HomeMy WebLinkAboutbocc.con.176.2015 Rev. 08-30-11 jls
s-a COUNTY CLERK'S
CONTRACT COVERSHEET
CONTRACT #: 176.2015
ORIGINATING DEPARTMENT: Public Works
PROCUREMENT OFFICER: Brian Pettet PHONE#: 5392
PROJECT NAME: Fuse PreConstruction and Architectural Design CONTRACTOR: Brush
Creek Land Co
DOLLAR AMOUNT: $59,840.00 LINE ITEM# 122.63.91167.86000
CONTRACT EXECUTION DATE: 6/5/2015 CONTRACT END DATE: 6/5/2016
AUTOMATIC RENEWAL: ❑YES ®NO TERM: 1 year
❑ BOCC AGENDA ITEM(Grants,IGA) ❑ STAFF AUTHORIZED SIGNATURE
(Requires BOCC Signature) (Per Revised Procurement Code 7/2005)
® OVER$50,000 (Requires Section Leader&County Manager's Signature)
✓ CHECK PROCUREMENT TYPE:
®None ❑ Informal ❑Formal ❑ Sole Source 0 Emergency ❑ Outside Agency/State Bid
❑ Compliance with C.R.S. 8-17-5-101, 102 as amended(Immigration Form) ❑ Exempt
❑ Contract Renewal
✓ CHECK CONTRACT TYPE:
® Services/Maintenance 0 Employment
❑ License/Use ❑Intergovernmental Agreement(Resolution Required)
❑ Lease ❑Non-Profit
❑ Construction ❑Quasi-Public(e.g.-AVH)
❑ Goods,Equipment, Supplies ❑ Grant Agreements(Notify Finance&Resolution Required)
❑ Other(e.g. revenue) ❑ Change Order/Contract Amendment
(C/O: 10%or$25K whichever is the lesser must have County Manager signature)
All Contracts should be proofed and all exhibits and notices must be attached for the following:
✓ ®No Pages Missing ✓®All Other Blanks Filled In
✓ ® If Page Left Intentionally Blank—Note on Page V®All Exhibits Attached
✓ ®Page numbered consecutively ✓® All Legal Descriptions attached (if applicable)
✓ ®All Original Signatures Affixed ✓®Notice of Award/Notice to Proceed Attached (f applicab,
✓ ®All Dates Filled In ✓® Warranty(if applicable)
✓ ® Special Instructions for Finance Department: Assignment between Brush Creek Land Co&Pitkin Co
✓ ❑Authorized Procurement Officer's Name:
BY CHECKING ABOVE AND ENTERING NAME,THE AUTHORIZED STAFF PERSON INDICATES THAT
THE ATTACHED DOCUMENT HAS BEEN PROOFED AND READY FOR SCANNING.
NOTE: CLERK'S OFFICE WILL KEEP ORIGINAL DOCUMENTS IN COMPLIANCE WITH COLORADO STATE
ARCHIVES RETAINAGE SCHEDULE. ALL ATTACHMENTS MUST BE WITH THIS CHECKLIST!
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ASSIGNMENT AND ASSUMPTION AGREEMENT
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This Assignment and Assumption Agreement is made effective this 5 day of
, 2015 (the "Effective Date"), by and between Brush Creek Land
Company•LLC, a Colorado Limited Liability Company ("Brush Creek"), and Pitkin
CountAPublic Works -Pitkin. County Colorado, a t1 T') L—H eltIl i'1t0
(.._,F9R-e0-11TRA'efING-7-3 ("Pitkin County").
