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HomeMy WebLinkAboutPO 5493:ICON BUILDERS LLCinteroffice MEMORANDUM To: From: Date: Subject: LLC. Mayor, City Council, and City Manager Mark T. Sokolow, City Attorney ~ ~ January 28, 2C05 P. O. No. 5493; Council Meeting February 1, 2005 Attached is P. O. No. 5493 as it pertains to ICON Builders, MTS:ts Attachment: P.O. No. 5493 cc: Direc5or of Public Works Director of Utility Operations VIA FACSIMILE (409) 721-6603 Ike Akbari ITEX PROPERTY MANAGEMENT, LLC z .po5493_memo P.O. No. 5493 01/28/05 ts ORDINANCE NO. AN ORDINANCE AS IT PERTAINS TO ICON BUILDERS, LLC WHEI~EAS, the City of Port Arthur entered into a Developer Participation Contract with ICON Builders, LLC, pursuant to ordinance No. 02-54; and WHEREAS, ICON Builders, LLC planned to develop a tract of land adjacent to 9th Avenue as to provide up to 67 single lots wherein single family residences will be built; and WHEREAS, the agreement was signed on December 9, 2002; and for ICON to have at built Single family residential WHEREAS, the projected timetable was least 56 single family residential units years and to have 67 within eight units in the Breeze Development have 9tn Avenue and have Sanitary sewer lines, subdivision upon full build-out; and WHEREAS, ICON Builders and Golf purchased the 17.091 acres-adjacent to constructed public water lines, public public storm sewers, and a public road within the subdivision; and WHEREAS, of Utility Operations have reviewed the punch list as prepared the Director of Public Works and/or the Director I by Arceneaux & Gates, as denoted in Exhibit "A#, as to the road, water lines, sanitary sewer lines, and storm sewers; and W~EP~AS, the Director of Utility Operations and Director of Public Works have indicated that the road, water lines, sanitary sewer lines, and storm sewers are substantially complete with a punch list of items needing correction; and W~ER~AS, ICON Builders has deposited or will deposit $11,697 with the City of Port Arthur as to have six street lights installed, which is the estimated cost thereof; and W~EREAS, ICON Builders will be building up to seven homes this year; and fees and sewer tap fees as to promote this development W~EREAS, if ICON Builders builds four or more homes within one year, then Sections 18-39, 110-61, and 110-168 will apply, and a refund will be applicable as to building permit fees, water tap under Chapter 380 Local Government Code; and W~R~AS, the City has agreed to loan ICON 30% of the total contract price of the water lines, sanitary sewer lines, street lights, storm sewers, and a road, or $160,000, whichever is less; and W~.REAS, the City has loaned $118,571 to ICON in reimbursement of 30% of $395,236.69 in expenditures; and z.po5493 2 WHEREAS, ICON have paid or incurred $252,028.55 in additional Builders, LLC and Golf Breeze Development expenditures for described in Exhibit ~B"; needs to the road, as and WHEREAS, the City now loan under the Development Participation Contract. ICON Builders $41,429 ORDAINED BY THE CITY CfFONCIL OF THE NOW THEREFORE, BE IT CITY OF PORT ARTHUR, TEXAS: Section 1. That are true and correct. Section 2. That the facts and opinions in the road, water lines, the preamble sewer lines, and storm sewers are herein accepted subject the completion of the items described in Exhibit ~A". of Builders, (a) sanitary to Section 3. That the City Manager and the Director Finance are here~n au5horized to disburse $41j429 to ICON LLC once the following is complete: (b) (c) The items in the punch list described in Exhibit UA" are complete. ICON and Golf Breeze Development shall deed the road, sewer lines, waner lines, storm sewers, and other public improvements to the City. ICON and Golf Breeze shall deliver an affidavit that all suppliers and subcontractors have been paid. z.~o5493 3 (d) ICON and Golf Breeze shall also deliver a one-year warranty as to all of the pub%ic improvements. (e) ICON shall also sign an additional note and deed (f) of trust as to the $41,429 in substantially the same form as described in Exhibits ~B" and ~C". Confirmation has been received that $11,697 and such additional funds have been deposited with the City as to insure that street lights will be installed. Section 4. That the total participation of the City, and water and sewer tap cost of all the public including the refund of building permits fees shall not exceed 30% of the total improvements. Section 5. That a copy of the caption of 5his shall be spread upon the Minutes of the City Council. Ordinance RF~AD, ADORED AXeD APPROVED on this