<PAGE>
EXHIBIT 10.1
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
[THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA LOGO]
--------------------------------------------------------------------------------
AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER
(WHERE THE
BASIS OF PAYMENT IS THE COST OF THE WORK PLUS A FEE WITH A
GUARANTEED MAXIMUM PRICE)
This standard form agreement was developed
with the advice and cooperation of
the AGC Private Industry Advisory Council,
a number of Fortune 500 Owners'
design and construction managers who have
been meeting with AGC contractors to
discuss issues of mutual concern. AGC
gratefully acknowledges the contributions
of these owners' staff who participated in
this effort to produce a basic
agreement for construction.
TABLE OF ARTICLES
1. AGREEMENT
2. GENERAL PROVISIONS
3. DESIGN-BUILDER'S
RESPONSIBILITIES
4. OWNER'S
RESPONSIBILITIES
5. SUBCONTRACTS
6. TIME
7. COMPENSATION
8. COST OF THE WORK
9. CHANGES IN THE
WORK
10. PAYMENT FOR CONSTRUCTION
PHASE SERVICES
11. INDEMNITY, INSURANCE, BONDS,
AND WAIVER OF SUBROGATION
12. SUSPENSION AND TERMINATION
OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
DESIGN-BUILDER'S RESPONSIBILITIES
13. DISPUTE RESOLUTION
1
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
14. MISCELLANEOUS PROVISIONS
15. EXISTING CONTRACT
DOCUMENTS
AMENDMENT NO. 1
This Agreement has important legal and
insurance consequences. Consultation with
an attorney and an insurance adviser is
encouraged with respect to its
completion or modification.
ARTICLE 1
AGREEMENT
2
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
This Agreement is made as of the 6th day of
January in the year two thousand
five, by and between the
OWNER
Cincinnati
Financial Corporation
6200 South
Gilmore Road
Fairfield,
OH 45014
and the
DESIGN-BUILDER
Messer
Construction Co.
5158 Fishwick
Drive
for services in connection with the
following PROJECT
CFC Tower
Number 3 Expansion, includes construction and design of a
three-story underground garage and seven-story office building
along with
campus
site improvements at 6200 S. Gilmore Road, Fairfield, Ohio
45014.
Notice to the parties shall be given at the
above addresses.
The parties intend that this Agreement
govern the relationship between them for
work undertaken in furtherance of the
project, whether such work occurred before
or after the effective date of this
Agreement.
ARTICLE 2
GENERAL PROVISIONS
2.1 TEAM RELATIONSHIP Cincinnati Financial
Corporation and Messer Construction
Co. agree to proceed with the Project on
the basis of trust, good faith and fair
dealing and shall take all actions
reasonably necessary to perform this
Agreement in an economical and timely
manner, including consideration of design
modifications and alternative materials or
equipment that will permit the Work
to be constructed within the Guaranteed
Maximum Price (GMP) and by the Dates of
Substantial Completion and Final Completion
if they are established by Amendment
No. 1. Messer Construction Co. agrees to
procure or furnish, as permitted by the
law of Ohio, the design phase services and
construction phase services as set
forth below.
2.1.1
Messer Construction Co. represents that it is an independent
contractor
and that it is familiar with the type of work it is
undertaking.
2.1.2
Neither Messer Construction Co. nor any of its agents or
employees
shall act
on behalf of or in the name of Cincinnati Financial Corporation
unless
authorized in writing by Cincinnati Financial Corporation's
Representative.
2.2 ARCHITECT/ENGINEER Architectural and
engineering services shall be performed
by licensed, and qualified independent
design professionals selected and paid by
Messer Construction Co. or furnished by
licensed employees of Messer
Construction Co. The standard of care for
architectural and engineering services
performed under this Agreement shall be the
care and skill ordinarily used by
members of the architectural and
engineering professions practicing under
similar conditions at the same time and
locality. Messer Construction Co. shall
be responsible to Cincinnati Financial
Corporation for
3
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
the acts and omissions of the parties in
privity of contract with Messer
Construction Co., including, but not
limited to, the architectural and
engineering services procured as referenced
above. The architect/engineer for
the project is Roth Partnership, 212 E. 3rd
Street, Cincinnati, OH 45202.
2.3 EXTENT OF AGREEMENT This Agreement is
solely for the benefit of the parties,
represents the entire and integrated
agreement between the parties, and
supersedes all prior negotiations,
representations or agreements, either written
or oral. The Agreement and each and every
provision is for the exclusive benefit
of Cincinnati Financial Corporation and
Messer Construction Co. and not for the
benefit of any third party nor any third
party beneficiary, except to the extent
expressly provided in the Agreement.
2.4 DEFINITIONS
.1 The
Contract Documents consist of:
a. Change Orders and written amendments to this Agreement
including
exhibits and appendices, signed by both Cincinnati Financial
Corporation and Messer Construction Co., including Amendment No.
1
if
executed;
b. this Agreement except for the existing Contract Documents
set
forth in item e. below;
c. the most current documents approved by Cincinnati Financial
Corporation pursuant to Subparagraph 3.1.4, 3.1.6 or 3.1.7;
d. the information provided by Cincinnati Financial Corporation
pursuant to Clause 4.1.2.1;
e. the Contract Documents in existence at the time of execution
of
this Agreement which are set forth in Article 15;
f. Cincinnati Financial Corporation's Program provided pursuant
to
Subparagraph 4.1.1;
In case of any inconsistency, conflict or ambiguity among the
Contract Documents, the documents shall govern in the order in
which
they are listed above.
.2 The
term day shall mean calendar day, unless otherwise specifically
defined.
.3 Messer
Construction Co.'s Fee means the compensation paid to Messer
Construction Co. for salaries and other mandatory or customary
compensation of Messer Construction Co.'s employees at its
principal and
branch
offices except employees listed in Subparagraph 8.2.2, general
and
administrative expenses of Messer Construction Co.'s principal and
branch
offices
other than the field office, and Messer Construction Co.'s
capital
expenses,
including interest on Messer Construction Co.'s capital
employed
for the
Work, and profit.
.4
Defective Work is any portion of the Work not in conformance with
the
Contract
Documents as more fully described in Paragraph 3.8.
.5 The
term Fast-track means accelerated scheduling which involves
commencing
construction prior to the completion of drawings and
specifications and then using means such as bid packages and
efficient
coordination to compress the overall schedule.
.6 Final
Completion occurs on the date when Messer Construction Co.'s
obligations under this Agreement are complete and accepted by
Cincinnati
Financial
Corporation and final payment becomes due and payable.
