AGREEMEI,IT FOR ECLIPSE DUE T}ILIGENCE REVIEW

AND REDEVELOPMENT OF THE DOWNTOWN DISTRICT

4n* ..E@}'byandamongtheClTYoFDERBY(the,,Qi&l'),amunicipalcorporation,

RFOVFIOPMENT #F THE OOWNIOYVN D|S'TR|CT. (hereinafter called day of made and entered into and is effective as of

l$rl

"Aglffi!"),

is

, 2010 {the

duly olganir?d bnd existing under the laws of the State of Connecticut acting by and through thB REbEVELOpMENT AGENCY OF THE CITY OF DFRBY ('M',), and ECLTP$E DEVELOPMENT GROUP, LLC, {the "ECLIP$E"}, a limited liability company organized and existing under the laws cf the State of Califcrnia and authorized to do businese in the State of Conneiticut, having its affice alfiS}zSkypark Circle, $uite 200, lrvine, CA 92614. The City and ECLIP$E *re sornetimes individually or collectively referred to herein as a "fgg['sr "Egrtiggu, respectively.

REOITALF i

WHEREAS, the City, has been approached by ECLIPSE forthe opportunity to review possible options for the development of the Downtown Redevelopment District as depicted on Exhibit "A"; ("DRD") and; City and various municipal agencies to create a shared vision for the development of the ORD

A.

B.

WilEREAS, ECLIPSE has requested the exclusive right to: {i} work with the

and,(ii}prepaleapreliminaryconceptplan(the.,@'')foramixed.

use, pedestrian accessible redevelopment of the trRD (the "Elgigg!"), which DRD was implemented to create a unique, live, work, shop, learn and play environment blending a sufficient amount of residentiat, otfice, retail, culture, reueaticn, entertainment and/or open space elements with guality design, improved pedestrian networks and public Sathering $pace and include elements that incorporate sustainable elements cf emart growth and green building design principles (allthe foregoing being inctuded in the.fXglgg![lQg$"), Project Goals shal, ny the inClueion of the parameters of the Redevelopment Plan previously adopted by the City, include commercial development of the site. The Project, depending on market dbmand, ihall include office, entertainment or residential use. ECLIP$E has also requested the exclusive right to negotiate public-private agreements, negotiate and interface with local community entitieE and stakeholders, and structure and access both public and private financing iources with the uttimate goalof stimulating economic development in DRD; and

WHEREA$, the City and ECLIP$E agree that in order to accomplish the Froject Goals as stated above, it is essential that a Freliminary Concept Flan and a Detailed Concept Plan (cotlectively, the "0gnce$-E!effi") be created through an ECLIP$E funded comprehensive planning process to include, but not be limited to, Private Properties, and

C.

tpcsocl

t+ot 166v3/or2?94.00 r 8

WHEREA$, the City desires to cooperate, excfusively, with ECIIP$H to (i) facilitate the development of the Concept Plans; (ii) evaluate changes to zoning and land use regulations that may be helpful for the development of the Project pursuant to the Concept Plans; and (iii) as possible, pursue the governmental approvals necessary for the construction and development of the Project. NOW, THEREFORE, in consideration of the premises and the mutualobligaticns of the Parties hereto, each of them dces hereby covenant and agree with the other as follows:

D.

ARTICLE

PRELIMINARY MATTERS

All of the Recitals set forth ebove are hereby specifically incorporated into the body of this Agreement and shall be deemed to ccnstitute representations and agreements of the Farties as part hereof, with the same force and effect as the other eections of this Agreement. The Parties agree and acknowledge that the purpose of thie Agreement is to establish a perlod of time during which ECLIPSE shall have the exclusive right to evaluate the potential development of the DRD, to present the City with a proposal for the Project and, if accepted by the City, to then negotiate a Development Agreement and Purchase and $ale Agreement with the City.

