authority or the City when such default is not cured within thirty (30)
days of the date hereof and such failure shall continue for more than 30
days after written notice thereof from the Authority to the Licensee or
longer, to the extent such default cannot reasonably be cured within said
thirty (30) day period and the Licensee proceeds with due diligence to cure
such default, provided that the cumulative cure period shall not exceed
ninety (90) days.
5.1.3 The Licensee becomes insolvent as that term is defined by State law or the
Licensee has an assignment for the benefit of creditors made or the
Licensee is adjudicated as bankrupt and does not assume this License
Agreement in bankruptcy within sixty (60) days of fling.
5.2 If any Event of Default shall occur which is not cured within the time provided, in
addition to all other remedies provided by law, the Authority may re-enter and re -let the Spaces
for the account of the Licensee or for the account of the Authority, as the Authority may elect,
and retain the proceeds thereof without relieving the Licensee of the obligation to pay any
deficiency therein. For a monetary default the Authority is entitled to cancel this License
Agreement and/or resort to its rights and remedies when any event of default is not fully cured to
the satisfaction of the Authority within thirty (30) days following the date the default notice was
given. For any non -monetary default the Authority is entitled to cancel this License Agreement
and/or resort to its rights and remedies when after having giving written notice of the default, as
is provided herein, such default continues for a period of thirty (30) days after receipt of such
notice except when the default is of a nature that cannot be cured within such thirty (30) day
period, if Licensee fails to commence to cure within sixty (60) days of its receipt of such notice
and if such default is not substantially cured within a reasonable period of time (not to exceed
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ninety (90) days) following such notice then the Authority may, at its option, terminate this
License Agreement by giving one further ten (10) days written notice. The Licensee agrees that
it shall have no recourse in law or equity from such cancellation of this License Agreement.
5.3 No failure of the Authority to exercise any power hereunder or to insist upon strict
compliance by Licensee with any of its obligations hereunder and no custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of the Authority's rights to
demand exact compliance with the terms hereof.
ARTICLE 6
Notices
6.1 Notices. All notices or other communications that may be given pursuant to this
License Agreement shall be in writing and shall be deemed properly served if delivered by
personal service or sent by registered or certified mail postage prepaid to the address shown
below. Notices delivered shall be deemed given on the day on which personally served; or if by
certified mail, on the fifth day after being posted or the date of actual receipt, whichever is
earlier. Such notices shall be deemed properly served on the addressee whether or not delivery
or tender of delivery is accepted, when the addressee has given that address pursuant to this
Agreement. Either party may change its address from time to time by notice in writing to the
other.
If to Licensee: TRG-Downtown Loft III, Ltd.
c/o The Related Group
313 S. Biscayne Blvd., 3rd Floor
Miami, Florida 33131 L I [� I
Attention: Oscar Rodriguez Q h
LL �
With a copy to: Greenberg, Traurig, P.A. Q Q
1221 Brickell Avenue I--- tj
Miami, Florida 33131
Attention: Joel K. Goldman, Esq.
V
If to Authority: Executive Director L.:J
Department of Off -Street Parking
190 N.E. 3rd Street C_)
Miami, Florida 33132 m CO
With Copy to: Director, Planning and Development 1-1-1
Department of Off -Street Parking (f) Q_ !
190 N.E. 3rd Street
Miami, Florida 33132
With a Copy to: City of Miami City Attorney
444 S.W. 2nd Avenue, Suite #945
Miami, Fl. 33130-1910.
Page 7 of 12
ARTICLE 7
General Provisions
SUBMITTED INTO THE
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7.1 Entire License Agreement. This License Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof, and there are no
agreements, understandings, covenants, conditions or undertakings, oral or written, expressed or
implied, concerning such subject matter that are not merged herein. Specifically, the parties
agree that this License Agreement shall supersede any contemporaneous or prior agreements,
understandings, representations, etc. and that they are of no further force or effect.
7.2 Amendment or Rescission. This License Agreement shall not be modified or
rescinded except by a written instrument setting forth such amendment, modification or
rescission and signed by the parties hereto using the same formalities as were used for its
execution.
7.3 Persons Bound Gender. The benefits and obligations of this Contract shall inure
to and bind the respective heirs, personal representatives, successors and assigns (if permitted) of
the parties hereto. Whenever used, the singular shall include the plural, the plural the singular,
and the use of any gender shall include all genders. The term Licensee shall always be
interpreted to include any successors or assigns of Licensee, including, without limitation, a
Condominium Association assuming the Licensee's performance hereunder.
7.4 Governing Law. This License Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, regardless of any conflicts of laws or other
rules, which would require the application of the laws of another jurisdiction.
7.5 Jurisdiction. In case of any controversy or dispute arising out of this License
Agreement, both parties agree and accept to be subjected to the jurisdiction and competence of
the State and Federal Courts of Miami -Dade County Florida as the exclusive forum for such
controversy or disputes forsaking any other jurisdiction, which either party may otherwise be
entitled to claim. In order to expedite the conclusion of any controversy or dispute the parties
mutually waive their rights to demand a jury trial, to claim attorney's fees from the other or to
file permissive counterclaims in any controversy or dispute between them arising out of this
License Agreement.
