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<br />City of Sunny Isles Beach |Request for Proposal No. 15-12-01 8
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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 Contractor is adjudged bankrupt or insolvent, or if they make a
<br />general assignment for the benefit of their creditors, or if a trustee or
<br />receiver is appointed for the Contractor 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 and
<br />after giving the Contractor and the surety ten (10) days written notice,
<br />terminate the services of the Contractor and take possession of the
<br />Project and of all materials, equipment, tools, construction
<br />equipment and machinery thereon owned by the Contractor, and
<br />finish the Work by whatever method they may deem expedient. In
<br />such case the Contractor 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
<br />the Project, including compensation for additional professional
<br />services, such excess shall be paid to the Contractor. If such costs
<br />exceed such unpaid balance, the Contractor will pay the difference
<br />to the City. Such costs incurred by the City will be determined by the
<br />City and incorporated in a Change Order. If after termination of the
<br />Contractor under this Section, it is determined by a court of
<br />competent jurisdiction for any reason that the Contractor was not in
<br />default, the rights and obligations of the City and the Contractor shall
<br />be the same as if the termination had been issued pursuant to this
<br />document.
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<br />1.37.1 Where the Contractor’s services have been so
<br />terminated by the City said termination shall not affect
<br />any rights of the City against the Contractor then
<br />existing or which may thereafter accrue. Any retention
<br />or payment of moneys by the City due the Contractor
<br />will not release the Contractor from liability.
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<br />1.37.2 Upon ten (10) days written notice to the Contractor, 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 Contractor 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 Contractor shall have the right to keep
<br />one record set of the Contract Documents upon
<br />completion 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 />Contractor 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 Contractor suffer injury or
<br />damage 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 Contractor knowingly, irrevocably voluntarily and
<br />intentionally waive any right either may have to a trial by jury in State
<br />or Federal Court proceedings in respect to any action, proceeding,
<br />lawsuit or 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 or
<br />controversy arises hereunder then such dispute or controversy shall
<br />be settled by arbitration in accordance with the procedures, rules and
<br />regulations of the American Arbitration Association. The decision
<br />rendered by the Arbitrator shall be final and binding upon the parties
<br />and judgment upon the award rendered by the arbitrator may be
<br />entered in any court having jurisdiction. Arbitration shall be held in
<br />Miami-Dade County, Florida. All costs of arbitration and attorneys’
<br />fees incurred by the parties shall be paid by the non-prevailing party
<br />or, if neither party prevails on the whole, each party shall be
<br />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 />Contractor which relate in any way to the Project, and to any claim
<br />for additional compensation made by Contractor, and to conduct an
<br />audit of the financial and accounting records of Contractor which
<br />relate to the Project. Contractor shall retain and make available to
<br />City all such books and records and accounts, financial or otherwise,
<br />which relate to the Project and to any claim for a period of three years
<br />following final completion of the Project. During the Project and the
<br />three year period following final completion of the Project, Contractor
<br />shall provide City access to its books and records upon five days
<br />written notice.
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<br />1.44 SEVERABILITY:
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<br />If any provision of the Contract or the application thereof to any
<br />person or situation shall to any extent, be held invalid or
<br />unenforceable, the remainder of the Contract, and the application of
<br />such provisions to persons or situations other than those as to which
<br />it shall have been held invalid or unenforceable shall not be affected
<br />thereby, and shall continue in full force and effect, and be enforced
<br />to the fullest extent permitted by law.
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<br />1.45 INDEPENDENT CONTRACTOR:
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<br />The Contractor is an independent Contractor under the Contract.
<br />Services provided by the Contractor shall be by employees of the
<br />Contractor and subject to supervision by the Contractor, and not as
<br />officers, employees, or agents of the City. Personnel policies, tax
<br />responsibilities, social security and health insurance, employee
<br />benefits, purchasing policies and other similar administrative
<br />procedures, applicable to services rendered under the Contract shall
<br />be those of the Contractor.
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