Common use of Cooperation in the Event of Legal Challenge Clause in Contracts

Cooperation in the Event of Legal Challenge. In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, the Project Approvals for the Project (“Initial Litigation Challenge”), Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action, to select its own counsel, and to control its participation and conduct in the litigation in all respects permitted by law. If an Initial Litigation Challenge is filed, upon receipt of the petition, the Parties will have 20 days to meet and confer regarding the merits of such Initial Litigation Challenge and to determine whether to defend against the Initial Litigation Challenge, which period may be extended by the Parties’ mutual agreement so long as it does not impact any litigation deadlines. Without limiting the application of Section 14.1, if, after meeting and conferring, the Parties mutually agree to defend against the Initial Litigation Challenge, then the following shall apply: (i) the Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law; (ii) for the purposes of cost- efficiency and coordination, the Parties shall first consider defending the Initial Litigation Challenge jointly, with counsel and under terms of joint representation mutually acceptable to the City and Developer (each in its sole discretion), at the Developer’s sole cost and expense; and (iii) if the Parties cannot reach timely and mutual agreement on a joint counsel, and Developer continues to elect (in its sole discretion) to defend against the Initial Litigation Challenge, then Developer shall take the lead role defending such Initial Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice, in which case, City, at its expense, may elect to be separately represented by the outside legal counsel of its choice in any such action or proceeding. The City Manager is authorized to negotiate and enter into a joint defense agreement in a form acceptable to the City Attorney. Such joint defense agreement shall also provide that any proposed settlement of an Initial Litigation Challenge shall be subject to City’s and Developer’s approval, each in its reasonable discretion.

Cooperation in the Event of Legal Challenge. In the event of any administrative, legal legal, or equitable action or other proceeding instituted by any person not a third party to this Agreement challenging the validity of any provision of this Development Agreement or all actions, discretionary or ministerial, relating to the development and occupancy of the Project, the parties shall cooperate in defending such action or proceeding to settlement, stipulation, or final judgment including all appeals as set forth in this Section. (a) Each party shall select its own legal counsel, subject to approval of the City, and in no event shall City be required to bear the fees and costs of Owner’s attorneys. The Owner shall indemnify, defend, and hold harmless the City and the City’s elected and appointed officers and officials, agents, employees, and independent contractors from and against any claims, including those brought under CEQA, losses, or liabilities, including attorney’s fees, assessed or awarded against the City by way of judgment, settlement, or stipulation related to this Agreement, the procedures leading to its adoptionAdopting Ordinance, the Project Approvals for the Project Approvals, any Subsequent Approvals, or any other permit or approval. (“Initial Litigation Challenge”), Developer and b) The City each shall have the right, in its sole discretionbut not the obligation, to elect whether or not to defend such action, except that if Owner timely provides City with written notice that the Owner has elected to select its own counsel, and to control its participation and conduct in defend the litigation in all respects permitted by law. If an Initial Litigation Challenge is filed, upon receipt of the petitionaction, the Parties will have 20 days City shall not allow any default or judgment to meet be taken against it and confer regarding shall not enter into any settlement or compromise of any claim which has the merits effect, directly or indirectly, of such Initial Litigation Challenge and to determine whether prohibiting, preventing, delaying, or further conditioning or impairing Owner’s rights hereunder. In addition, if Owner elects to defend against the Initial Litigation Challengeaction the City shall provide reasonable assistance to Owner, which period may be extended by the Parties’ mutual agreement so long as it does not impact any litigation deadlines. Without limiting the application of Section 14.1, if, after meeting and conferring, the Parties mutually agree such assistance to defend against the Initial Litigation Challenge, then the following shall applyinclude: (i) the Parties hereby agree making available upon reasonable notice, and at no cost to affirmatively cooperate Owner, City officials and employees who are or may be witnesses in defending said action such action, and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law; (ii) for provision of other non-privileged information within the purposes custody or control of cost- efficiency