7.6 Taxes. The Licensee shall be solely liable and responsible for payment of any
sales or use tax, and parking surcharge, which are applicable to the licensing of the Spaces.
7.7 Independent Status. Except as specifically provided herein, nothing contained in
this License Agreement shall be construed to constitute a party as agent for the other party.
Except as specifically provided herein, neither party shall have the right to bind the other party,
transact any business in the other party's name or on its behalf in any manner or form, or to make
any promises or representations on behalf of the other party. This License Agreement shall not
create a joint venture, partnership or any other affiliation or business relationship between the
parties. It is merely the licensing of parking spaces to the Licensee.
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7.8 No waiver of Default. Any failure by the Authority at any time or from time to
time to enforce and require the strict keeping and performance of any of the terms and conditions
of this License Agreement shall not constitute a waiver of any such terms and conditions at any
future time and shall not prohibit the Authority from insisting on the strict keeping and
performance of such terms and conditions at any later time. No waiver by the Authority shall be
effective unless it is reduced to a writing signed by the Authority.
7.9 Waiver of Jury Trial. The parties hereby knowingly, voluntarily, and
intentionally waive any right they may have to a trial by jury in any litigation arising out of or in
connection with this License Agreement. The parties acknowledge that this provision is a
material inducement for Licensee and Authority entering into this License Agreement.
7.10 Interpretation. Should the provisions of this License Agreement require judicial
or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing
the same shall not apply the assumption that the terms hereof shall be more strictly construed
against one party by reason of the rule of construction, that an instrument is to be construed more
strictly against the party which itself or through its agents prepared same, it being agreed that the
agents of both parties have equally participated in the preparation of this License Agreement.
7.11 Captions. The captions or headings of the Sections and other subdivisions hereof
are inserted only as a matter of convenience or for reference and shall have no effect on the
meaning of the provisions hereof.
7.12 Third Party Beneficiaries. The parties agree there are no third -party beneficiaries
to this License Agreement other than the individual Unit Owners and that no third party other
than the individual Unit Owners shall be entitled to assert a claim against either based on this
contract.
7.13 Joint Effort. Preparation of this License Agreement has been a joint effort of the
City (and the Authority) and Licensee and the resulting License Agreement shall not be
construed more severely against one of the parties than the other.
7.14 No Joint Venture. This License Agreement merely represents the relationship of
licensor and licensee between the parties. This License Agreement shall not be interpreted in any
manner to imply a joint venture, partnership, common enterprise, or any other type of business
affiliation between the parties.
7.15 Brokers. Authority and Licensee hereby represent and warrant, each to the
other, that they have not dealt with, any broker, finder or any other person, firm, corporation or
other legal entity so as to create any legal right or claim of any kind or nature for a commission
or similar fee or compensation with respect to or arising out of this License Agreement.
Authority and Licensee hereby indemnify each other against, and agree to hold each other
harmless from, any liability or claim (and all expenses, including, without limitation, reasonable
attorneys' fees, incurred in defending any such claim or in enforcing this indemnity) for a real
estate brokerage commission or similar fee or compensation arising out of or in any way
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connected with any claimed dealings with the indemnitor and relating to this License Agreement.
The provisions of this Section shall survive the expiration or sooner termination of this License
Agreement.
7.16 Covenant of Quiet Enjoyment. Authority represents to Licensee that, so
long as Licensee performs its obligations under this License Agreement, Licensee shall
peaceably have and enjoy the Spaces free from hindrance by anyone during the First Year and
each Extended Availability Period, and Authority agrees to warrant and defend Licensee in the
peaceful and quiet enjoyment of the Spaces so long as Licensee is not in default hereunder
beyond the expiration of any grace periods.
7.17 No Discrimination. Licensee will not unlawfully discriminate as provided by
federal, state or local law, in connection with the performance of this agreement.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their respective officials thereunto duly authorized, this l ( day of +t ftWy , 2006.
AUTHORITY:
DEPARTMENT OF OFF-STREET PARKING, an
agency and instrumentality of the City of Miami,
Florida, d/b/a Miami Parking Authority
ATTEST:
By:
of Off -Street Parking
Arthur Norga, Executive Director
APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE
AND CORRECTNESS:
Jorge . ' ernandez
DO G: neral Counsel/ City Attorney
REQUIREMENTS:
LeAAnn Brehmn siirator
Risk Management Department
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SIGNED in the presence of:
WITNESSES:
(Signature of First Witness for Licensee)
C
(Print N d & Title)
(Signatur- o '.econd Witness for Licensee)
(Print Name & i le)
MIA I77792020v11 10/16/2006
LICENSEE:
TRG-DOWN • WN LOFT III, LTD., a Florida
Limited Partn fthip
By: TRG- to o I , Inc., a Florida
corpora n, its r artner
By: Akosl
Name: e' cAQ. (ZoI Zi.
Title: vit5 prE,;G2N
SUBMITTED INTO THE
�RD FOR�PUBLIC
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