EXHIBIT 10.1
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
[THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA LOGO]
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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.
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.
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.
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.
.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.
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.
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.
.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.
.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
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.
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.
.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.
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.
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.
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.
.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.
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.
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 in the Contract Documents. Cincinnati Financial Corporation and the
Messer Construction Co. may agree not to establish such dates, or in the
alternative, to establish one but not the other of the two dates. If such dates
are not established upon the execution of this Agreement, at such time as a GMP
is accepted a Date of Substantial Completion and/or Date of Final Completion of
the Work shall be established in Amendment No. 1. If a GMP is not established
and the parties desire to establish a Date of Substantial Completion and/or Date
of Final Completion, it shall
18
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.
be set forth in Amendment No. 1.
6.2.1 Time limits stated in the Contract Documents are of the essence.
6.2.2 Unless instructed by Cincinnati Financial Corporation in writing,
the Messer Construction Co. shall not knowingly commence the Work before
the effective date of insurance that is required to be provided by the
Messer Construction Co. or Cincinnati Financial Corporation.
6.3 DELAYS IN THE WORK
6.3.1 If causes beyond the Messer Construction Co.'s control delay the
progress of the Work, then the GMP, compensation for Design Phase
Services, the Messer Construction Co.'s Fee and/or the Date of Substantial
Completion and/or the Date of Final Completion shall be modified by Change
Order as appropriate. Such causes shall include but not be limited to:
changes ordered in the Work, acts or omissions of Cincinnati Financial
Corporation or Others, Cincinnati Financial Corporation preventing the
Messer Construction Co. from performing the Work pending dispute
resolution, Hazardous Materials or differing site conditions. Causes
beyond the control of the Messer Construction Co. do not include acts or
omissions on the part of the Messer Construction Co., Subcontractors,
Subsubcontractors, Material Suppliers or Roth Partnership.
6.3.2 To the extent a delay in the progress of the Work is caused by
adverse weather conditions not reasonably anticipated, fire, unusual
transportation delays, general labor disputes impacting the Project but
not specifically related to the Worksite, governmental agencies, or
unavoidable accidents or circumstances, the Messer Construction Co. shall
only be entitled to its actual costs without fee and an extension of the
Date of Substantial Completion and/or the Date of Final Completion.
6.3.3 In the event delays to the Project are encountered for any reason,
the parties agree to undertake reasonable steps to mitigate the effect of
such delays.
ARTICLE 7
COMPENSATION
7.1 DESIGN PHASE COMPENSATION
7.1.1 To the extent required by applicable law, the cost of services
performed directly by Roth Partnership is computed separately and is
independent from the Messer Construction Co.'s compensation for work or
services performed directly by the Messer Construction Co.; these costs
shall be shown as separate items on applications for payment. The payments
to Roth Partnership shall be as detailed in a separate agreement between
the Messer Construction Co. and Roth Partnership.
7.1.2 Cincinnati Financial Corporation shall compensate the Messer
Construction Co. for services performed during the Design Phase as
described in Paragraph 3.1, including preparation of a GMP Proposal, if
applicable, as described in Paragraph 3.2, as follows:
Compensation to be the same as the Construction Phase compensation
7.1.3 Compensation for Design Phase Services, as part of the Work, shall
include the Messer Construction Co.'s Fee as established in Paragraph 7.3,
paid in proportion to the services performed, subject to adjustment as
provided in Paragraph 7.4.
7.1.4 Compensation for Design Phase Services shall be equitably adjusted
if such services extend beyond 18 months from the date of this Agreement
for reasons beyond the reasonable control of
19
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.
the Messer Construction Co. or as provided in Paragraph 9.1. For changes
in Design Phase services, compensation shall be adjusted as follows:
Actual designer changes plus Design Builder hourly rates for
administration plus 2.75% fee.
7.1.5 Within (5) five business days after receipt of each monthly
application for payment, Cincinnati Financial Corporation shall give
written notice to the Messer Construction Co. of Cincinnati Financial
Corporation's acceptance or rejection, in whole or in part, of such
application for payment. Within twenty(20) days after accepting such
application, Cincinnati Financial Corporation shall pay directly to the
Messer Construction Co. the appropriate amount for which application for
payment is made, less amounts previously paid by Cincinnati Financial
Corporation. If such application is rejected in whole or in part,
Cincinnati Financial Corporation shall indicate the reasons for its
rejection. If Cincinnati Financial Corporation and the Messer Construction
Co. cannot agree on a revised amount then, within twenty (20) days after
its initial rejection in part of such application, Cincinnati Financial
Corporation shall pay directly to the Messer Construction Co. the
appropriate amount for those items not rejected by Cincinnati Financial
Corporation for which application for payment is made, less amounts
previously paid by Cincinnati Financial Corporation. Those items rejected
by Cincinnati Financial Corporation shall be due and payable when the
reasons for the rejection have been removed.
7.1.6 If Cincinnati Financial Corporation fails to pay the Messer
Construction Co. at the time payment of any amount becomes due, then the
Messer Construction Co. may, at any time thereafter, upon serving written
notice that the Work will be stopped within seven (7) days after receipt
of the notice by Cincinnati Financial Corporation, and after such seven
(7) day period, stop the Work until payment of the amount owing has been
received.
7.1.7 Payments due pursuant to Subparagraph 7.1.5, may bear interest from
the date payment is due at the prime rate prevailing at the location of
Project.
7.2 CONSTRUCTION PHASE COMPENSATION
7.2.1 Cincinnati Financial Corporation shall compensate the Messer
Construction Co. for Work performed following the commencement of the
Construction Phase on the following basis:
.1 the Cost of the Work as allowed in Article 8; and
.2 the Messer Construction Co.'s Fee paid in proportion to the
services performed subject to adjustment as provided in Paragraph
7.4.
7.2.2 The compensation to be paid under this Paragraph 7.2 shall be
limited to the GMP established in Amendment No. 1, as the GMP may be
adjusted under Article 9. In the event the Cost of Work plus Messer
Construction Co.'s Fee shall be less than the GMP as adjusted by change
orders, the resulting savings of the Cost of Work shall be attributed to
Cincinnati Financial Corporation. Messer fee compensation will remain
fixed at 2.75% of the GMP.
7.2.3 Payment for Construction Phase Services shall be as set forth in
Article 10. If Design Phase Services continue to be provided after
construction has commenced, the Messer Construction Co. shall continue to
be compensated as provided in Paragraph 7.1, or as mutually agreed.
7.3 DESIGN-BUILDER'S FEE. The Messer Construction Co.'s Fee shall be as follows,
subject to adjustment as provided in Paragraph 7.4:
2.75% of the Cost of the Work, to be converted to a fixed fee in the GMP
Amendment.
7.4 ADJUSTMENT IN THE DESIGN-BUILDER'S FEE Adjustment in the Messer Construction
Co.'s Fee
20
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.
shall be made as follows:
.1 for changes in the Work as provided in Article 9, the Messer
Construction Co.'s Fee shall be adjusted as follows:
The Fee shall be increased by 2.75% of any increase in the GMP for
additive changes in the Work; however, if changes are so extensive
that the Design-Builder's job site staffing must be increased or
committed for a longer time than originally proposed and the
foregoing percentage adjustment does not represent reasonable
compensation for the additional commitment of management resources,
then the Design-Builder shall be entitled to a reasonable Fee
adjustment as reasonably agreed to by Messer Construction Co. and
Cincinnati Financial Corporation. The fee shall be decreased by
2.75% of any decrease in the GMP involving a decrease of the
Design/Builder's staff.
.2 for delays in the Work not caused by the Messer Construction Co.,
except as provided in Subparagraph 6.3.2, there will be an equitable
adjustment in the Messer Construction Co.'s Fee to compensate the Messer
Construction Co. for increased expenses; and
.3 if the Messer Construction Co. is placed in charge of managing the
replacement of an insured or uninsured loss, the Messer Construction Co.
shall be paid an additional fee in the same proportion that the Messer
Construction Co.'s Fee bears to the estimated Cost of the Work for the
replacement.
ARTICLE 8
COST OF THE WORK
Cincinnati Financial Corporation agrees to pay the Messer Construction Co. for
the Cost of the Work as defined in this Article. This payment shall be in
addition to the Messer Construction Co.'s Fee stipulated in Paragraph 7.3.
8.1 COST ITEMS FOR DESIGN PHASE SERVICES
8.1.1 Compensation for Design Phase Services as provided in Paragraph 7.1.
8.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES
8.2.1 Wages paid for labor in the direct employ of the Messer Construction
Co. in the performance of the Work.
8.2.2 Fixed hourly rates per Addendum B of the Messer Construction Co.'s
employees when stationed at the field office, in whatever capacity
employed, employees engaged on the road expediting the production or
transportation of material and equipment, and employees from the principal
or branch office performing the functions listed below:
Estimating
Safety
Engineering
Scheduling
Operations Managers
Clerical
Administration
21
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.
8.2.3 Cost of all employee benefits and taxes including but not limited to
workers compensation, unemployment compensation, Social Security, health,
welfare, retirement and other fringe benefits as required by law, labor
agreements, or paid under the Messer Construction Co.'s standard personnel
policy, insofar as such costs are paid to employees of the Messer
Construction Co. who are included in the Cost of the Work under
Subparagraphs 8.2.1.
51% of base rate through 9/30/05, subject to adjustment each 9/30.
8.2.4 Reasonable transportation, travel, hotel and moving expenses of the
Messer Construction Co.'s personnel incurred in connection with the Work.
