Design-build Agreement

Exhibit 10.1

THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA


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)

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,

12. INSURANCE, BONDS, AND WAIVER OF SUBROGATION

13. SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER' S RIGHT TO PERFORM DESIGN-BUILDER' S RESPONSIBILITIES 14. DISPUTE RESOLUTION

15. MISCELLANEOUS PROVISIONS 16. 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

This Agreement is made to be effective as of the 6 th day of March in the year 2006 by and between the

OWNER The Midland Company

7000 Midland Boulevard

Batavia, Ohio 45102-2601 and the

DESIGN-BUILDER

Miller-Valentine Construction, LLC, an Ohio limited liability company 4000 Miller-Valentine Court

P.O. Box 744

Dayton, Ohio 45401-0744 for services in connection with the following PROJECT

Five story office addition to the existing facility located at 7000 Midland Boulevard, Amelia, Ohio, with a single story conference center with a basement, fit-up of the first, third and fourth floors of the addition and all related site work. Notice to the parties shall be given at the above addresses.

ARTICLE 2

GENERAL PROVISIONS

2.1 TEAM RELATIONSHIP The Owner and the Design-Builder 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 by the Dates of Substantial Completion and Final Completion if they are established by Amendment No. 1. The Design-Builder agrees to procure or furnish, as permitted by the law of the State in which the Project is located, the design phase services and construction phase services as set forth below. 2.1.1 The Design-Builder represents that it is an independent contractor and that it is familiar with the type of work it is undertaking. 2.2 ARCHITECT/ENGINEER. Architectural and structural engineering services shall be procured from licensed, independent design professionals retained by the Owner pursuant to a separate agreement between the Owner and the Architect/Structural Engineer (" Architect/Structural Engineer' s Agreements" ). The Owner covenants and warrants to the Design-Builder that the Architect/Structural Engineer' s Agreements shall expressly require the Architect/Structural Engineer to provide the design information and services needed by the Design-Builder to perform the Work. The Architect for the Project is PDT Architects/Planners. The Structural Engineer for the Project is Smith/Roberts & Associates, Inc. Site/civil and mechanical engineering services shall be procured from licensed, independent design professionals retained by the Design-Builder or furnished by licensed employees of the Design-Builder is located. The standard of care for site/civil and mechanical engineering services performed under this Agreement shall be the care and skill ordinarily used by members of the site/civil and mechanical engineering profession practicing under similar conditions at the same time and locality. The person or entities providing architectural and structural engineering services shall be referred to collectively as the Architect/Structural Engineer. The person or entity providing site/civil and mechanical engineering services shall be referred to collectively as the Civil/Mechanical Engineer. If the Civil/Mechanical Engineer is an independent design professional, the site/civil and mechanical engineering services shall be procured pursuant to a separate agreement between the Design-Builder and the Civil/Mechanical Engineer. The civil engineer for the Project is SWA Design Group, Inc. (" Civil Engineer" ) The mechanical engineer for the Project is Heapy Engineering, LLC (" Mechanical Engineer" ).

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 Owner and the Design-Builder agree to look solely to each other with respect to the performance of the Agreement. The Agreement and each and every provision is for the exclusive benefit of the Owner and the Design-Builder 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 the Owner and the Design-Builder, 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 the Owner pursuant to Subparagraph 3.1.4, 3.1.6 or 3.1.7;

d. the information provided by the Owner 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 16;

f. the Owner' 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 Design-Builder' s Fee means the compensation paid to the Design-Builder for salaries and other mandatory or customary compensation of the Design-Builder' s employees at its principal and branch offices except employees listed in Subparagraph 8.2.2, general and administrative expenses of the Design-Builder' s principal and branch offices other than the field office, and the Design-Builder' s capital expenses, including interest on the Design-Builder' 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. The Design-Builder shall notify the Owner if the Cost of the Work includes costs anticipated due to any accelerated schedule or other Fast-tracking of the Project.

