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<br />City of Sunny Isles Beach |Request for Proposal No. 12-04-02 8
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<br />1.35 DUTY TO DEFEND, INDEMNIFY AND SAVE HARMLESS:
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<br />In consideration of the separate sum of twenty-five dollars ($25.00)
<br />and other valuable consideration, the Contractor shall defend,
<br />indemnify and hold harmless the City, its officers, agents and
<br />employees, from or on account of any injuries or damages,
<br />received or sustained by any person or persons during or on
<br />account of any operations connected with the Work described in
<br />the Contract Documents, or by or in consequence of any
<br />negligence in connection with the same; or by use of any improper
<br />materials or by or on account of any act or omission of the said
<br />Contractor or his Sub-Contractor, agents, servants or employees.
<br />The Contractor will defend, indemnify and hold harmless the City
<br />and their agents or employees from and against all claims,
<br />damages, losses and expenses including attorneys' fees arising out
<br />of or resulting from the performance of the Work, provided that
<br />any such claim damage, loss or expense (a) is attributable to bodily
<br />injury, sickness, disease or death, or to injury to or destruction of
<br />tangible property (other than Work itself) including the loss of use
<br />resulting wherefrom and (b) is caused in whole or in part by any
<br />negligent act or omission of the Contractor, Sub-Contractor, anyone
<br />directly or indirectly employed by any of them or anyone for whose
<br />acts any of them may be liable, regardless of whether or not it is
<br />caused by a party indemnified hereunder. In the event that a court
<br />of competent jurisdiction determines that Sec. 725.06 (2), F.S. is
<br />applicable to this Work, then in lieu of the above provisions of this
<br />section the parties agree that Contractor shall indemnify, defend
<br />and hold harmless the City, their officers and employees, to the
<br />fullest extent authorized by Sec. 725.06 (2) F.S., which statutory
<br />provisions shall be deemed to be incorporated herein by reference
<br />as if fully set forth herein. In the event that any action or
<br />proceeding is brought against City by reason of any such claim or
<br />demand, Contractor, upon written notice from City shall defend
<br />such action or proceeding by counsel satisfactory to City. The
<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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