.7 A
Material Supplier is a party or entity retained by the Messer
Construction Co. to provide material and equipment for the
Work.
4
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
.8 Others
means all persons at the Work Site who are agents, employees,
contractors, or invitees of Cincinnati Financial Corporation, and
who are
not
otherwise Messer Construction Co., its agents, employees,
contractors,
Subcontractors or Material Suppliers, or any of their
subagents,
Subcontractors, and Material Suppliers.
.9
Cincinnati Financial Corporation is the person or entity identified
as
such in
this Agreement and includes Cincinnati Financial Corporation's
Representative.
.10
Cincinnati Financial Corporation's Program is an initial
description
of
Cincinnati Financial Corporation's objectives, that may include
budget
and time
criteria, space requirements and relationships, flexibility and
expandability requirements, special equipment and systems, and
site
requirements.
.11 The
Project, as identified in Article 1, is the building, facility
and/or
other improvements for which Messer Construction Co. is to
perform
the Work
under this Agreement. It may also include improvements to be
undertaken
by Cincinnati Financial Corporation or Others.
.12 A
Subcontractor is a party or entity retained by Messer
Construction
Co. as an
independent contractor to provide the on-site labor, materials,
equipment
and/or services necessary to complete a specific portion of the
Work. The
term Subcontractor does not include Roth Partnership or any
separate contractor employed by
Cincinnati Financial Corporation or any
separate
contractors subcontractors.
.13
Substantial Completion of the Work, or of a designated portion,
occurs
on the
date when Messer Construction Co.'s obligations are
sufficiently
complete
in accordance with the Contract Documents so that Cincinnati
Financial
Corporation can or does occupy or utilize the Project, or a
designated
portion, for the use for which it is intended, in accordance
with
Paragraph 10.4. The issuance of a Certificate of Occupancy is not
a
prerequisite for Substantial Completion if the Certificate of
Occupancy
cannot be
obtained due to factors beyond Messer Construction Co.'s
control.
This date shall be confirmed by a Certificate of Substantial
Completion
signed by Cincinnati Financial Corporation and Messer
Construction Co.. The Certificate shall state the respective
responsibilities of Cincinnati Financial Corporation and Messer
Construction Co. for
security, maintenance, heat, utilities, damage to the
Work, and
insurance. The Certificate shall also list the items to be
completed
or corrected, and establish the time for their completion and
correction, within the time frame, if any, established in Amendment
No. 1
for the
Date of Final Completion. Cincinnati Financial Corporation may
withhold
retainage in an amount not to exceed 150% of the estimated cost
of the
items to be completed or corrected, to be disbursed upon
completion.
.14 A
Subsubcontractor is a party or entity who has an agreement with
a
Subcontractor to perform any portion of the Subcontractor's
work.
.15 The
Work is the Design Phase Services procured or furnished in
accordance
with Paragraph 3.1, the GMP Proposal provided in accordance
with
Paragraph 3.2, the Construction Phase Services provided in
accordance
with
Paragraph 3.3, Additional Services that may be provided in
accordance
with
Paragraph 3.10, and other services which are necessary to
complete
the
Project in accordance with and reasonably inferable from the
Contract
Documents.
.16
Worksite means the geographical area at the location mentioned
in
Article 1
where the Work is to be performed.
ARTICLE 3
DESIGN-BUILDER'S RESPONSIBILITIES
5
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
Messer Construction Co. shall be
responsible for the design and for the
construction of the Work consistent with
Cincinnati Financial Corporation's
Program, as such Program may be modified by
Cincinnati Financial Corporation
during the course of the Work. Messer
Construction Co. shall exercise reasonable
skill and judgment in the performance of
its services consistent with the team
relationship described in Paragraph 2.1,
but does not warrant nor guarantee
schedules and estimates other than those
that are part of the GMP proposal.
Messer Construction Co. and Cincinnati
Financial Corporation may establish a
Fast-track approach to the design and
construction services necessary to
complete the Project. Such agreement
establishing a Fast-track approach and the
Schedule of the Work shall be included as
an exhibit to this Agreement. In the
absence of such agreement, the parties
shall proceed in accordance with
Paragraphs 3.1 and 3.3 below.
3.1 DESIGN PHASE SERVICES
3.1.1
PRELIMINARY EVALUATION. Messer Construction Co. shall review
Cincinnati
Financial Corporation's Program to ascertain the requirements
of the
Project and shall verify such requirements with Cincinnati
Financial
Corporation. Messer Construction Co.'s review shall also
provide
to
Cincinnati Financial Corporation a preliminary evaluation of the
site
with
regard to access, traffic, drainage, parking, building placement
and
other
considerations affecting the building, the environment and
energy
use, as
well as information regarding applicable governmental laws,
regulations and requirements. Messer Construction Co. shall also
propose
alternative architectural, civil, structural, mechanical,
electrical and
other
systems for review by Cincinnati Financial Corporation, to
determine
the most
desirable approach on the basis of cost, technology, quality
and
speed of
delivery. Messer Construction Co. will also review existing
test
reports
but will not undertake any independent testing nor be required
to
furnish
types of information derived from such testing in its
Preliminary
Evaluation. Based upon its review and verification of Cincinnati
Financial
Corporation's Program and other relevant information Messer
Construction
Co. shall
provide a Preliminary Evaluation of the Projects feasibility
for
Cincinnati
Financial Corporation's acceptance. Messer Construction Co.'s
Preliminary Evaluation shall specifically identify any deviations
from
Cincinnati
Financial Corporation's Program.
3.1.2
PRELIMINARY SCHEDULE. Messer Construction Co. shall prepare a
preliminary schedule of the Work. Cincinnati Financial Corporation
shall
provide
written approval of milestone dates established in the
preliminary
schedule
of the Work. The schedule shall show the activities of
Cincinnati
Financial
Corporation, Roth Partnership and Messer Construction Co.
necessary
to meet Cincinnati Financial Corporation's completion
requirements. The schedule shall be updated periodically with the
level of
detail for
each schedule update reflecting the information then available.
If an
update indicates that a previously approved schedule will not
be
met,
Messer Construction Co. shall recommend corrective action to
Cincinnati
Financial Corporation in writing.
3.1.3
PRELIMINARY ESTIMATE. When sufficient Project information has
been
identified, Messer Construction Co. shall prepare for Cincinnati
Financial
Corporation's written acceptance a preliminary estimate utilizing
area,
volume or
similar conceptual estimating techniques. The estimate shall be
updated
periodically with the level of detail for each estimate update
reflecting
the information then available. If the preliminary estimate or
any update
exceeds Cincinnati Financial Corporation's budget, Messer
Construction Co. shall make written recommendations to
Cincinnati
Financial
Corporation.