.6 Final Completion occurs on the date when all of Design-Builder' s obligations under this Agreement are complete and accepted by the Owner and final payment becomes due and payable. .7 A Material Supplier is a party or entity retained by the Design-Builder to provide material and equipment for the Work. .8 Others means other contractors and all persons at the Worksite who are not employed by Design-Builder, its Subcontractors or Material Suppliers.

.9 The Owner is the person or entity identified as such in this Agreement and includes the Owner' s Representative. .10 The Owner' s Program is an initial description of the Owner' 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 the Design-Builder is to perform the Work under this Agreement. It may also include improvements to be undertaken by the Owner or Others.

.12 A Subcontractor is a party or entity, which shall include the Civil/Mechanical Engineer, retained by the Design-Builder 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 the Architect/Structural Engineer or any separate contractor employed by the Owner or any separate contractors subcontractors.

.13 Substantial Completion of the Work, or of a designated portion, occurs on the date when the Design-Builder' s obligations are sufficiently complete in accordance with the Contract Documents so that the Owner 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 the Design-Builder' s control. This date shall be confirmed by a Certificate of Substantial Completion signed by the Owner and the Design-Builder. The Owner shall be entitled to rely on inspections by the Architect/Strutural Engineer and other professionals in determining whether to sign the Certificate of Substantial Completion. The Certificate shall state the respective responsibilities of the Owner and the Design-Builder 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.

.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 preparation of the Projected Cost of the Work in accordance with Subparagraph 3.1.7, 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

Except for the architectural, design and structural engineering services to be provided by the Architect/Structural Engineer, the Design-Builder shall be responsible for procuring or furnishing the design and for the construction of the Work consistent with the Owner' s Program, as such Program may be modified by the Owner during the course of the Work. The Design-Builder 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.

The Design-Builder and the Owner 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. The Design-Builder shall review the Owner' s Program to ascertain the requirements of the Project and shall verify such requirements with the Owner. The Design-Builder' s review shall also provide to the Owner 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. The Design-Builder shall also propose alternative architectural, civil, structural, mechanical, electrical and other systems for review by the Owner, to determine the most desirable approach on the basis of cost, technology, quality and speed of delivery. The Design-Builder 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 the Owner' s Program and other relevant information the Design-Builder shall provide a Preliminary Evaluation of the Project' s feasibility for the Owner' s acceptance. The Design-Builder' s Preliminary Evaluation shall specifically identify any deviations from the Owner' s Program. 3.1.2 PRELIMINARY SCHEDULE. The Design-Builder shall prepare a preliminary schedule of the Work. The Owner and the Architect/Strutural Engineer shall provide written approval of milestone dates established in the preliminary schedule of the Work. The schedule shall show the activities of the Owner, the Architect/Structural Engineer, the Civil/Mechanical Engineer and the Design-Builder necessary to meet the Owner' 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, the Design-Builder shall recommend corrective action to the Owner in writing.

3.1.3 PRELIMINARY ESTIMATE. When sufficient Project information has been identified, the Design-Builder shall prepare for the Owner' s 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 the Owner' s budget, the Design-Builder shall make recommendations to the Owner.

3.1.4 SCHEMATIC DESIGN DOCUMENTS. The Design-Builder shall submit for the Owner' s written approval Schematic Design Documents for the civil, mechanical, electrical and other systems being designed by the Design-Builder or its Civil/Mechanical Engineer, based on the agreed upon Preliminary Evaluation. Schematic Design Documents shall include drawings, outline specifications and other conceptual documents illustrating the Project' s basic elements, scale, and their relationship to the Worksite. One set of these documents shall be furnished to the Owner. When the Design-Builder submits the Schematic Design Documents the Design-Builder shall identify in writing all material changes and deviations that have taken place from the Design-Builder' s Preliminary Evaluation, schedule and estimate. The Design-Builder shall update the preliminary schedule and estimate based on the Schematic Design Documents. Schematic Design Documents for the architectural and structural portions of the Project shall be provided to the Owner and the Design-Builder by the Architect/Strutural Engineer.

