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10 30 2009 Dille emailGrant Beck From: Brent Dille [bdille@owensdavies.com] Sent: Friday, October 30, 2009 3:19 PM To: Ben Cushman Cc: Tim Peterson; Grant Beck; Ron Harding; Ron Harding; Shelly Badger; Stephanie Ray Subject: Release Language Attachments: Release Language.pdf Ben, Attached please find the City accepted release language which would be required to be included in any amendment to the Palisades West Plat. We still need to address the liability of the Smith's successor. Please call ore-mail me with any questions or concerns. Best regards, Brent Dille, Esq. ~~~El~~ ~A~~L~E~ ~E~~L~~~~E ~'A~]L~]E~ ~ ~~C]H[l[J1]L~'7, ~o~o 1115 West Bay Dr. P.O. Box 187 Olympia, WA 98507 360-943-8320 360-943-6150 (Fax) CONFIDENTIAL INFORMATION: This email message and any attachments accompanying it may contain confidential information, including information protected by attorney-client privilege. The information is intended for use only by the intended recipient(s). Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message. If you are not the intended recipient, or if this message has been addressed to you in error, please do not read, disclose, reproduce, distribute, disseminate, or otherwise use this transmission. Please promptly notify the sender by reply email and destroy all copies of this message and any attachments. Thank you. IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that to the extent this communication contains advice relating to a Federal tax issue, it is not intended to be used, and it may not be used, for (1) the purpose of avoiding any penalties that maybe imposed on you or any other person or entity under the Internal Revenue Code or (2) promoting or marketing to another parry any transaction or matter addressed herein. Release by Smith's. The Smith's, for themselves, their heirs, successors, assigns, agents and representatives (both individually and in their representative capacities) hereby release and discharge the City of Yelm (the "City") its officials, directors, attorneys, employees, staff, insurers, heirs, successors, assigns, agents, and representatives (both individually and in their representative capacities), of all past, present or future claims, penalties, damages, obligations, demands, costs and causes of action of every kind or nature whatsoever, known or unknown, liquidated or unliquidated, matured or contingent, Choate or inchoate, whether based in statute, tort, contract or other theory of recovery, which may now exist or hereafter accrue by reason of any acts, omissions or transactions, occurring to the date of this Agreement or occurring hereafter and arising out of or relating to the approval of a plat amendment to Palisades West and the permitting of the Smith's residence located on Lot 15, therein. Indemnification. Smith's do hereby agree to indemnify and hold the City harmless from and against and agrees to defend the City against any and all losses, claims, damages, liabilities and obligations of any kind and description, including any attorney fees incurred by the City in investing, defending or settling such losses, damages, liabilities and obligations, arising out of the Palisades West Plat Amendment dated and matters directly related thereto including any future Department of Health requirements should additional water system improvements be required to provide adequate water pressure at the meter of Lot 15, approval of occupancy of the home without providing required fire flows, and any and all liability associated with sewer system improvements required due to damage to the sewer system from operation of a STEP tank on lot 15 without the required pressure sustaining valve, including claims against the City by the homeowners for odors or damage to the internal home plumbing The City agrees to give prompt notice to Smith once the City has actual knowledge of any claims as to which indemnity shall be sought, and shall permit Smiths (at their expense) to assume the defense of any such claim or any litigation resulting there from; provided that counsel for the Smiths, who shall conduct the defense of said claim or litigation (including appeals), shall be reasonably satisfactory to the City, and the City may participate in such defense at its own expense; provided, further, that the failure by the City to give notice as provided herein shall not relieve Smith of their obligations hereunder. The City, in the defense of any such claim or litigation, shall, except with the consent of Smith, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term, the giving by the claimant or plaintiff to Smith of a release from all liability in respect to such claim or litigation. Insurance. Smith's Insurance Requirements. Smith shall maintain the following coverage in the following amounts: (1) Commercial General Liability Insurance covering the insured against claims of Bodily Injury', Personal InjuryZ and