ARTICLE

2 DOW}ITOWN

REDEVELOPMENT ITTSTRICT. PLAN

On September 1, 2005, the Redevelopment Agency of the City of Derby determined that a portion of the downtown properiy consisting of approximately twenty-two (22) acre$, *O'Sullivan's bordering Route 8, Route 34, the DerbpShelton Bridge, the Housatonic River, Island," and the Derby Greenway was subject to a Redevelopment Plan, as depicted on Exhibit "Ao. The goal of the Redevelopment Plan is to remove the existing buildings and develop the area as a mixed use project, which, depending on the market conditions, may include housing units, retail, commerdaland afficE spsce. The City currently owns approximately fourteen t14) acre$ within the DRD as shown on Exhibit "B." ln 2006, the City obtained approvalof a Special Taxing District, PA 00-195, by the Connecticut General Assembly. The $pecialTaxing District provides the City with the ability to sell bonds of up to Forty-Five Million Dollars ($45,000,000,00) to generate funds for use in the construction of infrastructure, roadway, sidewalk and public area, among other improvements, in the DRD. The requirements of the $pecial Taxing District are that the selected cornmuni$ and its properties in the Special Taxing District are to allocate a percentage of their tax revenue to retire the bonds as more fully described on Exhibit "C," ln addition, the State of Connesticut is scheduled to design, construct and improve the Rt. 34 corridor, inoluding Main $treet from the Derby-$helton Bridge to Rt. L This State approved project will allow the City to contribute to the design by requesting improvements that would benefit the Project, by way of traffic control, parking and other support for pedestrian comfort.

The State and Federalgovernment have also allocated funding for improvements to Route 34/Main $treet in Derby. This State and Federal project will integrate and smooth the flow of traffic fom the Atwater Bridge to thE Derby $helton Bridge and will include, but is not timited to, the widening of the road, acquisition of rights of way, dedicated turning lanes, sidewalks and curbing, circulatlon and improvement of traffic flow, along wiih possible improvement to Derby's intersecting side streets,

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Finally, the City owns a twenty'four (24) acre parcel of land along Division Street and ;nOT' site, whilh will be available to ECLIPSE for relocation of the Rt. 14, known as the remaining business located in the DRD which may need to be relocsted to permit development of the

Project.

ARTICLE 3 ECLIPSE INIT:AL SUBMTSSTON$

following:

TIMELTNE

HCUpSE shall submit to the Redevelopment Agency within the specified timelines, the
Within sixty (60) days of the Effective Date, HCLIP$E shall provide the City with ECLIPSE's detailed biographicalinfolmati'on regarding ECLIP$E and its principals, including projects. prior record witii respect to completion of other commercial The Preliminary Concept Plan, consisting of elements {1} and (2) of the Detailei;Concept Plan, as deiined in Article 4, within one hundred and twenty (1?0) days of the Effective Date.

(1) tp)

Within sixty {60) days of the City's approvalof the Preliminary Concept Plari, fCLlp$E shall provide tfre Ciiywiin a tentative schedule as to the commencement and completion of construction, a firo forma, including financialfeasibility analysis qf.lhe Project' of the Projecfs wrrictr shall inctude an estimaie of devetopment iosts, a pro forma statement and permaneni financing, and ,*trrn, a description of tt't" propoeed metirod af canstructlon amcunts and sources of eciuity and debt capital, which together will enable the City to evaluate the overall economic feasibility of the Prcject. ECLIPSE shallhave a 12-month period from.the approval of the Preliminary Concept trtan in which ECtlpSE wlllpursue tenant interest, and based on that.tenant interesi, will prepare the Detailed Concept FIan. The Detailed Concept Planwill be s,rnmittrA to'the City at the end of the 1i-month period. lt shatl include the detail as described in Sectioli + *iin resfect to financing, construction schedule, returns, etc. During the 1Z-month period, ECLIPSH will provide the Ctty withmonthly progress reports. Commencing within iirty tOOl Oays dtthe Effective bate, ECLIP$E ehallprovide the RDAwith monthly written reports regarding its progress in meeting the terms'

(3)

t4)

The City shall have a period of sixty {60) days from submittal of the Preliminary Concepi irlan to notifu eCltPSE, in writing, of the City'1 approval or dlsapproval of the preliminary ConcepiFtan, lf the City disa-pproves the Preliminary Concept Plan, the City shall set forth in reasonable detail the changes ihe City would require in order to approve the preliminary Concept plan. ECLIpSH;hallthen revise and resubmit the Preliminary Concept city fritppiovat; incorporalfi1g.1llg*" changes which are acceptabte to ECLIPSE. bi;.ft

(5)

6-i#

{RTICLE 4 DETAILED CONCEPT FLAN

4.1.

