03-2024 - Authorize Development Agreement with LDC Warren LTD, LLC

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DocuSign Envelope ID: 92860B03-367C-49AA-BA95-OFDE6BFCF177 "Excluded Liability" means each Liability to the extent it is attributable to the gross negligence or willful misconduct of any Indemnified Party or the failure of any Indemnified Party that is a third -party beneficiary of this Agreement to perform any obligation required to be performed by the Indemnified Party as a condition to being indemnified hereunder, including without limitation, the settlement of any Liability without the consent of the Developer, or, to the extent the Developer's ability to defend a Liability is prejudiced materially, the failure of an Indemnified Party to give timely written notice to the Developer of the assertion of a Liability. Upon notice of the assertion of any Liability, the Indemnified Party shall give prompt written notice of the same to the Developer. Upon receipt of written notice of the assertion of a Liability, the Developer shall have the option to assume the defense thereof, with power and authority to litigate, compromise or settle the same; provided that, the Indemnified Party shall have the right to approve any obligations imposed upon it by compromise or settlement of any Liability or in which it otherwise has a material interest, which approval may be withheld in its sole discretion. Developer's decision whether or not to assume the defense of the Liability shall not relieve Developer of its duty to provide indemnity to the Indemnified Parties as set forth herein. B. Environmental Indemnity. The Developer hereby agrees to release, hold harmless, defend and indemnify the Indemnified Parties from, for and against all actual or threatened claims, out-of-pocket costs (including but not limited to the cost of investigation, removal, remediation and other clean-up of Hazardous Substances, and reasonable fees of external attorneys and other external professionals, experts and consultants retained by the Indemnified Parties) demands, orders, losses, lawsuits, liabilities, damages (including without limitation all consequential damages) and out-of-pocket expenses whether brought collectively or individually by the Developer, a governmental authority or any other third party (all the foregoing hereinafter collectively referred to as "Losses") arising from or related to any of the following: 1. The past, present or future Release, threatened Release, Storage, Treatment, accumulation, generation, utilization, Disposal, transportation or other handling or migration of any Hazardous Substance on, in, onto, or from the Project. 2. The violation or alleged violation of Environmental Laws occurring on or related to the Project. 3. Any action taken by the Indemnified Parties in accordance with this Agreement to eliminate, prevent, or mitigate the potential adverse impact on the Project or the Indemnified Parties as a result of or in anticipation of any actual, suspected or threatened violation of Environmental Laws or Release or threatened Release of a Hazardous Substance on, in or from or otherwise affecting the Project. 4. The costs of any required or necessary repair, investigation, monitoring, cleanup or detoxification of the Proj ect and the preparation and implementation of any closure, remedial or other required plans, in each case limited to environmental matters. The foregoing clauses are hereinafter referred to collectively as "Environmental Matters." 19