3.1.5 PLANNING PERMITS. The Design-Builder shall obtain and the Owner shall pay for all planning permits necessary for the construction of the Project. 3.1.6 DESIGN DEVELOPMENT DOCUMENTS. The Design-Builder shall submit for the Owner' 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 civil, mechanical, electrical, and other systems being designed by the Design-Builder or its Civil/Mechanical Engineer. One set of these documents shall be furnished to the Owner. When the Design-Builder submits the Design Development Documents, the Design-Builder shall identify in writing all material changes and deviations that have taken place from the Schematic Design Documents. The Design-Builder shall update the schedule and estimate based on the Design Development Documents. Design Development Documents for the architectural/structural portions of the Project shall be provided to the Owner and the Design-Builder by the Architect/Strutural Engineer. 3.1.7 CONSTRUCTION DOCUMENTS. The Design-Builder shall submit for the Owner' 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 the Design-Builder submits the Construction Documents, the Design-Builder 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 the Owner prior to commencement of construction. If a GMP has not been established, the Design-Builder shall prepare a further update of the schedule and projected Cost of the Work based on the Construction Documents (" Projected Cost of the Work" ). The Projected Cost of the Work shall be used to monitor actual costs. The Design-Builder shall meet with the Owner and the Architect/Strutural Engineer to review the Projected Cost of the Work. In the event the Owner or the Architect/Strutural Engineer discovers any inaccuracies or inconsistencies in the Projected Cost of the Work, they shall promptly notify the Design-Builder, who shall make appropriate adjustments to the Projected Cost of the Work. When the Projected Cost of the Work is acceptable to the Owner, the Owner shall acknowledge and approve the Projected Cost of the Work in writing. The Owner' s approval of the Projected Cost of the Work in no way constitutes or implies that the Projected Cost of the Work is a guaranteed maximum price. The Projected Cost of the Work may be changed from time to time, by written Change Orders. The Projected Cost of the Work shall include, among other things, a description of the Contract Documents upon which the Project is based, a list of clarifications and assumptions made by the Design-Builder in the preparation of the Projected Cost of the Work, a statement of the estimated Cost of the Work, the Design-Builder' s Fee and the Design-Builder' s Contingency.

3.1.8 OWNERSHIP OF DOCUMENTS. Upon the making of payment pursuant to Paragraph 10.5, the Owner shall receive ownership of the property rights, except for copyrights, of all documents, drawings, specifications, electronic data and information prepared, provided or procured by the Design-Builder, its Civil/Mechanical Engineer, Subcontractors and consultants and distributed to the Owner for this Project. (Design-Build Documents) Use and ownership of any design-build documents prepared, provided or procured by the Architect/Structural Engineer shall be governed by the Architect/Strutural Engineer' s Agreement.

.1 If this Agreement is terminated pursuant to Paragraph 13.2, the Owner 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 the Owner 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 13.3, the Owner 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 the Owner shall have the right to use, reproduce and make derivative works from the Design-Build Documents to complete the Work.

.3 The Owner 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 the Design-Builder, who shall not unreasonably withhold consent. .4 The Owner' s use of the Design-Build Documents without the Design-Builder' s involvement or on other projects is at the Owner' s sole risk, except for the Design-Builder' s indemnification obligation pursuant to Paragraph 3.7, and the Owner shall defend, indemnify and hold harmless Design-Builder, its Civil/Mechanical Engineer, Subcontractors and consultants, and the agents, officers, directors and employees of each of them from 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 Owner' s use of the Design-Build Documents.

.5 The Design-Builder shall obtain from its Civil/Mechanical Engineer, Subcontractors and consultants property rights and rights of use that correspond to the rights given by the Design-Builder to the Owner in this Agreement.

3.2 DESIGN-BUILDER' S CONTINGENCY

3.2.1 DESIGN-BUILDER' S CONTINGENCY. The Projected Cost of the Work shall include as the Design-Builder' s Contingency, a sum equal to $500,000. The Design-Builder' s Contingency will be monitored by the Design-Builder and the Owner for use at the Design-Builder' s discretion to cover costs which are properly reimbursable as a Cost of the Work but are not the basis for a Change Order. The Design-Builder shall report to the Owner, on a monthly basis, all expenditures made from the Design-Builder' s Contingency, and shall consult with the Owner in advance regarding any expenditure out of the Design-Builder' s contingency for a particular item which exceeds $20,000.00.