3.1.4
SCHEMATIC DESIGN DOCUMENTS. The Design-Builder shall submit for
Cincinnati
Financial Corporation's written approval Schematic Design
Documents,
based on the agreed upon Preliminary Evaluation. Schematic
Design
Documents shall include drawings, outline specifications
6
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
and other
conceptual documents illustrating the Projects basic elements,
scale, and
their relationship to the Worksite. One set of these documents
shall be
furnished to Cincinnati Financial Corporation. When Messer
Construction Co. submits the Schematic Design Documents Messer
Construction Co. shall identify in writing all material changes
and
deviations
that have taken place from Messer Construction Co.'s
Preliminary Evaluation, schedule and estimate. Messer Construction
Co.
shall
update the preliminary schedule and estimate based on the
Schematic
Design
Documents.
3.1.5
PLANNING PERMITS. Messer Construction Co. shall obtain and
Cincinnati
Financial Corporation shall pay for all planning permits
necessary
for the construction of the Project.
3.1.6
DESIGN DEVELOPMENT DOCUMENTS. Messer Construction Co. shall
submit
for
Cincinnati Financial Corporation's written approval Design
Development
Documents
based on the approved Schematic Design Documents. The Design
Development Documents shall further define the Project including
drawings
and
outline specifications fixing and describing the Project size
and
character
as to site utilization, and other appropriate elements
incorporating the structural, architectural, mechanical and
electrical
systems.
One set of these documents shall be furnished to Cincinnati
Financial
Corporation. When Messer Construction Co. submits the Design
Development Documents, Messer Construction Co. shall identify in
writing
all
material changes and deviations that have taken place from the
Schematic
Design Documents. Messer Construction Co. shall update the
schedule
and estimate based on the Design Development Documents.
3.1.7
CONSTRUCTION DOCUMENTS. Messer Construction Co. shall submit
for
Cincinnati
Financial Corporation's written approval Construction Documents
based on
the approved Design Development Documents. The Construction
Documents
shall set forth in detail the requirements for construction of
the Work,
and shall consist of drawings and specifications based upon
codes,
laws and regulations enacted at the time of their preparation.
When
Messer
Construction Co. submits the Construction Documents, Messer
Construction Co. shall identify in writing all material changes
and
deviations
that have taken place from the Design Development Documents.
Construction shall be in accordance with these approved
Construction
Documents.
One set of these documents shall be furnished to Cincinnati
Financial
Corporation prior to commencement of construction. If a GMP has
not been
established, Messer Construction Co. shall prepare a further
update of
the schedule and estimate based on the Construction Documents.
3.1.8
OWNERSHIP OF DOCUMENTS. Upon the making of payment pursuant to
Paragraph
10.5, Cincinnati Financial Corporation shall receive ownership
of the
property rights, except for copyrights, of all documents,
drawings,
specifications, electronic data and information prepared, provided
or
procured
by Messer Construction Co., Roth Partnership, Subcontractors
and
consultants and distributed to Cincinnati Financial Corporation for
this
Project.
(Design-Build Documents)
.1 If this Agreement is terminated pursuant to Paragraph 12.2,
Cincinnati Financial Corporation shall receive ownership of the
property rights, except for copyrights, of the Design-Build
Documents upon payment for all Work performed in accordance
with
this Agreement, at which time Cincinnati Financial Corporation
shall
have the right to use, reproduce and make derivative works from
the
Design-Build Documents to complete the Work.
.2 If this Agreement is terminated pursuant to Paragraph 12.3,
Cincinnati Financial Corporation shall receive ownership of the
property rights, except for copyrights, of the Design-Build
Documents upon payment of all sums provided in Paragraph 12.3,
at
which time Cincinnati Financial Corporation shall have the right
to
use, reproduce and make derivative works from the Design-Build
Documents to complete the Work.
7
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
.3 Cincinnati Financial Corporation may use, reproduce and make
derivative works from the Design-Build Documents for subsequent
renovation and remodeling of the Work, but shall not use,
reproduce
or make derivative works from the Design-Build Documents for
other
projects without the written authorization of Messer
Construction
Co., who shall not unreasonably withhold consent.
.4 Cincinnati Financial Corporation's use of the Design-Build
Documents without Messer Construction Co.'s involvement or on
other
projects is at Cincinnati Financial Corporation's sole risk,
except
for Messer Construction Co.'s indemnification obligation pursuant
to
Paragraph 3.7, and Cincinnati Financial Corporation shall
defend,
indemnify and hold harmless Messer Construction Co., Roth
Partnership, Subcontractors and consultants, and the agents,
officers, directors and employees of each of them from and
against
any and all claims, damages, losses, costs and expenses,
including
but not
limited to attorney's fees, costs and expenses incurred in
connection with any dispute resolution process, arising out of
or
resulting from Cincinnati Financial Corporation's use of the
Design-Build Documents. If Messer Construction Co. defaults in
the
performance of this Agreement, Cincinnati Financial Corporation
shall receive ownership of the property rights, except for
copyrights, of the Design-Build Documents and shall have the
right
to use, reproduce and make deerivative works from the
Design-Build
Documents to complete the Work.
.5 Messer Construction Co. shall obtain from Roth Partnership,
Subcontractors and consultants property rights and rights of
use
that correspond to the rights given by Messer Construction Co.
to
Cincinnati Financial Corporation in this Agreement.
3.2 GUARANTEED MAXIMUM PRICE (GMP)
3.2.1 GMP
PROPOSAL. At such time as Cincinnati Financial Corporation and
Messer
Construction Co. jointly agree, Messer Construction Co. shall
submit a
GMP Proposal in a format acceptable to Cincinnati Financial
Corporation. Unless the parties mutually agree otherwise, the GMP
shall be
the sum of
the estimated Cost of the Work as defined in Article 8 and
Messer
Construction Co.'s Fee as defined in Article 7. The GMP is
subject
to
modification as provided in Article 9.
3.2.1.1 If the Design-Build Documents are not complete at the
time
the GMP Proposal is submitted to Cincinnati Financial
Corporation,
Messer Construction Co. shall provide in the GMP for further
development of the Design-Build Documents consistent with
Cincinnati
Financial Corporation's Program. Such further development does
not
include changes in scope, systems, kinds and quality of
materials,
finishes or equipment, all of which if required, shall be
incorporated by
Change Order.