8.2.5 Cost of all materials, supplies and equipment incorporated in the
Work, including costs of inspection and testing if not provided by
Cincinnati Financial Corporation, transportation, storage and handling.
8.2.6 Payments made by the Messer Construction Co. to Subcontractors for
work performed under this Agreement.
8.2.7 Fees and expenses for design services procured or furnished by the
Messer Construction Co.
8.2.8 Cost, including transportation and maintenance of all materials,
supplies, equipment, temporary facilities and hand tools not owned by the
workers that are used or consumed in the performance of the Work, less
salvage value and/or residual value; and cost less salvage value on such
items used, but not consumed that remain the property of the Messer
Construction Co..
8.2.9 Rental charges of all necessary machinery and equipment, exclusive
of hand tools owned by workers, used at the Worksite, whether rented from
the Messer Construction Co. or Others, including installation, repair and
replacement, dismantling, removal, maintenance, transportation and
delivery costs. Rental from unrelated third parties shall be reimbursed at
actual cost. Rentals from the Messer Construction Co. or its affiliates,
subsidiaries or related parties shall be reimbursed at the prevailing
rates in the locality of the Worksite.
8.2.10 Cost of the premiums for all insurance and surety bonds which the
Messer Construction Co. is required to procure or deems necessary, and
approved by Cincinnati Financial Corporation.
Insurance, including General Liability $100,000,000 excess liability,
Contractors Professional Liability, Employers Liability and Pollution
Liability is charged to the Project at a fixed rate of $4.60 per $1000 of
total billings to the Owner through 9/30/05, subject to adjustment on each
9/30 to reflect any increase in Design-Builder's costs.
8.2.11 Sales, use, gross receipts or other taxes, tariffs or duties
related to the Work for which the Messer Construction Co. is liable.
8.2.12 Permits, fees, licenses, tests, royalties, damages for infringement
of patents and/or copyrights, including costs of defending related suits
for which the Messer Construction Co. is not responsible as set forth in
Paragraph 3.7, and deposits lost for causes other than the Messer
Construction Co.'s negligence.
8.2.13 Losses, expenses or damages to the extent not compensated by
insurance or otherwise, and the cost of corrective work and/or redesign
during the Construction Phase and for a period of
22
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.
one year following the Date of Substantial Completion, provided that such
corrective work and/or redesign did not arise from the negligence of the
Messer Construction Co..
8.2.14 All costs associated with establishing, equipping, operating,
maintaining and demobilizing the field office.
8.2.15 Reproduction costs, photographs, cost of telegrams, facsimile
transmissions, long distance telephone calls, data processing services,
postage, express delivery charges, telephone service at the Worksite and
reasonable petty cash expenses at the field office.
8.2.16 All water, power and fuel costs necessary for the Work.
8.2.17 Cost of removal of all non-hazardous substances, debris and waste
materials.
8.2.18 Costs incurred due to an emergency affecting the safety of persons
and/or property.
8.2.19 Legal, mediation and arbitration fees and costs, other than those
arising from disputes between Cincinnati Financial Corporation and the
Messer Construction Co., reasonably and properly resulting from the Messer
Construction Co.'s performance of the Work.
8.2.20 All costs directly incurred in the performance of the Work or in
connection with the Project, and not included in the Messer Construction
Co.'s Fee as set forth in Article 7, which are reasonably inferable from
the Contract Documents as necessary to produce the intended results.
8.2.21 All Cost of the Work for self-performance of Work by
Design-Builder's own forces, and for materials and services procured
directly by Design-Builder rather than through Subcontractors, are subject
to a 3% carrying charge. However, this does not apply to fixed hourly
rates under Paragraph 8.2.2.
8.3 DISCOUNTS. All discounts for prompt payment shall accrue to Cincinnati
Financial Corporation to the extent such payments are made directly by
Cincinnati Financial Corporation. To the extent payments are made with funds of
the Messer Construction Co., all cash discounts shall accrue to the Messer
Construction Co.. All trade discounts, rebates and refunds, and all returns from
sale of surplus materials and equipment, shall be credited to the Cost of the
Work.
ARTICLE 9
CHANGES IN THE WORK
Changes in the Work which are within the general scope of this Agreement may be
accomplished, without invalidating this Agreement, by Change Order, Work Change
Directive, or a minor change in the work, subject to the limitations stated in
the Contract Documents.
9.1 CHANGE ORDER
9.1.1 The Messer Construction Co. may request and/or Cincinnati Financial
Corporation, without invalidating this Agreement, may by writing order
changes in the Work within the general scope of the Contract Documents
consisting of additions, deletions or other revisions to the GMP or the
estimated cost of the work, compensation for Design Phase Services, the
Messer Construction Co.'s Fee and/or the Date of Substantial Completion
and/or the Date of Final Completion being adjusted accordingly. All such
changes in the Work shall be authorized by applicable written Change
Order, and shall be performed under the applicable conditions of the
Contract Documents.
9.1.2 Each adjustment in the GMP and/or estimated Cost of the Work
resulting from a Change Order shall clearly separate the amount
attributable to compensation for Design Phase Services,
23
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.
other Cost of the Work and the Messer Construction Co.'s Fee, with the
Messer Construction Co.'s Fee not to exceed the amount stated in Paragraph
7.4.
9.1.3 Cincinnati Financial Corporation and the Messer Construction Co.
shall negotiate in good faith an appropriate adjustment to the GMP or the
estimated Cost of the Work, compensation for Design Phase Services, the
Messer Construction Co.'s Fee and/or the Date of Substantial Completion
and/or the Date of Final Completion and shall conclude these negotiations
as expeditiously as possible. Acceptance of the Change Order and any
adjustment in the GMP, the estimated Cost of the Work, compensation for
Design Phase Services, the Messer Construction Co.'s Fee and/or the Date
of Substantial Completion and/or the Date of Final Completion shall not be
unreasonably withheld.
9.2 WORK CHANGE DIRECTIVES
9.2.1 Cincinnati Financial Corporation may issue a written Work Change
Directive directing a change in the Work prior to reaching agreement with
the Messer Construction Co. on the adjustment, if any, in the GMP,
estimated Cost of the Work, the Messer Construction Co.'s Fee, the Date of
Substantial Completion and/or the Date of Final Completion, and if
appropriate, the compensation for Design Phase Services.
9.2.2 Cincinnati Financial Corporation and the Messer Construction Co.
shall negotiate expeditiously and in good faith for appropriate
adjustments, as applicable, to the GMP, estimated Cost of the Work, the
Messer Construction Co.'s Fee, the Date of Substantial Completion and/or
the Date of Final Completion, and if appropriate the compensation for
Design Phase Services, arising out of Work Change Directives. As the
changed work is completed, the Design Builder shall submit its costs for
such work with its application for payment beginning with the next
application for payment within thirty (30) days of the issuance of the
Work Change Directive. Pending final determination of cost to Cincinnati
Financial Corporation, amounts not in dispute may be included in
applications for payment and shall be paid by Cincinnati Financial
Corporation.
9.2.3 If Cincinnati Financial Corporation and the Messer Construction Co.
agree upon the adjustments in the GMP, estimated Cost of the Work, the
Messer Construction Co.'s Fee, the Date of Substantial Completion and/or
the Date of Final Completion, and if appropriate the compensation for
Design Phase Services, for a change in the Work directed by a Work Change
Directive, such agreement shall be the subject of an appropriate Change
Order. The Change Order shall include all outstanding Change Directives
issued since the last Change Order.
9.3 MINOR CHANGES IN THE WORK
9.3.1 The Messer Construction Co. may make minor changes in the design and
construction of the Project consistent with the intent of the Contract
Documents which do not involve an adjustment in the GMP, estimated Cost of
the Work, the Messer Construction Co.'s Fee, the Date of Substantial
Completion and/or the Date of Final Completion, and do not materially and
adversely affect the design of the Project, the quality of any of the
materials or equipment specified in the Contract Documents, the
performance of any materials, equipment or systems specified in the
Contract Documents, or the quality of workmanship required by the Contract
Documents. Finish items that are specified in the Contract Documents shall
not be changed by Messer Construction Co. without first obtaining an
executed Change Order from Cincinnati Financial Corporation.
9.3.2 The Messer Construction Co. shall promptly inform Cincinnati
Financial Corporation in writing of any such changes and shall record such
changes on the Design-Build Documents maintained by the Messer
Construction Co..
24
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.
9.4 UNKNOWN CONDITIONS. If in the performance of the Work the Messer
Construction Co. finds latent, concealed or subsurface physical conditions which
materially differ from the conditions the Messer Construction Co. reasonably
anticipated, or if physical conditions are materially different from those
normally encountered and generally recognized as inherent in the kind of work
provided for in this Agreement, then the GMP, estimated Cost of the Work, the
Messer Construction Co.'s Fee, the Date of Substantial Completion and/or the
Date of Final Completion, and if appropriate the compensation for Design Phase
Services, shall be equitably adjusted by Change Order within a reasonable time
after the conditions are first observed. The Messer Construction Co. shall
provide Cincinnati Financial Corporation with written notice within the time
period set forth in Paragraph 9.6.