day of , A.D., 2005, at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by Ehe following vote:: AYES Mayor , Councilmembers ; NOES: OSCAR ORTIZ, MAYOR ~.po5493 4 ATTEST CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER APPROVED AS TO THE AVAILABILITY OF FUNDS: DIRECTOR OF FINANCE z.po5493 5 EXHIBIT "A" z.po5493 5 COMPLETION INSPECTION PUNCH LIST DATE: PROJECT: ATTENDEES: January 25,2005 Water. Sewer, Paving and Drainage Facilities To Serve Greenway Pointe Estates A&G Job No. 03-1CN-010 (Construction Phase 03-1CN-011) Kelly Eldridge - City of Port Arthur (CPA) Ross Blacketter - City of Port Arthur (CPA) Mark Blackshear - City of Port Arthur (CPA) Charles Shajari - City of Port Arthur (CPA) Todd Clark - Jerry Walley Construction [JWC) Bill Kemp - Jerry Walley Construction (JWC) Rick Hutchings - U-Con Utilities & Construction (UUC) Joe M. Wilson Jr, PE - Arceneaux & Gates (A&G) The following items are to be correctee or completed to comply with the Contract Documents: GREENWAY POINTE DRIVE 2. 3. 4. 5. 6. 7. 8. 9. 10. Handicap ramps along 9'" Ave. are not aer alan see sheet 9 of 12. Repair expansion joint sealant at approximate station 0+70. Saw cut curb at control .oint at approximate station 6+50. Replace missing wood expansion joint at approximate station 10+50. Reaa~r grout at aide penetration at storm inlet B6.1 repair damage to inlet top. Trim pipe flush with bench in sewer manhole at station13+32.86, Raise fire hyarant at station 13+90 to correct elevation, Raise fire hydrant at station 17+90 to correct elevation Grout or replace throat at inlet BI. Raise nm on samtary sewer manhole at stabon 18+81.02. PLEASANT HILL COURT 11. Reset inlet C2 to correct alignment. 12. Raise fire hydrant at station 2+05 tc correct elevation. Page 1 of 2 WINDY HILL COURT 13. 14, 15. Repair gutter storm sewer inlet D (ie remove concrete slag). Repair grout at pipe penetration at storm sewer inlet D1. C ean out debris from sewer manhole at station 1+89.52. GENERALITEMS 2. 3. 4. 6. 7. 8, Clean and seal all spalls in paving at expansion joints. RePlace al damaged and missing curd exoans~on joints. Grout interior of all sanitary sewer manholes a[ spacer dngs. Operate all valves to ensure proper operation (this will be performed by City of Port Adhur personnel). Straigh[en aha/or adjust all sanitary sewer service cleanouts. Mark all water and sanitary services with stakes as called for on plans Repeat water bacteriological test. Core paving as reauired in technical soecifications. Miscellaneous 1. Submit As-Built (red-lined) drawings. END OF PUNCH LIST Page 2 of 2 EXHIBIT "B" ICON BUILDERS LT'C ~o,,n F~le ~,~.~ 4~2A MARK'WOOD c~?¥ OF ~oa~ ~.u~ PORT ~T~, TX 77642 ~ ~ ST~ ~n ~t ~ ~LF B~EZE ~0~T ~, ~X ~=S~ D~LOP~, LLC L~'S ~ ~ ~D~SS For value received, ICON Builders, LLC and Golf Breeze Development, LLC promise to pay to the City of Port Arthur, at the address listed above the PRINCIPAL sum of ONE HUNDRED SIXTY THOUSAND FIVE HUNDRED SEVENTY-ONE Dollars $160,000. · The principal sum shown above is the maximum a/nount of principal I can borrow under this note. On October 1, 2004, I have received the amount of $118,571 as per the developer participation agreement attached as Exhibit "A". On 2005, I received $41,429. INTEREST: I agree to pay interest on the outstanding principal balance of $160,000 at 2% per year until December 31, 2011, in accordance with the Developer Participation Agreement attached as Exhibit "A". ACCRUAL METHOD: Interest will be calculated on a 360 days per year basis. POST MATURITY PATE: I agree to pay interest on the unpaid balance of this note owing after maturity, and until paid in full. as stated below: · at a rate equal to ten (10%) percent. ADDITIONAL TERMS: The repayment default terms are as described in the attached Developer Participation Agreement, as approved by Ordinance No. 02-54, approved on October 15, 2002 and Ordinance No. 04-16 approved on March 30, 2004. THIS WRITTEN LOANAGRE~ENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES UNLESS DELINEATED HEREIN. THERE ARE NOUN~RITTEN ORAL AGRE~(F/~TS BETWEEN TH~ PARTIES. z. note_icon, gol fbree ze3 pURPOSE: The purpose of this loan is to finance public improvements per the Developer Participation Agreemenu as auEached as Exhibit "A". SIGNATURES: I agree to the terms of this note. i nave received a copy on today's date. SIGNATURE FOR LENDER: SIGNATURE FOE BORROWER: CITY OF PORT ARTHI/R ICON BUILDERS, LLC BY: Mark u. Sokolow City Attorney BY: K.T. AKBARI ~OLF BP~EEZE DEVELOP~ZNT, LLC BY: K.T. ~KBARI ACKNOWLEDGMENT STATE OF TEXAS COUNTY 0F JEFFERSON This instrumenu was acknowledged before me on February , 2005, by K.T. Akbari, President of ICON BUILDERS, LLC, a State of Texas corporation, on behalf of said corporation. Notary Public in and for the State of Texas z. node_icon, gol fbreeze3 STATE OF TEXAS COUNTY OF JEFFERSON This instrument was acknowledged before me on February by K.T. Akbar±, Manager, of GOLF BREEZE DEVELOPMENT, Texas corporation, on behalf of said corporanlon. 