Go-qls

economicevaluatioffiuediligenceinordertorecommendtotheCity

for thg Redeve-lopment Plan. ECLIPSE shatl conduct testing, studies,

taking and RDA a "Detailed Goncept Flan". The Detailed Concept Plan shall be developed

intofulIaccffi,theRedevelopmentPlanfortheDRD,asthesame
may be rnodified, from time to time, by mutual agreement of the Parties'

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4.2.

ECHP$E's Access to Pronertv. and Privatelv Q,wned Prope*ies'

While the Preliminary Concept Plan is being developed, and after it has been approved, Developer witl work to put the privately owned properties in the DRD {"Pf[va!g Pionerties") under contract, lf, at any time, Developer determines that it not going to_ be able t0 acquire the Private Properties on acceptable terms, Developer can notify the City and there would be a time period for the City to react (60-90 days) or else the Developer would have the right to terminate this Agreement. During the term af this Agreernent, Develaper would have the right to enter onto the public properties at any time to conduct sampling tests, such as soils and environmentaltesting. Environmentaltesting would be comirnt6C within 12 months from the Effective Date {"Environmental Testino Pc[i9d").
ECLIPSE shall cause copies of any such testing reports furnished to ECIIPSH to be delivered to City prior to the expiration of the EnviranmentalTesting Period or any mutually agreed upon extension thereof.

d.A.

Gitu Materials. Within 30 days from the Effective Date of this Agreement, the City sfral make avaitable to ECLIPSE, during normal business hours at the offices of the City, or RDA, as applicable, the available documents, reports, instruments and correspondence, in written or ilbctronic form, relating to the Property ar to the Private Properties identified by ECLIPSE, which are in the possession of the City, that are available and relevant to ECLIFSE;s investigation and due diligence with respect to the formulation of the Concept Flans. Such items may include, but ire not limited to, surveys, deeds, title reporte and title insurance policies, environmentalstudies and test reports, floodplain studies, planning, feasibility, economic, engineering, infrastructure, transportation qnd related studies and reports, and other data rilating or relevant to the Project. ECLIP$E shall be responsible for thb reasonable costs of reproduction associated with making copies of these documente' ECLIPSE acknowledges that certain documents relevant to the formulation of the Concept Plane may have been discarded, destroyed, lost, or otherwise be unavaitable' Throughout the terrn dt tnis Agreement the City shall cooperate with ECLIP$H ta update and/or supplement the furnishing of documentation or data as the planning process for the Project progresse$

4,4,

Delivery of the Qetailed Concent Plan. HCLIP$H shall deliver the Detailed Concept plan, wnicfr rryieients the shared vision of ECLIPSE and the City, within twelve (12) mbnths after the approval of the Preliminary Concept Plan; provided, however, if ECLIpSE has been dililbntly pursuing the preparation of the Detailed Concept Plan, acquiaition of the Private Pr|perties (if necessary for the Project) and potential tenants for the Project, ECLIPSE shall have the right to extend such deadline for up to six (6) months, by delivery of written notice of such election to the City, prior to the expiration of the twelve (12) month period.

4.$.

Contents of the Detailed Concepj Flan. The Detailed Concept Plan will include, but

not be limited to, the following elements.

(1)

Conceptual Plan Graphics including:

{A)

ConcePtual$itePlans

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(B) (C) (D) (2)

Conceptual Framework Diagrams ConceptualOpen Space and Fedestrian Access Diagrams

Conceptual lnfrastructure Diagrams

A description of all real proper$ within the Project, identifying precise boundaries for affected area{s}; and the present and proposed zoning, condition, and uses of such areas.