9.5 DETERMINATION OF COST
9.5.1 An increase or decrease in the GMP and/or estimated Cost of the Work
resulting from a change in the Work shall be determined by one or more of
the following methods:
.1 unit prices set forth in this Agreement or as subsequently
agreed;
.2 a mutually accepted, itemized lump sum;
.3 costs determined as defined in Paragraph 7.2 and Article 8 and a
mutually acceptable Messer Construction Co.'s Fee as determined in
Subparagraph 7.4.1; or
.4 if an increase or decrease cannot be agreed to as set forth in
Clauses 9.5.1.1 through 9.5.1.3 above, and Cincinnati Financial
Corporation issues a Work Change Directive, the cost of the change
in the Work shall be determined by the reasonable expense and
savings of the performance of the Work resulting from the change. If
there is a net increase in the GMP, the Messer Construction Co.'s
Fee shall be adjusted as set forth in Subparagraph 7.4.1. In case of
a net decrease in the GMP, the Messer Construction Co.'s Fee shall
not be adjusted unless ten percent (10%) or more of the Project is
deleted. The Messer Construction Co. shall maintain a documented,
itemized accounting evidencing the expenses and savings.
9.5.2 If unit prices are indicated in the Contract Documents or are
subsequently agreed to by the parties, but the character or quantity of
such unit items as originally contemplated is so different in a proposed
Change Order that the original unit prices will cause substantial inequity
to Cincinnati Financial Corporation or the Messer Construction Co., such
unit prices shall be equitably adjusted.
9.5.3 If Cincinnati Financial Corporation and the Messer Construction Co.
disagree as to whether work required by Cincinnati Financial Corporation
is within the scope of the Work, the Messer Construction Co. shall furnish
Cincinnati Financial Corporation with an estimate of the costs to perform
the disputed work in accordance with Cincinnati Financial Corporation's
interpretations. If Cincinnati Financial Corporation issues a written
order for the Messer Construction Co. to proceed, the Messer Construction
Co. shall perform the disputed work and Cincinnati Financial Corporation
shall pay the Messer Construction Co. fifty percent (50%) of its estimated
cost to perform the work. In such event, both parties reserve their rights
as to whether the work was within the scope of the Work. Cincinnati
Financial Corporation's payment does not prejudice its right to be
reimbursed should it be determined that the disputed work was within the
scope of Work. The Messer Construction Co.'s receipt of payment for the
disputed work does not prejudice its right to receive full payment for the
disputed work should it be determined that the disputed work is not within
the scope of the Work.
9.6 CLAIMS FOR ADDITIONAL COST OR TIME. For any claim for an increase in the
GMP, estimated Cost of the Work, the Messer Construction Co.'s Fee and the Date
of Substantial Completion and/or the Date of Final Completion, and if
appropriate the compensation for Design Phase Services, the Messer
25
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.
Construction Co. shall give Cincinnati Financial Corporation written notice of
the claim within twenty-one (21) days after the occurrence giving rise to the
claim or within twenty-one (21) days after the Messer Construction Co. first
recognizes the condition giving rise to the claim, whichever is later. Except
in an emergency, notice shall be given before proceeding with the Work. Claims
for design and estimating costs incurred in connection with possible changes
requested by Cincinnati Financial Corporation, but which do not proceed, shall
be made within twenty-one (21) days after the decision is made not to proceed.
Any change in the GMP, estimated Cost of the Work, the Messer Construction
Co.'s Fee, the Date of Substantial Completion and/or the Date of Final
Completion, and if appropriate the compensation for Design Phase Services,
resulting from such claim shall be authorized by Change Order.
9.7 EMERGENCIES. In any emergency affecting the safety of persons and/or
property, the Messer Construction Co. shall act, at its discretion, to prevent
threatened damage, injury or loss. Any change in the GMP, estimated Cost of the
Work, the Messer Construction Co.'s Fee, the Date of Substantial Completion
and/or the Date of Final Completion, and if appropriate the compensation for
Design Phase Services, on account of emergency work shall be determined as
provided in this Article.
9.8 CHANGES IN LAW. In the event any changes in laws or regulations affecting
the performance of the Work are enacted after either the date of this Agreement
or the date a GMP Proposal is accepted by Cincinnati Financial Corporation and
set forth in Amendment No. 1 to this Agreement, whichever occurs later, the GMP,
estimated Cost of the Work, the Messer Construction Co.'s Fee, the Date of
Substantial Completion and/or the Date of Final Completion, and if appropriate
the compensation for Design Phase Services, shall be equitably adjusted by
Change Order.
ARTICLE 10
PAYMENT FOR CONSTRUCTION PHASE SERVICES
10.1 PROGRESS PAYMENTS
10.1.1 On the 5th day of each month after the Construction Phase has
commenced, the Messer Construction Co. shall submit to Cincinnati
Financial Corporation an application for payment consisting of the Cost of
the Work performed up to the end of the preceding month, including the
cost of material suitably stored on the Worksite or at other locations
approved by Cincinnati Financial Corporation, along with a proportionate
share of the Messer Construction Co.'s Fee. Approval of payment
applications for such stored materials shall be conditioned upon
submission by the Messer Construction Co. of bills of sale and applicable
insurance or such other procedures satisfactory to Cincinnati Financial
Corporation to establish Cincinnati Financial Corporation's title to such
materials, or otherwise to protect Cincinnati Financial Corporation's
interest, including transportation to the site. Prior to submission of the
next application for payment, the Messer Construction Co. shall furnish to
Cincinnati Financial Corporation a statement accounting for the
disbursement of funds received under the previous application. The extent
of such statement shall be as agreed upon between Cincinnati Financial
Corporation and the Messer Construction Co.
Each Application for Payment shall include without limitation, an
affidavit of Messer Construction Co. listing all major Subcontractors and
Material Suppliers having contracts with Messer Construction Co. who
provided labor, supplies, equipment and/or materials for the Project
during the applicable pay period. "Major" means that the Subcontractor or
Material Supplier is entitled to bill at least $25,000 for the applicable
pay period.
Cincinnati Financial Corporation shall be responsible for preparing and
recording a Notice of Commencement as defined in Chapter 1311 of the Ohio
Revised Code. Messer Construction Co. shall be responsible for
continuously, throughout the entire term of construction, maintaining and
26
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.
posting at the job site, in a conspicuous place, a copy of the Notice of
Commencement. Messer Construction Co. shall deliver to Cincinnati
Financial Corporation (Or Messer Construction Co.'s designee or the title
insurance company for Cincinnati Financial Corporation or Cincinnati
Financial Corporation's Construction Lender, if so designated in a written
notice to Messer Construction Co.) copies of any Notice of Furnishing as
that term is defined in Chapter 1311 of the Ohio Revised Code within ten
(10) days of receipt by Messer Construction Co..
Upon request, Messer Construction Co. shall provide Cincinnati Financial
Corporation with evidence reasonably satisfactory to it that all payrolls,
materials, bills and other indebtedness of Messer Construction Co. to any
major Subcontractor or material supplier relating to the Work have been
paid or otherwise satisfied within thirty (30) days after receipt of the
corresponding payment from Cincinnati Financial Corporation. If any notice
of lien is filed against the project by any person or entity working under
Messer Construction Co. and such lien does not result from Cincinnati
Financial Corporation failing to make payment when due, and if Messer
Construction Co. is unable to resolve such lien by negotiation within
thirty (30) days after it is filed, then Messer Construction Co. shall
promptly have such lien discharged of record with the County Recorder's
Office by payment or bonding. As long as the payment and performance bonds
required by the Construction Contract are in force, Cincinnati Financial
Corporation shall not be permitted to withhold from any progress payment
otherwise due to Messer Construction Co. any amount based on the existence
of any such liens (or claims which may result in liens) unless Cincinnati
Financial Corporation reasonably determines that the magnitude of such
liens or claims, together with any other failure of performance by Messer
Construction Co., is such that Cincinnati Financial Corporation is not
reasonably protected by such bonds. Notwithstanding anything therein to
the contrary, such withholding, made in accordance with this provision,
shall not be grounds for Messer Construction Co. to stop the Work or to
terminate the Contract, but such withholding shall be reduced or
eliminated as soon as Messer Construction Co. removes the grounds
therefor.
The submission of an Application for Payment to the Cincinnati Financial
Corporation will constitute a representation by the Messer Construction
Co. to Cincinnati Financial Corporation that the Work has progressed to
the point indicated; that to, to the best of its knowledge, information
and belief, the quality of the Work is in accordance with the Contract
Documents except as otherwise disclosed in writing, and that Messer
Construction Co. is entitled to payment in the amount certified.
10.1.2 Within five (5) business days after receipt of each monthly
application for payment, Cincinnati Financial Corporation shall give
written notice to the Messer Construction Co. of Cincinnati Financial
Corporation's acceptance or rejection, in whole or in part, of such
application for payment. Not later than 20 days after giving such notice,
Cincinnati Financial Corporation shall pay directly to the Messer
Construction Co. the appropriate amount for which application for payment
is made, less amounts previously paid by Cincinnati Financial Corporation.
If such application is rejected in whole or in part, Cincinnati Financial
Corporation shall indicate the reasons for its rejection. If Cincinnati
Financial Corporation and the Messer Construction Co. cannot agree on a
revised amount then, within twenty (20) days after its initial rejection
in part of such application, Cincinnati Financial Corporation shall pay
directly to the Messer Construction Co. the appropriate amount for those
items not rejected by Cincinnati Financial Corporation for which
application for payment is made, less amounts previously paid by
Cincinnati Financial Corporation. Those items rejected by Cincinnati
Financial Corporation shall be due and payable when the reasons for the
rejection have been removed.
10.1.3 If Cincinnati Financial Corporation fails to pay the Messer
Construction Co. at the time
27
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.
payment of any amount becomes due, then the Messer Construction Co. may,
at any time thereafter, upon serving written notice that the Work will be
stopped within seven (7) days after receipt of the notice by Cincinnati
Financial Corporation, and after such seven day period, stop the Work
until payment of the amount owing has been received.
