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<br />shall maintain no direct action against Consultant, Consultant’s officers, employees,
<br />affiliated corporations, and subcontractors for any claim arising out of, in connection
<br />with, or resulting from the consulting services performed. The Diversion Authority will
<br />be the only beneficiary of any undertaking by Consultant.”
<br />
<br />31. OWNER’S INSURANCE.
<br />
<br />A. The Diversion Authority will maintain property insurance on all pre-existing physical
<br />facilities associated in any way with the Project.
<br />
<br />B. The Diversion Authority will provide for a waiver of subrogation as to all Owner-carried
<br />property damage insurance, during construction and thereafter, in favor of Consultant,
<br />Consultant’s officers, employees, affiliates, and subcontractors.
<br />
<br />C. The Diversion Authority is not responsible for the payment of deductibles owed under
<br />Consultant’s insurance policies.
<br />
<br />D. The Diversion Authority will provide (or have the construction contractor(s) provide) a
<br />Builders Risk All Risk insurance policy for the full replacement value of all Project
<br />work including the value of all onsite Owner-furnished equipment and/or materials
<br />associated with Consultant’s services. Such policy will include coverage for loss due to
<br />defects in materials and workmanship and errors in design, and will provide a waiver of
<br />subrogation as to Consultant and the construction contractor(s) (or the Diversion
<br />Authority), and their respective officers, employees, agents, affiliates, and
<br />subcontractors. The Diversion Authority will provide Consultant a copy of such policy.
<br />
<br />E. The Diversion Authority reserves the right to enter into a program-wide insurance plan
<br />at its expense. Consultant agrees to participate in such a program if named as an insured
<br />party and if commercially reasonable terms are available.
<br />
<br />32. LITIGATION ASSISTANCE. Services required or requested of Consultant by the
<br />Diversion Authority to support, prepare, document, bring, defend, or assist in litigation
<br />undertaken or defended by the Diversion Authority, except for suits or claims between the
<br />parties to this Agreement, will be defined in an authorized Task Order and reimbursed as
<br />mutually agreed.
<br />
<br />33. INDEMNIFICATION. Consultant will defend, indemnify, and hold harmless the Diversion
<br />Authority and the State of North Dakota, and those parties’ officers, employees, agents,
<br />consultants, subcontractors, and representatives, from and against any and all claims, losses,
<br />liabilities, damages, expenses, demands, suits, fines, judgments, costs, expenses, and fees
<br />(including all fees and charges of attorneys, engineers, architects, and other professionals
<br />and all court, arbitration, mediation, or other resolution costs) arising out of or relating to
<br />claims by third parties for property damage or bodily injury, including death, to the
<br />proportionate extent caused by any negligent act or omission of Consultant, any
<br />Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by
<br />any of them to perform any of the Work or anyone for whose acts any of them may be
<br />liable, and including all costs, expenses, and fees incurred by the Diversion Authority or the
<br />State of North Dakota in establishing and litigating the existence, scope, or any other matters DRAFT
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