With technical assistance from the City, a description of the types and lacations of present and proposed streets, sidewalks, and/or other conceptual aspects that constitute the infrastructure, both existing and proposed, for the Project. A preliminary framework of the plan of financing, acquiring, managing and constructing the real estate and proposed improvements in the Project. A preliminary phasing plan for the Project, incfudlng but not limited to, projeoted starting and completion dates for each phase, This phasing plan would be subject to revision, from time to time, based on market conditions. A preliminary analysis of the estimated cost of each Prcject phase and suggested allocation of cost among the Parties for each Froject phase. A preliminary econamic analysis of the total costs and benefits associated with the transition from current to proposed uses;
A preliminary analysis of the public costs and benefits of the Project including, but not lirnited to,

(3) (4) t5)

(6) (7)

(8)

(A) (B) (C) (D) (E) (F) (9)

Number of jobs created (both temForarily and permanently) by the Project;

The estimated effectson property taxes;

The effects on types, locations, and costs of housing units;

A description of relevant effects on blight;

Aeethetic changes; A general description of the effects on increasing or sustaining market value of land.

An Evaluation of how the Project interacts with existing State and municipal planning efforts, municipal or $tate development projects, historic status designations, and econorn ic development plans,
A preliminary description how Private Properties are anticipated to be involved with the Project.

(10)

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(t

1)

A description of the process utilized to prepare the Deteiled Ccncept Plan and

a description of altemative approaches coneidered.

(12) An identification of third party approvals necessary to lmplement the Detailed Concept Plan, and an evaluation of how failures to obtain such approvals may impact the Project, C.6,
Review and Decision Reoardins the Oetailed,Cgnceut Plan. The City shall have the right to approve or disapprove the Detailed Concept Plan, such approval or disapproval to be given to ECLIP$E in a written notice furnished within one hundred and twenty (120) days after the Detailed Conr,ept PIan is furnished to the City for such purpose.
City shallapprove, dlsapprove, or request changes to thE Detaited Concept Plan in a written notice to ECLIPSF. ECLIPSF shall respond in a written notice sent to City within twenty (20) days following detivery of the not*ce from the Ci$. Tha City's final approval of the Detailed Concept PIan shall be evidenced in the form of formal written resolution, in the manner provided by law, if applicable. The approval sf the Detailed Concept Plan by the City shall not in any way bind or obiigate the City to go foruard with the Project. Upon approval of the Detailed Concept Plan, the Parties shall negotiate a detailed

fhe

Development Agreement and Purchase and $a[o Agreement covering all phases of the

Project{"PurchaseAareem'}.
ARTICLH

5 PROJECT

SCHBDULE.

As promptly as practicalfotlowing approval upon the Detailed Ccncept Plan, ECLIPSE shall, in cooperation with the City, prepare a proposed milestone timeline and construction phasing schedule for the Project (the "Milestone $che4 ') thatwillpropose milestones and target dates for the undertaking and completion of various actions and activities contemplated and nece$$ary fcr the completion of the Project. The Parttes recognize that a variety of circurnstances including, but not timited to, market conditions, the complexity of the Project, the need for action by, or consents of, private entities, andlor approvals by various State and Municipal Agencies, and multiple other factors, beyond the control of the Parties, may impact the ability of the Parties to fully adhere to the Milestone $chedule. Aecordingly, ECLIPSE, in agreement with the City, will revise and update the Milestone Schedule, from time to time, in order to reflect the impact of such circumstances on the projected time frame for commencement and completion of the various actions and activities necessary for completion of the Project. A copy of the Milestone $chedule will be furnished to the City when prepared and upon each change thereto. Notwithstanding the foregoing, the Parties willendeavor to adhere to the Milestone Schedule, as revised from time to time, and as integrated into the Purchase Agreement entered into among the Parties.

ARTICLE

6 SALE OR LEASE OF' PROPERTY.

6.t.

