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ARTICLE 35. MATERIALITY AND WAIVER OF BREACH <br /> 35.1 The City and Contractor agree that each requirement,duty, and obligation set forth in these <br /> Contract Documents is substantial and important to the formation of this Agreement. <br /> 35.2 The City's failure to enforce any provision of this Agreement shall not be deemed a <br /> waiver of such provision or modification of this Agreement. A waiver of any breach of a <br /> provision of this Agreement shall not be deemed a waiver of any subsequent breach and <br /> shall not be construed to be a modification of the terms of this Agreement. <br /> ARTICLE 36. FORCE MAJEURE <br /> Should any party fail to perform its obligations under this Agreement due to a condition of force <br /> majeure, as that term is interpreted under Florida law, and specifically including but not limited <br /> to Acts of God, Hurricanes, Tropical Storms, fire, flood, earthquakes and the unavailability of <br /> materials, equipment or labor resulting from said events, then the time for performance of said <br /> obligation hereunder will be extended by a period reasonably commensurate with the cause of <br /> such failure to perform or cure. If the Contractor is delayed in performing any obligation under <br /> this Agreement due to a force majeure condition, the Contractor shall request a time extension <br /> from the City within three (3) -working days of said force majeure occurrence. Any time <br /> extension shall be subject to mutual agreement and shall not be cause for any claim by the <br /> Contractor for extra compensation unless additional services are required. Events of Force <br /> Majeure do not include acts or omissions of Sub- Contractors. <br /> ARTICLE 37. MEDIATION AND ARBITRATION OF DISPUTES <br /> The merits of any dispute arising under, out of, in connection with, or in relation to this agreement, <br /> or the making or validity thereof, or its interpretation, or any breach thereof, shall be determined <br /> and settled by Arbitration before an Arbitrator in the State of Florida, pursuant to the <br /> Commercial Arbitration Rules then obtaining of the American Arbitration Association. If <br /> the parties hereto are unable to agree upon the selection of an arbitrator, such arbitration shall <br /> be held before the American Arbitration Association. Any award rendered shall be final and <br /> conclusive upon the parties hereto and a judgment thereon may be entered in the highest court of <br /> the State of Florida having jurisdiction. <br /> Before submitting a dispute to Arbitration, the parties shall first attempt to resolve the dispute <br /> amicably. In the event that the parties hereto are unable to resolve the dispute amicably, either <br /> party may give notice for a Mediation session before a Mediator appointed by mutual agreement <br /> (hereinafter the "Mediator"). If the parties are unable to agree upon the selection of a mediator, <br /> such mediation shall be held before the American Arbitration Association. The Mediator shall <br /> make a recommendation to the parties in the form of a written mediated settlement <br /> agreement. Each party to the dispute shall sign such agreement after receipt of the same or <br /> immediately file a demand for Arbitration, in which event the parties shall proceed to Arbitration <br /> in accordance with the previous paragraph. All costs of the Arbitration, including Mediation <br /> and the legal action to confirm and enforce the arbitrator's award, as the case may be, <br /> including the reasonable legal fees of both parties shall be paid by the non-prevailing party, or, if <br /> neither party prevails on the whole, each party shall be responsible for a portion of the costs of <br /> Arbitration and Mediation as may be determined by the court on confirmation. <br /> f"„ 20 <br />