RECITALS
WHEREAS Brush Creek owns a certain parcel of land in unincorporated Pitkin County •
near the Town of Basalt, Colorado as more fully descried in Exhibit A attached hereto
(the "Stotts Parcel"):
WHEREAS Brush Creek is engaging FUSE architecture & construction, LLC, its affiliates
and/or successors in interest (collectively, "Fuse") to undertake certain preconstruction
architectural design and preconstruction development services in connection with the
potential development and construction of approximately twenty four (24) affordable
housing units on the Stotts Parcel;
WHEREAS Brush Creek may have representatives of Aspen Skiing Company, LLC
("ASC") undertake management and oversight of the engagement with Fuse and
development of the Stotts Parcel;
WHEREAS Pitkin County is interested in obtaining certain rights and interests in and to
the Design Work with the desire and intent among the parties that they may ultimately
enter into a preconstruction purchase agreement whereby Pitkin County will obtain the
right and obligation to purchase a portion of the constructed and completed
condominiums on the Stotts Parcel, together with the associated infrastructure and land
related thereto.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
and other good and valuable consideration, the receipt, adequacy and sufficiency of
which are acknowledged, the parties agree as follows:
1. Brush Creek has selected Fuse to undertake preliminary architectural design and
preconstruction development services, including, without limitation,
programming, code review, site analysis, conceptual design (unit type, mix,
massing, circulation, etc.), hard and soft cost budgets and schedule for
entitlement, esign -eonstruetion-(t D - .1 • • •• •.•" • • • • •• •
submitted by Fuse on May 1, 2015 and.which Brush Creek is prepared to accept
(the "Design Work Agreement"). The parties acknowledge and agree that a copy
of the proposed Design Work Agreement has been provided to Pitkin County.
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2. The proposed Design Work Agreement provides that Fuse will undertake the
Design Work on a time and materials, not to exceed, top set fee basis, with
$59,840 as the not to exceed amount (the "Fee"), plus Land Use Code consulting
costs to a maximum of $5,000 and reimbursable expenses (collectively,
`"Expenses"). AIthough the Design Work Agreement contains a not to exceed
amount, Brush Creek and Fuse desire to have the Design Work completed at a
lesser cost. The proposed Design Work Agreement further provides that upon
payment of the Fee and all Expenses, Brush Creek will own all right, title and
interest in and to the Design Work. Pursuant to the proposed Design Work
Agreement, Brush Creek has the right to assign all or any portion of its right,
title and interest in and to the Design Work and/or the Agreement.
3. Coincident with Brush Creek executing the Design Work Agreement, Pitkin
County hereby agrees to pay Brush Creek the sum of $29,920 ("the "Initial
Contribution," which amount Pitkin County and Brush.Creek mutually agree is a
reasonable good faith estimate of fifty percent (50%) of the likely total Fee) in
one lump sum, up-front payment due promptly upon execution of this
. Assignment and Assumption Agreement. In addition, Pitkin County hereby
agrees to reimburse Brush Creek a sum equal to fifty percent (50%) of all
Expenses up to a maximum reimbursement of $7,000, and any additional
amounts required beyond the Initial Contribution to result in the County
reimbursing Brush Creek for fifty percent(50%) of the Fee ultimately billed. All
such reimbursement payments shall be due and payable on a monthly basis
within 30 days of receipt by Pitkin County of invoice therefor from Brush Creek
together with appropriate backup documentation from Fuse. In the event the Fee
is ultimately determined to be less than two times the Initial. Contribution, and
provided all Expense reimbursement payments have been made, Brush Creek
shall promptly reimburse the County for the difference between the Initial
Contribution and fifty percent (50%) of the Fee.
4. In consideration of Pitkin County's payments hereunder, Pitkin County and
Brush Creek shall jointly own and control the Design Work deliverables,
provided, however, that if either party determines not to move forward with the
project and the other determines to continue with it, the party desiring to
continue forward shall have the right to use the Design Work for purposes of
developing the Stotts Parcel, provided further, however, that the parties
• acknowledge and agree that in order for Pitkin County to so develop: the project,
it would have to purchase, or cause a third party to purchase, the Stotts Parcel
from Brush Creek.
5. Pitkin County directs and authorizes Brush Creek, either directly or through
r . •= ' ' - - - • ' Brush Creek) to take the primary and
lead role in working with Fuse to facilitate the Design Work provided, however,
that Brush Creek shall maintain reasonable ongoing communication regarding the
Design Work process with Pitkin County Public Works Director Brian Pettet, or
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other designee of Pitkin County throughout. Pitkin County agrees that
notwithstanding anything to the contrary herein, Brush Creek shall have the
authority to undertake all owner related Design Work decision, provided,
however, that (a) Brush Creek and/or ASC (as applicable) will proactively confer
with Pitkin County Public Works Director Brian Pettet, or other designee of
Pitkin County, before making any material Design Work related decision; and
(b) Brush Creek may not undertake any Design Work related decision or change
order that would materially increase the Fee or the Expenses without Pitkin
County's prior approval, except to the extent Brush Creek agrees that it will
cover the increased costs associated with such decision or change order without
seeking reimbursement of any kind for increased costs.