Not a Contract to Purchase gr Sell. The Parties agree that this Agreement constitutes only a statement of the Parties' intent as to the initial planning for the Project, and does not constitute any agreement by the City and ECLIP$E to purchase or sell to ECLIPSE, or any other entity, all cr any portion of the Property. However, during the term of this Agreement, the City agrees not to enter into any negotiations, sollcit offers or accept

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any offers from any other developer or other entity to pursue the development of the Project in whote or in part. The City agrees to work exclusively with Developer, and in good faith, upon Developer's request, following approval of the Detailed Concept Plan, to negotiate the terms and ccnditione of the Purchase Agreement for Developeds acquisition of the public property in the Project to implement construction and devefopment of the Project in accordance with the approved Prelirninary Concept Plan and approved Detailed Concept Plan.

ECLIPSE acknowledges that any transfer or lease by the City of the Property is subject to approvale and requirements, including those set fcrth in the City's Charter and in Chapter 3S of the City's Ordinances,

Purchase of Propertv. lf the approved Detailed Concept Plan contemplates transfer of any Property to ECLIPSE, then subject to allthe terms, covenants, and conditions of this Agreement and all applicable governmental ordinances and regulations, the City will sell the Property to ECLIPSE, and ECLIP$E will purchase the Property from the City on those mutually acceptable terms and conditions to be determined and inccrporated into the Purchase Agreement. City acknowledges that in connection with any such transfer of Property, ECLIPSE will seek at least the follow*ng terms as conditions for transfer: that the Detailed Concept Plan shall have been approved by City and its Agencies, with all approvals obtained; that the Parties shall have agreed on allsteps required to complete any hazardous materials rernediation that may be required, if any; that the Parties shall have agreed on the nature, scope, and funding for infrastructure improvements necessary to develop the Project

6.2.

ARTICLE 7 ASSICNMENT AND TRANSFER

ECLTPSE represents and egrees for itseff, its members, and any suicessor in

interest of itself and its members, respectively that, prior to substantial completion of the improvements depicted on the Detailed Ccncept Plan, neither ECLIPSE, nor any members or managers of ECLIP$H, shafl assign, transfer or convey, any portion of its right, title or interest in the Project or in ECLIPSE without ECLIPSE first obtaining the express prlor written consent of the City. ?he Cig may refuse to consent to such partial assignment in its sole discretion, unlesg the assignee, transferee or grantee, as the case may be, presents the financial capabilities, reputation, experience and expertise to serve as developer of the Project and perform its obligations to the Ci$. However, notwithstanding the foregoing, ECLIPSE and/or its members ehatl have the right to asslgn its rights to an entity controlled by, or under comrnon control, with Douglas Gray, or in which he is one of the manager$, nianaging members cr general partners, in order to accommodate establishing an entity or entities to develcp the Project and inclusion of one or more financial partners, upon notification to the City of such entity and its constituent members.

ARTICLE

8 DISPUTE

RESOLUTION.

The City and ECLIPtE agree that any suit invoMng any dispute or matter arising under this Agreement may only be brought in the United States District Court for the DistriCt of Conneoticut or any Connecticut state court having jurisdiction over the subject matter of the dispute, ECLIPSE hereby knowingly and voluntarily consents to the exercise of perscnaljurisdiction by any such oou* in any such proceeding and agrees that service of

(1)

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process may be made on ECLIPSE by U,S. first class mail. ECLIPSE agrees not to object to such service of process and hereby waivee any right ECLIPSE may have to aseert that such service of process is defective. ECLIPSE acknowledges that it has had an opportunity to consult with counsel with respect to the provisions of this paragraph and that the agreements and waivers of ECLIPSH contained herein are made and given by ECLIP$E knowingly and volu ntarily.

