Standard Form of Design-build Agreement

EXHIBIT 10.1


THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA


[THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA LOGO] - --------------------------------------------------------------------------------
AGC DOCUMENT NO. 410


STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER


(WHERE THE BASIS OF PAYMENT IS THE COST OF THE WORK PLUS A FEE WITH A
GUARANTEED MAXIMUM PRICE)


This standard form agreement was developed with the advice and cooperation of the AGC Private Industry Advisory Council, a number of Fortune 500 Owners' design and construction managers who have been meeting with AGC contractors to discuss issues of mutual concern. AGC gratefully acknowledges the contributions of these owners' staff who participated in this effort to produce a basic agreement for construction.


TABLE OF ARTICLES


1. AGREEMENT


2. GENERAL PROVISIONS


3. DESIGN-BUILDER'S RESPONSIBILITIES


4. OWNER'S RESPONSIBILITIES


5. SUBCONTRACTS


6. TIME


7. COMPENSATION


8. COST OF THE WORK


9. CHANGES IN THE WORK


10. PAYMENT FOR CONSTRUCTION PHASE SERVICES


11. INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION


12. SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES


13. DISPUTE RESOLUTION


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IMPORTANT: This document may contain modifications to the text of the original AGC standard form. Its author has chosen not to reflect any modifications in the electronic or printed output. Consultation with legal and insurance counsel and careful review of the entire document are strongly encouraged.


DocuBuilder(R) - AGC DOCUMENT NO. 410 - STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price) (C) 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.


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


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IMPORTANT: This document may contain modifications to the text of the original AGC standard form. Its author has chosen not to reflect any modifications in the electronic or printed output. Consultation with legal and insurance counsel and careful review of the entire document are strongly encouraged.


DocuBuilder(R) - AGC DOCUMENT NO. 410 - STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price) (C) 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.


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


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IMPORTANT: This document may contain modifications to the text of the original AGC standard form. Its author has chosen not to reflect any modifications in the electronic or printed output. Consultation with legal and insurance counsel and careful review of the entire document are strongly encouraged.


DocuBuilder(R) - AGC DOCUMENT NO. 410 - STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price) (C) 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.


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.


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IMPORTANT: This document may contain modifications to the text of the original AGC standard form. Its author has chosen not to reflect any modifications in the electronic or printed output. Consultation with legal and insurance counsel and careful review of the entire document are strongly encouraged.


DocuBuilder(R) - AGC DOCUMENT NO. 410 - STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price) (C) 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.


.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


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IMPORTANT: This document may contain modifications to the text of the original AGC standard form. Its author has chosen not to reflect any modifications in the electronic or printed output. Consultation with legal and insurance counsel and careful review of the entire document are strongly encouraged.


DocuBuilder(R) - AGC DOCUMENT NO. 410 - STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price) (C) 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.


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


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IMPORTANT: This document may contain modifications to the text of the original AGC standard form. Its author has chosen not to reflect any modifications in the electronic or printed output. Consultation with legal and insurance counsel and careful review of the entire document are strongly encouraged.


DocuBuilder(R) - AGC DOCUMENT NO. 410 - STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER (Where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price) (C) 1999, The Associated General Contractors of America. All rights reserved. This document was produced electronically under the grant of license provided to subscribers of the AGC DocuBuilder Contract Document Software.


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 ...