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Doc ID : 013301040002 Type : REL ry
Kind : ORDINANCE o
Recorded : 02/11/2010 at 02 : 19 : 33 PM c
Fee Amt : $20 . 00 Pace 1 of 2 �r,� T
Washincton Countv . AR A% fn
Bette Stamps Circuit Clerk =Q"C7 W
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ORDINANCE NO. 5305
AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE AND
AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES FOR THE
DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF CITY
PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS OF
FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD ON MAY 18,
2010
WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and
Restaurant tax nor have any effect other than to establish a special city fund in which Parks
HMR revenue could be used for the development, construction and maintenance of city parks;
and
WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which
authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development
of City parks; and
WHEREAS, Arkansas statutes would also allow the use of revenues from this existing
Park HMR for maintenance of city parks if approved by Fayetteville voters; and
WHEREAS, the citizens of Fayetteville will be better served by allowing the use of
revenues from the existing Parks HMR not only for development of our many parks, but also for
their maintenance.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 2 (a) of Ordinance No. 3900 by repealing it and enacting the following in its stead:
"(a) The revenues collected from the Parks Hotel, Motel and Restaurant
Tax shall be used by the Fayetteville Parks and Recreation Department for
development, construction and maintenance of City parks."
I
Page 2
Ordinance No. 5305
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 5 (c) of Ordinance No. 3900 by repealing it in its entirety and enacting the following in
its stead:
"(c) The following question shall be placed upon the ballot for the special
election to be held during the Preferential Primary and Nonpartisan
General Election on May 18, 2010:
"FOR proposed Ordinance No. 065 amending Ordinance No.3900 by
authorizing and dedicating the revenue from the existing Parks Hotel,
Motel and Restaurant tax to be used for the development, construction and
maintenance of city parks.
"AGAINST proposed Ordinance No. 5365 amending Ordinance
No.3900 by authorizing and dedicating the revenue from the existing
Parks Hotel, Motel and Restaurant tax to be used for the
development,construction and maintenance of city parks."
Section 3 : That the City Council of the City of Fayetteville, Arkansas hereby determines
that the Ballot Title shall be: "An Ordinance To Amend Ordinance No. 3900 To Authorize Use
Of The Revenue From The Existing Parks Hotel, Motel And Restaurant Tax For Development,
Construction and Maintenance of City Parks."
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby refers this
proposed ordinance allowing the usage of revenue from the existing Parks HMR tax for
maintenance of city parks to the qualified electors of the City of Fayetteville, Arkansas, for a
special election to be held on May 18, 2010. This ordinance shall only take effect if approved
and ratified by the Fayetteville voters in the special election of May 18, 2010. If not approved
and ratified by the Fayetteville voters, this ordinance shall be null and void and have no effect
upon the existing Ordinance No. 3900, nor the existing Parks Hotel, Motel and Restaurant tax.
PASSED and APPROVED this 2"d day of February, 2010.
APPROVED: ATTEST:
c
By: , ,� By: yt( J
O ELD JO Mayor SONDRA E. SMITH, City lerk/Treas`u��,, ,, ,
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AGENDA REQUEST
FOR: COUNCIL MEETING OF JANUARY 5, 2010
FROM:
ALDERMAN BOBBY FERRELL, ALDERMAN SHIRLEY LUCAS, ALDERMAN
ADELLA GRAY, ALDERMAN SARAH LEWIS, ALDERMAN BRENDA THIEL,
ALDERMAN KYLE COOK, ALDERMAN ROBERT RHOADS and ALDERMAN
MATTHEW PETTY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Amend Ordinance No. 3900 To Dedicate And Authorize The Use Of The Parks
HMR Tax Revenues For The Development, Construction And Maintenance Of City Parks, And To
Refer Such Ordinance To The Electors Of Fayetteville At A Special Election To Be Held On March
9, 2010
APPROVED FOR AGENDA:
/2 Zj d
Alderman B b Ferrell Date Alderman Robert Rhoads Date
/ of
Alderman Sarah Lew' Date Alderman Slurley Lucas Date
/.t -j- , a
Alderman Brenda Thiel Dae Alderman Adella Gra Date
4,/f
wJ � lz'z9 7cj
Alderman MatthewDate
tty Alan Kyle Cook Date
12 . 17 - oq
qKit it m, ity Attorney Date
(approved as to form)
Tal cd 'l� c o2/)-/10 CC .