The Parties agree that prior to initiating any lawsuit for damages under subsection (a), they shall attempt to resolve such matter by mediation. Any mediation pursuant to this subparagraph (b) shall be held before a olngle mediator mutually agreed to by the Parties or in the event the Parties cannot agree to a single mediator, the mediation shall be held before a panel of three mediators, one who shall be selected by City, one who shall be selected by ECLIP$E and the third who shall be selected by mutual agreement of such two mediators. The Parties shell bear their own expenses for counsel and other outof-pocket costs in connection with any resolution of a dispute, dlfference or controversy. Any mediation shalltake place in the City of Derby, Connecticut, The fees and disbursements of such mediators shall be borne by HCLIP$H and City, with each such party bearing its own expenses for couneeland other out-of-pocket casts unless otherwise agreed by the Pa*ies. [f such mediation extenda beyond ninety (90] days after any Party has notified the other Party of its desire to enter into mediation, then, in such event, the Parties may proceed in court, without any lirnitation, in accordance with subsection (a). Nothing in this subsection (b) shall preclude the Parties from seeking specific performance, injunctive relief cr other equitable relief without first submitting to mediation under this subsection (b).
ln thE event of any litigation by either Party to enforce any of the terms of this Agreement, the prevailing Party in such proceeding shall be entitled to recover from the other Party its court costs,

(2)

(3)

ARTICLEg RSSTRICTTONS.
damage if properties important to the Conoept Plans were identified for acquisition by the City, either by consensual acquisition or through eminent domain, outside of the Project described under the Concept Plans. Accordingly, untilfinal approva[ of the Detailed Concept Plan, City shall, to the extent permissible by law, keep ECLIP$E informed of their plans to acquire any real property in the DRD; provided ECLIPSE enter into a Confidentiality Agreement if required by the City.

9.{.

Cp$demnation. The Parties acknowledge that ECLIPSE could suffer substantia[

ARTICLE

10

MISCELLANEOUS.

10.1 Notices, Consents. and AptroYels.. AII notices under this Agreement ('Notices") shall be in writing and shall be delivered either personally (receipt acknowledged), or by recognized overnight courier service (delivery charges pre-paid for next business day delivery and receipt confirmed) and addressed to the Parties at the addresseE written herein and shall be deemed served on the date of delivery, or date of refusal, if hand delivered with proof of delivery, or the next business day, if sent by overnight courier, as the case may be. Notices may be provided by the Pa*ies as follows:

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lo:

City of Derby 1 Elizabeth $treet Derby, CT 06418 Attentian: Mayor Anthony Staffieri

With a copy to its Legal

Counsel:

Corporation Couneel'E Office CitY of DerbY t Elizabeth $treet DerbY, CT 0S4{8

To:

Attention: Phone No,:

ECIIPSH DHVFIOPMFNT GROUP' LLC fiSAZ SkY Fark Circle, Suite 200 lrvine, California 92614

No.: E-Mail:
Fax

Douglas B. GraY {949) 251-8555 {949) 251-9979 d$ray@eclipsedevelopmentgroup.com

With a copyto its LegalCounsel: STRADLING YOCCA CARLSON & RAUTH 660 Newport Center Drive, $uite 1600 Newport Beach, CA 92660 Attention: Bruce C. $tuart, Esq. Phone No.: (949) 7254118 (949) 823-5118 Fax bstuart@sycr.com

No.: E-Mail:

Each of the Parties hereto shall promptly notify each other of the change of their respective addresses.

ModificationE. This Agreement shall not be modified cr supplemented, except by an instrument in writing signed by atlof the Parties.
construed and gpveineU nV the laws of the State of Connecticut without regard to principles of conflicts of laws, agreements and negotiations, written or oral, bt tnd between the Partiee hereto are merged into this Agreement which constitutes the entire agreement of the Parties with respect to the subject matter hereof, and shall inure to and bind the successors and assigns of tho respective Parties hereto.

10.2

tO.3

Govefnlno,Lilw, This Agreement and the rights of the Parties hereunder shall be

lA.4 Entire Agreement. All prior understandings,

for convenience of reference only and shatl not constitute a part hereof.

{0.5 H%Cinqs. The headings of the Paragraphs of this Agreement have been inserted
{0.6
ECt-lpSE represent that thby are duly authorized to enter into this Agreement and to execute any and all other documentation necessary to effectuate the terms contained

Agfhg;!tr, The Mayor of the City of Derby and the Chief Executive Officer cf

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herein, and have each taken atlrequisite action to obtain such authorization, All references to the Parties in this Agreement shall be deemed to also be referencee to such officers or employees or other designees of the Pariies as may be appropriate to implement the terms of this Agreement.