10.1.4 Payments due but unpaid pursuant to Subparagraph 10.1.2, less any
amount retained pursuant to Paragraphs 10.2 and 10.3 may bear interest
from the date payment is due at the prime rate prevailing at the place of
the Project or the rate Owner is paying on its construction loan,
whichever is higher.
10.1.5 The Messer Construction Co. warrants and guarantees that title to
all Work, materials and equipment covered by an application for payment,
whether incorporated in the Project or not, will pass to Cincinnati
Financial Corporation upon receipt of such payment by the Messer
Construction Co., free and clear of all liens, claims, security interests
or encumbrances, hereinafter referred to as liens, except for unpaid
retainage.
10.1.6 Cincinnati Financial Corporation's progress payment, occupancy or
use of the Project, whether in whole or in part, shall not be deemed an
acceptance of any Work not conforming to the requirements of the Contract
Documents.
10.1.7 Upon Substantial Completion of the Work, Cincinnati Financial
Corporation shall pay the Messer Construction Co. the unpaid balance of
the Cost of the Work, compensation for Design Phase Services and the
Messer Construction Co.'s Fee, less one-hundred-fifty percent (150%) of
the cost of completing any unfinished items as agreed to between
Cincinnati Financial Corporation and the Messer Construction Co. as to
extent and time for completion. Cincinnati Financial Corporation
thereafter shall pay the Messer Construction Co. monthly the amount
retained for unfinished items as each item is completed.
10.2 RETAINAGE. From each progress payment made prior to the time Substantial
Completion of the Work has been reached, Cincinnati Financial Corporation shall
retain five percent (5%), if required, of the amount otherwise due for
subcontractor cost only after deduction of any amounts as provided in Paragraph
10.3 of this Agreement. If Cincinnati Financial Corporation chooses to use this
retainage provision:
.1 at the time the Work is fifty percent (50%) complete and thereafter,
Cincinnati Financial Corporation may choose to withhold no more retainage
and pay the Messer Construction Co. the full amount of what is due on
account of subsequent progress payments;
.2 once each early finishing trade Subcontractor has completed its work
and that work has been accepted by Cincinnati Financial Corporation,
Cincinnati Financial Corporation may release final retention on such work;
.3 in lieu of retainage, the Messer Construction Co. may furnish
securities, acceptable to Cincinnati Financial Corporation, to be held by
Cincinnati Financial Corporation. The interest on such securities shall
accrue to the Messer Construction Co.;
.4 Cincinnati Financial Corporation may, in its sole discretion, reduce
the amount to be retained at any time.
10.3 ADJUSTMENT OF DESIGN-BUILDER'S APPLICATION FOR PAYMENT Cincinnati Financial
Corporation may adjust or reject an application for payment or nullify a
previously approved Messer Construction Co. application for payment, in whole or
in part, as may reasonably be necessary to protect Cincinnati Financial
Corporation from loss or damage based upon the following, to the extent that the
Messer Construction Co. is responsible under this Agreement:
28
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.
.1 the Messer Construction Co.'s repeated failure to perform the Work as
required by the Contract Documents;
.2 loss or damage arising out of or relating to this Agreement and caused
by the Messer Construction Co. to Cincinnati Financial Corporation or
Others to whom Cincinnati Financial Corporation may be liable;
.3 the Messer Construction Co.'s failure to properly pay Roth Partnership,
Subcontractors or Material Suppliers for labor, materials, equipment or
supplies furnished in connection with the Work, provided that Cincinnati
Financial Corporation is making payments to the Messer Construction Co. in
accordance with the terms of this Agreement;
.4 Defective Work not corrected in a timely fashion;
.5 reasonable evidence of delay in performance of the Work such that the
Work will not be completed by the Date of Substantial Completion and/or
the Date of Final Completion, and that the unpaid balance of the GMP is
not sufficient to offset any direct damages that may be sustained by
Cincinnati Financial Corporation as a result of the anticipated delay
caused by the Messer Construction Co.; and
.6 reasonable evidence demonstrating that the unpaid balance of the GMP is
insufficient to fund the cost to complete the Work.
Cincinnati Financial Corporation shall give written notice to the Messer
Construction Co. at the time of disapproving or nullifying all or part of
an application for payment of the specific reasons. When the above reasons
for disapproving or nullifying an application for payment are removed,
payment will be made for the amount previously withheld.
10.4 OWNER OCCUPANCY OR USE OF COMPLETED OR PARTIALLY COMPLETED WORK
10.4.1 Portions of the Work that are completed or partially completed may
be used or occupied by Cincinnati Financial Corporation when (a) the
portion of the Work is designated in a Certificate of Substantial
Completion, (b) appropriate insurer(s) and/or sureties consent to the
occupancy or use, and (c) appropriate public authorities authorize the
occupancy or use. Such partial occupancy or use shall constitute
Substantial Completion of that portion of the Work. The Messer
Construction Co. shall not unreasonably withhold consent to partial
occupancy or use. Cincinnati Financial Corporation shall not unreasonably
refuse to accept partial occupancy or use, provided such partial occupancy
or use is of value to Cincinnati Financial Corporation.
10.5 FINAL PAYMENT
10.5.1 Final Payment, consisting of the unpaid balance of the Cost of the
Work, compensation for Design Phase Services and the Messer Construction
Co.'s Fee, shall be due and payable when the work is fully completed.
Before issuance of final payment, Cincinnati Financial Corporation may
request satisfactory evidence that all payrolls, material bills and other
indebtedness connected with the Work have been paid or otherwise
satisfied.
10.5.2 In making final payment Cincinnati Financial Corporation waives all
claims except for:
.1 outstanding liens;
.2 improper workmanship or defective materials appearing within one
year after the Date of Substantial Completion;
.3 work not in conformance with the Contract Documents; and
29
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.
.4 terms of any special warranties required by the Contract
Documents.
.5 any claims previously made in writing which are specifically
listed in writing again at the time of final payment and which
remain unsettled; and
.6 those claims, potential claims or rights of Cincinnati Financial
Corporation set forth in Article 11 or elsewhere in this Agreement
which are specifically listed in writing at the time of final
payment.
10.5.3 In accepting final payment, the Messer Construction Co. waives all
claims except those previously made in writing and which remain unsettled.
10.5.4 At the time of Final Payment, Messer Construction Co. shall provide
Cincinnati Financial Corporation with, within the GMP, one full set of
record drawings, consisting of the approved construction drawings for the
Project, with modifications to show all significant changes made during
construction and the locations of all concealed facilities which are
customarily shown on such drawings.
ARTICLE 11
INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION
11.1 INDEMNITY
11.1.1 To the fullest extent permitted by law, the Messer Construction Co.
shall defend, indemnify and hold harmless Cincinnati Financial
Corporation, Cincinnati Financial Corporation's officers, directors,
members, consultants, agents and employees from all claims for bodily
injury and property damage (other than to the Work itself and other
property required to be insured under Paragraph 11.5 owned by or in the
custody of Cincinnati Financial Corporation), that may arise from the
performance of the Work, to the extent of the negligence attributed to
such acts or omissions by the Messer Construction Co., Roth Partnership,
Subcontractors or anyone employed directly or indirectly by any of them or
by anyone for whose acts any of them may be liable. The Messer
Construction Co. shall not be required to defend, indemnify or hold
harmless Cincinnati Financial Corporation, Cincinnati Financial
Corporation's officers, directors, members, consultants, agents and
employees for any acts, omissions or negligence of Cincinnati Financial
Corporation, Cincinnati Financial Corporation's officers, directors,
members, consultants, employees, agents or separate contractors.
11.1.2 Cincinnati Financial Corporation shall cause any other contractor
who fits the definition of "Others" agree to indemnify Messer Construction
Co., its subcontractors, or any one employed directly or indirectly by any
of them or anyone for whose acts any of them may be liable and hold them
harmless from all claims for bodily injury and property damage, other than
property insured under Section 11.5, that may arise from that person or
entities acts or omissions.
11.2 DESIGN-BUILDER'S LIABILITY INSURANCE
11.2.1 The Messer Construction Co. shall obtain and maintain insurance
coverage for the following claims which may arise out of the performance
of this Agreement, whether resulting from the Messer Construction Co.'s
operations or from the operations of any Subcontractor, anyone in the
employ of any of them, or by an individual or entity for whose acts they
may be liable:
.1 workers compensation, disability and other employee benefit
claims under acts applicable to the Work;
.2 under applicable employers liability law, bodily injury,
occupational sickness, disease or
30
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.
death claims of the Messer Construction Co.'s employees;
.3 bodily injury, sickness, disease or death claims for damages to
persons not employed by the Messer Construction Co.;
.4 personal injury liability claims for damages directly or
indirectly related to the person's employment by the Messer
Construction Co. or for damages to any other person;
.5 claims for physical injury to tangible property, including all
resulting loss of use of that property, and to property other than
the Work itself and property insured under Paragraph 11.5;
.6 bodily injury, death or property damage claims resulting from
motor vehicle liability in the use, maintenance or ownership of any
motor vehicle; and
.7 contractual liability claims involving the Messer Construction
Co.'s obligations under Subparagraph 11.1.1.