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FAYETTEVILLE
THE CRY OF FAYETTEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT
TO: Alderman Bobby Ferrell
Alderman Shirley Lucas
FROM : Kit Williams, City Attorney
DATE : December 9, 2009
RE : Special Election for Ordinance to Amend Parks HMR Tax Uses to
include maintenance
Reviewing A.C.A. §7-5- 103 (b)(7), I find that if the special election is not
during a month in this a primary or general election is held, "the special election
shall be held not less than fifty (50) days following the date that the proclamation,
ordinance, resolution or order is published ."
Therefore, we do not legally have to conduct a special City Council meeting
in December to meet the March 9th election date. I will leave it up to you to
determine the best policy decision for the ordinance. The ordinance would have to
be passed prior to your January 19, 2010 City Council meeting to meet the
statutory requirement for a special election on March 9, 2010 .
Attached is my proposed ordinance with a tentative date of January 5 , 2010.
I believe this proposed ordinance (which amends the existing Ordinance No. 3900)
would authorize use of the Parks 14MR tax revenues for maintenance (as well as
development and construction) of city parks. If it is rejected by the voters, then
Ordinance No. 3900 will not be amended and will continue to restrict use of the
Parks 14MR revenues for promotion and development of city parks.
FAYETTEVILLE
THE CRY OF FAYE7TEVILLE, ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT
TO: Lioneld Jordan, Mayor
City Council
CC : Don Marr, Chief of Staff
Connie Edmonston, Parks and Recreation & Open Spaces Director
FROM: Kit Williams, City Attorney Aeevx- -4e�
DATE: January 13, 2010
RE: Original intent of Parks HMR taxes
History Of Adoption Of Parks HMR Tax
I have done some research into the official City Council minutes to ensure that my
memory that the Parks HMR taxes were to be used for maintenance of city parks as well
as their development was correct. I believe the proposed Parks HMR tax was also
discussed during the City Council Agenda Session in June of 1995, but there are no
minutes for those meetings.
On June 20, 1995, the City Council first heard City Attorney Jerry Rose read the
ordinance prior to discussion. The ordinance that eventually passed and was later ratified
by the voters stated in § 2 (b):
"(b) Proceeds of the additional I % tax shall be deposited into
a special fund established by the City to be used for the
development, construction, and maintenance of city parks. The
funds shall be disbursed by the Mayor upon approval of the City
Council ." (emphasis added)
This proposal was championed by the Parks and Recreational Advisory Board,
especially its chairman, Susan Driver. She initially told the City Council about the study
to improve our city parks and stated that the "first priority of that study was to seek
additional funding for maintenance and development of new and existing facilities."
(page 203 of the City Council meeting minutes for June 20, 1995) (emphasis added)
Bill Waite of the Parks and Recreation Advisory Board was also present and told
the City Council that the Parks Department "had had no increase in administrative
funding for the past ten years." Id.
"Susan driver emphasized that the HMR tax would be a
source of funding that could be used for acquisition,
development and maintenance .. . ." Id. (emphasis added)
I was then an Alderman and asked City Attorney Jerry Rose about the possible
uses of the Parks HMR tax. "In response to a question from Alderman Williams, City
Attorney Rose said that the ordinance calls for the development, construction and
maintenance of city parks." (page 204 of the City Council Meeting Minutes, page 204)
(emphasis added).
Morty Newmark spoke as a citizen in favor of the Parks HMR tax as a way to
"ensure maintenance and development of recreation areas." Id. The ordinance was left
on the first reading.
The ordinance was considered again during the July 5, 1995 City Council meeting.
Issues about whether a temporary sales tax would be better than the permanent Parks
HMR were discussed, but there was no further discussion about how the Parks HMR tax
could be used. The City Council then passed the ordinance with a referral to the voters. I
have attached the relevant minutes to this memo.
Although the City Council minutes clearly reflect the intent that the Parks HMR
tax would be able to be used for park maintenance, Section 2 (a) of . the ordinance
specified a different purpose:
"Section 2 . (a) The revenues collected from the additional
tax of 1 % shall be used by the City Parks and recreation
Department for the promotion and development of City parks
and recreation areas."
