STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDERConstruction Agreement |
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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
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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,
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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,