11.2.2 The Messer Construction Co.'s Commercial General and Automobile
Liability Insurance as required by Subparagraph 11.2.1 shall be written
for not less than the following limits of liability:
.1 Commercial General Liability Insurance
a. Each Occurrence Limit $50,000,000
b. General Aggregate $50,000,000
c. Products/Completed Operations Aggregate $50,000,000
d. Personal and Advertising Injury Limit $50,000,000
.2 Comprehensive Automobile Liability Insurance
a. Combined Single Limit Bodily Injury and Property Damage
$10,000,000 Each Occurrence
b. Bodily Injury
$N/A Each Person
$N/A Each Occurrence
c. Property Damage
$N/A Each Occurrence
.3 Pollution Liability $10,000,000
11.2.3 Commercial General Liability Insurance may be arranged under a
single policy for the full limits required or by a combination of
underlying policies and an Excess or Umbrella Liability policy.
11.2.4 The policies shall contain a provision that coverage will not be
canceled or not renewed until at least thirty (30) days prior written
notice has been given to Cincinnati Financial Corporation. Certificates of
insurance showing required coverage to be in force shall be filed with
Cincinnati Financial Corporation prior to commencement of the Work.
11.2.5 Products and Completed Operations insurance shall be maintained for
a minimum period of
31
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.
at least two year(s) after either Substantial Completion or final payment.
11.3 PROFESSIONAL LIABILITY INSURANCE. Messer Construction Co. shall obtain,
either itself or through Roth Partnership, professional liability insurance for
claims arising from the negligent performance of professional services under
this Agreement, which must be upon terms acceptable to Cincinnati Financial
Corporation and as follows:
Project Specific Professional Liability Insurance
written for not less than $5,000,000 per claim and in the aggregate with a
deductible not to exceed $100,000. The Professional Liability Insurance shall
include prior acts coverage sufficient to cover all services rendered by Roth
Partnership and consultants. This coverage shall be continued in effect for five
year(s) after the Date of Substantial Completion.
The first $25,000 of the deductible is the responsibility of Messer Construction
Co. if negligence of Messer Construction Co., Roth Partnership or any of their
design consultants is established; all remaining deductible is to be paid by
Cincinnati Financial Corporation. Regardless of any other provisions of this
Agreement making Messer Construction Co. responsible for acts or omissions of
Roth & their consultants, the liability of Messer Construction Co., Roth
Partnership and its consultants to Cincinnati Financial Corporation or any
person or entity claiming through or under the Cincinnati Financial Corporation
for errors or omissions in the provision of professional design services for the
Project shall be limited, in the aggregate, to the proceeds available from the
foregoing Professional Liability Insurance and Cincinnati Financial Corporation
hereby releases Messer Construction Co., Roth Partnership and its consultants,
and their respective employees, agents, officers and directors from all existing
or future claims and liabilities related to errors or omissions in any
professional architectural or engineering services related to the Project,
except to the extent that such claims and liabilities can be satisfied from the
proceeds of the Professional Liability Insurance. This limitation of liability
is not intended to extend to Messer Construction Co. normal liability for bodily
injury and property damage that arises out of construction services other than
professional architectural and engineering services.
11.4 OWNER'S LIABILITY INSURANCE Cincinnati Financial Corporation shall be
responsible for obtaining and maintaining its own liability insurance. Insurance
for claims arising out of the performance of this Agreement may be purchased and
maintained at Cincinnati Financial Corporation's discretion. Cincinnati
Financial Corporation shall provide Messer Construction Co. with a certificate
of insurance at the request of Messer Construction Co..
11.5 INSURANCE TO PROTECT PROJECT
11.5.1 Cincinnati Financial Corporation shall obtain and maintain All Risk
Builders Risk insurance in a form acceptable to Messer Construction Co.
upon the entire Project for the full cost of replacement at the time of
any loss. This insurance shall include as named insureds Cincinnati
Financial Corporation, Messer Construction Co., Roth Partnership,
Subcontractors, Material Suppliers and Subsubcontractors. This insurance
shall include all risk insurance for physical loss or damage including
without duplication of coverage at least: theft, vandalism, malicious
mischief, transit, materials stored off site, collapse, falsework,
temporary buildings, debris removal, flood, earthquake, testing, and
damage resulting from defective design, workmanship or material.
Cincinnati Financial Corporation shall increase limits of coverage, if
necessary, to reflect estimated replacement cost. The insurance policy
shall be written without a co-insurance clause. Cincinnati Financial
Corporation shall be solely responsible for any deductible amounts.
32
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.
11.5.2 If Cincinnati Financial Corporation occupies or uses a portion of
the Project prior to its Substantial Completion, such occupancy or use
shall not commence prior to a time mutually agreed to by Cincinnati
Financial Corporation and Messer Construction Co.. Permission for partial
occupancy from the insurance company shall be included as standard in the
property insurance policy, to ensure that this insurance shall not be
canceled or lapsed on account of partial occupancy. Consent of Messer
Construction Co. to such early occupancy or use shall not be unreasonably
withheld.
11.5.3 Cincinnati Financial Corporation shall obtain and maintain boiler
and machinery insurance as necessary. The interests of Cincinnati
Financial Corporation, Messer Construction Co., Roth Partnership,
Subcontractors, Material Suppliers and Subsubcontractors shall be
protected under this coverage.
11.5.4 Cincinnati Financial Corporation shall purchase and maintain
insurance to protect Cincinnati Financial Corporation, Messer Construction
Co., Roth Partnership, Subcontractors, Material Suppliers and
Subsubcontractors against loss of use of Cincinnati Financial
Corporation's property due to those perils insured pursuant to Paragraph
11.5. Such policy will provide coverage for expediting expenses of
materials, continuing overhead of Cincinnati Financial Corporation and
Messer Construction Co., Roth Partnership, Subcontractors, Material
Suppliers and Subsubcontractors, necessary labor expense including
overtime, loss of income by Cincinnati Financial Corporation and other
determined exposures. Exposures of Cincinnati Financial Corporation,
Messer Construction Co., Roth Partnership, Subcontractors and
Subsubcontractors, shall be determined by mutual agreement with separate
limits of coverage fixed for each item.
11.5.5 Upon Messer Construction Co.'s written request, Cincinnati
Financial Corporation shall provide Messer Construction Co. with a copy of
all property insurance policies before an exposure to loss may occur.
Copies of any subsequent endorsements shall be furnished to Messer
Construction Co.. Messer Construction Co. shall be given thirty (30) days
notice of cancellation, non-renewal, or any endorsements restricting or
reducing coverage. Cincinnati Financial Corporation shall give written
notice to Messer Construction Co. before commencement of the Work if
Cincinnati Financial Corporation will not be obtaining property insurance.
In that case, Messer Construction Co. may obtain insurance in order to
protect its interest in the Work as well as the interest of Roth
Partnership, Subcontractors, Material Suppliers and Subsubcontractors in
the Work. The cost of this insurance shall be a Cost of the Work pursuant
to Article 8, and the GMP shall be increased by Change Order. If Messer
Construction Co. is damaged by the failure of Cincinnati Financial
Corporation to purchase or maintain property insurance or to so notify
Messer Construction Co., Cincinnati Financial Corporation shall bear all
reasonable costs incurred by Messer Construction Co. arising from the
damage.
11.5.6 Cincinnati Financial Corporation shall have the right to
self-insure against the risks covered in Subparagraphs 11.5.1 and 11.5.4
upon providing evidence satisfactory to Messer Construction Co. of the
ability to so self-insure.
11.6 PROPERTY INSURANCE LOSS ADJUSTMENT
11.6.1 Any insured loss shall be adjusted with Cincinnati Financial
Corporation and Messer Construction Co. and made payable to Cincinnati
Financial Corporation and Messer Construction Co. as trustees for the
insureds, as their interests may appear, subject to any applicable
mortgagee clause.
11.6.2 Upon the occurrence of an insured loss, monies received will be
deposited in a separate account and the trustees shall make distribution
in accordance with the agreement of the parties in
33
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.
interest, or in the absence of such agreement, in accordance with a
dispute resolution award pursuant to Article 13. If the trustees are
unable to agree between themselves on the settlement of the loss, such
dispute shall also be submitted for resolution pursuant to Article 13.
11.7 WAIVER OF SUBROGATION
11.7.1 Cincinnati Financial Corporation and Messer Construction Co. waive
all rights against each other, Roth Partnership, and any of their
respective employees, agents, consultants, Subcontractors, Material
Suppliers and Subsubcontractors for damages covered by the insurance
provided pursuant to Paragraph 11.5 or any other insurance maintained by a
party to the extent they are covered by that insurance, except such rights
as they may have to the proceeds of such insurance held by Cincinnati
Financial Corporation and Messer Construction Co. as trustees. Messer
Construction Co. shall require similar waivers from Roth Partnership and
all Subcontractors, and shall require each of them to include similar
waivers in their subsubcontracts and consulting agreements.
11.7.2 Cincinnati Financial Corporation waives subrogation against Messer
Construction Co., Roth Partnership, its consultants, Subcontractors,
Material Suppliers and Subsubcontractors on all property and consequential
loss policies carried by Cincinnati Financial Corporation on adjacent
properties and under property and consequential loss policies purchased
for the Project after its completion.
11.7.3 The policies shall also be endorsed to state that the carrier
waives any right of subrogation against Messer Construction Co., Roth
Partnership, Subcontractors, Material Suppliers, or Subsubcontractors. If
the policy of insurance referred to in this Section require an endorsement
to provide for continued coverage where there is a waiver of subrogation,
the owners of such policies will cause them to be so endorsed.
11.8 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES Cincinnati Financial Corporation and
Messer Construction Co. agree to waive all claims against the other for all
consequential damages that may arise out of or relate to this Agreement.
Cincinnati Financial Corporation agrees to waive damages including but not
limited to Cincinnati Financial Corporation's loss of use of the Property, all
rental expenses incurred, loss of services of employees, or loss of reputation.