2005 LLC, a Staue of Notary Public mn and for the State of Texas z. nome_icon, gol fbreeze3 APPLICABLE LAW: The law of the State of Texas will govern this note. Any term of this note which is contrary to applicable law will not be effective, unless the law permits City of Port Arthur and me to agree to such a variation. If any provision of this agreement cannot be enforced according to its terms, this fact will not affect the enforceability of the remainder of this agreement. No modification of this agreement may be made without City of Port Arthur express written consent. Time is of the essence in this agreement. pAYMENTS: Each payment I make on this note will first reduce the amount I owe the City for charges which are neither interest or principal. The remainder of each payment will then reduce accrued unpaid interest, and then unpaid principal. If the City and I agree to a different application of payments, we will describe our agreement on this note. I may prepay a part of, or the entire balance of this loan without penalty, unless we specify to the contrary on this note. Any partial prepayment will not excuse or reduce any later scheduled payment until this note is paid in full (unless, when I make the prepayment, the City and I agree in writing to the contrary). INTEREST: If I receive the principal in more than one advance, such advance will start to earn interest only when I receive the advance. The interest rate in effect on this note at any given time will apply to the entire principal advanced at that time. Notwithstanding anything to the contrary, I do not agree to pay and the City does not intend to charge any rate of interest that is higher than the maximum rate of interest the City could charge under applicable law for z. note_icon, gol fbreeze3 the extension of credit that is agreed to here (either before or after maturity). If any notice of interest accrual is sent, and is in error, we mutually agree to correct it, and if the City actually collects more interest than allowed by law and this agreement, the City agrees to refund it to me. INDEX RATE: The index will serve only as a device for setting the rate on this note. The City does not guarantee by selecting this index, or the margin, that the rate on this note will be the same rate City of Port Arthur charge on any other loans or class of loans to me or other borrowers. ACCRUAL METHOD: The amount of interest that I will pay on this loan will be calculated using the interest rate and accrual method stated on this note. For the purpose of interest calculation, the accrual method will determine the number of days In a "year". If no accrual method is stated, then the City may use any reasonable accrual method for calculating interest. POST FzATURITY DATE: For purposes of deciding when the "Post Maturity Rate" applies, the term "maturity" means the date of the last scheduled payment indicated on this note or the date City of Port Arthur accelerate payment on the note, whichever is earlier. SINGLE ADVANCE LOANS: If this is a single advance loan, the City and I expect that City of Port Arthur will make only one advance of principal. However, the City may add other amounts to the principal if the Cit!; makes any payments described in the "PAYMENTS BY LENDER" paragraph below. MULTIPLE ADVANCE LOANS: If this is a multiple advance loan, the City and I expect that the City will make more than one advance of principal. If this is closed end credit, repaying a part of the principal will not entitle me to additional credit. PAYMENTS BY LENDER: If City of Port Arthur are authorized to pay, on my behalf, charges I am obligated to pay (such as property insurance premiums), then City of Port Arthur may treat those payments made by City of Port Arthur as advances and add them to the unpaid principal under this note, or City of Port Arthur may demand immediate payment of the charges. SET OFF: I agree that City of Port Arthur may set off any amount due and payable under this note against any right I have to receive money from City of Port Arthur. "Right to receive money from City of Port Arthur" means: (1) any deposit account balance I have with