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<br />City of Sunny Isles Beach | Invitation to Bid No. 16-03-01 8
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<br />employees. The Bidder will defend, indemnify and hold harmless the
<br />City 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 any
<br />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 Bidder, Sub-Bidder, anyone directly
<br />or indirectly employed by any of them or anyone for whose acts any
<br />of them may be liable, regardless of whether or not it is caused by a
<br />party 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 Bidder shall indemnify, defend and hold harmless the City,
<br />their officers and employees, to the fullest extent authorized by Sec.
<br />725.06 (2) F.S., which statutory provisions shall be deemed to be
<br />incorporated herein by reference as if fully set forth herein. In the
<br />event that any action or proceeding is brought against City by reason
<br />of any such claim or demand, Bidder, upon written notice from City
<br />shall defend such action or proceeding by counsel satisfactory to
<br />City. The indemnification provided above shall obligate Bidder to
<br />defend at its own expense or to provide for such defense, at City’s
<br />option, any and all claims of liability and all suits and actions of every
<br />name and description that may be brought against City, excluding
<br />only those which allege that the injuries arose out of the sole
<br />negligence of City, which may result from the operations and
<br />activities under this Contract whether the Work be performed by
<br />Bidder, its Sub-Bidders, or by anyone directly or indirectly employed
<br />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 Bidder 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 Bidder 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 Bidder and the surety ten (10) days written
<br />notice, terminate the services of the Bidder and take possession of
<br />the Project and of all materials, equipment, tools, construction
<br />equipment and machinery thereon owned by the Bidder, and finish
<br />the Work by whatever method they may deem expedient. In such
<br />case the Bidder shall not be entitled to receive any further payment
<br />until the Work is finished. If the unpaid balance of the Contract Price
<br />exceeds the direct and indirect costs of completing the Project,
<br />including compensation for additional professional services, such
<br />excess shall be paid to the Bidder. If such costs exceed such unpaid
<br />balance, the Bidder will pay the difference to the City. Such costs
<br />incurred by the City will be determined by the City and incorporated
<br />in a Change Order. If after termination of the Bidder under this
<br />Section, it is determined by a court of competent jurisdiction for any
<br />reason that the Bidder was not in default, the rights and obligations
<br />of the City and the Bidder shall be the same as if the termination had
<br />been issued pursuant to this document.
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<br />1.37.1 Where the Bidder’s services have been so terminated
<br />by the City said termination shall not affect any rights
<br />of the City against the Bidder then existing or which
<br />may thereafter accrue. Any retention or payment of
<br />moneys by the City due the Bidder will not release the
<br />Bidder from liability.
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<br />1.37.2 Upon ten (10) days written notice to the Bidder, 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 Bidder shall be paid for
<br />all Work executed and accepted by the City as of the
<br />date of the termination. No payment shall be made for
<br />Work which has not been performed.
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<br />1.38 MISCELLANEOUS:
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<br />Bidders 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 Bidder 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 />Bidder 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 Bidder 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 Bidder 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, VENUE AND WAIVER OF JURY TRIAL:
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<br />It is agreed that this Agreement shall be governed by, construed and
<br />enforced in accordance with the laws of the State of Florida. In the
<br />event it becomes necessary for either party to initiate legal action
<br />regarding this Agreement venue shall be in the Eleventh Judicial
<br />Circuit in and for Miami Dade County, Florida, for any claims under
<br />state law and in the Southern District of Florida, Miami Division, for
<br />any claims brought in federal court. If either party utilizes such legal
<br />action, including appeals, if necessary, to enforce this Agreement,
<br />the prevailing party shall be entitled to recover its reasonable
<br />attorney’s fees and costs at the pretrial, trial and appellate levels.
<br />Each of the parties hereto hereby knowingly, voluntarily and
<br />intentionally, waives the right which any party may have to a jury
<br />trial in respect of any action, proceeding, litigation or counterclaim
<br />based hereon or arising out of, under, on or in connection with this
<br />Agreement or any course of conduct, course of dealing, statements
<br />(whether verbal or written) or actions of either of party
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<br />1.41 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 />Bidder which relate in any way to the Project, and to any claim for
<br />additional compensation made by Bidder, and to conduct an audit of
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