Messer Construction Co. agrees to waive damages including but not limited to the
loss of business, loss of financing, principal office overhead and profits, loss
of profits not related to this Project, or loss of reputation. This paragraph
shall not be construed to preclude contractual provisions for liquidated damages
when such provisions relate to direct damages only. The provisions of this
paragraph shall govern the termination of this Agreement and shall survive such
termination. This waiver takes precedence over any other provision of this
Agreement which might otherwise crease a consequential damage liability.
11.9 BONDING
11.9.1 Performance and Payment Bonds
are
required of Messer Construction Co.. Such bonds shall be issued by a
surety licensed in the state of the location of the Project and must be
acceptable to Cincinnati Financial Corporation.
11.9.2 Such Performance Bond shall be issued in the penal sum equal to
one-hundred percent (100%) of the
GMP (If there is no GMP, then the agreed estimated cost of the
Project, including design and
34
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.
construction).
Such Performance Bond shall cover the cost to complete the Work
11.9.3 The penal sum of the Payment Bond shall equal the penal sum of the
Performance Bond.
ARTICLE 12
SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT
TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES
12.1 SUSPENSION BY THE OWNER FOR CONVENIENCE
12.1.1 Cincinnati Financial Corporation may order Messer Construction Co.
in writing to suspend, delay or interrupt all or any part of the Work
without cause for such period of time as Cincinnati Financial Corporation
may determine to be appropriate for its convenience.
12.1.2 Adjustments caused by suspension, delay or interruption shall be
made for increases 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. No adjustment shall be made if Messer
Construction Co. is or otherwise would have been responsible for the
suspension, delay or interruption of the Work, or if another provision of
this Agreement is applied to render an equitable adjustment.
12.2 OWNER'S RIGHT TO PERFORM DESIGN-BUILDER'S OBLIGATIONS AND TERMINATION BY
THE OWNER FOR CAUSE
12.2.1 If Messer Construction Co. persistently fails to perform any of its
obligations under this Agreement, Cincinnati Financial Corporation may,
after seven (7) days' written notice, during which period Messer
Construction Co. fails to perform such obligation, undertake to perform
such obligations. The GMP shall be reduced by the cost to Cincinnati
Financial Corporation of performing such obligations.
12.2.2 Upon an additional seven (7) days' written notice to Messer
Construction Co. and Messer Construction Co.'s surety, if any, Cincinnati
Financial Corporation may terminate this Agreement for any of the
following reasons:
.1 if Messer Construction Co. materially utilizes improper materials
and/or inadequately skilled workers;
.2 if Messer Construction Co. does not make proper payment to
laborers, Material Suppliers or Subcontractors, provided that
Cincinnati Financial Corporation is making payments to Messer
Construction Co. in accordance with the terms of this Agreement;
.3 if Messer Construction Co. materially fails to abide by the
orders, regulations, rules, ordinances or laws of governmental
authorities having jurisdiction; or
.4 if Messer Construction Co. otherwise materially breaches this
Agreement.
If Messer Construction Co. fails to cure or commence and continue to
cure within the five (5) days, Cincinnati Financial Corporation,
without prejudice to any other right or remedy, may take possession
of the Worksite and complete the Work utilizing any reasonable
means. In this event, Messer Construction Co. shall not have a right
to further payment until the Work is completed.
35
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.
12.2.3 If Messer Construction Co. files a petition under the Bankruptcy
Code, this Agreement shall terminate if Messer Construction Co. or Messer
Construction Co.'s trustee rejects the Agreement or, if there has been a
default, Messer Construction Co. is unable to give adequate assurance
acceptable to Cincinnati Financial Corporation that Messer Construction
Co. will perform as required by this Agreement or otherwise is unable to
comply with the requirements for assuming this Agreement under the
applicable provisions of the Bankruptcy Code.
12.2.4 In the event Cincinnati Financial Corporation exercises its rights
under Subparagraph 12.2.1 or 12.2.2, upon the request of Messer
Construction Co. Cincinnati Financial Corporation shall provide a detailed
accounting of the cost incurred by Cincinnati Financial Corporation.
12.3 TERMINATION BY OWNER WITHOUT CAUSE If Cincinnati Financial Corporation
terminates this Agreement other than as set forth in Paragraph 12.2, Cincinnati
Financial Corporation shall pay Messer Construction Co. for all Work executed
and for all proven loss, cost or expense in connection with the Work, plus all
demobilization costs. In addition, Messer Construction Co. shall be paid an
amount calculated as set forth below:
.1 If Cincinnati Financial Corporation terminates this Agreement prior to
commencement of the Construction Phase, Messer Construction Co. shall be
paid for Messer Construction Co.'s Design Phase services provided to date
as set forth in Subparagraph 7.1.2 and 7.1.3
, including Design-Builder's Fee earned to date
.2 If Cincinnati Financial Corporation terminates this Agreement after
commencement of the Construction Phase, Messer Construction Co. shall be
paid for the Construction Phase Services provided to date pursuant to
Subparagraph 7.2.1
including Design-Builder's Fee earned to date
.3 Cincinnati Financial Corporation shall also pay to Messer Construction
Co. fair compensation, either by purchase or rental at the election of
Cincinnati Financial Corporation, for all equipment retained. Cincinnati
Financial Corporation shall assume and become liable for obligations,
commitments and unsettled claims that Messer Construction Co. has
previously undertaken or incurred in good faith in connection with the
Work or as a result of the termination of this Agreement. As a condition
of receiving the payments provided under this Article 12, Messer
Construction Co. shall cooperate with Cincinnati Financial Corporation by
taking all steps necessary to accomplish the legal assignment of Messer
Construction Co.'s rights and benefits to Cincinnati Financial
Corporation, including the execution and delivery of required papers.
12.4 TERMINATION BY THE DESIGN-BUILDER
12.4.1 Upon seven (7) days' written notice to Cincinnati Financial
Corporation, Messer Construction Co. may terminate this Agreement for any
of the following reasons:
.1 if the Work has been stopped for a sixty (60) day period
a. under court order or order of other governmental
authorities having jurisdiction; or
b. as a result of the declaration of a national emergency or
other governmental act during which, through no act or fault
of Messer Construction Co., materials are not available;
.2 if the Work is suspended by Cincinnati Financial Corporation for
sixty (60) consecutive days;
36
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.
.3 if Cincinnati Financial Corporation fails to furnish reasonable
evidence that sufficient funds are available and committed for the
entire cost of the Project in accordance with Article 12 of this
Agreement.
12.4.2 If Cincinnati Financial Corporation has for thirty (30) days failed
to pay Messer Construction Co. pursuant to Subparagraph 10.1.2, Messer
Construction Co. may give written notice of its intent to terminate this
Agreement. If Messer Construction Co. does not receive payment within five
(5) days of giving written notice to Cincinnati Financial Corporation,
then upon five (5) days' additional written notice to Cincinnati Financial
Corporation, Messer Construction Co. may terminate this Agreement.
12.4.3 Upon termination by Messer Construction Co. in accordance with this
Subparagraph, Messer Construction Co. shall be entitled to recover from
Cincinnati Financial Corporation payment for all Work executed and for all
proven loss, cost or expense in connection with the Work, plus all
demobilization costs and reasonable damages. In addition, Messer
Construction Co. shall be paid an amount calculated as set forth either in
Subparagraph 12.3.1 or 12.3.2, depending on when the termination occurs,
and Subparagraph 12.3.3.
ARTICLE 13
DISPUTE RESOLUTION
13.1 WORK CONTINUANCE AND PAYMENT. Unless otherwise agreed in writing, Messer
Construction Co. shall continue the Work and maintain the approved schedules
during all dispute resolution proceedings. If Messer Construction Co. continues
to perform, Cincinnati Financial Corporation shall continue to make payments in
accordance with the Agreement.
13.2 INITIAL DISPUTE RESOLUTION. If a dispute arises out of or relates to this
Agreement or its breach, the parties shall endeavor to settle the dispute first
through direct discussions. If the dispute cannot be settled through direct
discussions, the parties shall endeavor to settle the dispute by mediation under
the Construction Industry Mediation Rules of the American Arbitration
Association before recourse to the dispute resolution procedures contained in
this Agreement. The location of the mediation shall be the location of the
Project. Once one party files a request for mediation with the other contracting
party and with the American Arbitration Association, the parties agree to
conclude such mediation within sixty (60) days of filing of the request. Either
party may terminate the mediation at any time after the first session, but the
decision to terminate must be delivered in person by the party's representative
to the other party's representative and the mediator.
13.3 EXHIBIT NO. 1. If the dispute cannot be settled by mediation within sixty
(60) days, the parties shall submit the dispute to any dispute resolution
process set forth in Exhibit No. 1 to this Agreement.
13.4 MULTIPARTY PROCEEDING. The parties agree that all parties necessary to
resolve a claim shall be parties to the same dispute resolution proceeding.
Appropriate provisions shall be included in all other contracts relating to the
Work to provide for the consolidation of such dispute resolution proceedings.
13.5 COST OF DISPUTE RESOLUTION. The prevailing party in any dispute arising out
of or relating to this Agreement or its breach that is resolved by the dispute
resolution process set forth in Exhibit No. 1 to this Agreement shall be
entitled to recover from the other party those reasonable attorneys' fees, costs
and expenses incurred by the prevailing party in connection with such dispute
resolution process after direct discussions and mediation.
13.6 LIEN RIGHTS. Nothing in this Article shall limit any rights or remedies not
expressly waived by Messer Construction Co. which Messer Construction Co. may
have under lien laws.