the City that is relevant to the subject matter of the action. (c) Owner shall have the right, but not the obligation, to defend such action. If Owner defends any such action, it shall indemnify, defend, and coordination, the Parties shall first consider defending the Initial Litigation Challenge jointly, with counsel and under terms of joint representation mutually acceptable to hold harmless the City and Developer (each in its sole discretion)the City’s elected and appointed officers and officials, at the Developer’s sole cost and expense; and (iii) if the Parties cannot reach timely and mutual agreement on a joint counselagents, employees, and Developer continues to elect (in its sole discretion) to defend independent contractors from and against any claims, losses, or liabilities, including attorneys’ fees, assessed or awarded against the Initial Litigation ChallengeCity by way of judgment, then Developer settlement, or stipulation. In such event, Owner shall take further have the lead role defending right to settle such Initial Litigation Challenge and mayaction, in its sole discretion, elect to be represented provided that nothing herein shall constitute an amendment of this Agreement unless such amendment is approved by the City in accordance with applicable legal counsel requirements, and the City reserves its full legislative discretion with respect thereto. With respect to actions challenging the validity of its choicethis Agreement, in which casethe Adopting Ordinance, the Project Approvals, any Subsequent Approvals, or any other permit or approval, including claims brought under CEQA, if Owner does not defend any such action, Owner shall be liable to City, at its expense, may elect to be separately represented by the outside legal counsel of its choice in any such action or proceeding. The City Manager is authorized to negotiate and enter into a joint defense agreement in a form acceptable to the City Attorney. Such joint defense agreement shall also provide that any proposed settlement same extent as is provided for in the Indemnification Agreement executed by Owner as a condition of an Initial Litigation Challenge shall be subject obtaining the Use Permits approved in Exhibits B, C, D, and E attached to City’s and Developer’s approval, each in its reasonable discretionthis Agreement.

Cooperation in the Event of Legal Challenge. In the event of any administrative, legal legal, or equitable action or other proceeding instituted by any person not a third party to this Agreement challenging the validity of any provision of this Development Agreement or all actions, discretionary or ministerial, relating to the development and occupancy of the Project, the parties shall cooperate in defending such action or proceeding to settlement, stipulation, or final judgment including all appeals as set forth in this Section. (a) Each party shall select its own legal counsel, subject to approval of the City, and in no event shall City be required to bear the fees and costs of Owner’s attorneys. The Owner shall indemnify, defend, and hold harmless the City and the City’s elected and appointed officers and officials, agents, employees, and independent contractors from and against any claims, including those brought under CEQA, losses, or liabilities, including attorney’s fees, assessed or awarded against the City by way of judgment, settlement, or stipulation related to this Agreement, the procedures leading to its adoptionAdopting Ordinance, the Project Approvals for the Project Approvals, any Subsequent Approvals, or any other permit or approval. (“Initial Litigation Challenge”), Developer and b) The City each shall have the right, in its sole discretionbut not the obligation, to elect whether or not to defend such action, except that if Owner timely provides City with written notice that the Owner has elected to select its own counsel, and to control its participation and conduct in defend the litigation in all respects permitted by law. If an Initial Litigation Challenge is filed, upon receipt of the petitionaction, the Parties will have 20 days City shall not allow any default or judgment to meet be taken against it and confer regarding shall not enter into any settlement or compromise of any claim which has the merits effect, directly or indirectly, of such Initial Litigation Challenge and to determine whether prohibiting, preventing, delaying, or further conditioning or impairing Owner’s rights hereunder. In addition, if Owner elects to defend against the Initial Litigation Challengeaction the City shall provide reasonable assistance to Owner, which period may be extended by the Parties’ mutual agreement so long as it does not impact any litigation deadlines. Without limiting the application of Section 14.1, if, after meeting and conferring, the Parties mutually agree such assistance to defend against the Initial Litigation Challenge, then the following shall applyinclude: (i) the Parties hereby agree making available upon reasonable notice, and at no cost to affirmatively cooperate Owner, City officials and employees who are or may be witnesses in defending said action such