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<br />relating to Consultant’s obligations to defend, indemnify, and hold harmless. Consultant’s
<br />obligations to defend will be free of any conflicts of interest, even if retention of separate
<br />legal counsel is necessary. Consultant’s duties to defend, indemnify, and hold harmless
<br />include anything in excess of any minimum insurance requirements described in the
<br />Contract Documents, and anything in excess of any of Consultant’s insurance policy limits.
<br />Consultant’s obligations to defend, indemnify, and hold harmless will continue for a period
<br />of not less than six (6) years following completion of the Project or any termination or
<br />expiration of the Contract Documents.
<br />
<br />The indemnified party shall provide notice to Consultant after obtaining knowledge of any
<br />claim that it may have pursuant to this Section 33. In the event the indemnified party pursues
<br />a claim pursuant to this Section, the indemnified party will also provide relevant information
<br />and assistance to Consultant.
<br />
<br />34. LIMITATION OF LIABILITY. Notwithstanding any other provision of this Agreement,
<br />and to the fullest extent permitted by law, the total liability, in the aggregate, of Consultant
<br />and Consultant’s officers, directors, members, partners, agents, guarantors, Consultants,
<br />subconsultants, subcontractors, and employees, to Diversion Authority, its members and the
<br />State of North Dakota, and anyone else claiming by, through, or resulting from, or in any
<br />way related to the Project or Task Order, from any negligence, professional errors or
<br />omissions, strict liability, breach of contract, indemnity obligations, or warranty, express or
<br />implied, of Consultant or Consultant’s officers, directors, members, partners, agents,
<br />consultants, subconsultants, subcontractors or employees shall not exceed the total amount,
<br />individually, collectively or in the aggregate shall not exceed the amount of ten million
<br />dollars ($10,000,000). This Section takes precedence over any conflicting Section of this
<br />Agreement or any document incorporated into it or referenced by it. This limitation of
<br />liability will apply whether Consultant’s liability arises under breach of contract or
<br />warranty; tort, including negligence, strict liability, statutory liability, or any other cause of
<br />action, and shall include Consultant’s officers, affiliated corporations, employees, and
<br />subcontractors. Diversion Authority further agrees that its sole and exclusive remedy, and
<br />any claim, demand or suit arising from or related to the services under this Agreement shall
<br />be directed and/or asserted only against Consultant and not against any of Consultant
<br />individual employees, officers, shareholders, affiliated firms or directors. The Diversion
<br />Authority knowingly waives all such claims against Consultant’s individual employees,
<br />officers, shareholders, directors in their individual capacity or any affiliated companies to
<br />Consultant.
<br />
<br />35. BREACH AND REMEDIES.
<br />
<br />A. A breach exists under this Agreement if either party:
<br />
<br />(1) Makes a material misrepresentation in writing; or
<br />
<br />(2) Fails or is unable to meet or perform any material promise in this Agreement, and
<br />(a) Is incapable of curing the failure, or
<br />(b) Does not cure the failure within twenty (20) days following notice (or within
<br />a longer period if specified in the notice).
<br /> DRAFT
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