City of Port Arthur; (2) any money owed to me on an item presented to City of Port Arthur or in City of Port Arthur possession for collection or exchange; and (3) any repurchase agreement or other nondeposit obligation. "Any amount due and payable under this note" means the total amount of which City of Port Arthur are entitled to demand payment under the terms of this note at the time City of Port Arthur set off. This total includes any balance the due date for which City of Port Arthur properly accelerates under this note. If my right to receive money from City of Port Arthur is also owned by someone who has not agreed to pay this note, City of Port Arthur right of set-off will apply to my interest in the obligation and to any other amounts I could withdraw on my sole request or endorsement. City of Port Arthur right of set-off does not apply to an account or other obligation where my rights are only as a representative. It also does not apply to any Individual Retirement Account or other tax- deferred retirement account. City of Port Arthur will not be liable for the dishonor of any check when the dishonor occurs because City of Port Arthur set off this debt against any of my accounts. I agree to hold City of Port Arthur harmless from any such claims against any of my accounts. I agree to hold City of Port Arthur harmless from any such claims arising as a result of City of Port Arthur exercise of City of Port Arthur right of set-off. REAL ESTATE OR RESIDENCE OF SECURITY: If this note is secured by real estate or a residence that is personal property, the existence of a default ~nd City of Port Arthur remedies for such a default will be determined by applicable law, by the terms of any separate security instrument, by the "Default" and "Remedies" paragraphs herein. DEFAULT: I will be in default on this loan and any agreement securing this loan if any one or more of the following occurs: (1) I fail to perform any obligation which I have undertaken in this note or any agreement securing this note; or (2) City of Port Arthur, in good faith, believe that the prospect of payment or the prospect of my performance of any--other of my obligations under this note or any agreement securing this note is impaired. If any of us are in default on this note or any security agreement, City of Port Arthur may exercise City of Port Arthur z. note_icon, gol fbreeze3 remedies against any or all of us. REMEDIES: If I am in default on this note, City of Port Arthur has, but is not limited to, the following remedies: (1) City of Port Arthur may demand immediate payment of my debt under this note (principal, accrued unpaid interest and other accrued charges). (2) City of Port Arthur may set off this debt against any right I have to the payment of money from City of Port Arthur, subject to the terms of the "Set-Off" paragraph herein. (3) City of Port Arthur may demand security, additional security, or additional parties to be obligated to pay this note as a condition for not using any other remedy. (4) City of Port Arthur may refuse to make advances to me or allow purchases on credit by me. (5) City of Port Arthur may use any remedy City of Port Arthur have under state or federal law. By selecting any one or more of these remedies City of Port Arthur does not give up City of Port Arthur's right to later use any other remedy. By waiving City of Port Arthur's right to declare an event to be a default, City of Port Arthur does not waive City of Port Arthur's rlght to later consider the event as a default if it continues or happens again. COLLECTION COSTS AND ATTORNEYS FEES: I agree to pay all costs oX collection, replevin or any other or similar type of cost if I am in default. In addition, if City of Port Arthur hires an attorney to collect this note, also agree to pay any fee City of Port Arthur incur with such attorney plus court costs z .note_icon .gol fbreeze3 (except where prohibited by law). To the extent permitted by the United States Bankruptcy Code, I also agree to pay the reasonable attorney's fees and costs City of Port Arthur incur to collect this debt as awarded by any court exercising jurisdiction under the Bankruptcy Code. WAIVER: I give up my rights to require City of Port Arthur to do certain things. I will not require City of Port Arthur to: (1) demand payment of amounts due (presentment); (2) obtain official certification of nonpayment (protest); (3) give notice that amounts due have not been paid (notice of dishonor); (4) give notice or intent to accelerate; (5) give notice of acceleration. OBLIGATIONS INDEPENDENT: understand