6. Pitkin County and Brush Creek agree to coordinate in good faith with regard to
all pre-development land use related issues, including, without limitation, any
and all planning and zoning related approvals, permits and authorizations, with
Pitkin County undertaking all good faith efforts to expedite any such actions
within its jurisdiction to the extent legally allowable,
7. .Pitkin County and Brush Creek agree to coordinate in good faith with regard to
all interactions with the Town of Basalt and contemplate that the Stotts Parcel, if
ultimately developed as contemplated herein, will be annexed into the Town of
Basalt, with all details thereof to be determined.
8. Pitkin County hereby acknowledges and agrees that Brush Creek shall have the
right to assign all or any portion of its rights and obligations hereunder and under
the Design Work Agreement to any associated or related entity, including,
without limitation, ASC, as it determines in its sole and absolute discretion.
9. The parties hereto acknowledge and agree that time is of the essence with respect
to the determination of whether or not to develop the Stotts Parcel, and if
development is undertaken,with respect to such development. Accordingly, both
parties will undertake all good_faith efforts to move the Design Work forward as •
expeditiously as possible.
10.Upon receipt of the final Design Work Agreement deliverables, Pitkin County
and Brush Creek will collectively evaluate whether the development of the Stotts
Parcel is economically and politically feasible and mutually desirable.
11.Provided the parties mutually agree that such development is both feasible and
desirable, the parties .will negotiate, in good faith, and as expeditiously as
possible, for a preconstruction purchase agreement (the "Preconstruction.
Purchase Agreement"), pursuant to which Pitkin County would obtain a portion
of the con • . •• • . - - 1 U • • - _ • $ '' - • _- 1-
with
-with the associated infrastructure and land•related thereto.
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12.Notwithstanding anything to the contrary herein, in the event the parties are
unable to reach a Preconstruction Purchase Agreement for any reason or if Brush
Creek declines to proceed with the project, a land purchase agreement for the
Stotts Parcel (either by Pitkin County or a third party identified by Pitkin
County) by May 1, 2016, all right, title and interest, in and to the Design Work
shall revert exclusively and for all purposes to Brush Creek.
13.In consideration of Brush Creek developing the Stotts Parcel as affordable
housing (provided such housing is actually developed consistent with the general
intent hereof, whether or not ultimately undertaken with participation from Pitkin
• County), Pitkin County hereby agrees that it will recognize housing mitigation
credit of one FTE per bedroom for each unit actually constructed at Brush
Creek's expense that is appropriately deed restricted or covenanted on the Stotts
Parcel for the benefit of Brush Creek or its designee. Such credits may be
assignedor transferred by Brush Creek to other parcels owned, or projects
• undertaken,by Brush Creek, ASC or any affiliated entity in Pitkin County.
14.The following persons, at the addresses set forth below shall be authorized to
receive any notices hereunder:
For Brush Creek: For Pitkin County
Rana Dershowitz John Ely
General Counsel, ASC County Attorney
P.O.Box 1248,Aspen CO 81612 530 Main St., Aspen CO 81611
Email:rdershowitzf $spensnowmas ,com Email:john.ely@pitkincounty.com
Any notice hereunder shall be considered effective(a)forty-eight(48)hours after mailing
to the addressee by the U.S. Mail, first class postage prepaid, addressed to the above
addresses; or (b) electronic delivery, with receipt of no "bounce back" message to the
email listed above.
15.In addition to all remedies otherwise available at law or equity, in the event of any
material breach in the timely performance hereunder by a party, the other party may
provide written notice of such material breach to the breaching party and, in the event
- such material breach is not cured within seven(7) days,may immediately terminate this
Assignment and Assumption Agreement. In the event of any such termination, if the
breaching party is Pitkin County, all right, title and in and to any and all Design Work
completed up to the date of termination shall revert to Brush Creek and if the breaching
party is Brush Creek, all right, title and interest in and to any and all Design Work
completed up to the date of termination shall be assigned to Pitkin County.
