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account of any act or omission of the said Contractor or his Sub- 1.37.2Upon ten (10) days written notice to the Contractor, Contractor, agents, servants or employees. The Contractor will the City may, without cause(termination for defend, indemnify and hold harmless the City and their agents or convenience)and without prejudice to any other right employees from and against all claims, damages, losses and or remedy, elect to terminate the Agreement. In such expenses including attorneys' fees arising out of or resulting from case, the Contractor shall be paid for all Work executed the performance of the Work, provided that any such claim damage, and accepted by the City as of the date of the loss or expense (a) is attributable to bodily injury, sickness, disease termination. No payment shall be made for profit for or death, or to injury to or destruction of tangible property (other Work which has not been performed. than Work itself) including the loss of use resulting wherefrom and (b) is caused in whole or in part by any negligent act or omission of 1.38MISCELLANEOUS: the Contractor, Sub-Contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused by a party Proposers acknowledge the following miscellaneous conditions: indemnified hereunder. In the event that a court of competent jurisdiction determines that Sec. 725.06 (2), F.S. is applicable to this 1.38.1Whenever any provision of the Contract Documents Work, then in lieu of the above provisions of this section the parties requires the giving of written notice it shall be deemed agree that Contractor shall indemnify, defend and hold harmless the to have been validly given if delivered in person to the City, their officers and employees,to the fullest extent authorized by individual or to a member of the firm or to an officer of Sec. 725.06 (2) F.S., which statutory provisions shall be deemed to the corporation for whom it is intended, or if delivered be incorporated herein by reference as if fully set forth herein. In at or sent by registered or certified mail, postage the event that any action or proceeding is brought against City by prepaid, to the last business address known to them reason of any such claim or demand, Contractor, upon written notice who gives the notice. from City shall defend such action or proceeding by counsel satisfactory to City. The indemnification provided above shall 1.38.2The Contract Documents shall remain the property of obligate Contractor to defend at its own expense or to provide for the City. The Contractor shall have the right to keep such defense, at City’s option, any and all claims of liability and all one record set of the Contract Documents upon suits and actions of every name and description that may be brought completion of the Project. against City, excluding only those which allege that the injuries arose out of the sole negligence of City, which may result from the 1.38.3The duties and obligations imposed by these General operations and activities under this Contract whether the Work be Conditions, Special Conditions and Supplemental performed by Contractor, its Sub-Contractors, or by anyone directly Conditions and the rights and remedies available or indirectly employed by either.hereunder, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon 1.36DECISIONS ON DISAGREEMENTS: Contractor and those in the Special Conditions and the rights and remedies available to the City, shall be in The City will be the initial interpreter of the Technical Specifications.addition to, and shall not be construed in any way as a limitation of, any rights and remedies available by law, 1.37CITY MAY TERMINATE: by special guarantee or by other provisions of the Contract Documents. If the Contractor is adjudged bankrupt or insolvent, or if they make a general assignment for the benefit of their creditors, or if a trustee 1.38.4Should the City or the Contractor suffer injury or or receiver is appointed for the Contractor or for any of their damage to its person or property because of any error, property, or if they file a petition to take advantage of any debtor’s omission, or act of the other or of any of their act, or to reorganize under bankruptcy or similar laws, or if they employees or agents or others for whose acts they are repeatedly fails to supply sufficient skilled workmen or suitable legally liable, claim shall be made in writing to the other materials or equipment, or if they repeatedly fail to make prompt party within a reasonable time of the first observance payments to Sub-Contractors or for labor, materials or equipment or of such in jury or damage. they disregard laws, ordinances, rules, regulations or orders of any public body having jurisdiction, or if they disregard the authority of 1.39WAIVER OF JURY TRIAL: the City, of if they otherwise violate any provision of, the Contract Documents, then the City may, without prejudice to any other right City and Contractor knowingly, irrevocably voluntarily and or remedy and after giving the Contractor and the surety ten (10) intentionally waive any right either may have to a trial by jury in days written notice, terminate the services of the Contractor and take State or Federal Court proceedings in respect to any action, possession of the Project and of all materials, equipment, tools,proceeding, lawsuit or counterclaim based upon the Contract construction equipment and machinery thereon owned by the Documents or the performance of the Work there under. Contractor, and finish the Work by whatever method they may deem 1.40GOVERNING LAW: expedient. In such case the Contractor shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds the direct and indirect costs of The Contract shall be construed in accordance with and governed by completing the Project, including compensation for additional the law of the State of Florida. professional services, such excess shall be paid to the Contractor. If 1.41VENUE: such costs exceed such unpaid balance, the Contractor will pay the difference to the City. Such costs incurred by the City will be determined by the City and incorporated in a Change Order. If after Venue of any action to enforce the Contract Documents shall be in termination of the Contractor under this Section, it is determined by Miami-Dade County, Florida. a court of competent jurisdiction for any reason that the Contractor 1.42ARBITRATION: was not in default, the rights and obligations of the City and the Contractor shall be the same as if the termination had been issued It is the intention of the parties that whenever possible, if a dispute pursuant to this document. or controversy arises hereunder then such dispute or controversy 1.37.1Where the Contractor’s services have been so shall be settled by arbitration in accordance with the procedures, terminated by the City said termination shall not affect rules and regulations of the American Arbitration Association. The decision rendered by the Arbitrator shall be final and binding upon any rights of the City against the Contractor then the parties and judgment upon the award rendered by the arbitrator existing or which may thereafter accrue. Any retention may be entered in any court having jurisdiction. Arbitration shall be or payment of moneys by the City due the Contractor will not release the Contractor from liability.held in Miami-Dade County, Florida. All costs of arbitration and attorneys’ fees incurred by the parties shall be paid by the non- City of Sunny Isles Beach |Invitation to Bid No. 20-09-01 8