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Contract 50588
CITY SECRETARY — Q� RIGHT OF WAY CONTRACT No.ENCROACHMENT AGREEMENT 'e, PQ�' y (COMMERCIAL) cF GQ� &I ,� THIS AGREEMENT is made and entered into by and between the City of Fort ,, rth, a home rule municipal corporation of Tarrant County, Texas ("City"), acting _�nerein by and through its duly authorized City Manager, its duly authorized Assistant City Manager or Planning and Development Department Director, and _1813 W Bowie, LLC[full legal name], a(n) Limited Liability Corporation[type of entity] "Licensee", acting herein by and through its duly authorized Manager[title], the owner of the real property located at 1813 W Bowie Street, Fort Worth, Texas 76111("Property"). RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property; and WHEREAS, the City has a street, alley, sidewalk, and/or other public right-of- way (individually or collectively, the "Public Right-of-Way") adjacent to the Property as shown on the map attached to this Agreement as Exhibit "A" and incorporated herein for all purposes; and WHEREAS, Licensee desires to construct/place and maintain certain improvements which will encroach onto the Public Right-of-Way; and WHEREAS, City will allow the encroachment under the terms and conditions as set forth in this Agreement to accommodate the needs of the Licensee, NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the payment by Licensee of the fee set out below and covenants and agreements hereinafter contained, to be kept and performed by Licensee, hereby grants permission to Licensee to encroach upon, use and/or occupy portions of the space under, on, and/or above the City's Public Right-of-Way to construct/install and/or allow to remain, certain improvements for the purpose of Domestic Fire Services (whether one or more, the "Improvements") as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Improvements, Licensee agrees to be responsible for maintaining the Improvements. Licensee shall not expand or otherwise cause the Improvements to further infringe in or on City's Public Right-of-Way beyond what is specifically described in the Exhibit(s) attached hereto. OFFICIAL.RECORD CITY SECRETARY ROW Encroachment Agreement-Commercial FT.WORTH,4X Page 1 of 11 Revised 10/2017 2. All construction, maintenance and operation in connection with such Improvements, use and occupancy shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes, and in accordance with the directions of the City's Director of Transportation and Public Works, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the construction of the Improvements. Licensee shall not commence construction of the Improvements until receiving written approval by the Director, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of the construction and installation of the Improvements, there shall be no other encroachments in, under, on or above the surface area of the Public Right-of-Way, except as described herein and depicted on Exhibit "A". 4. Licensee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities affected by such encroachment, use and occupancy, including the securing of approval and consent from any affected utility companies and the appropriate agencies of the State of Texas and its political subdivisions. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of such encroachment and use, Licensee shall pay to City an additional amount equal to such additional cost as determined in the reasonable discretion of the Director of Transportation and Public Works, or his or her duly authorized representative. 5. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Improvements installed by Licensee, but City will make reasonable efforts to minimize such damage. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of the Improvements and use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public ROW Encroachment Agreement-Commercial Page 2 of 11 Revised 10/2017 Works or the Director of the Water Department, or said Director's duly authorized representative. 6. Licensee agrees to pay to City at the time this Agreement is requested an application fee of$325.00 in order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement. Licensee agrees to pay a fee in the amount of$.56 per square/linear foot of the encroachment area upon execution of this Agreement and annually thereafter. 