16.For the sake of clarity, nothing herein shall in any way transfer, assign or otherwise
encumber the actual land constituting the Stotts Parcel.
17.The terms of this Agreement set forth all of the terms of the agreement between the
parties. The rights and obligations of the parties hereunder may not be modified or added
to except in writing signed by the parties.
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18,This Agreement may be executed in two or more counterparts, each of which together
shall be deemed an original, but all of which together shall constitute one and the same
instrument. In the event that any signature is delivered by facsimile transmission or by e-
mail delivery of a ".pdf' format data file,such signature shall create a valid and binding
obligation of the party executing(or on whose behalf such signature is executed)with the
same force and effect as if such facsimile or ".pdf' signature page were an original
thereof.
Brush Creek: Pitkin County:
By: Pr i By: Son 'eacock
Title: � Cpvt Title: Pitkin.County Manager
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• Exhibit A
Stotts Parcel Description
A parcel of land In Government Tract 59,Section 18,Township 8 South,Range 86 West of the Sixth Principal Meridian,
Pitkin County,Colorado,said parcel Is more fully described as follows:
Commencing at Angle Point No.7 of said Tract 59,a Brass Cap found in Place;
of South Side Drive,the Point of
thence N 35°35'50"W a distance of 1715.97 feet to a point on the westerly rig way •
Begicning' of wayN 89°29'40"W a distance of 252.41 feet;
thence leaving said westerly right
thence N 00°48'40"W a distance of 267.37 feet to a point In the centerline of the Home Supply Ditch;
thence S 89°07'56"E along said centerline adistance of 171.85 feet;
thence continuing along said centerline N 89°36'44 E a distance of 84.43 fest to a point on the westerly right of way of
South Side Drive;
thence leaving said centerline S 00°00'00"W along said right of way a distance of 267.54 feet to the point of beginning.
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122.673. 7 ( (0 - ,
FUSE architecture & construction, LLC. PO Box 4.525 Ba9aIt,CO 81621 v.970.618.5831
RE: Stott Parcel_Letter of Agreement May 31,2015
Contracting Party
Matt Jones
Brush Creek Land Company
117 ABC
Aspen,CO 81611
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By this letter of agreement,Fuse architecture&construction,LLC("Fuse")agrees to provide pre-design architectural
services to the Contracting Party("Owner")for a multi-unit residential development located on Southside Drive in
Pitkin County,Colorado.This agreement is only intended to cover preliminary design scope. Once the conceptual
design direction is established and approved,we anticipate entering into an AIA-6101 to complete the balance of
design services,
Fee Basis
Under this agreement,we will perform the work discussed herein on an hourly basis at our Standard Hourly Billing
Rates. Each task is listed with a description,anticipated hours,and a top-set fee. The top-set fee will not be
exceeded without prior written permission from Owner.
Scope of Services •
Prooramminq
Work with the Owner to establish the functional needs of design elements,their relationships to each other,
quantify approximate square footages,and establish qualitative and desirable goals of the project,
Process assumes one initial meeting with Owner,Draft publication, Revision into a final document and then
final meeting to review a final Program.Deliverable wilt include a program document summarizing our
findings.
Approximate hours:36
Top-Set Fee:$4,320
Review of Codes,Covenants,and Restrictions
Review of applicable Land Use Code restrictions and approval process. We assume this will be under the
jurisdiction of Pitkin County but we should review our strategy with a Land Use Planner to evaluate the best
solution for the project. Review of adopted building codes in conjunction with a Code Consultant.
Process.assumes close consultation with owner,owner's Land Use Planner,and AHJ. At the end of this task
we will have decided on our approval path. Additionally,a code consultant will aid in establishing the building
code parameters and a summary report will be published
Approximate hours:80
Top-Set Fee:$12,400
Code Consulting:$xx
Site Analysis
• Review and inventory of existing conditions,site assets,and constraints.