The title of the ordinance listed this same purpose. Most importantly the ballot
submitted to the Fayetteville voters stated the tax was "to be used by the City Parks and
Recreation Department for the promotion and development of City parks and recreation
areas.,, -
Constitutional Analysis
The expressed "purpose" of the Parks HMR tax in the ballot ordinance and
especially on the ballot is critical when determining what it can be used for. Taxes can
only be used for the PURPOSE for which they were levied.
2
Article 16 § 11 of the Arkansas Constitution states:
"No tax shall be levied except in pursuant of law, and every
law imposing a tax shall state distinctly the object of the same;
and no money arising form a tax levied for one purpose
shall be used for any other purpose." (emphasis added)
Even though the ordinance in Section 2 (b) speaks about a fund being established
to be used for construction and maintenance of city parks, the earlier Section 2 (a)
requires the use "for promotion and development of City parks . .. ." If there is any
uncertainty the ballot controls.
"Whether the government entity levying and collecting the tax
intended to put the revenues to `good use' is of no consequence,
so long as the funds are being spent on any purpose other than
those specified on the ballot." Daniel v. Jones, 332 Ark. 489,
966 S.W. 2d 226, 231 ( 1998). (emphasis added)
"The voters of White County were entitled to rely upon the
information provided to them in the levying ordinance and the
ballot when casting their votes; hence, any use of the revenues for
purposes other than those provided constitutes an illegal
exaction. The conclusion is consistent with this court' s long=held
position that the ballot title is the final, definitive statement to the
voters as to that which they are being asked to decide. Id. at 231 .
(emphasis added)
The Arkansas Supreme Court has held that a City Council' s use of tax revenue for
purposes not found on the ballot to be an illegal exaction (with appropriate attorney fees
and damages). Maas v. City of Mountain Home, 338 Ark. 202, 992 S .W. 2d 105 ( 1999).
Conclusion
Although the City Council meeting minutes of June 20, 1995 makes it clear that
everyone intended that the Parks HMR tax if approved by the voters would be able to e
used for "development, construction and maintenance of city parks", a drafting error in
the ordinance and ballot has limited the uses to promotion and development of city parks.
The proposed amended ordinance to be referred to the voters would correct that mistake
and allow the over $2 million Parks HMR tax revenue to be used as originally intended in
1995 .
3
ORDINANCE NO.
AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE
AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES
FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF
CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS
OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD ON
MAY 189 2010
WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and
Restaurant tax nor have any effect other than to establish a special city fund in which Parks
HMR revenue could be used for the development, construction and maintenance of city parks;
and
WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which
authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development
of City parks; and
WHEREAS, Arkansas statutes would also allow the use of revenues from this existing
Park HMR for maintenance of city parks if approved by Fayetteville voters; and
WHEREAS, the citizens of Fayetteville will be better served by allowing the use of
revenues from the existing Parks HMR not only for development of our many parks, but also for
their maintenance.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 2 (a) of Ordinance No. 3900 by repealing it and enacting the following in its stead :
"(a) The revenues collected from the Parks Hotel, Motel and Restaurant
Tax shall be used by the Fayetteville Parks and Recreation Department
for development, construction and maintenance of City parks."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 5 (c) of Ordinance No. 3900 by repealing it in its entirety and enacting the following in
its stead:
"(c) The following question shall be placed upon the ballot for
the special election to be held during the Preferential Primary
and Nonpartisan General Election on May 18, 2010 :
"FOR proposed Ordinance No. amending Ordinance No.
3900 by authorizing and dedicating the revenue from the existing
Parks Hotel, Motel and Restaurant tax to be used for the development,
construction and maintenance of city parks.
"AGAINST proposed Ordinance No. amending Ordinance No.
3900 by authorizing and dedicating the revenue from the existing
Parks Hotel, Motel and Restaurant tax to be used for the development,
construction and maintenance of city parks."
Section 3 : That the City Council of the City of Fayetteville, Arkansas hereby determines
that the Ballot Title shall be: "An Ordinance To Amend Ordinance No. 3900 To Authorize Use
Of The Revenue From The Existing Parks Hotel, Motel And Restaurant Tax For Development,
Construction and Maintenance of City Parks."