37
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.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENT Neither Cincinnati Financial Corporation nor Messer Construction
Co. shall assign its interest in this Agreement without the written consent of
the other except as to the assignment of proceeds. The terms and conditions of
this Agreement shall be binding upon both parties, their partners, successors,
assigns and legal representatives. Neither party to this Agreement shall assign
the Agreement as a whole without written consent of the other except that
Cincinnati Financial Corporation may assign the Agreement to a wholly-owned
subsidiary of Cincinnati Financial Corporation when Cincinnati Financial
Corporation has fully indemnified Messer Construction Co. or to an institutional
lender providing construction financing for the Project as long as the
assignment is no less favorable to Messer Construction Co. than this Agreement.
In the event of such assignment, Messer Construction Co. shall execute all
consents reasonably required. In such event, the wholly-owned subsidiary or
lender shall assume Cincinnati Financial Corporation's rights and obligations
under the Contract Documents. If either party attempts to make such an
assignment, that party shall nevertheless remain legally responsible for all
obligations under the Agreement, unless otherwise agreed by the other party.
14.2 GOVERNING LAW This Agreement shall be governed by the law in effect at the
location of the Project.
14.3 SEVERABILITY The partial or complete invalidity of any one or more
provisions of this Agreement shall not affect the validity or continuing force
and effect of any other provision.
14.4 NO WAIVER OF PERFORMANCE The failure of either party to insist, in any one
or more instances, on the performance of any of the terms, covenants, or
conditions of this Agreement, or to exercise any of its rights, shall not be
construed as a waiver or relinquishment of such term, covenant, condition or
right with respect to further performance.
14.5 TITLES AND GROUPINGS The titles given to the articles of this Agreement are
for ease of reference only and shall not be relied upon or cited for any other
purpose. The grouping of the articles in this Agreement and of Cincinnati
Financial Corporation's specifications under the various headings is solely for
the purpose of convenient organization and in no event shall the grouping of
provisions, the use of paragraphs or the use of headings be construed to limit
or alter the meaning of any provisions.
14.6 JOINT DRAFTING The parties to this Agreement expressly agree that both had
opportunity to negotiate the terms of this Agreement and to obtain the
assistance of counsel in reviewing its terms prior to execution. Therefore, this
Agreement shall be construed neither against nor in favor of either party, but
shall be construed in a neutral manner.
14.7 RIGHTS AND REMEDIES The parties rights, liabilities, responsibilities and
remedies with respect to this Agreement, whether in contract, tort, negligence
or otherwise, shall be exclusively those expressly set forth in this Agreement.
14.8 OTHER PROVISIONS
The Contractor intends to perform the structural excavation, concrete,
carpentry and general conditions Work with its own forces. The Contractor
may elect to do so at its discretion, but not without informing the Owner
in writing of such intent. Reasons for self-performing other Work include,
but not limited to, in order to take over a defaulted Subcontractor, to
protect GMP if bids exceed estimates, or in other cases where
self-performance is deemed by the Contractor to be necessary to maintain
schedule, cost or safety. The Contractor will inform the Owner which items
it will self perform and obtain written consent from the Owner prior to
proceeding with
38
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.
self-performance work. Acceptance will not unreasonably be withheld.
ARTICLE 15
EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this Agreement
are as follows:
See Addendum A for description of scope and estimated cost and schedule
Addendum B also attached
As defined in Subparagraph 2.4.1, the following Exhibits are a part of this
Agreement:
EXHIBIT NO. 1 Dispute Resolution Menu, one page.
39
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.
This Agreement is entered into as of the date entered in Article 1.
ATTEST: _________________________________________________
OWNER: Cincinnati Financial Corporation
BY: _____________________________________________________
PRINT NAME: James E. Benoski
PRINT TITLE: Vice Chairman, Chief Insurance Officer, Sr. Vice President,
Director
ATTEST: _________________________________________________
DESIGN-BUILDER: Messer Construction Co.
BY: _____________________________________________________
PRINT NAME: Peter S. Strange
PRINT TITLE: Chief Executive Officer
40
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.
ADDENDUM A
Messer Construction
Conceptual Estimate of Cost
8/24/2004
Garage and Expansion Program 8-24-04
Maximum employee count = 4250
Total Required Employee Parking on Campus
3825 SPACES
Total Building Addition
487,500 SQUARE FEET - 1500 EMPLOYEES
Atrium Extension
4800 SQUARE FEET
Conceptual
Description Estimate
- ------------------------------------------------------- -------------
GARAGE UNDER TOWER 3, SURFACE LOT AND SITE IMPROVEMENTS
700 Car Garage Phase 1 $ 20,000,000
400 space surf. Pkg and site improvements $ 425,000
Concrete deck above pkg. $ 421,000
-------------
GARAGE, SURFACE PARKING AND SITE IMPROV. $ 20,846,000
-------------
OFFICE TOWER $ 56,790,000
Atrium $ 960,000
Design Build Costs $ 9,225,000
Workspace Furnishings $ 2,200,000
Dock Renovation $ 1,400,000
Renovation Allowance $ 2,000,000
Design/Build Contingency $ 3,725,000
-------------
OFFICE TOWER SUBTOTAL $ 76,300,000
-------------
DESIGN/BUILD BOND $ 595,000
-------------
TOTAL COMBINED CONCEPTUAL ESTIMATE $ 97,741,000
-------------
RECOMMENDED OWNER CONTINGENCY $ 5,000,000
-------------
TOTAL RECOMMENDED PROJECT BUDGET $ 102,741,000
-------------
Start Construction December 2004
Complete Garage Sept. 2008
Start Tower Design Aug. 2004
Complete Tower Construction Sept. 2008
ADDENDUM A
CINCINNATI FINANCIAL CORPORATION
Campus Expansion
Project Scope
August 23, 2004
I. REASONS FOR BUILDING TOWER AND GARAGE
A. PROJECTED EMPLOYEE GROWTH
- Population Growth average 5-8% per year (aprox. 200 employees)
presently 2,750 on campus.
B. FUTURE TOWER EXPANSION
- By 2008 Employees reach 3,550 employees. Tower #3 will
accommodate 1,500 additional employees. Tower 4 could do the
same.
C. SITE CONSTRAINTS
- Assuming 0.9 spaces per employee there is need for 1,350
spaces for Tower #3 as well as another 1,350 for Tower #4.
- Height of building limited to 7 Stories plus penthouse above
grade
- Flow of vehicles to site limited by Fairfield's streets.
- Present site has ample "flat" land for parking for this phase
if some parked under Tower #3.
- Fairfield's present infrastructure can support Tower #3 needs.
D. BENEFITS
- Facility size to handle company growth for at least 7-8 years.
- Convenient parking for employees.
- Maintain safe employee access during construction of garage
and tower.
- Provides approximately 700 covered spaces.
- Secure Parking.
- Leaves options open for future Towers and parking.
II. PROGRAM ASSUMPTIONS
- New Tower built behind and east of present South Tower.
- Tower to have population of approximately 1,500 employees.
- Parking needs are to be determined by practical method, i.e.
number of employees bringing cars vs. number of employees. (9
out of 10 employees drive cars to work).
- Garage is to be located directly below tower. It to have
capacity of at least 700 cars.
- Entrances to Garage to be located on south side of facility.
- Garage is only three stories.
- New Tower is similar existing towers design and materials.
- Existing Cafeteria is big enough for new Towers additional
population. To be studied.
- The file room will be eventually turned into additional
storage for the Towers
- Dock area of existing building is to be enlarged.
- Garage and site to have just enough parking spaces FEC and the
three Towers.
- When Tower #4 is built, additional parking will be needed to
support facility. Tower #3 anticipates Tower #4's
construction.
[MESSER CONSTRUCTION CO. LOGO] [ROTH PARTNERSHIP LOGO]
[HEAPY ENGINEERING LLC LOGO] [THP LOGO]
ADDENDUM A
Cincinnati Financial Corporation Project Scope
Campus Expansion Page 2
August 23, 2004
III. PROGRAM GOALS
A. EMPLOYEE
- Parking below tower and surface parking.
- Easy access to employee drop off area.
- Convenient to towers from East parking.
- Safe facility due to limited entry points.
- Garage security 24 hours/day.
- Safe and secure business campus during and after construction.
- Ease of access to Towers during Construction.
B. FUNCTIONAL
- Aesthetically pleasing; blends into business campus.
- Underground garage will not dominate campus aesthetics.
- Efficient and effective traffic flow.
- Current parking remains operational during construction.
- Low maintenance.
- Provide parking during construction for displaced spots.
- Opportunity to improve campus traffic flow.
- Employee access to existing towers during construction.
- Expansion of dock, and mechanical space
C. EXPANSION PLANNING
- Cost effective design and construction of Tower # 3.
- Provide parking for existing buildings and Tower # 3 only,
calculated using the practical method.
- Central Plant upgrade opportunities.
- Larger Tower #3 will delay need for a 4th office tower.
IV. PARKING NEEDS
- Existing parking needs - 2,475 spaces.
- Existing parking spaces - 3,007 spaces.
- Required Campus parking w/ Tower #3 -3,825 spaces.
- Parking spaces in Garage below Tower #3-700 spaces.
- Loss of 280 spaces in footprint of new tower and garage
- Required Additional Parking Spaces - 400 spaces. To be
located adjacent to North FEC parking lot and east of
existing main parking lots.
- It is anticipated that for Tower #4 an additional 1,350 spaces
will be needed.