action, and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law; (ii) for provision of other non-privileged information within the purposes custody or control of cost- efficiency the City that is relevant to the subject matter of the action. (c) Owner shall have the right, but not the obligation, to defend such action. If Owner defends any such action, it shall indemnify, defend, and coordination, the Parties shall first consider defending the Initial Litigation Challenge jointly, with counsel and under terms of joint representation mutually acceptable to hold harmless the City and Developer (each in its sole discretion)the City’s elected and appointed officers and officials, at the Developer’s sole cost and expense; and (iii) if the Parties cannot reach timely and mutual agreement on a joint counselagents, employees, and Developer continues to elect (in its sole discretion) to defend independent contractors from and against any claims, losses, or liabilities, including attorneys’ fees, assessed or awarded against the Initial Litigation ChallengeCity by way of judgment, then Developer settlement, or stipulation. In such event, Owner shall take November 7, 2017 further have the lead role defending right to settle such Initial Litigation Challenge and mayaction, in its sole discretion, elect to be represented provided that nothing herein shall constitute an amendment of this Agreement unless such amendment is approved by the City in accordance with applicable legal counsel requirements, and the City reserves its full legislative discretion with respect thereto. With respect to actions challenging the validity of its choicethis Agreement, in which casethe Adopting Ordinance, the Project Approvals, any Subsequent Approvals, or any other permit or approval, including claims brought under CEQA, if Owner does not defend any such action, Owner shall be liable to City, at its expense, may elect to be separately represented by the outside legal counsel of its choice in any such action or proceeding. The City Manager is authorized to negotiate and enter into a joint defense agreement in a form acceptable to the City Attorneysame extent as is provided for in the Indemnification Agreement executed by Owner as a condition of obtaining Use Permit No. Such joint defense agreement shall also provide that any proposed settlement of an Initial Litigation Challenge shall be subject to City’s and Developer’s approval, each in its reasonable discretionP07-004 l 2-UP.

Cooperation in the Event of Legal Challenge. In the event A. The filing of any administrativethird party lawsuit(s) against City or Developers relating to the Project Approvals, legal this Agreement, or equitable construction of the Project shall not delay or stop the development, processing, or construction of the Project or approval of any Subsequent Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. B. City and Developers shall cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, the Project Approvals for the Project or this Agreement (“Initial Litigation Challenge”), Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action, to select its own counsel, and to control its participation and conduct in the litigation in all respects permitted by law. If an Initial Litigation Challenge is filed, upon receipt of the petition, the Parties will have 20 days shall keep each other informed of all developments relating to meet and confer regarding such defense, subject only to confidentiality requirements that may prevent the merits communication of such Initial Litigation Challenge and to determine whether to defend against the Initial Litigation Challenge, which period may be extended by the Parties’ mutual agreement so long as it does not impact any litigation deadlinesinformation. Without limiting the application of Section 14.1, if, after meeting and conferring, the Parties mutually agree to defend against the Initial Litigation Challenge, then the following shall apply: (i) the Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law; (ii) for For the purposes of cost- cost-efficiency and coordination, the Parties shall first consider defending the Initial Litigation Challenge jointly, with counsel and under terms of joint representation mutually acceptable to the City and Developer Developers (each in its sole discretion), at the Developer’s Developers’ sole cost and expense; and (iii) if . If the Parties cannot reach timely and mutual agreement on a joint counsel, and Developer continues Developers continue to elect (in its their sole discretion) to defend against the Initial Litigation Challenge, then Developer then: 1. Developers shall take the lead role defending such Initial Litigation Challenge and may, in its their sole discretion, elect to be represented by the legal counsel of its their choice; 2. City may, in which caseits sole discretion, City, at its expense, may elect to be separately represented by the outside legal counsel of its choice choice, with the reasonable costs of such representation to be paid by Developers; 3. Developers shall reimburse City, within thirty (30) days following City’s written demand therefor, which may be made from time to time