that I must pay this note even if someone else has also agreed to pay it (by, for example, signing this form or a separate guarantee or endorsement). City of Port Arthur may sue me alone, or anyone else who is obligated on this note~ or any number of us together, to collect this note. City of Port Arthur may do so without notice that it has not been paid (notice of dishonor). City of Port Arthur may without notice release any party to this agreement without releasing any other party. If City of Port Arthur give up any of City of Port Arthur's rights, with or without notice, it will not affect my duty to pay this~note. Any extension of new credit to any of us, or renewal of this note by all or less than all Of us will not release me from my duty to pay it. (Of course, City of Port Arthur is entitled to only one payment in full.) I agree that City of Port Arthur may at City of Port Arthur's option extend this none or the debt represented by this none, or any portion of the none or debt represented by this none, or any pornion of the none or debt, from time nc time without limit or notice and for any form without affecting my liability for payment of the note. I will non assign my obligation under this agreement without City of Port Arthur's prior written approval. CREDIT INFORMATION: I agree and aunhorzze City of Port Arthur no obtain credit information about me from time to 51me for example, by requesting a credit reporn; and to report 5o others City of Port Arthur's credit experience with me such as a credit reporting agency . I agree no provide City of Port Arthur, upon request, any financial statement or information City of Port Arthur may deem necessary. I warrann that the financial snatemenns and information I provide no City of Port Arthur are or will be accurate, correct and complete. NOTICE: Unless otherwzse required by law, any notice 50 me shall be given by delivering it or by mailing in by first class mail addressed no me an my last know~ address. My currenn address is on page 1. I agree no inform City of Port Arthur in writing of any change in my address. I will give any notice 5o City of Port Arthur by mailing 15 flrs5 class to City of Port Arthur's address stated on page 1 of this agreement or to any other address that City of Port Arthur has designated. z. note_~con, gol fbreeze3 EXHIBIT "C" MARTIN STATIONERY ¢O., DALLAS THE STATE OF TEXAS, coUNTY' OF That ICON BUILDERS, LLC AND GOLF BREEZE DEVELOPMENT¥ LLC Know All Men By These Presents: County, Texas, hereinafter called "Debtors" whether one or more masculine, of Jefferson feminine or neuter, in consideration oi the debt hereinafter described and the further consideration of the uses, purposes and trusts herein set forth, have, granted, bargained, sold, aliened, conveyed and confirmed, and by these presents do grant, bar- gain, sell, alien, convey and confirm unto Stephen Fitzgibbons, in his capacity as City Manage, r of the City of Port Arthur, Texas (hereinafter cai'led "Trustee ) and his successors and/or substitutes in trust as hereinafter provided, all of the following described property, lying and situated in the County of Jefferson , in the State of Texas, to-wit: 17.091 acres as more fully described in the Legal Description attached hereto as Exhibit "A" together with all improvements thereon, or hereafter to be placed thereon, and all and singular the rights and appurte- nances to the same belonging or in anywise incident or appertaining. TO HAVE AND TO HOLD unto the Trustee, and to his successors and his and their assigns forever, hereby cov- enanting and agreeing to forever warrant and defend the premises aforesaid, and every part thereof, unto the Trustee and to his successors in trust and his and their assigns against all persons whomsoever lawfully claiming or to claim the same or any part thereof for and upon the following trusts, terms and conditions, to-wit: ~'~ That) 1¥bereas, Debtors are justly indebted to CITY OF PORT ARTHUR hereinafter called "Beneficiaries" whether one or more, masculine, feminine or neuter, as evidenced by certain promissory note(s), of even date herewith, executed by Debtors and payable to the order of Beneficiaries at Jefferson Co~ty , Texas. a~ follows: $160,000 Note at 2% interest as per Developer Participation Contract, as approved by ordinance No. 02-54 and Ordinance No. 04-16 and ordinance No. 05- It is agreed that ii defautt be made in the payment of any principal or interest on said note, or in the performance of the covenants or agreements herein contained, or any of them, then at the option of the legal holder of said note, the whole of the principal debt herein secured shall become due and payable, and may be collected by suit or by proceedings hereunder; ~.