Process includes field observation,review of current and projected adjacent uses;study of owner provided
site surveys,and mapping. Findings will be recorded on a Site Analysis site plan.
• Approximate hours:26
Top-SetFeo-$3,--120
1501_Stott LTR of Agreement p.1 of 5
Master Planning
Develop a Master Plan that reflects findings from the tasks listed above. Master Plan concepts will illustrate
different unit mix scenarios,siting,and circulation strategies. Process includes development of site plans in
consultation with the Owner. Final Master Plan will be recorded in a site plan.
Approximate hours:70
Top-Set Fee:$8,400
Conceptual Design
In this phase we will explore schematic level volumetric solutions for accommodating the Owner's program.
Deliverables include plans,site sections,elevations,and 3D modeling as needed.
Process assumes Draft publication,Review with client,and Revision into a final document. Deliverable will
include a final conceptual design package.
• Approximate hours: 160
Top-Set Fee:$19,200
Budgeting
Assist the client in developing their working budget for hard and soft costs of the project.
Process includes development of an outline specification,conceptual construction budget and assisting the
Owner in identifying the balance of soft costs. Deliverable will be a conceptual construction budget.
Approximate hours:40
Top-Set Fee:$6,200
Scheduling
With other project parameters set,we can set out a schedule for execution of the entire project. This will
include clarifying consultants needed and their schedules for generating coordinated work.. The schedule will
include predictions for AH,!approvals,design,and construction.
Process includes listing of tasks over time to produce micro¯o gantt charts.
Approximate hours:40
Top-Set Fee:$6,200
Total Top-Set Fee:$59,840
Terms and Conditions •
Schedule of Hourly Rates
Fuse's professional fees are billed at a rate of$155-$125 per hour for PrincipallSenior Associate
and$115-$90 per hour for AssociatefSenior.Staff. Tasks vary in complexity and may have a higher or lower average
billing rate within this range of$155-$90 per hour.
Additional Services
Any services requested by the Contracting Party not defined in the above Scope of Services are deemed to be
Additional Services and shall be invoiced in accordance with the schedule of hourly rates and reimbursable expenses.
Reimbursable Expenses
Reimbursable Expenses include expenses incurred by Fuse and Fuse's consultants directly related
to the project as follows:
A.Transportation(airfare,rental car,etc),lodging,meals and other transportation related
expenses fur travel outside-the-Roaring-Fork-Valley;
B.Large format printing and reproductions;
C.Postage,handling and delivery; •
D.Tools and testing equipment(none anticipated as part of base scope);
1501_Stott LTR of Agreement • p.2 of 5
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Reimbursable Expenses shall be in addition to our FEE and are to be Invoiced at cost plus ten
percent(10%).Mileage is to be charged at the current federal rate at the time of occurrence.
Billing and Payment Provisions:
The Owner recognizes that prompt payment of Fuse's invoices Is an essential aspect of the
overall consideration Fuse requires for providing service to the Owner.Accordingly,the
Owner agrees to advise Fuse as to the preferred billing cycle,invoice format,person to whom
Invoices should be addressed,and such other pertinent details Fuse should observe to help the Owner expedite
payment.If payment is not received by Fuse within thirty(30)calendar days of the invoice date,the Contracting Party
shall pay as interest an additional charge of one-and-one half percent(1.5%)of the Past Due amount per month.
Payment thereafter shall first be applied to accrued interest and then to unpaid principal.
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Please remit all payments to:
Fuse A&C
P. O.Box 4525
Basalt, CO 81621
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Termination:
If the Owner fails to make payment to Fuse in accordance with the payment terms herein,this
shall constitute a material breach of this Agreement and shall be cause for termination of this Agreement by
Fuse.If either party terminates the contract,the Owner shall within fifteen(15)calendar days of
termination pay Fuse for all services performed prior to termination,together with all Reimbursable
Expenses then due.
Schedule:
All fee proposals assume that services proceed without unreasonable delays,redesign or scope changes. Such
occurrences may warrant a renegotiation of fees. The schedule of hourly rates Is valid for one year from the proposal
date. A renegotiation of our hourly rates may be required after this period.
