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<br />CITY OF SUNNY ISLES BEACH |INVITATION TO BID NO. 19-08-01 8
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<br />indemnification provided above shall obligate Contractor to defend
<br />at its own expense or to provide for such defense, at City’s option,
<br />any and all claims of liability and all suits and actions of every name
<br />and description that may be brought against City, excluding only
<br />those which allege that the injuries arose out of the sole negligence
<br />of City, which may result from the operations and activities under
<br />this Contract whether the Work be performed by Contractor, its
<br />Sub-Contractors, or by anyone directly or indirectly employed by
<br />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
<br />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
<br />a general assignment for the benefit of their creditors, or if a
<br />trustee or receiver is appointed for the Contractor or for any of
<br />their property, or if they file a petition to take advantage of any
<br />debtor’s act, or to reorganize under bankruptcy or similar laws, or if
<br />they repeatedly fails to supply sufficient skilled workmen or suitable
<br />materials or equipment, or if they repeatedly fail to make prompt
<br />payments to Sub-Contractors or for labor, materials or equipment
<br />or they disregard laws, ordinances, rules, regulations or orders of
<br />any public body having jurisdiction, or if they disregard the
<br />authority of the City, of if they otherwise violate any provision of,
<br />the Contract Documents, then the City may, without prejudice to
<br />any other right or remedy and after giving the Contractor and the
<br />surety ten (10) days written notice, terminate the services of the
<br />Contractor and take possession of the Project and of all materials,
<br />equipment, tools, construction equipment and machinery thereon
<br />owned by the Contractor, and finish the Work by whatever method
<br />they may deem expedient. In such case the Contractor shall not
<br />be entitled to receive any further payment until the Work is
<br />finished. If the unpaid balance of the Contract Price exceeds the
<br />direct and indirect costs of completing the Project, including
<br />compensation for additional professional services, such excess shall
<br />be paid to the Contractor. If such costs exceed such unpaid
<br />balance, the Contractor 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
<br />Contractor under this Section, it is determined by a court of
<br />competent jurisdiction for any reason that the Contractor was not
<br />in default, the rights and obligations of the City and the Contractor
<br />shall be the same as if the termination had been issued pursuant to
<br />this 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
<br />affect any rights of the City against the Contractor
<br />then existing or which may thereafter accrue. Any
<br />retention or payment of moneys by the City due the
<br />Contractor will not release the Contractor from
<br />liability.
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<br />1.37.2 Upon ten (10) days written notice to the Contractor,
<br />the City may, without cause and without prejudice to
<br />any other right or remedy, elect to terminate the
<br />Agreement. In such case, the Contractor shall be
<br />paid for all Work executed and accepted by the City
<br />as of the date of the termination. No payment shall
<br />be made for profit for Work which has not been
<br />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
<br />deemed to have been validly given if delivered in
<br />person to the individual or to a member of the firm or
<br />to an officer of the corporation for whom it is
<br />intended, or if delivered at or sent by registered or
<br />certified mail, postage prepaid, to the last business
<br />address known to them 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,
<br />the warranties, guarantees and obligations imposed
<br />upon Contractor and those in the Special Conditions
<br />and the rights and remedies available to the City,
<br />shall be in addition to, and shall not be construed in
<br />any way as a limitation of, any rights and remedies
<br />available by law, by special guarantee or by other
<br />provisions of the 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
<br />error, omission, or act of the other or of any of their
<br />employees or agents or others for whose acts they
<br />are legally liable, claim shall be made in writing to the
<br />other party within a reasonable time of the first
<br />observance of such in jury 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
<br />State or Federal Court proceedings in respect to any action,
<br />proceeding, lawsuit or counterclaim based upon the Contract
<br />Documents or the 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
<br />by 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
<br />arbitrator may be entered in any court having jurisdiction.
<br />Arbitration shall be held in Miami-Dade County, Florida. All costs of
<br />arbitration and attorneys’ fees incurred by the parties shall be paid
<br />by the non-prevailing party or, if neither party prevails on the
<br />whole, each party shall be responsible for a portion of the costs of
<br />arbitration and their respective attorneys’ fees as may be
<br />determined by the court on 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
<br />otherwise, which relate to the Project and to any claim for a period
<br />of three years following final completion of the Project. During the
<br />Project and the three year period following final completion of the
<br />Project, Contractor shall provide City access to its books and
<br />records upon five days written notice.
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<br />1.44 SEVERABILITY:
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