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<br />City of Sunny Isles Beach |Request for Proposal No. 17-11-01 8
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<br />Contractor, agents, servants or employees. The Contractor will
<br />defend, indemnify and hold harmless the City and their agents or
<br />employees from and against all claims, damages, losses and
<br />expenses including attorneys' fees arising out of or resulting from
<br />the performance of the Work, provided that any such claim damage,
<br />loss or expense (a) is attributable to bodily injury, sickness, disease
<br />or death, or to injury to or destruction of tangible property (other
<br />than Work itself) including the loss of use resulting wherefrom and
<br />(b) is caused in whole or in part by any negligent act or omission of
<br />the Contractor, Sub-Contractor, anyone directly or indirectly
<br />employed by any of them or anyone for whose acts any of them may
<br />be liable, regardless of whether or not it is caused by a party
<br />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 Contractor shall indemnify, defend and hold harmless the
<br />City, their officers and employees, to the fullest extent authorized by
<br />Sec. 725.06 (2) F.S., which statutory provisions shall be deemed to
<br />be incorporated herein by reference as if fully set forth herein. In
<br />the event that any action or proceeding is brought against City by
<br />reason of any such claim or demand, Contractor, upon written notice
<br />from City shall defend such action or proceeding by counsel
<br />satisfactory to City. The indemnification provided above shall
<br />obligate Contractor to defend at its own expense or to provide for
<br />such defense, at City’s option, any and all claims of liability and all
<br />suits and actions of every name and description that may be brought
<br />against City, excluding only those which allege that the injuries arose
<br />out of the sole negligence of City, which may result from the
<br />operations and activities under this Contract whether the Work be
<br />performed by Contractor, its Sub-Contractors, or by anyone directly
<br />or indirectly employed 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 Contractor is adjudged bankrupt or insolvent, or if they make
<br />a general assignment for the benefit of their creditors, or if a trustee
<br />or receiver is appointed for the Contractor or for any of their
<br />property, or if they file a petition to take advantage of any debtor’s
<br />act, or to reorganize under bankruptcy or similar laws, or if they
<br />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 or
<br />they disregard laws, ordinances, rules, regulations or orders of any
<br />public body having jurisdiction, or if they disregard the authority of
<br />the City, of if they otherwise violate any provision of, the Contract
<br />Documents, then the City may, without prejudice to any other right
<br />or remedy and after giving the Contractor and the surety ten (10)
<br />days written notice, terminate the services of the Contractor and take
<br />possession of the Project and of all materials, equipment, tools,
<br />construction equipment and machinery thereon owned by the
<br />Contractor, and finish the Work by whatever method they may deem
<br />expedient. In such case the Contractor shall not be entitled to
<br />receive any further payment until the Work is finished. If the unpaid
<br />balance of the Contract Price exceeds the direct and indirect costs of
<br />completing the Project, including compensation for additional
<br />professional services, such excess shall be paid to the Contractor. If
<br />such costs exceed such unpaid balance, the Contractor will pay the
<br />difference to the City. Such costs incurred by the City will be
<br />determined by the City and incorporated in a Change Order. If after
<br />termination of the Contractor under this Section, it is determined by
<br />a court of competent jurisdiction for any reason that the Contractor
<br />was not in default, the rights and obligations of the City and the
<br />Contractor shall be the same as if the termination had been issued
<br />pursuant to 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 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,
<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 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
<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 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
<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 arbitrator
<br />may be entered in any court having jurisdiction. Arbitration shall be
<br />held in Miami-Dade County, Florida. All costs of arbitration and
<br />attorneys’ fees incurred by the parties shall be paid by the non-
<br />prevailing party or, if neither party prevails on the whole, each party
<br />shall be responsible for a portion of the costs of arbitration and their
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