3.2.2
BASIS OF GUARANTEED MAXIMUM PRICE. Messer Construction Co.
shall
include
with the GMP Proposal a written statement of its basis, which
shall
include:
.1 a list of the drawings and specifications, including all
addenda,
which were used in preparation of the GMP Proposal;
.2 a list of allowances and a statement of their basis;
.3 a list of the assumptions and clarifications made by Messer
Construction Co. in the preparation of the GMP Proposal to
supplement the information contained in the drawings and
specifications;
.4 the Date of Substantial Completion and/or the Date of Final
Completion upon which the proposed GMP is based, and the Schedule
of
Work upon which the Date of Substantial Completion and/or the
Date
of Final Completion is based;
8
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
.5 a schedule of applicable alternate prices;
.6 a schedule of applicable unit prices;
.7 a statement of Additional Services included, if any;
.8 the time limit for acceptance of the GMP proposal;
.9 Messer Construction Co.'s Contingency as provided in
Subparagraph
3.2.7; and Owner Contingency if, so directed by Owner,
.10 a statement of any work to be self-performed by Messer
Construction Co.; and
.11 a statement identifying all patented or copyrighted
materials,
methods or systems selected by Messer Construction Co. and
incorporated in the Work that are likely to require the payment
of
royalties or license fees, and
.12 100% payment and performance bonds.
3.2.3
REVIEW AND ADJUSTMENT TO GMP PROPOSAL Messer Construction Co.
shall
meet with
Cincinnati Financial Corporation to review the GMP Proposal. In
the event
that Cincinnati Financial Corporation has any comments relative
to the GMP
Proposal, or finds any inconsistencies or inaccuracies in the
information presented, it shall give prompt written notice of
such
comments
or findings to Messer Construction Co., who shall make
appropriate adjustments to the GMP, its basis or both. Nothing
contained
herein
shall require Cincinnati Financial Corporation to discover any
such
matter and
Cincinnati Financial Corporation's failure to discover any such
matter
shall not limit, excuse or diminish Messer Construction Co.'s
obligations hereunder in any way whatsoever.
3.2.4
ACCEPTANCE OF GMP PROPOSAL Upon acceptance by Cincinnati
Financial
Corporation of the GMP Proposal, as may be amended by Messer
Construction
Co. in
accordance with Subparagraph 3.2.3, the GMP and its basis shall
be
set forth
in Amendment No. 1. The GMP and the Date of Substantial
Completion
and/or the Date of Final Completion shall be subject to
modification as provided in Articles 6 and 9.
3.2.5
FAILURE TO ACCEPT THE GMP PROPOSAL Unless Cincinnati Financial
Corporation accepts the GMP Proposal in writing on or before the
date
specified
in the GMP Proposal for such acceptance and so notifies the
Messer
Construction Co., the GMP Proposal shall not be effective. If
Cincinnati
Financial Corporation fails to accept the GMP Proposal, or
rejects
the GMP Proposal, Cincinnati Financial Corporation shall have
the
right
to:
.1 Suggest modifications to the GMP Proposal. If such
modifications
are accepted in writing by Messer Construction Co., the GMP
Proposal
shall be deemed accepted in accordance with Subparagraph 3.2.4;
.2 Direct Messer Construction Co. to proceed on the basis of
reimbursement as provided in Articles 7 and 8 without a GMP, in
which case all references in this Agreement to the GMP shall not
be
applicable; or
.3 Terminate the Agreement for convenience in accordance with
Paragraph 12.3.
In the absence of a GMP the parties may establish a Date of
Substantial Completion and/or a Date of Final Completion.
3.2.6
PRE-GMP WORK Prior to Cincinnati Financial Corporation's
acceptance
of the GMP
Proposal, Messer Construction Co. shall not incur any cost to
be
reimbursed as part of the Cost of the Work, except as provided in
this
Agreement
or as Cincinnati Financial Corporation may
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
9
<PAGE>
specifically authorize in writing.
3.2.7
DESIGN-BUILDER'S CONTINGENCY The GMP Proposal will contain, as
part
of the
estimated Cost of the Work, Messer Construction Co.'s
Contingency,
a sum
mutually agreed upon and monitored by Messer Construction Co.
and
Cincinnati
Financial Corporation for use at Messer Construction Co.'s
discretion
to cover costs which are properly reimbursable as a Cost of the
Work but
are not the basis for a Change Order.
Design-Builder's Contingency is to cover
such things as (but not limited to)
changes in market conditions, estimating
variances or judgment errors in pricing
at the time of establishing the GMP, delay
costs not otherwise compensated,
unanticipated changes in construction
methods, default by a Subcontractor or
supplier, and acceleration costs required
to meet the Contract Time. Any funds
remaining in the Design-Builder's
Contingency upon the completion of the work
including any warranty work shall belong to
Cincinnati Financial Corporation.
The Owner, in its discretion, may establish
an Owner's Contingency, which is
entirely separate from the Design-Builder's
Contingency. The Owner's
Contingency, if established, is for the
Owner's exclusive use in its sole
discretion to add scope to the Project, to
pay for unanticipated costs incurred
by the Design-Builder which are the Owner's
responsibility, or for other
purposes that the Owner may designate. The
Owner's Contingency is not part of
the Guaranteed Maximum Price. If requested
by the Owner, the Design-Builder will
advise the Owner of the expenditures
against the Owner's Contingency on a
monthly basis but will not guarantee the
sufficiency of the Owner's Contingency
for any purpose.
3.3 CONSTRUCTION PHASE SERVICES
3.3.1 The
Construction Phase will commence upon the issuance by
Cincinnati
Financial
Corporation of a written notice to proceed with construction.
If
construction commences prior to execution of Amendment No. 1,
Messer
Construction Co. shall
prepare for Cincinnati Financial Corporation's
written
approval a list of the documents that are applicable to the
part
of the
Work which Cincinnati Financial Corporation has authorized,
which
list shall
be included in Cincinnati Financial Corporation's written
notice to
proceed.
3.3.2 In
order to complete the Work, Messer Construction Co. shall
provide
all
necessary construction supervision, inspection, construction
equipment,
labor, materials, tools, and subcontracted items.
3.3.3
Messer Construction Co. shall give all notices and comply with
all
laws and
ordinances legally enacted at the date of execution of the
Agreement
which govern the proper performance of the Work.
3.3.4
Messer Construction Co. shall obtain and shall pay for the
building
permits
necessary for the construction of the Project.
