Developer Election Not To Defend. If Developer elects, in its sole and absolute discretion, not to defend against the 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 Litigation Challenge and shall take the lead role defending such 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 any Project Approvals then in effect, and to consider the Developer’s application for any Subsequent Project Approvals withdrawn. In the event the City does not terminate this Agreement, then if the terms of a proposed settlement would constitute an amendment or modification of this Agreement, the settlement shall not become effective unless such amendment or modification is approved by Developer, and by City in accordance with Applicable Laws, and City reserves its full legislative discretion with respect thereto. In the event the Developer does not approve such amendment or modification, the City retains the right, but not the obligation, to terminate this Agreement and any Project Approvals then in effect, and to consider the Developer’s application for any Subsequent Project Approvals withdrawn. If Developer elects pursuant to this Section 10.6.3 not to defend against the Litigation Challenge and so notifies City, and City thereafter elects not to defend against the Litigation Challenge, Developer shall be liable for and shall promptly reimburse City for (i) any costs, fees or payments owed as a result of the Litigation Challenge that may be City’s obligation, whether by judgment, settlement or otherwise, and (ii) all necessary and reasonable costs incurred by City in connection with the Litigation Challenge, including City’s administrative, outside legal fees and costs, and court costs.
Developer Election Not To Defend. If, after meeting and conferring, Developer elects, in its sole and absolute discretion, not to defend against the Third-Party Lawsuit, it shall deliver written Notice to City regarding such decision. If Developer elects not to defend, City has the right, but not the obligation, in its sole discretion to proceed to defend against the Third-Party Lawsuit at its sole cost and expense and shall take the lead role defending such Third-Party Lawsuit and may, in its sole discretion, elect to be represented by the legal counsel of its choice. In the alternative, if Developer and City both elect not to defend against the Third-Party Lawsuit, Developer shall remain obligated to indemnify and hold City harmless from and against any Liabilities that are actually awarded. If, following receipt of Xxxxxxxxx’s Notice of election not to defend, City opts to take the lead role defending such Third-Party Lawsuit and terminate this Agreement, then City shall be solely responsible for all Liabilities, if any, which are actually awarded from and after such time City has taken such lead role.