7. The term of this Agreement shall be for 30 years commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within 30 days, this Agreement shall be deemed terminated unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance within 30 days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 8. Upon termination of this Agreement, Licensee shall at no expense to City remove the Improvements encroaching into the Public Right-of-Way, and restore the Public Right-of-Way to a condition acceptable to the Director of Transportation and Public Works, or his or her duly authorized representative, in accordance with then-existing City specifications. It is understood and agreed by Licensee that if this Agreement terminates and Licensee fails to remove the Improvements and restore the Public Right-of-Way, Owner hereby gives City permission to remove the Improvements along with any supporting structures, restore the Public Right-of-Way, and assess a lien on the Property for the costs expended by the City in taking such actions. 9. It is further understood and agreed between the parties hereto that the Public Right-of-Way to be used and encroached upon as described herein, is held by City as trustee for the public; that City exercises such powers over the public right-of way as have been delegated to it by the Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract away its duty and its legislative power to control the Public Right-of-Way for the use and benefit of the public. It is accordingly agreed that if the governing body of City may at any time during the term hereof determine in its sole discretion to use or cause or permit the Public Right-of-Way to be used for any other public purpose, including but not limited to, underground, surface or ROW Encroachment Agreement-Commercial Page 3 of 11 Revised 10/2017 overhead communication, drainage, sanitary sewerage, transmission of natural gas or electricity, or any other public purpose, whether presently contemplated or not, that this Agreement shall terminate upon 60 days' written notice to Licensee. In the event this Agreement is terminated under this Section 9, Licensee shall perform the obligations regarding removing the Improvements and restoring the Public Right-of-Way described in Section 8. 10. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to construct, maintain and locate the Improvements over or within the described Public Right-of-Way and is not a conveyance of any right, title or interest in or to the Public Right-of-Way nor is it meant to convey any right to use or occupy any property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying such property. 11. Licensee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of the Improvements, encroachment and uses. 12. Licensee agrees to pay promptly when due all fees, taxes or rentals provided for by this Agreement or by any federal, state or local statute, law or regulation. 13. Licensee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant or employee of City, and Licensee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. 14. LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, ROW Encroachment Agreement-Commercial Page 4 of 11 Revised 10/2017 ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE IMPROVEMENTS AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE IMPROVEMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 15. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance naming City as certificate holder, as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of public property as described or depicted in Exhibit "A". The amounts of such insurance shall be not less than $1,000,000 Commercial General Liability With the understanding and agreement by Licensee that such insurance amounts may be revised upward at City's option and that Licensee shall so revise such amounts promptly following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least 30 days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Exhibit "B" and incorporated herein for all purposes. Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Licensee agrees, binds and obligates itself, its successors and assigns, to maintain and keep in force such public liability insurance at all times during the term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the Public Right-of-Way. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 16. Licensee agrees to deposit with the City when this Agreement is executed a sufficient sum of money to be used to pay the fees to record this Agreement in the Real ROW Encroachment Agreement-Commercial Page 5 of 11 Revised 10/2017 Property Records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 17. In any action brought by the City for the enforcement of the obligations of the Licensee, City shall be entitled to recover interest and reasonable attorney's fees. 18. Licensee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this Agreement without the prior written approval of the City, and any attempted assignment without such written approval shall be void. In the event Licensee conveys the Property, Licensee may assign all of its rights and obligations under this Agreement to the new owner of the Property, and Licensee shall be deemed released from its duties and obligations hereunder upon City's approval in writing of such assignment, which approval shall not be unreasonably conditioned or withheld. Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within 60 days of such foreclosure or assignment and assumes all of Licensees' rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 19. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATIONS CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 20. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. 21. This Agreement shall be binding upon the parties hereto, their successors and assigns. [SIGNATURES APPEAR ON FOLLOWING PAGE] ROW Encroachment Agreement-Commercial Page 6 of 11 Revised 10/2017 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. City Licensee: CITY OF FORT WORTH 1813 W Bowie,LLC By: pamil By: Randle Harwood Name: Dak Hatfield �1 Director Title: Manager Planning and Development Date: — [- 202 ATTEST:' Approved As To Form and Legality ity Se 'ffi` 4' Assistant City Attorney V' ;2 M &C: x 1295: ETH.W ORt� 'ARY TX 2015 Easement EncroacL������t Ag em ent-Commercial age 7 of 11 Rev.02/2015 Contract Compliance Manager By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and report requirements. Janie Scarlett Morales Development Manager OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on Angy., a , 2012 by Randy Harwood, Director of the Planning and Development Department of the City of Fort Worth, on behalf the City of Fort`JV tcqatNot Pulic, to of fex.4 JENNIFER LOUISE EZERNACK �lNotary Public,State of Texas Comm.Expires 03-01-2020 '',;�;,`,•�` Notary ID 130561630 After Recording Return to: Cassandra Foreman Planning and Development Department 1000 Throckmorton Street Fort Worth TX, 76102 2015 Easement Encroac-,uj,ert Agreement-Commercial Page 8 of 11 Rev.02/2015 STATE OF § COUNTY § BEFORE ME, the undersigned authority, a Notary P1in and f�orr the State of -4 Texas, on this day personally appeared bo '_i ) , 462 � (title), known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein-expressed, as the act and deed of L(3 W 63-44- . �C_ , a ty_:4,j I ,.moi C.-22e- in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this��day of , 20 �� . RACHAEL S.PONDEXTER / Notary ID#125419600 My Commission Expires Jan 11,2021 Notary Public in and for the State of (- 2015 Easement Encroachment Avr ee„ment-Commercial Page 9 of 11 Rev.02/2015 LEGAL DESCRIPTION OF THE PROPERTY 2015 Ease cnt Encroachment Agreement-Commercial Page 10 of 11 Rev. 02/2015 EXHIBIT "A" Map of Encroachment and Easement 2015 EaseimMIAL Encroachment Ag eernent-Commercial Page 11 of 11 Rev.02/2015 w w w w w W i t LOT 1 — — — _ LOT 16 BLOCK 29 / (P PROSPECT HEIGHTS ADDITION CAB.B,PG.233 P.R.T.C.T LOT 2 LLANE Z i_ m I I ! / / M I f / (PART OF) LU a LOT 15 ' Q / I -- - _. "x CUT 2.i' ^ EX.PRIVATE 6"FIRE LINE I � i�� TRACT 2&4 i LOT 3 �I m r .. D (PART 4F) LOT 14 BLOCK 29 y P I ;:• PROSPECT HEIGHTS ti t -'y VOL.63,PAGE 59-60 f �� lr' P.R.T.C.T. CIR i 'F J /� EX. BUILDING — — PRIVATE WATER CROSSING LEY 84 SQ.FT. g 1 Q BLOCK 29 PROSPECT HEIGHTS 5 Xr VOL.63,PAGE 59.60 1 1 j W ' f P.R.T.C.T. LOT 4 W y"I ! - LOT 13 CL 1/21' 1R ' LOT 12 f I V(PARTOF)LOT 5-R-1 �� ell PROSPECT HEIGHTS ADDITIONVOL.388-113,PG 476 P.R.T.C.T. GRAPHIC SCALE 40 0 20 40 80 1 Inch-40 ft. PRELIMINARY TEXAS REGISTRATION#1419Q- - -------------- -- - - - FOR REVIEW ONLY Not for construction purposes. ENCROACHMENT EXHIBIT#1 - SHEET 1 OF 1 CLAYMORE ENGINEERING NGWEERING AND PLANNING CONSULTANT ENGINEERING E„Flnoor CLAY CRISTY