~: and it is further agreed that if said indebtedness is not pald when due, and is placed in the hands of an attorney for co[Iec- tion, or if collected through Probate Court, a reasonable amount as provided in said note shall be added as attorney's fees. ;~'~-.'" It is also agreed that this Deed of Trust covers any and all renewals of the above described indebtedness. Now, should Debtors make prompt payment of said indebtedness, and pay, or cause to be paid, all other indebted- ~'2: ness secured by this conveyance, both principal and interest, as the same shall become due and payable, and strictly comply with ail the conditions and requirements herein provided, then this conveyance shall become null and void and of no further force or effect, and shall be released at the cost and expense of Debtors. But should Debtors make default in the punctual z~'~ payment of said indebtedness, or any part thereof, principal or interest, as the same shall become due and payable, or should Debtors in any respect fail to keep and perform any one or more of tbe conditions herein provided to be kept and performed next before the day of sale, by posting up written or printed notices thereof at the Court House Door of each County, in which balance of the purchase money, if any, to tim Debtors, their heirs or assigns; and said sale shall forever be a perpetual bar In case of absence, death, inability, refusaI or failure of the Trustee herein n~med to act, or if Beneficiaries should for any reason whatsoever desire to have another party act as Trustee hereunder, a successor and substitute may be named, con- stituted and appointed by the holder of said indebtedness, without other formality than an appointment and designation in writing; and this conveyance shall vest in him, as Trustee, the estate and title in all said premises and he shall thereupon hold, possess and execute all the title, rights, powers and duties herein conferred on said Trustee named, and his conveyance to the purchaser shall be equally valid and effective; and such right to appoint a successor or substitute Trustee shall exist or will not act or if Beneficiaries as often and whenever from any of said causes, any Trustee, original or substitute, cannot should desire further substitutes for any cause. and provided herein. IT IS UNDERSTOOD AND AGREED, that v-here the phrase, "highest lawful rate (of interest) per annum per- WITNESS h~nd this day o[ , A.D. 2005 ICON BUII~I)BRS · ~ - BY: ....................... ......--c----- ............... BY: ACKNOWLEDGMENT ~:: THE STATE OF TEXAS, ~ BEFORE ME, the undersigned authority, r:~x' ~:>''': ~'q COUNTY OF ................................................... Y ~:~;.: in and fo~' said County, Tcxa~, on this day personally appeared .................................................................................................................... ~::~ ........ he........executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, This .......................... day of ............................ (L S.) Notary Public in and for the State of Texas. ~,~ ACKNOWLEDGblENT THE STATE OF TEXAS, COUNTY OF ..................................................... ........ he........executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, This ............................ day of ................................... (L. S.) ................................................................................................................. CORPORATION ACKNOWLEDGMENT THE STATE OF TEXAS, 1~ BEFORE ME, the undersigned authority, COUNTY ............... / appeared in and for said County, Texas, on this day personally ................................................................................................................. ................................................. known to me to be the person and officer k¢i~'~'~'~"'~;"';;~;~';i'~'i~"to'"ih'g"~'~ih'~-~t~d'~;~ ~nd acknowledged to me that the same was the act of the sard ICON BUILDERS, LLC ~ ~LF B~EZE DE~P~NT, LLC expressed, ~nd ~n ~he capad~y ~here~n stztad. GIVEN UNDER MY HAND~ AND SEAL OF OFFICE, Th~s ............................ d~y o[ ................................... , A.D.2~.... S.) ............................................................................................................... Notary Public in and for the State of Texas. My Commission Expires .....................................................................