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<br />City of Sunny Isles Beach |Invitation to Bid No. 14-10-02 8
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<br />or death, or to injury to or destruction of tangible property (other
<br />than Work itself) including the loss of use resulting wherefrom and
<br />(b) is caused in whole or in part by any negligent act or omission of
<br />the Proposer, their Sub-Contractor, anyone directly or indirectly
<br />employed by any of them or anyone for whose acts any of them may
<br />be liable, regardless of whether or not it is caused by a party
<br />indemnified hereunder. In the event that a court of competent
<br />jurisdiction determines that Sec. 725.06 (2), F.S. is applicable to this
<br />Work, then in lieu of the above provisions of this section the parties
<br />agree that Proposer shall indemnify, defend and hold harmless the
<br />City, their officers and employees, to the fullest extent authorized by
<br />Sec. 725.06 (2) F.S., which statutory provisions shall be deemed to
<br />be incorporated herein by reference as if fully set forth herein. In
<br />the event that any action or proceeding is brought against City by
<br />reason of any such claim or demand, Proposer, upon written notice
<br />from City shall defend such action or proceeding by counsel
<br />satisfactory to City. The indemnification provided above shall
<br />obligate Proposer to defend at its own expense or to provide for such
<br />defense, at City’s option, any and all claims of liability and all suits
<br />and actions of every name and description that may be brought
<br />against City, excluding only those which allege that the injuries arose
<br />out of the sole negligence of City, which may result from the
<br />operations and activities under this Contract whether the Work be
<br />performed by Proposer, its Sub-Contractors, or by anyone directly or
<br />indirectly employed by either.
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<br />1.36 DECISIONS ON DISAGREEMENTS:
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<br />The City will be the initial interpreter of the Technical Specifications.
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<br />1.37 CITY MAY TERMINATE:
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<br />If the Proposer is adjudged bankrupt or insolvent, or if they make a
<br />general assignment for the benefit of their creditors, or if a trustee
<br />or receiver is appointed for the Proposer or for any of their property,
<br />or if they file a petition to take advantage of any debtor’s act, or to
<br />reorganize under bankruptcy or similar laws, or if they repeatedly
<br />fails to supply sufficient skilled workmen or suitable materials or
<br />equipment, or if they repeatedly fail to make prompt payments to
<br />Sub-Contractors or for labor, materials or equipment or they
<br />disregard laws, ordinances, rules, regulations or orders of any public
<br />body having jurisdiction, or if they disregard the authority of the City,
<br />of if they otherwise violate any provision of, the Contract Documents,
<br />then the City may, without prejudice to any other right or remedy
<br />and after giving the Proposer and the surety ten (10) days written
<br />notice, terminate the services of the Proposer and take possession
<br />of the Project and of all materials, equipment, tools, construction
<br />equipment and machinery thereon owned by the Proposer, and finish
<br />the Work by whatever method they may deem expedient. In such
<br />case the Proposer shall not be entitled to receive any further
<br />payment until the Work is finished. If the unpaid balance of the
<br />Contract Price exceeds the direct and indirect costs of completing the
<br />Project, including compensation for additional professional services,
<br />such excess shall be paid to the Proposer. If such costs exceed such
<br />unpaid balance, the Proposer will pay the difference to the City. Such
<br />costs incurred by the City will be determined by the City and
<br />incorporated in a Change Order. If after termination of the Proposer
<br />under this Section, it is determined by a court of competent
<br />jurisdiction for any reason that the Proposer was not in default, the
<br />rights and obligations of the City and the Proposer shall be the same
<br />as if the termination had been issued pursuant to this document.
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<br />1.37.1 Where the Proposer’s services have been so
<br />terminated by the City said termination shall not affect
<br />any rights of the City against the Proposer then existing
<br />or which may thereafter accrue. Any retention or
<br />payment of moneys by the City due the Proposer will
<br />not release the Proposer from liability.
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<br />1.37.2 Upon ten (10) days written notice to the Proposer, the
<br />City may, without cause and without prejudice to any
<br />other right or remedy, elect to terminate the
<br />Agreement. In such case, the Proposer shall be paid
<br />for all Work executed and accepted by the City as of
<br />the date of the termination. No payment shall be made
<br />for profit for Work which has not been performed.
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<br />1.38 MISCELLANEOUS:
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<br />Proposers acknowledge the following miscellaneous conditions:
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<br />1.38.1 Whenever any provision of the Contract Documents
<br />requires the giving of written notice it shall be deemed
<br />to have been validly given if delivered in person to the
<br />individual or to a member of the firm or to an officer of
<br />the corporation for whom it is intended, or if delivered
<br />at or sent by registered or certified mail, postage
<br />prepaid, to the last business address known to them
<br />who gives the notice.
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<br />1.38.2 The Contract Documents shall remain the property of
<br />the City. The Proposer shall have the right to keep one
<br />record set of the Contract Documents upon completion
<br />of the Project.
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<br />1.38.3 The duties and obligations imposed by these General
<br />Conditions, Special Conditions and Supplemental
<br />Conditions and the rights and remedies available
<br />hereunder, and, in particular but without limitation, the
<br />warranties, guarantees and obligations imposed upon
<br />Proposer and those in the Special Conditions and the
<br />rights and remedies available to the City, shall be in
<br />addition to, and shall not be construed in any way as a
<br />limitation of, any rights and remedies available by law,
<br />by special guarantee or by other provisions of the
<br />Contract Documents.
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<br />1.38.4 Should the City or the Proposer suffer injury or damage
<br />to its person or property because of any error,
<br />omission, or act of the other or of any of their
<br />employees or agents or others for whose acts they are
<br />legally liable, claim shall be made in writing to the other
<br />party within a reasonable time of the first observance
<br />of such injury or damage.
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<br />1.39 WAIVER OF JURY TRIAL:
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<br />City and Proposer knowingly, irrevocably voluntarily and intentionally
<br />waive any right either may have to a trial by jury in State or Federal
<br />Court proceedings in respect to any action, proceeding, lawsuit or
<br />counterclaim based upon the Contract Documents or the
<br />performance of the Work there under.
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<br />1.40 GOVERNING LAW:
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<br />The Contract shall be construed in accordance with and governed by
<br />the law of the State of Florida.
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<br />1.41 VENUE:
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<br />Venue of any action to enforce the Contract Documents shall be in
<br />Miami-Dade County, Florida.
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<br />1.42 ARBITRATION:
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<br />It is the intention of the parties that whenever possible, if a dispute
<br />or controversy arises hereunder then such dispute or controversy
<br />shall be settled by arbitration in accordance with the procedures,
<br />rules and regulations of the American Arbitration Association. The
<br />decision rendered by the Arbitrator shall be final and binding upon
<br />the parties and judgment upon the award rendered by the arbitrator
<br />may be entered in any court having jurisdiction. Arbitration shall be
<br />held in Miami-Dade County, Florida. All costs of arbitration and
<br />attorneys’ fees incurred by the parties shall be paid by the non-
<br />prevailing party or, if neither party prevails on the whole, each party
<br />shall be responsible for a portion of the costs of arbitration and their
<br />respective attorneys’ fees as may be determined by the court on
<br />confirmation.
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<br />1.43 PROJECT RECORDS:
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<br />City shall have right to inspect and copy during regular business
<br />hours at City’s expense, the books and records and accounts of
<br />Proposer which relate in any way to the Project, and to any claim for
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