3.3.5
Messer Construction Co. shall keep such full and detailed
accounts
as are
necessary for proper financial management under this Agreement.
Cincinnati
Financial Corporation shall be afforded access to all Messer
Construction Co.'s records, books, correspondence, instructions,
drawings,
receipts,
vouchers, memoranda and similar data relating to this
Agreement.
Messer
Construction Co. shall preserve all such records for a period
of
three
years after the final payment or longer where required by law.
3.3.6 The
Messer Construction Co. shall provide no less than monthly
written
reports to Cincinnati Financial Corporation on the progress of
the
Work in
such detail as is required by Cincinnati Financial Corporation
and
as agreed
to by Cincinnati Financial Corporation and Messer
10
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
Construction Co..
3.3.7
Messer Construction Co. shall develop a system of cost reporting
for
the Work,
including regular monitoring of actual costs for activities in
progress
and estimates for uncompleted tasks and proposed changes in the
Work. The
reports shall be presented to Cincinnati Financial Corporation
at
mutually agreeable intervals, no less than monthly.
3.3.8
Messer Construction Co. shall regularly remove debris and waste
materials
at the Worksite resulting from the Work. Prior to discontinuing
Work in an
area, Messer Construction Co. shall clean the area and remove
all
rubbish and its construction equipment, tools, machinery, waste
and
surplus
materials. Messer Construction Co. shall minimize and confine
dust
and debris
resulting from construction activities. At the completion of
the Work,
Messer Construction Co. shall remove from the Worksite all
construction equipment, tools, surplus materials, waste materials
and
debris.
Messer Construction Co. acknowledges that Cincinnati Financial
Corporation and its affiliates and tenants are conducting business
in the
existing
office towers of which the Project will become a part, and
Messer
Construction Co. agrees it will exercise its reasonable efforts
to
minimize
disruption to such activities that will be ongoing in the
existing
office towers and at the Project site. Messer Construction
Co.'s
operating
hours and procedures will be specified in greater detail in the
GMP
documents to be submitted for Cincinnati Financial
Corporation's
approval.
Messer Construction Co. will not be required to operate outside
normal
working hours unless approved by Cincinnati Financial
Corporation,
or unless
Cincinnati Financial Corporation issues a Change Order to this
effect and
agrees to be responsible for resulting cost and time impacts.
3.3.9
Messer Construction Co. shall prepare and submit to Cincinnati
Financial
Corporation:
final marked up as-built drawings
in general
documenting how the various elements of the Work including
changes
were actually constructed or installed, or as defined by the
parties by
attachment to this Agreement.
3.4 SCHEDULE OF THE WORK. Messer
Construction Co. shall prepare and submit a
Schedule of Work for Cincinnati Financial
Corporation's acceptance and written
approval. This schedule shall indicate the
dates for the start and completion of
the various stages of the Work, including
the dates when information and
approvals are required from Cincinnati
Financial Corporation. The Schedule shall
be revised by Messer Construction Co. as
required by the conditions of the Work,
subject to approval by Cincinnati Financial
Corporation.
3.5 SAFETY OF PERSONS AND PROPERTY
3.5.1
SAFETY PRECAUTIONS AND PROGRAMS. Messer Construction Co. shall
have
overall
responsibility for safety precautions and programs in the
performance of the Work. Messer Construction Co. shall take
reasonable
steps to
comply and cause all Subcontractors and Material Suppliers to
comply
with all applicable provisions of Federal, State and Municipal
safety
laws to prevent accidents or injuries to persons or damage to
property
on, about or adjacent to the Work Site. While the provisions of
this
Paragraph establish the responsibility for safety between
Cincinnati
Financial
Corporation and Messer Construction Co., they do not relieve
Subcontractors of their responsibility for the safety of persons
or
property
in the performance of their work, nor for compliance with the
provisions
of applicable laws and regulations.
3.5.2
Messer Construction Co. shall seek to avoid injury, loss or
damage
to persons
or property by taking reasonable steps to protect:
11
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
.1 its employees and other persons at the Worksite;
.2 materials, supplies and equipment stored at the Worksite for
use
in performance of the Work; and
.3 the Project and all property located at the Worksite and
adjacent
to work areas, whether or not said property or structures are
part
of
the Project or involved in the Work.
3.5.3
DESIGN-BUILDER'S SAFETY REPRESENTATIVE. Messer Construction Co.
shall
designate an individual at the Worksite in the employ of Messer
Construction Co. who shall act as Messer Construction Co.'s
designated
safety
representative with a duty to prevent accidents. Unless
otherwise
identified
by Messer Construction Co. in writing to Cincinnati Financial
Corporation, the designated safety representative shall be
Messer
Construction Co.'s project superintendent. Messer Construction Co.
will
report
immediately in writing all accidents and injuries occurring at
the
Worksite
to Cincinnati Financial Corporation. When Messer Construction
Co.
is
required to file an accident report with a public authority,
Messer
Construction Co. shall furnish a copy of the report to
Cincinnati
Financial
Corporation.
3.5.4
Messer Construction Co. shall provide Cincinnati Financial
Corporation with copies of all notices required of Messer
Construction Co.
by law or
regulation. Messer Construction Co.'s safety program shall
comply
with the requirements of governmental and quasi-governmental
authorities having jurisdiction over the Work.
3.5.5 Damage or
loss not insured under property insurance which may arise
from the
performance of the Work, to the extent of the negligence
attributed
to such acts or omissions of Messer Construction Co., or anyone
for whose
acts Messer Construction Co. may be liable, shall be promptly
remedied
by Messer Construction Co.. Damage or loss attributable to the
acts or
omissions of Cincinnati Financial Corporation or Others and not
to
Messer
Construction Co. shall be promptly remedied by Cincinnati
Financial
Corporation.
3.5.6 If
Cincinnati Financial Corporation deems any part of the Work or
Worksite
unsafe, Cincinnati Financial Corporation, without assuming
responsibility for Messer Construction Co.'s safety program, may
require
Messer
Construction Co. to stop performance of the Work or take
corrective
measures
satisfactory to Cincinnati Financial Corporation, or both. If
Messer
Construction Co. does not adopt corrective measures, Cincinnati
Financial
Corporation may perform them and reduce by the costs of the
corrective
measures the amount of the GMP, or in the absence of a GMP, the
Cost of
the Work as provided in Article 8. Messer Construction Co.
agrees
to make no
claim for damages, for an increase in the GMP, compensation for
Design
Phase Services, Messer Construction Co.'s Fee and/or the Date
of
Substantial Completion and/or the Date of Final Completion based on
Messer
Construction Co.'s compliance with Cincinnati Financial
Corporation's
reasonable
request.