10.7 Counterparts. This Agreement rnay be executed in counterparts, each of which shall constitute one and the $ame instrument, 10.8 10.9
Ccnfllf;*,of lnterests- No member, official, agent or employee of the City shall
CharcE. AcknowleCg.ElentE. N.gtioe. and Renresentatione'
have any personal interest, direct or indirect, in this Agreement.

lt shall be a material breach of thie Agreement, and, except as may be permitted by regulations or rulings of the City of Derby Board of Ethics, it shall be a violation of the City's Code of Ordinances, fcr any Public Official, City Employee or Member of a Board or Commission who is participating directly or indirectly in the procurement prccess as set forth in the City's Code of Ordinances, including those participating in exempt

(1)

transactions, to become or be the employee of any person contracting with the governmental body by whom the Official, Employee, or Board or Commission member is emplcyed or is a member.

lt shall be a material breach of this Agreement, and it shall be a violation of the City's Code of Ordinances for any Ferson to offer, give, or agree to give any current or former Pubtic Official, Employee or Member of a Board or Commisslon, cr far such current or former Public Official, Employee or Mernber of a Board or Commiesion to solicit, demand, accept or agree to accept from another Person, a gratuity or an ofier of employment in connection with any; decision; approval; disapproval; recommendation; preparation of any part of a program requirement or a requisition; influencing the content of any specification or procurement standard; or rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, reque$t for ruling, determination, claim or controversy, or other particular matter, perta[ning to any program requirement or a Cantract or Purchase Order, or to any solicitation cr proposaltherefore.
lt shall be a material breach of this Agreement and it shall be a violation of the City's Code of Ordinances for any payment, Gratuity, or offer of employment to be made as an inducement for the award af a subcontract or order, by or on behalf of a subcontractor, ECLIPSE or higher tier subcontractor or any Person associated therewith, under a Contract or Purchase Order to the City. The value of anything transferred or received in violation of the City's Charter, Code of Ordinances, andlor regulations promulgated there under, by any Person subject to said Charter and/or Ordinances may be recovered by the City, INTEREST OF CITY OFFICIALS. No member of the governing body cf the City, and no other officer, employee, or agent of the City who exerciges any functions or responsibilities in connection with the carrying out of the project, to which this Agreement pertains, shall have any personal interest, direct or indirect, with ECLIPSE.

(2)

(3)

(4) (5)

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given to zucn Farty hereunder, or the waiver by any Party of any condition hereunder for its Fenefit shall *onstltute a waiver of any other or fu*her right or remedy nor shall any single or partial exereke of any right or remedy preclude other or further exercise thereof or any other iignt or remedy. No waivlr by any pa*y of any other breach hereunder or failure or refusal by gie other Rarty to comply with its obligations shall be deemed a waiver of any other or subseqr.lent breach, failure cr refusalto so comply,

10.10 Non+,rralyer, No failure or delay of any Party in the exercise of any right or remedy

Agreement will exphe without furtheiaetion and be of na effect as of eighteen (18) months fr6m the Effective'Date, Further, ECLIPSE may terminate this Agreement at any time upon thirty (30) days' notice to the City if ECLIPSH determ[nes that the ProjecJ is not economically feaiiUte 6n tirms and conditioni reasonably acceptable to ECLIPSE. Upon such termination, neither Party shall have any liability to the other pursuant to this Agreement for any fee, cost, expense or other payment. lN WTNESS WHEREOF, the Parties have each caused this Agreement to be duly executed, and their seals to be hereunto duly affixed and attested, on and as of the Fffective Date. CITY OF DERBY

{0"{i Hxoirartion[erminafiisn. Unless otherwise agreed by the Parties or extended by virtueotwitsrighttoextendpursuanttosection4'4above,this

ECLTPSE DEVELOPMENT GROUP, LLC a California limited liabiliff company

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