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby refers this
proposed ordinance allowing the usage of revenue from the existing Parks HMR tax for
maintenance of city parks to the qualified electors of the City of Fayetteville, Arkansas, for a
special election to be held on May 18, 2010. This ordinance shall only take effect if approved
and ratified by the Fayetteville voters in the special election of May 18, 2010. If not approved
and ratified by the Fayetteville voters, this ordinance shall be null and void and have no effect
upon the existing Ordinance No. 3900, nor the existing Parks Hotel, Motel and Restaurant tax.
PASSED and APPROVED this 2"d day of January, 2010.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
Viral wo. -
74OA4dd ad- erd 09-tW14 -/a
ORDINANCE NO.
AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE
AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES
FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF
CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS
OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD ON
MAY 18, 2010
WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and
Restaurant tax nor have any effect other than to establish a special city fund in which Parks
HMR revenue could be used for the development, construction and maintenance of city parks;
and
WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which
authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development
of City parks; and
WHEREAS, Arkansas statutes would also allow the use of revenues from this existing
Park HMR for maintenance of city parks if approved by Fayetteville voters; and
WHEREAS, the citizens of Fayetteville will be better served by allowing the use of
revenues from the existing Parks HMR not only for development of our many parks, but also for
their maintenance.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 2 (a) of Ordinance No. 3900 by repealing it and enacting the following in its stead:
"(a) The revenues collected from the Parks Hotel, Motel and Restaurant
Tax shall be used by the Fayetteville Parks and Recreation Department
for development, construction and maintenance of City parks."
Section 2 : That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 5 (c) of Ordinance No. 3900 by repealing it in its entirety and enacting the following in
its stead:
"(c) The following question shall be placed upon the ballot for
the special election to be held on May 18, 2010:
"FOR proposed Ordinance No. amending Ordinance No.
3900.
"AGAINST proposed Ordinance No. amending Ordinance No.
3900."
Section 3 : That the City Council of the City of Fayetteville, Arkansas hereby determines
that the Ballot Title shall be: "An Ordinance To Amend Ordinance No. 3900 To Authorize Use
Of The Revenue From The Existing Parks Hotel, Motel And Restaurant Tax For Development,
Construction and Maintenance of City Parks."
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby refers this
proposed ordinance allowing the usage of revenue from the existing Parks HMR tax for
maintenance of city parks to the qualified electors of the City of Fayetteville, Arkansas, for a
special election to be held on May 18, 2010. This ordinance shall only take effect if approved
and ratified by the Fayetteville voters in the special election of May 18, 2010. If not approved
and ratified by the Fayetteville voters, this ordinance shall be null and void and have no effect
upon the existing Ordinance No. 3900, nor the existing Parks Hotel, Motel and Restaurant tax.
PASSED and APPROVED this 19`h day of January, 2010.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E, SMITH, City Clerk/Treasurer
l�,ev�sed
I - ofo -aolD
ORDINANCE NO,
AN ORDINANCE TO AMEND ORDINANCE NO. 3900 TO DEDICATE
AND AUTHORIZE THE USE OF THE PARKS HMR TAX REVENUES
FOR THE DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF
CITY PARKS, AND TO REFER SUCH ORDINANCE TO THE ELECTORS
OF FAYETTEVILLE AT A SPECIAL ELECTION TO BE HELD
DURING THE PREFERENTIAL PRIMARY AND NONPARTISAN GENERAL
ELECTION ON MAY 189 2010
WHEREAS, this proposed ordinance will not raise the current Parks Hotel, Motel and
Restaurant tax nor have any effect other than to establish a special city fund in which Parks
HMR revenue could be used for the development, construction and maintenance of city parks;
and
WHEREAS, the voters of Fayetteville approved Ordinance No. 3900 in 1995 which
authorized the use of the Parks Hotel, Motel and Restaurant tax for promotion and development
of City parks; and
WHEREAS, Arkansas statutes would also allow the use of revenues from this existing
Park HMR for maintenance of city parks if approved by Fayetteville voters; and
WHEREAS, the citizens of Fayetteville will be better served by allowing the use of
revenues from the existing Parks HMR not only for development of our many parks, but also for
their maintenance.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby amends
Section 2 (a) of Ordinance No. 3900 by repealing §2(a) and enacting the following in its stead:
"(a) The revenues collected from the Parks Hotel, Motel and Restaurant
Tax shall be used by the Fayetteville Parks and Recreation Department
for development, construction and maintenance of City parks."