3.6 HAZARDOUS MATERIALS
3.6.1 A
Hazardous Material is any substance or material identified now
or
in the
future as hazardous under any federal, state or local law or
regulation, or any other substance or material which may be
considered
hazardous
or otherwise subject to statutory or regulatory requirements
governing
handling, disposal and/or clean-up. Messer Construction Co.
shall not
be obligated to commence or continue work until all Hazardous
Material
discovered at the Worksite has been removed, rendered or
determined
to be harmless by Cincinnati Financial Corporation as certified
by an
independent testing laboratory approved by the appropriate
government
agency.
3.6.2 If
after the commencement of the Work, Hazardous Material is
discovered
at the Work Site,
12
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
Messer
Construction Co. shall be entitled to immediately stop Work in
the
affected
area. Messer Construction Co. shall report the condition to
Cincinnati
Financial Corporation and, if required, the government agency
with
jurisdiction.
3.6.3
Messer Construction Co. shall not be required to perform any
Work
relating
to or in the area of Hazardous Material without written mutual
agreement.
3.6.4
Cincinnati Financial Corporation shall be responsible for
retaining
an
independent testing laboratory to determine the nature of the
material
encountered and whether it is a Hazardous Material requiring
corrective
measures
and/or remedial action. Such measures shall be the sole
responsibility of Cincinnati Financial Corporation, and shall be
performed
in a
manner minimizing any adverse effects upon the Work of Messer
Construction Co.. Messer Construction Co. shall resume Work in the
area
affected
by any Hazardous Material only upon written agreement between
the
parties
after the Hazardous Material has been removed or rendered
harmless
and only
after approval, if necessary, of the governmental agency or
agencies
with jurisdiction.
3.6.5 If
Messer Construction Co. incurs additional costs and/or is
delayed
due to the presence or
remediation of Hazardous Material, Messer
Construction Co. shall be entitled to an equitable adjustment in
the GMP,
compensation for Design Phase Services, Messer Construction Co.'s
Fee
and/or the
Date of Substantial Completion and/or the Date of Final
Completion.
3.6.6
Provided Messer Construction Co., its Subcontractors, Material
Suppliers
and Subsubcontractors, and the agents, officers, directors and
employees
of each of them, have not, acting under their own authority,
knowingly
entered upon any portion of the Work containing Hazardous
Materials,
and to the extent not caused by the negligent acts or omissions
of the
Messer Construction Co., its Subcontractors, Material Suppliers
and
Subsubcontractors, and the agents, officers, directors and
employees of
each of
them, Cincinnati Financial Corporation shall defend, indemnify
and
hold
harmless the Messer Construction Co., its Subcontractors and
Subsubcontractors, and the agents, officers, directors and
employees of
each of
them, from and against any and all direct claims, damages,
losses,
costs and
expenses, including but not limited to attorney's fees, costs
and
expenses incurred in connection with any dispute resolution
process,
arising
out of or relating to the performance of the Work in any area
affected
by Hazardous Material.
3.6.7
Material Safety Data (MSD) sheets as required by law and
pertaining
to
materials or substances used or consumed in the performance of
the
Work,
whether obtained by Messer Construction Co., Subcontractors,
Cincinnati
Financial Corporation or Others, shall be maintained at the
Project by
Messer Construction Co. and made available to Cincinnati
Financial
Corporation and Subcontractors.
3.6.8
During Messer Construction Co.'s performance of the Work,
Messer
Construction Co. shall be responsible for the proper handling of
all
materials,
including Hazardous Materials, brought to the Work Site by
Messer
Construction Co., its Subcontractors, Material Suppliers,
Sub-Subcontractors, and the agents, officers, directors and
employees of
each of
them. Except for those Hazardous Materials improperly handled,
referenced
in Section 3.6.6 hereof, Messer Construction Co. shall defend,
indemnify
and hold harmless Cincinnati Financial Corporation from and
against
any and all direct claims, damages, losses, costs and expenses,
including
but not limited to attorneys' fees, costs and expenses incurred
in
connection with any dispute resolution process, arising out of
or
relating
to the performance of the Work in any area whether or not
affected
by Hazardous Materials. Upon the issuance of the Certificate of
Substantial Completion, Cincinnati Financial Corporation shall
be
responsible under this paragraph for materials and substances
brought to
the site
by Messer Construction Co. if such materials or substances are
required
by the Contract Documents.
13
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
3.6.9 The
terms of this Paragraph 3.6 shall survive the completion of the
Work under
this Agreement and/or any termination of this Agreement.
3.7 ROYALTIES, PATENTS AND COPYRIGHTS.
Messer Construction Co. shall pay all
royalties and license fees which may be due
on the inclusion of any patented or
copyrighted materials, methods or systems
selected by Messer Construction Co.
and incorporated in the Work. Messer
Construction Co. shall defend, indemnify
and hold Cincinnati Financial Corporation
harmless from all suits or claims for
infringement of any patent rights or
copyrights arising out of such selection.
Cincinnati Financial Corporation agrees to
defend, indemnify and hold Messer
Construction Co. harmless from all suits or
claims of infringement of any patent
rights or copyrights arising out of any
patented or copyrighted materials,
methods or systems specified by Cincinnati
Financial Corporation.
3.8 WARRANTIES AND COMPLETION
3.8.1
Messer Construction Co. warrants that all materials and
equipment
furnished
under the Construction Phase of this Agreement will be new
unless
otherwise specified, of good quality, in conformance with the
Contract
Documents, and free from defective workmanship and materials.
Warranties
shall commence on the Date of Substantial Completion of the
Work or of
a designated portion. The Messer Construction Co. agrees to
correct all construction
performed under this Agreement which is defective
in
workmanship or materials within a period of one year from the Date
of
Substantial Completion or for such longer periods of time as may be
set
forth with
respect to specific warranties required by the Contract
Documents.
3.8.2 To
the extent products, equipment, systems or materials
incorporated
in the
Work are specified and purchased by Cincinnati Financial
Corporation, they shall be covered exclusively by the warranty of
the
manufacturer. There are no warranties which extend beyond the
description
on the
face of any such warranty. To the extent products, equipment,
systems or
materials incorporated in the Work are specified by Cincinnati
Financial
Corporation but purchased by the Messer Construction Co. and
are
inconsistent with selection criteria that otherwise would have
been
followed
by the Messer Construction Co., the Messer Construction Co.
shall
assist
Cincinnati Financial Corporation in pursuing warranty claims.