3.3 CONSTRUCTION PHASE SERVICES

3.3.1 The Construction Phase will commence upon the issuance by the Owner of a written notice to proceed with construction and the Design-Builder' s receipt of a building permit for the Project. If construction commences prior to execution of Amendment No. 1, the Design-Builder shall prepare for the Owner' s written approval a list of the documents that are applicable to the part of the Work which the Owner has authorized, which list shall be included in the Owner' s written notice to proceed.

3.3.2 In order to complete the Work, the Design-Builder shall provide all necessary construction supervision, inspection, construction equipment, labor, materials, tools, and subcontracted items. 3.3.3 The Design-Builder 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 The Design-Builder shall obtain and the Owner shall pay for the building permits necessary for the construction of the Project.

3.3.5 The Design-Builder shall keep such full and detailed accounts as are necessary for proper financial management under this Agreement. The Owner and the Architect/Strutural Engineer shall be afforded access to all the Design-Builder' s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this Agreement. The Design-Builder 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 Design-Builder shall provide periodic written reports to the Owner and the Architect/Strutural Engineer on the progress of the Work in such detail as is required by the Owner and as agreed to by the Owner and the Design-Builder.

3.3.7 The Design-Builder 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 the Owner and the Architect/Strutural Engineer at mutually agreeable intervals.

3.3.8 The Design-Builder shall regularly remove debris and waste materials at the Worksite resulting from the Work. Prior to discontinuing Work in an area, the Design-Builder shall clean the area and remove all rubbish and its construction equipment, tools, machinery, waste and surplus materials. The Design-Builder shall minimize and confine dust and debris resulting from construction activities. The Design-Builder will take reasonable steps to protect occupied areas of the Worksite and the existing building adjoining the Project (" Building" ) in connection with performing the Work. The Design-Builder shall provide 30 days' prior written notice prior to closing any portion of the Building and the parking lot to allow for the performance of the Work. At the completion of the Work, the Design-Builder shall remove from the Worksite all construction equipment, tools, surplus materials, waste materials and debris.

3.3.9 The Design-Builder shall prepare and submit to the Owner: 1 set of the 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. The Design Builder shall prepare and submit a Schedule of Work for the Owner' s acceptance and written approval as to milestone dates. 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 the Owner. The Schedule shall be revised as required by the conditions of the Work.

3.5 SAFETY OF PERSONS AND PROPERTY 3.5.1 SAFETY PRECAUTIONS AND PROGRAMS. The Design-Builder shall have overall responsibility for safety precautions and programs in the performance of the Work. While the provisions of this Paragraph establish the responsibility for safety between the Owner and the Design-Builder, 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 The Design-Builder shall seek to avoid injury, loss or damage to persons or property by taking reasonable steps to protect:

.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. The Design-Builder shall designate an individual at the Worksite in the employ of the Design-Builder who shall act as the Design-Builder' s designated safety representative with a duty to prevent accidents. Unless otherwise identified by the Design-Builder in writing to the Owner, the designated safety representative shall be the Design-Builder' s project superintendent. The Design-Builder will report immediately in writing all accidents and injuries occurring at the Worksite to the Owner. When the Design-Builder is required to file an accident report with a public authority, the Design-Builder shall furnish a copy of the report to the Owner.

3.5.4 The Design-Builder shall provide the Owner and the Architect/Strutural Engineer with copies of all notices required of the Design-Builder by law or regulation. The Design-Builder' 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 the Design-Builder, or anyone for whose acts the Design-Builder may be liable, shall be promptly remedied by the Design-Builder. Damage or loss attributable to the acts or omissions of the Owner, the Architect/Structural Engineer, or Others and not to the Design-Builder shall be promptly remedied by the Owner.

3.5.6 If the Owner, in the exercise of its reasonable discretion, deems any part of the Work or Worksite unsafe, the Owner, without assuming responsibility for the Design-Builder' s safety program, may require the Design-Builder to stop perfor ...