IS GOOD CAUSE AND A REASONABLE BASIS FOR AMENDING
THIS AGREEMENT TO PROVIDE FOR SUCH ALTERNATE TERMS.
A MEASURE OF ANY PROPOSED
MITIGATION AMENDMENT SHALL BE THE BASIS OF MITIGATION THAT WAS USED BY THE
PARTIES IN REACHING THIS AGREEMENT.
XVIII.
INDEMNIFICATION
18.1
THE TRIBE AGREES, UNDER THE TERMS AND CONDITIONS SET FORTH IN
SECTIONS 18.2 AND 18.3 BELOW, TO INDEMNIFY AND DEFEND THE COUNTY WITH RESPECT TO
CLAIMS MADE BY THIRD PARTIES THAT ARE RELATED TO OR ARISE FROM THE FOLLOWING
COUNTY ACTIVITIES:
18.1.1
WORK UNDERTAKEN OR FUNDS DISBURSED RELATED TO COMPLETION OF THE
EMERGENCY ACCESS ROAD UNDER THE CONSTRUCTION ASSURANCE DEVICE;
18.1.2
ACTIONS OF COUNTY PERSONNEL RESPONDING TO FIRE, CRIMINAL
ACTIVITY OR OTHER RESERVATION EMERGENCIES;
18.1.3
ANY ACTION CHALLENGING THE COUNTY'S APPROVAL OF THIS AGREEMENT;
OR
18.1.4
ANY ACTION CHALLENGING THE COUNTY'S CANCELLATION OR RESCISSION
OF THE DUGAN PROPERTY WILLIAMSON ACT CONTRACT INCLUDING BUT NOT LIMITED TO
CREATION OF THE CONSERVATION EASEMENT OR ENTERING INTO THE EASEMENT EXCHANGE
(THE CLAIMS SET FORTH IN SECTIONS 18.1.1 - 18.1.4 ARE REFERRED TO COLLECTIVELY
AS THE ("INDEMNIFICATION CLAIMS").
18.2
THE SCOPE OF THE INDEMNITY WITH RESPECT TO THE INDEMNIFICATION
CLAIMS IS AS FOLLOWS: THE TRIBE AGREES TO PROVIDE DEFENSE COSTS ONLY, WITH
RESPECT TO MATTERS ARISING UNDER SECTION 18.1.1 AND 18.1.2 ABOVE, AND, AS TO
SECTIONS 18.1.3 AND 18.1.4, TO DEFEND, INDEMNIFY, HOLD HARMLESS, AND REIMBURSE
THE COUNTY, INCLUDING ITS OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ANY
AND ALL ACTIONS, CLAIMS, DAMAGES, DISABILITIES, LIABILITIES, AND EXPENSE,
INCLUDING BUT
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NOT LIMITED TO ATTORNEYS' FEES AND THE COST OF LITIGATION INCURRED IN THE
DEFENSE, ARISING OUT OF THE INDEMNIFICATION CLAIMS, WHETHER ARISING FROM
PERSONAL INJURY, PROPERTY DAMAGE OR ECONOMIC LOSS OF ANY TYPE (BUT EXCLUDING
ECONOMIC LOSSES BASED ON ALLEGED LOST TAXES, REVENUES OR LOST ECONOMIC
OPPORTUNITY TO THE COUNTY, STATE, OR ANY PERSON, BUSINESS OR ENTITY, CLAIMS THAT
SUCH ACTIONS LOWERED THE USE OR MARKET VALUE OF ANY PROPERTY OR BUSINESS, OR
CLAIMS IN THE NATURE OF AN ALLEGED TAKING) THAT MAY BE ASSERTED BY ANY THIRD
PARTY, BUT TO THE EXTENT REQUIRED OR PERMITTED BY LAW, EXCLUDING LIABILITY DUE
TO THE PRIMARY NEGLIGENCE, WILLFUL MISCONDUCT, OR CONTRACTUAL LIABILITY OR
BREACH OF THE COUNTY, OR ANY CLAIMS FOR PUNITIVE DAMAGES AGAINST THE COUNTY OR
ANY ENTITY INSURING IT AGAINST SUCH CLAIMS THAT MAY HAVE SUBROGATION RIGHTS
AGAINST THE TRIBE.
IF THERE IS A REASONABLY POSSIBLE OBLIGATION TO INDEMNIFY OR
DEFEND UNDER SECTIONS 18.1.1-18.1.4, THE TRIBE'S DUTY TO DEFEND EXISTS
REGARDLESS OF WHETHER IT IS ULTIMATELY DETERMINED THAT THERE IS NOT A DUTY TO
DEFEND OR INDEMNIFY.
18.3
THE COUNTY SHALL VIGOROUSLY DEFEND ANY SUCH ACTIONS AND SHALL HAVE
THE RIGHT TO SELECT ITS OWN LEGAL COUNSEL AT LOCAL PREVAILING RATES AT THE
EXPENSE OF THE TRIBE, BUT THE TRIBE SHALL HAVE THE RIGHT TO REVIEW COUNSEL FEES
AND COSTS TO BE INCURRED, AND TO BE INFORMED REGARDING THE PROGRESS IN THE
LITIGATION AND OF ANY AND ALL SETTLEMENT PROPOSALS.
18.4
THE TRIBE WILL OBTAIN AND MAINTAIN A POLICY OF