ALL
OTHER
WARRANTIES EXPRESSED OR IMPLIED INCLUDING THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE ARE
EXPRESSLY
DISCLAIMED.
3.8.3 The
Messer Construction Co. shall secure required certificates of
inspection, testing or approval and deliver them to Cincinnati
Financial
Corporation.
3.8.4 The
Messer Construction Co. shall collect all written warranties
and
equipment
manuals and deliver them to Cincinnati Financial Corporation in
a format
directed by Cincinnati Financial Corporation.
3.8.5 With
the assistance of Cincinnati Financial Corporation's
maintenance personnel, the Messer Construction Co. shall direct
the
checkout
of utilities and start up operations, and adjusting and
balancing
of systems
and equipment for readiness.
3.9 CONFIDENTIALITY. The Messer
Construction Co. shall treat as confidential and
not disclose to third persons, except
Subcontractors, Subsubcontractors and Roth
Partnership as is necessary for the
performance of the Work, or use for its own
benefit any of Cincinnati Financial
Corporation's developments, confidential
information, know-how, discoveries,
production methods and the like that may be
disclosed to the Messer Construction Co. or
which the Messer Construction Co.
may acquire in connection with the Work.
Cincinnati Financial Corporation shall
treat as confidential information all of
the Messer Construction Co.'s
estimating systems and historical and
parameter cost data that may be disclosed
to Cincinnati Financial Corporation in
connection with the performance of this
Agreement.
14
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
3.10 ADDITIONAL SERVICES. The Messer
Construction Co. shall provide or procure
the following Additional Services upon the
request of Cincinnati Financial
Corporation. A written agreement between
Cincinnati Financial Corporation and
the Messer Construction Co. shall define
the extent of such Additional Services
before they are performed by the Messer
Construction Co.. If a GMP has been
established for the Work or any portion of
the Work, such Additional Services
shall be considered a Change in the Work,
unless they are specifically included
in the statement of the basis of the GMP as
set forth in Amendment No. 1.
.1
Development of Cincinnati Financial Corporation's Program,
establishing
the
Project budget, investigating sources of financing, general
business
planning
and other information and documentation as may be required to
establish
the feasibility of the Project.
.2
Consultations, negotiations, and documentation supporting the
procurement of Project financing.
.3 Site
evaluations and legal descriptions.
.4
Appraisals of existing equipment, existing properties, new
equipment
and
developed properties.
.5 Soils,
subsurface and environmental studies, reports and
investigations
required
for submission to governmental authorities or others having
jurisdiction over the Project.
.6
Consultations and representations before governmental authorities
or
others
having jurisdiction over the Project other than normal
assistance
in
securing building permits.
.7
Investigation or making measured drawings of existing conditions or
the
reasonably
required verification of Cincinnati Financial Corporation
-provided
drawings and information.
.8
Artistic renderings, of the Project or any part of the Project or
the
Work.
.9
Inventories of existing fixtures, furnishings and equipment which
might
be under
consideration for incorporation into the Work.
.10
Interior design and related services including procurement and
placement
of furnishings, artwork and decorations.
.11 Making
revisions to the Schematic Design, Design Development,
Construction Documents or documents forming the basis of the GMP
after
they have
been approved by Cincinnati Financial Corporation, and which
are
due to
causes beyond the control of the Messer Construction Co..
Causes
within the
control of the Messer Construction Co. include but are not
necessarily limited to, acts or omissions on the part of
Subcontractors,
Material
Suppliers, Subsubcontractors or Roth Partnership.
.12
Design, coordination, management, expediting and other services
supporting
the procurement of materials to be obtained, or work to be
performed,
by Cincinnati Financial Corporation, including but not limited
to
telephone systems, and other specialty systems which are not a part
of
the Work
as defined in the GMP document.
.13
Estimates, proposals, appraisals, consultations, negotiations
and
services
in connection with the repair or replacement of an insured
loss,
provided
such repair or replacement did not result from the negligence
of
the Messer
Construction Co..
.14 The
premium portion of overtime work ordered by Cincinnati
Financial
Corporation, including productivity impact costs, other than that
required
by the
Messer Construction Co. to maintain the Schedule of Work.
.15
Out-of-town travel approved in advance by Cincinnati Financial
Corporation.
15
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
.16
Obtaining service contractors and training maintenance
personnel,
assisting
and consulting in the use of systems and equipment after the
initial
start up.
.17
Services for tenant or rental spaces not a part of this
Agreement.
.18
Services requested by Cincinnati Financial Corporation or required
by
the Work
which are not specified in the Contract Documents and which are
not
normally part of generally accepted design and construction
practice.
.19
Serving or preparing to serve as an expert witness in connection
with
any
proceeding, legal or otherwise, regarding the Project.
.20
Document reproduction exceeding the limits provided for in this
Agreement.
3.11 DESIGN-BUILDER'S REPRESENTATIVE The
Messer Construction Co. shall designate
a person who shall be the Messer
Construction Co.'s authorized representative.
The Messer Construction Co.'s
Representative is J. Steve Eder.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED BY
OWNER
4.1.1
Cincinnati Financial Corporation shall provide full information in
a
timely
manner regarding requirements for the Project, including
Cincinnati
Financial
Corporation's Program and other relevant information.
4.1.2
Cincinnati Financial Corporation shall provide:
.1 all available information describing the physical
characteristics
of the site, including surveys, site evaluations, legal
descriptions, existing conditions, subsurface and environmental
studies, reports and investigations;
.2 unless otherwise provided in the Contract Documents,
necessary
approvals, site plan review, rezoning, easements and
assessments,
fees and charges required for the construction, use, occupancy
or
renovation of permanent structures, including legal and other
required services.
4.1.3
Cincinnati Financial Corporation shall provide reasonable
evidence
satisfactory to the Messer Construction Co., prior to commencing
the Work
and during
the progress of the Work, that sufficient funds are available
and
committed for the entire cost of the Project, including a
reasonable
allowance
for changes in the Work as may be approved in the course of the
Work.
Unless such reasonable evidence is provided, the Messer
Construction
Co. shall not be
required to commence or continue the Work. The Messer
Construction Co. may stop Work after seven (7) days' written notice
to
Cincinnati
Financial Corporation if such evidence is not presented within
a
reasonable time. The failure of the Messer Construction Co. to
insist
upon the
providing of this evidence at any one time shall not be a
waiver
of
Cincinnati Financial Corporation's obligation to make payments
pursuant
to this
Agreement, nor shall it be a waiver of the Messer Construction
Co.'s
right to require that such evidence be provided at a later
date.