Property Damage, arising out of Smith's assumed liabilities or use of the their property, including the performance by Smith of the indemnity agreements (including liability for complying with any Department of Health requirements) as set forth in this Agreement, for limits of liability not less than: (i) Bodily Injury and Property Damage Liability $1,000,000.00 Each Occurrence and $2,000,000.00 Annual Aggregate3; and (ii) Personal Injury Liability $1,000,000.00 Each Occurrence and $2,000,000.00 Annual Aggregate. Liability policies obtained should be extended to include Contractual Liability4, Fire Legal Liability5 and Premises Medical Expenses6. (2) Property Damage Insurance covering any damage to the City's sewer system due to lack of a sewer pressure sustaining valve or claims by others for claims against the City by the homeowners, including bit not limited to, for odors or the cost of installing the booster pump station previously approved for the Palisades West subdivision in the event the station is required to be installed by the Department of Health or damage to the internal home plumbing or due to insufficient fire flow to the Palisades West plat, loss caused by fire. Such insurance shall be written on an all risks of physical loss or damage basis, for the full replacement cost value new without deduction for depreciation of the covered items. 'Injury to the body of a person. The term is usually specifically defined in liability and health insurance policies and there are variations in individual definitions. Injury to a person other than bodily injury. Liability for personal injury from such wrongs as defamation, false arrest, invasion of privacy and other intentional torts usually can be insured through an endorsement to a standard general liability policy. 3The maximum amount of coverage that an insurer will pay for all losses during a specific period of time, usually the contract period, no matter how many separate accidents may occur. 4Liability assumed by contract or agreement, and which would not otherwise exist. 5 Coverage for bodily injury and property damage as a result of fire to premises to you. 6 Coverage which responds regardless of fault and will pay reasonable expenses for the following: first aid; medical; surgical and dental services; ambulance, hospital, nursing and funeral services. (3) Form of Policies. The minimum limits of policies of insurance required of Smith under this Agreement shall in no event limit the liability of Smith under this Agreement. Such insurance shall (i) name the City of Yelm, and any other party so specified, as an additional insured; (ii) specifically covering the liability assumed by Smith under this Agreement; (iii) be issued by an insurance company licensed in Washington State and rated A + XII or better in "Bests" Insurance Guide, or such other companies as approved by the City in its sole discretion; (iv) be primary insurance as to all claims thereunder and provide that any insurance carried by the City is not excess and noncontributing with any insurance requirement of Smith; (v) provide that said insurance shall not be canceled or coverage changed unless thirty (30) days prior written notice shall have been given to the City; and (vi) contain a cross liability' endorsement or severability of interest clause acceptable to the City. Certificate of Insurance. A certificate of insurance coverage issued by the insurance carrier for each policy of insurance required to be maintained by the Smiths under this Agreement shall be delivered to the City upon or before the approval of the plat amendment and thereafter, with respect to policy renewals, within thirty (30) days prior to the expiration of the term of each such policy. Each of said certificates of insurance and each such policy of insurance required to be maintained by the Smith's hereunder shall expressly evidence insurance coverage as required by this Agreement. All such policies shall be written as primary policies not contributing with and not in excess of coverage which the City may carry. In the event any insurance premium remains delinquent for more than seven (7) days, the City may, upon ten (10) days written notice to the Smiths of such delinquency, elect to pay the insurance premium and the amount of any premium, plus interest at the rate of twelve percent (12%) per annum, and costs, including reasonable attorney's fees, shall, in accordance with RCW shall be a lien upon the Smith property. The said lien for payment of such insurance premiums and charges shall have priority over all other liens and encumbrances recorded or unrecorded. Suit to recover a money judgment for unpaid insurance premiums shall be maintainable without foreclosure or waiving the lien securing the same. 'Liability between two different insurers of a single liability insurance policy. A cross liability clause says that each insured will be treated as though the policy applied separately to each.