I-1903 CENTRAL DRIVE,suITE#406 ENCROACHMENT 1813 W BOWIE ST. 109800 3/8/2018 BEDFORD,TX 76021 AGREEMENT FORT WORTH,TX P•E. No. 4ete PHONE:817.281.0572 VVWW.CLAYMOOREENG.COM Client#:68318,om*, I&P%DOAKRE ACORD,. CERTIFICA a c OF LIABILITY INSURAiv,;E DATE(MM/DD/YYYY) 03/13/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(les)must be endorsed.If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER NAME:ICT Kay Lavender Wortham Insurance&Risk Mgmt. ��"�"N Est:817 336-3030 FAX ac No): 817-336-8257 1600 West Seventh Street E-MAIL ADDRESS: Fort Worth,TX 76102-2505 INSURER(S)AFFORDING COVERAGE NAIC a 817 336-3030 INSURER A:continental Insurable Company 35289 INSURED INSURER B: th pa20443 District 90, LLC/1813 W. Bowie, LLC continental Casw Company Red Oak Realty, LLC INSURER C:National Fire insurance co of H 20478 500 West 7th Street,Suite 1212 Unit 44 INSURER D: INSURER E: Fort Worth,TX 76102 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUB POLICY EFF POLICY EXP LIMITS LTR N R WVD POLICY NUMBER MM/DD/YYYY MM/DD/YYYY A X COMMERCIAL GENERAL LIABILITY C5088174897 4/09/2017 04/09/201 -EACH OCCURRENCE $1,000,000 LX CLAIMS-MADE OCCUR PEREMISES EaocTE.,`a a 000,000 MED EXP(Any one person) $5,000 PERSONAL BADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 POLICY� ECOT �f LOC PRODUCTS-COMP/OP AGG $2,000,000 OTHER: $ (, AUTOMOBILE LIABILITY 05088174804 4/09/2017 04/09/201 EaD rt)SINGLE LIMIT $1,000,000 ANY AUTO BODILY INJURY(Per person) S ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY(Per accident) $ NON-OWNED PROPERTY DAMAGE $ X HIRED AUTOS X AUTOS Per accident B X1 UMBRELLA LIAB X OCCUR C5088174849 09/2017 04/09/201 a EACH OCCURRENCE _,S10,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000 DED I X RETENTION$10000 $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS'LIABILITY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE S If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT S DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) CNA Paramount Additional Insured Mortgagee,Assignee or Receiver Endorsement No.CNA74969XX(1-15) Reference Entity Name: 1813 W. Bowie, LLC; Location-1813 W. Bowie, Fort Worth,TX 76110 CERTIFICATE HOLDER CANCELLATION ANYBE City of Fort Worth CFA Office- SHOULD XP RATTIIONHDATE VTHEREOF,E NOTICEIEELLED WILLL CBE CDELIVEREDO NE PN18-00031 ACCORDANCE WITH THE POLICY PROVISIONS. 200 Texas Street Fort Worth,TX 76102 AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION.All rights reserved. ACORD 25(2014/01) 1 Of 1 The ACORD name and logo are registered marks of ACORD #S883496/M763444 18BKL .+� Ask CMA CNA PARAMOUNT Additional Insured Mortgagee, Assignee or Receiver Endorsement This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Person Or Organization Designation Of Premises Information required to complete this Schedule, if not shown above,will be shown in the Declarations. It is understood and agreed that the section entitled WHO IS AN INSURED is amended with the addition of the following: Ln A. The person or organization shown in the Schedule is an Insured, but only with respect to such person or g organization's liability for bodily Injury, property damage or personal and adve tlskV Injury as mortgagee, assignee, or receiver and arising out of the Named humred's ownership, maintenance, or use of the premises shown in the Schedule. The coverage granted by this endorsement does not apply to structural alterations, new construction of demolition operations performed by, for or on behalf of the person or organization shown in the Schedule. B. Further, if coverage for the additional Insured is required by written contract or written agreement, subjeot always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional Insured with: g 1. coverage broader than required by such contract or agreement; or 2. a higher limit of insurance than required by such contract or agreement. Any coverage granted by this endorsement shall apply solely to the extent permissible by law. slam All other terms and conditions of the Policy remain unchanged. This endorsement,which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. s� CNA74969XX(1-15) Policy No: 5088174897 Page 1 of 1 indorsement No: 1.1 The Continental Insurance Co. Effective Date: 04/09/2017 Insured Name:RED OAK REALTY LLC Copyright CNA AN RW to Reserved. Indudea copyroted maWkI of Insurance SmIces Othm,Inc.,whh tts pwtfftubn.