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38 <br /> <br />(b) In the event of any administrative, legal or equitable action instituted by a <br />third party challenging the validity of any provision of this Development Agreement, the <br />procedures leading to its adoption, or the Project Approvals for the Project, Developer and City <br />each shall have the right, in its sole discretion, to elect whether or not to defend such action, to <br />select its own counsel, and to control its participation and conduct in the litigation in all respects <br />permitted by law. Developer shall pay for all of City’s documented legal costs related to any <br />action challenging the validity of any provision of this Development Agreement, procedures <br />leading to its adoption, or the Project Approvals. If both Parties elect to defend, the Parties <br />hereby agree to affirmatively cooperate in defending said action and to execute a joint defense <br />and confidentiality agreement in order to share and protect information, under the joint defense <br />privilege recognized under Applicable Law. As part of the cooperation in defending an action, <br />City and Developer shall coordinate their defense in order to make the most efficient use of legal <br />counsel and to share and protect information. Developer and City shall each have sole discretion <br />to terminate its defense at any time. City retains the option to select and employ independent <br />defense counsel at its own expense. If, in the exercise of its sole discretion, Developer agrees to <br />pay for defense counsel for City, Developer shall jointly participate in the selection of such <br />counsel. The City shall not settle any third-party litigation of Project Approvals without <br />Developer’s consent, which consent shall not be unreasonably withheld, conditioned or delayed, <br />subject to Developer’s rights under this Development Agreement. <br />8.7. Revision to Project. In the event of a court order issued as a result of a successful <br />legal challenge, City shall, after exhausting all appeals and to the extent permitted by law or <br />court order, in good faith seek to comply with the court order in such a manner as will maintain <br />the integrity of the Project Approvals and avoid or minimize to the greatest extent possible <br />(i) any impact to the development of the Project as provided for in, and contemplated by, the <br />Vested Elements, or (ii) any conflict with the Vested Elements or frustration of the intent or <br />purpose of the Vested Elements. <br />8.8. State, Federal or Case Law. Where any state, federal or case law allows City to <br />exercise any discretion or take any act with respect to that law, City shall, in an expeditious and <br />timely manner, at the earliest possible time, (a) exercise its discretion in such a way as to be <br />consistent with, and carry out the terms of, this Agreement and (b) take such other actions as <br />may be necessary to carry out in good faith the terms of this Agreement. <br />8.9. Defense of Agreement. City shall take all actions that are necessary or advisable <br />to uphold the validity and enforceability of this Agreement. If this Agreement is adjudicated or <br />determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to <br />consider modifications to this Agreement to render it valid and enforceable to the extent <br />permitted by Applicable Law. Developer shall pay all of City’s documented costs, including <br />attorneys’ fees and experts’ costs, incurred to modify or defend this Agreement. <br />ARTICLE IX <br />TRANSFERS AND ASSIGNMENTS <br />9.1. Right to Assign.