[MESSER CONSTRUCTION CO. LOGO] [ROTH PARTNERSHIP LOGO]
[HEAPY ENGINEERING LLC LOGO] [THP LOGO]
ADDENDUM A
Cincinnati Financial Corporation Project Scope
Campus Expansion Page 3
August 23, 2004
V. STRUCTURAL AND PHYSICAL COMPONENTS OF PROPOSED PLAN
A. CAMPUS EXPANSION AREAS
Area Height Dimensions Area per Floor Total Area
- ----------- -------------- ---------- -------------- ----------
Garage 3 Stories 305'x305' 93,025 279,075
New Tower 7 Stories 51,686 361,800
Connector 7 Stories 7,900 55,300
Mechanical 2 Story- Below 12,700 25,400
area Atrium and
Connector
Penthouse 1 l/2 Story 45,000 45,000
TOTAL 487,500
Atrium 2 Story Volume 60'x80' 4,800 4,800
Car Canopy 4,800 4,800
B. GARAGE
- Underground garage with approximately 700 parking spaces.
- 3 levels of parking at approximate elevations of 827,817 and
807.
- 2 entry/exit points on south side.
- 2 ramps within garage - very efficient for traffic flow within
garage.
- Concrete structure with columns on a 30' x 30' grid.
- Wall at perimeter with waterproofing membrane.
- Waterproofing membrane under slab on grade.
- Structure on drilled pier foundations.
- Ventilation and sprinkler systems.
- Lighting and security.
- Conditioned Elevator Lobby.
- Improvement to overall traffic flow on site will be needed
[MESSER CONSTRUCTION CO. LOGO] [ROTH PARTNERSHIP LOGO]
[HEAPY ENGINEERING LLC LOGO] [THP LOGO]
ADDENDUM A
Cincinnati Financial Corporation Project Scope
Campus Expansion Page 4
August 23, 2004
C. SURFACE PARKING ADDITION
- East Parking as well as FEC lot expansion to add 400 spaces.
- Additional storm water detention for these new hard surfaces.
- Lot lighting expanded accordingly.
- Walking Path to be modified.
- Reroute tower #1 internal storm to south
D. NEW TOWER
- 7 story tower and 7 floor connection to Tower # 1.
- New tower and connection to be office space.
- Tower to have penthouse(s) for mechanical equipment on top.
- Mechanical space in lower two levels under connection area and
atrium extension.
- Open office similar to other towers.
- Second employee entry planned at east side of Tower.
- Finishes similar to existing towers.
- Access floor systems throughout.
E. ATRIUM EXPANSION
- Atrium expanded 4800 square feet over mechanical space.
- Will be main employee drop off point.
- Canopy will be included for covered drop off area.
- Finishes similar to existing Atrium.
- 2 story space.
- Smoke evacuation system.
F. DOCK RENOVATION
- Allowance has been included to expand the dock area.
- Concept is to add some dock space and renovate existing area
in South Tower to storage/holding area for the dock.
G. RENOVATION ALLOWANCE
- Renovation will be necessary at each floor tie in point.
- Convert existing file room to storage.
- Re-route North and South Tower Storm piping.
H. WORKSPACE FURNISHINGS
- Estimate for workspace furnishings has been included based on
historical information.
- Furnishings planned to be similar to other towers.
I. SITE IMPROVEMENTS ALLOWANCE
- Improvement to overall traffic flow on site will be needed.
VI. DRAWINGS
VII. COST ESTIMATE
VIII. DESIGN BUILD SCHEDULE
[MESSER CONSTRUCTION CO. LOGO] [ROTH PARTNERSHIP LOGO]
[HEAPY ENGINEERING LLC LOGO] [THP LOGO]
ADDENDUM A
GRAPHIC - NEW TOWER AND PARKING GARAGE DRAWING
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - LEVEL P-1 FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - LEVEL P-2 FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - LEVEL P-3 FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - LOBBY FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - FOURTH FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - FIFTH FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - SIXTH FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - SEVENTH FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - EIGHTH FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - NINTH FLOOR PLAN
[FLOOR PLAN]
ADDENDUM A
GRAPHIC - PENTHOUSE FLOOR PLAN
[FLOOR PLAN]
ADDENDUM B
MESSER CONSTRUCTION CO.
CFC TOWER NO. 3 EXPANSION
Administrative Billing Rates
2004
TITLE RATE
- ----------------------------------------- ------
Operations Vice-President** $92.00
Senior Project Executive** $84.00
Principal Engr./Est./Dept. Head** $76.00
General Superintendent* $75.00
Project Executive** $69.00
Pre-Construction Executive** $66.00
Senior Project Manager* $61.00
Senior Superintendent* $60.50
Senior Engineer/Estimator* $58.00
Labor Coordinator* $55.00
Project Manager $48.90
IT Support $46.00
Superintendent* $44.00
Safety Coordinator* $42.00
Project Engineer (Operations/Est./M-E) $38.00
Project Office Manager/Project Accountant $27.75
Co-op Engineer $21.75
Project Administrative Assistant $21.50
NOTES:
1) Rates with ** include vehicle expenses and cell phone
2) Rates with * include vehicle expenses
3) Rates include base wages, fringe benefits, taxes, and insurance
4) Rates are fixed for calendar year 2004. Rates are subject to
adjustment on a yearly basis beginning January 1, not to exceed 5%
adjustment per year
Revised 10/8/2004
AMENDMENT NO. 1
TO
AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER
(WHERE THE BASIS OF PAYMENT IS THE COST OF THE WORK
PLUS A FEE WITH A GUARANTEED MAXIMUM PRICE)
Pursuant to Paragraph 3.2 of the Agreement dated ______________________________-
between the Owner,_____________________________________________________________-
and the Design-Builder,________________________________________________________-
for _____________________________________________________________(the Project),-
the Owner and the Design-Builder desire to establish a Guaranteed Maximum Price
("GMP") for the Work. Therefore, the Owner and the Design-Builder agree as
follows:
ARTICLE 1
GUARANTEED MAXIMUM PRICE
The Design-Builder's GMP for the Work, including the Cost of the Work as defined
in Article 8 and the Design-Builder's Fee as set forth in Paragraph 7.3,
is_____________________________________________________________________________-
Dollars ($ ___________________________________________________________________)-
The GMP is for the performance of the Work in accordance with the documents
listed below, which are part of the Agreement.
APPENDIX___ Drawings and Specifications, including Addenda, if any, dated
________________________________,___________________________pages.-
APPENDIX___ Allowance Items, dated __________________,__________________pages.-
APPENDIX___ Assumptions and Clarifications, dated___________, __________pages.-
APPENDIX___ Schedule of Work, dated _______________, ___________________pages.-
APPENDIX___ Alternate Prices, dated ________________, __________________pages.-
APPENDIX___ Unit Prices, dated ____________________, ___________________pages.-
APPENDIX___ Additional Services included, dated ____________, __________pages.-
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
ARTICLE 2
DATE OF SUBSTANTIAL COMPLETION
The Date of Substantial Completion of the Work is ____________________________.-
ARTICLE 3
DATE OF FINAL COMPLETION
The Date of Final Completion of the Work is: __________________________________-
or within____________(_________) days after the Date of Substantial Completion,-
subject to adjustments as provided for in the Contract Documents. -
This Amendment is entered into as of _________________________________________.-
OWNER: ___________________________________-
ATTEST: _________________________- BY: ______________________________________-
PRINT NAME: ______________________________-
PRINT TITLE: _____________________________-
DESIGN-BUILDER:___________________________-
ATTEST: _________________________- BY: ______________________________________-
PRINT NAME: ______________________________-
PRINT TITLE: _____________________________-
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
EXHIBIT NO. 1, DATED _____________________-
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)
DISPUTE RESOLUTION MENU
Pursuant to Paragraph 13.3, if neither direct discussions nor mediation
successfully resolve the dispute, the parties agree that the following shall be
used to resolve the dispute.
(Check the appropriate selection(s). These procedures can be used singularly, or
progressively, as agreed to by the parties.)
[ ] DISPUTE REVIEW BOARD The Dispute Review Board is composed of one member
selected by the Owner, one selected by the Design-Builder, and a third
member selected by the Owner and Design-Builder selected members. This
Board shall be selected by the time construction commences, shall meet
periodically, and shall make advisory decisions which may be introduced
into evidence at any subsequent dispute resolution process. If a Dispute
Review Board is selected, it is understood its review will precede
mediation.
[ ] ADVISORY ARBITRATION Advisory Arbitration shall be pursuant to the
Construction Industry Rules of the American Arbitration Association.
[ ] MINI TRIAL Each party, in the presence of senior management, shall submit
its position to a mutually selected individual who shall make a
non-binding recommendation to the parties. Such advisory decision may be
introduced into evidence at any subsequent dispute resolution process.
[X] BINDING ARBITRATION Binding Arbitration shall be pursuant to the
Construction Industry Rules of the American Arbitration Association
unless the parties mutually agree otherwise. A written demand for
arbitration shall be filed with the American Arbitration Association and
the other party to the Agreement within a reasonable time after the
dispute or claim has arisen, but in no event after the applicable statute
of limitations for a legal or equitable proceeding would have run. The
location of the arbitration proceedings shall be at the office of the
American Arbitration Association nearest the Project, unless the parties
agree otherwise. The arbitration award shall be final. Notwithstanding
Paragraph 14.2, this agreement to arbitrate shall be governed by the
Federal Arbitration Act and judgment upon the award may be confirmed in
any court having jurisdiction.
[ ] LITIGATION Action may be filed in the appropriate state or federal court
located in the jurisdiction in which the Project is located.
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