Retainer:
An initial payment of$8,000 dollars will be due upon execution of this agreement,which will be placed as a retainer in
an interest-bearing trust account and returned upon payment in full for all services rendered, Fuse reserves the right
to apply the retainer to any invoices not paid in a timely manner.
is Exhibits:
Exhibit A:Fuse Additional Provisions,is attached hereto and made a part hereof.
1501_Slott LTR of Agreement
p,3of5
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Acceptance
Time is of the essence with respect to this Agreement This Agreement is conditioned upon Fuse receiving
written acceptance by Owner of all the terms and conditions of this Agreement on or before thirty
(30)days from the date of this Agreement was signed by Fuse.This Agreement shall be deemed withdrawn
if written acceptance is not received within said thirty-day period.Notwithstanding anything to the contrary,
any services verbally requested by the Owner and performed by Fuse prior to the execution of
this Agreement shall be subject to the terms and conditions of this Agreement.
This Agreement represents the entire mutual agreement between Fuse and this undersigned Owner and this
Agreement supersedes all prior negotiations,representations or agreements,written or oral,
prior to execution date below.
Please execute and return one copy to Fuse as authorization to begin services.
-)111\CIA
Owner's Repres-ntativ- Fuse A+C,LLC
/) 06.01.15
Date Date
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1501 Stoft LTR of Agreement p.4 of 5
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Exhibit A:Fuse Additional Provisions
AIA Forms, Fuse and Brush Creek agree that though AIA-B101 and AIA-Al 01 shall be the underlying forms used for
future design and construction services on this project,each such form will require revisions prior to execution in order
to be acceptable. The parties agree to negotiate such revisions in good faith.
er�resentations. Fuse hereby represents and warrants that the services will be fit for the purposes contemplated as
preliminary design documents hereunder;will be provided expeditiously,and will be undertaken with the professional
skill and care reasonably expected of a design consultant on a commercial development project.
Copyrights and Licenses. Drawings,specifications and other documents,including Those in electronic form,prepared
by Fuse are Instruments of Service for use solely with respect to this Project.Upon payment to Fuse for services
rendered,the Brush Creek shall be deemed the owner of the instruments of Service and shall retain all common law,
statutory and other reserved rights,including copyrights.Except as provided herein,the Consultant hereby waives all
common law,statutory and other'reserved rights including copyrights in and to theinstruments of Service.
Notwithstanding the foregoing,the Brush Creek recognizes and acknowledges that(1)the Instruments of Service
incorporate certain"best practices"of Fuse,and(2)Fuse may incorporate these"best practices"in Instruments of
Service for other clients of Fuse,provided that the Consultant does not design a project In a 5 mile radius of the
project which has the same appearance as this project,without Brush Creek's prior written approval.Brush Creek may
use the Instruments of Service for future additions or alterations to this project or for other projects,which shall be at
the Brush Creek's sole risk and without liability to Fuse. In the event the Brush Creek uses the Instruments of Service
on a new or different project without retaining Fuse,the Brush Creek releases Fuse from all claims and causes of
action arising from such uses.
ssinment. Brush Creek shall have the right to assign all or any portion of its rights and obligations hereunder to any
affiliated entity and/or to Pitkin County and/or the Town of Basalt without Fuse
'
s
Jason
prior
thatcnsent. Fuse Laso hall have ls and the
right to assign this agreement to any affiliate or successor in interest entity,provided
remains an equity participant in such entity,and continues to be personally involved in the services provided
hereunder.
Insurance, Fuse shall,at its sole expense,obtain and maintain in full force and effect throughout the term of
performance of the work,a policy of comprehensive general liability insurance with coverage in an amount of at least
$1,000,000 per occurrence and$2,000,000 aggregate,for all claims,in a form and from a company acceptable
LLC shall be
BRUSH CREEK,insuring Fuse in its performance of the work. Brush Creek and Aspen Skiing Company,
named as an additional insured under such policy of insurance. Fuss shall deliver to Brush Creek,prior to the
commencement of any part of the Work,a certificate evidencing such insurance coverage. Said certificate shall also
provide that the coverage evidenced thereby may not be canceled without at least fifteen days'prior written notice to
Brush Creek.
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1501_Stotf LTR of Agreement