NORTHWEST ARKANSAS
NE\'VSPAPERS-
Northwest Arkansas Democrat Gazette
The Morning News of Springdale
The Morning News of Rogers
Northwest Arkansas Times
Benton County Daily Record
2 1 2 N o rth East Aven ue''*"'ïiläft'Ë
? "î\!r'::;', _83';i.
1 607' 7 27 0 2
AFFI DAVIT OF PUBLICATION
l, Cathy wiles, do solemnly swear that I am Legal Clerk of the Northwest
Arkonsos Newspapers LLC. Printed and published in Benton county
Arkansas, (Lowell) and that from my own personal knowredge and
reference to the files of said publication, the advertisement of: City of
Fayetteville -Ordinance 5305
February 12,2010
Publication Charge : $ 212.41
sisned: þ,%frù-U
Subscribed and sworn to before me
This f ! day of rjL. , 2010.
Notary Public
My Commission Expires:
Do not pay from Affidavit, an invoice will be sent
, CERTIFICATE OF WASHINGTON COUNTY BOARD OF
ELECTION COMMISSIONERS ASCERTAINING
AND DECLARING RESULTS OF SPECIAL ELECTION HELD
IN THE CITY OF FAYETTEVILLE, ARKANSAS ON
MAy r8,2o1o fi il r¡ I g:OS
STATE OF ARKANSAS
COUNTY OF V/ASHINGTON
Washington County, Arkansas, do hereby certify that the following is a true and 6rect
abstract of votes cast in the Special Election held in the City of FayettciyilË, Arlffisas
(the "City"), on the 18th day of Muy, 2010. '
&#, E .jj
The results of the vote upon the questions submitte o
^r" ^W, ? ffi
We, the duly commissioned and acting Election Commissioners of
An Ordinance to Amend Ordinance No. 3900 to authorize use of the réfdÉÊiÞfrom¡lhe
existing Parks Hotel, Motel and Restaurant Tax for development, "ffiffiion åhd
)
)
)
maintenance of city parks.
For Proposed Ordinance No. 5305 7.539
Against Proposed Ordinance No. 5305 1.748
We further certify that the polls were open from 7:30 a.m. until 7:30 p.m.;
that only qualified electors of the City were permitted to vote in said election; that the
duly appointed judges and clerks made due returns of the votes cast; and that we
canvassed the votes as required by law.
IN TESTIMONY WHEREOF, we hereunto set our hands this 28tr'day of
May,2010.
COUNTY BOARD OF
ELECTIONCOMMISSIONERS FOR
N COLiNTY, ARKANSAS
SU},IMARY REPORT
Run Date:05/28/L0 12:06 Pl4
Fayetteviì'le Specìal Election
Vote for 1
FOR proposed Ordinance No.
AGAINST proposed Ordinance
2010 Preferentiai Primary
Washington County, AR
May 18, 20i0
VOTES PERCENT
5305 .
No. 530
7.539 81.i8
t,748 18.82
OFFICIAL RTSULTS
Report EL45 Page 001
RECEIVED
JUN 2 5 2010
CITY OF FAYETTEVILLE
CIW CLERKS OFFICE
NET'I/SPAPERS*
Northwest Arkansas Democrat Gazette
The Morning News of Springdale
The Morning News of Rogers
Northwest Arkansas Times
Benton County Daily Record
2 1 2 N o rt h East Ave n u e''"'"'iljläft '[ï " i\"'_::; i -E"r:î
1 6 07' 7 27 o 2
AFFIDAVIT OF PUBLICATION
l, Cathy wiles, do solemnly swear that I am Legal Clerk of the NorThwest
Arkonsos Newspapers LLC. Printed and published in Washington & Benton
county, (Lowell), Arkansas and that from my own personar knowledge
and reference to the files of said publication, the advertisement of: City
of Fayetteville -Proclamation
Iune 17,20IO
Publication Charge : $ 58.37
NORTHWEST ARKANSAS
to before me
,2010.
Subscribed
This?3 day
Notary Public
My Commission Expires:
¿ $*-t T-Lûr{
and sworn
ot þt
JOSHUA M TYNCH
Notory Puþlic-Arkonsos
WoshingTon County
My Commisslon Exp¡rês I 0-28-20 i I
I
Commlsslon # 12ð68414 I
Do not pay from Affidavit, an invoice will be sent