4.1.4 The
Messer Construction Co. shall be entitled to rely on the
completeness and accuracy of the information and services required
by this
Paragraph
4.1.
16
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
4.2 RESPONSIBILITIES DURING DESIGN
PHASE
4.2.1
Cincinnati Financial Corporation shall provide Cincinnati
Financial
Corporation's Program at the inception of the Design Phase and
shall
review and
timely approve in writing schedules, estimates, Preliminary
Estimate,
Schematic Design Documents, Design Development Documents and
Construction Documents furnished during the Design Phase as set
forth in
Paragraph 3.1,
and the GMP Proposal as set forth in Paragraph 3.2.
4.3 RESPONSIBILITIES DURING CONSTRUCTION
PHASE
4.3.1
Cincinnati Financial Corporation shall review and timely approve
the
Schedule
of the Work as set forth in Paragraph 3.4.
4.3.2 If
Cincinnati Financial Corporation becomes aware of any error,
omission
or failure to meet the requirements of the Contract Documents
or
any fault
or defect in the Work, Cincinnati Financial Corporation shall
give
prompt written notice to the Messer Construction Co.. Nothing
contained
herein shall require Cincinnati Financial Corporation to
discover
any such matter and Cincinnati Financial Corporation's failure
to
discover
any such matter shall not limit, excuse or dimish Messer
Construction Co.'s obligations hereunder in any way whatsoever.
4.3.3
Cincinnati Financial Corporation shall communicate with the
Messer
Construction Co.'s Subcontractors, Material Suppliers and Roth
Partnership
only
through or in the presence of the Messer Construction Co..
unless
otherwise
agreed by Messer Construction Co. and Cincinnati Financial
Corporation provided Messer shall not allow any Subcontractor,
Material
Supplier
or the Roth Partnership to take any action based on
communications with Cincinnati Financial Corporation unless
also
authorized
by Messer Construction Co. Cincinnati Financial Corporation
shall have
no contractual obligations to Subcontractors, Material
Suppliers,
or Roth Partnership.
4.3.4
Cincinnati Financial Corporation shall provide insurance for
the
Project as
provided in Article 11.
4.4 OWNER'S REPRESENTATIVE. Cincinnati
Financial Corporation's Representative is
Norm Settle. The Representative:
.1 shall
be fully acquainted with the Project;
.2 agrees
to furnish the information and services required of Cincinnati
Financial
Corporation pursuant to Paragraph 4.1 so as not to delay the
Messer
Construction Co.'s Work; and
.3 shall
have authority to bind Cincinnati Financial Corporation in all
matters
requiring Cincinnati Financial Corporation's approval,
authorization or written notice. If Cincinnati Financial
Corporation
changes
its representative or the representatives authority as listed
above,
Cincinnati Financial Corporation shall notify the Messer
Construction Co. in writing.
4.5 TAX EXEMPTION. If in accordance with
Cincinnati Financial Corporation's
direction the Messer Construction Co.
claims an exemption for taxes, Cincinnati
Financial Corporation shall defend,
indemnify and hold the Messer Construction
Co. harmless for all liability, penalty,
interest, fine, tax assessment,
attorney's fees or other expense or cost
incurred by the Messer Construction Co.
as a result of any action taken by the
Messer Construction Co. in accordance
with Cincinnati Financial Corporation's
direction.
ARTICLE 5
SUBCONTRACTS
Work not performed by the Messer
Construction Co. with its own forces shall be
performed by
17
IMPORTANT: This document may contain
modifications to the text of the original
AGC standard form. Its author has chosen
not to reflect any modifications in the
electronic or printed output. Consultation
with legal and insurance counsel and
careful review of the entire document are
strongly encouraged.
DocuBuilder(R) - AGC DOCUMENT NO. 410 -
STANDARD FORM OF DESIGN-BUILD AGREEMENT
AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of
Payment is the Cost of the Work Plus a Fee
with a Guaranteed Maximum Price) (C)
1999, The Associated General Contractors of
America. All rights reserved. This
document was produced electronically under
the grant of license provided to
subscribers of the AGC DocuBuilder Contract
Document Software.
<PAGE>
Subcontractors or Roth Partnership.
5.1 RETAINING SUBCONTRACTORS. The Messer
Construction Co. shall not retain any
Subcontractor to whom Cincinnati Financial
Corporation has a reasonable and
timely objection, provided that Cincinnati
Financial Corporation agrees to
compensate the Messer Construction Co. for
any additional costs incurred by the
Messer Construction Co. as a result of such
objection. Cincinnati Financial
Corporation may propose Subcontractors to
be considered by the Messer
Construction Co.. The Messer Construction
Co. shall not be required to retain
any Subcontractor to whom the Messer
Construction Co. has a reasonable
objection.
5.2 MANAGEMENT OF SUBCONTRACTORS. The
Messer Construction Co. shall be
responsible for the management of the
Subcontractors in the performance of their
work.
5.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS.
The Messer Construction Co. shall
provide for assignment of subcontract
agreements in the event that Cincinnati
Financial Corporation terminates this
Agreement for cause as provided in
Paragraph 12.2. Following such termination,
Cincinnati Financial Corporation
shall notify in writing those
Subcontractors whose assignments will be accepted,
subject to the rights of sureties.
5.4 BINDING OF SUBCONTRACTORS AND MATERIAL
SUPPLIERS. The Messer Construction
Co. agrees to bind every Subcontractor and
Material Supplier (and require every
Subcontractor to so bind its
Subsubcontractors and Material Suppliers) to all
the provisions of this Agreement and the
Contract Documents as they apply to the
Subcontractors and Material Suppliers
portions of the Work.
ARTICLE 6
TIME
6.1 DATE OF COMMENCEMENT. The Date of
Commencement is the effective date of this
Agreement as first written in Article 1
unless otherwise set forth below:
(Insert here any special provisions
concerning Notices to Proceed and the Date
of Commencement.)
Notice to
Proceed issued 8/24/04 based on Design-Builder's submission -
Addendum
A.
Construction start scheduled for 1/'05.
The Work
shall proceed in general accordance with the Schedule of Work
as
such
schedule may be amended from time to time, subject, however, to
other
provisions
of this Agreement.
6.2 SUBSTANTIAL/FINAL COMPLETION. Unless
the parties agree otherwise, the Date
of Substantial Completion and/or the Date
of Final Completion shall be
established in Amendment No. 1 to this
Agreement subject to adjustments as
provided for i