during the course of such Litigation Challenge, all reasonable costs and expenses incurred by City in connection with the Litigation Challenge, including City’s reasonable administrative, legal, and court costs, and City Attorney oversight expenses, including the retention of outside counsel; and, 4. Developers shall indemnify, defend, and hold harmless City Parties from and against any such action damages, attorneys’ fees, or proceeding. The cost awards, including attorneys’ fees awarded under Code of Civil Procedure Section 1021.5, assessed or awarded against City Manager is authorized to negotiate and by way of judgment, settlement, or stipulation. C. Upon request by Developers, City may enter into a joint defense agreement in a form reasonably acceptable to the City AttorneyAttorney to facilitate the sharing of materials and strategies related to the defense of such Litigation Challenge without waiver of attorney client privilege. Such joint defense agreement shall also provide that any Any proposed settlement of an Initial a Litigation Challenge by a Party shall be subject to City’s the approval of the other Party, such approval not to be unreasonably withheld, conditioned, or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approvals, the settlement shall not become effective unless such amendment or modification is approved by City in accordance with Applicable City Regulations, and Developer’s approvalCity reserves its full legislative discretion with respect thereto. If Developers opt not to contest or defend such Litigation Challenge, each in City shall have no obligation to do so, but shall have the right to do so at its reasonable discretionown expense.

Cooperation in the Event of Legal Challenge. 6.4.1. The filing of any third party lawsuit(s) against City or Developer relating to this Agreement, the Project Approvals or other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project or approval of any Subsequent Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order. 6.4.2. In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, the Project Approvals for the Project (“Initial Litigation Challenge”), Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action, to select its own counsel, and to control its participation and conduct in the litigation in all respects permitted by law. If an Initial Litigation Challenge is filed, upon receipt of the petition, the Parties will have 20 days to meet and confer regarding the merits of such Initial Litigation Challenge and to determine whether to defend against the Initial Litigation Challenge, which period may be extended by the Parties’ mutual agreement so long as it does not impact any litigation deadlines. Without limiting the application of Section 14.1, ifIf, after meeting and conferring, the Parties mutually agree to defend against the Initial Litigation Challenge, then the following shall apply: (i) the Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law; (ii) for the purposes of cost- cost-efficiency and coordination, the Parties shall first consider defending the Initial Litigation Challenge jointly, with counsel and under terms of joint representation mutually acceptable to the City and Developer (each in its sole discretion), at the Developer’s sole cost and expense; and (iii) if the Parties cannot reach timely and mutual agreement on a joint counsel, and Developer continues to elect (in its sole discretion) to defend against the Initial Litigation Challenge, then Developer shall take the lead role defending such Initial Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice, in which case, City, at its expense, may elect to be separately represented by the outside legal counsel of its choice in any such action or proceeding. The City Manager is authorized to negotiate and enter into a joint defense agreement in a form acceptable to the City Attorney. Such joint defense agreement shall also provide that any proposed settlement of an Initial Litigation Challenge shall be subject to City’s and Developer’s approval, each in its reasonable discretion. As part of the cooperation in defending an action, City and Developer shall coordinate their defense in order to make the most efficient use of legal counsel and to share and protect information. Developer and City shall each have sole discretion to terminate its defense at any time. If Developer elects, in its sole and absolute discretion, not to defend against the Initial Litigation Challenge, it shall deliver written notice to the City regarding such decision. If Developer elects not to defend, the City has the right, but not the obligation, to proceed to defend against the Initial Litigation Challenge and shall take the lead role defending such Initial Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice, at its sole cost and expense. If Developer elects not to defend, the City has the right, but not the obligation, to terminate this Agreement and consider the Developer’s application for any related Project Approvals withdrawn. The City shall not settle any third party litigation of Project Approvals without Developer’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.