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HomeMy WebLinkAboutAmber Kinetics, Inc. - Right to Compete for Site Selection of New Manufacturing FacilityRIGHT TO COMPETE AGREEMENT referred to as "Fresno" or the "City"), and Amber Kinetics, lnc., a California corporation ("Amber Kinetics"). City and Amber are sometimes collectively referred to in this Agreement as the "Parties" or singularly as a "Party" or by their individual names. RECITALS A. Amber Kinetics is in the business of developing kinetic energy storage technologies and is in the process of evaluating several cities as potential sites in which to locate a manufacturing facility (the "Manufacturing Facility"), and is willing to consider the City of Fresno as a viable and suitable site for the new Manufacturing Facility. B. The City desires the right to compete in Amber Kinetics' site selection process to locate a new Manufacturing Facility. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and in these Recitals, which are hereby incorporated by this reference, City and Amber Kinetics hereby agree as follows: 1. Right to Gompete. Amber Kinetics agrees to the terms set forth in this agreement to ensure that the City has the opportunity to compete to bring the Amber Kinetics Manufacturing Facility to the City. The City, however, has no obligation to compete in Amber Kinetics' site selection process to locate a new Manufacturing Facility. The City may choose not to compete or to cease competing at any time, at the City's sole option. 2. Manufacturing Facility Parameters. Amber Kinetics will timely provide the City with information about the approximate square footage, shipping, transpoftation, power, and other infrastructure needs of the proposed Manufacturing Facility. Amber Kinetics will cooperate with the City to identify potentially suitable sites within the City's municipal corporate limits that meets the requirements for the proposed new Manufacturing Facility. Additionally, Amber Kinetics will work with the City to explore available economic incentives to make locating the Manufacturing Facility in the City beneficial to Amber Kinetics and/or the City. 3. Additional lnformation. ln the event Amber Kinetics provides additional information to other jurisdictions competing to bring the Amber Kinetics Manufacturing Facility to their location, Amber Kinetics shall provide City with the same additional information. All information shall be provided to the City essentially simultaneously, if possible. lf it is not possible to disclose information simultaneously (for instance information requested and provided in a meeting), Amber Kinetics will make reasonable commercial attempts to make the information available to the City within twenty four hours after disclosing the information to other competing jurisdictions. Amber Kinetics agrees that it shall provide the additional information as stated in this paragraph irrespective of the reason that Amber Kinetics is disclosing additional information to any other jurisdiction. 1746428v1 / 19040 0001 4. Gitv's Time to Match or Better an Offer. Should Amber Kinetics tentatively determine to locate the Manufacturing in another jurisdiction, Amber Kinetics shall provide the City a time-limited opportunity to match or better the parameters of the offer by the other jurisdiction. Following notice by Amber Kinetics, the City shall have ten (10) working days to provide Amber Kinetics with a counter-proposal to the otherjurisdiction. Amber Kinetics agrees to meet with Fresno's Economic Development Team (or other suitable deparlment or team designated by Fresno) within that time to discuss the issues concerning locating the Manufacturing Facility in the City. 5. Right to Compete onlv-No Warranty of Results. Nothing in this Agreement shall be interpreted to bind Amber Kinetics to locate any manufacturing facilities, within the City of Fresno. The City agrees that Amber Kinetics shall not be liable for any costs incurred by the City as a result of this Agreement or the negotiations provided for in this agreement, including but not limited to costs related to staff time or expenses, or any oppoftunity costs incurred by the City. 6. Miscellaneous. (a) Notices. All notices required or permitted by this Agreement shall be in writing and may be delivered in person or sent by mail, facsimile transmission, or electronic transmission (email). The addresses and addressees noted below are that Party's designated address and addressee for delivery or mailing of notices. To City: Larry Westerlund, Director of Economic Development City of Fresno 2600 Fresno Street Fresno, CA93721 Telephone: (559) 621-8355 Facsimile: (559) 621-7990 Email : Larry.Westerlund@Fresno.Gov To Amber Kinetics: Bill Barnes Managing Director Development Amber Kinetics, lnc. 32920 Alvarado Niles Road, Suite 250 Union City, CA 94587 Telephone: (a1 5) 21 8-3935 Facsimile: (510) 474 1000 Email: bbarnes@amberkinetics.com With copy to: Christopher L. Campbell BAKER MANOCK & JENSEN, PC 5260 N. Palm Avenue, Suite 421 Fresno, California 93704 Telephone: (559) 432-5400 Facsimile: (559) 432-5620 Email : ccampbell@bakermanock.com Either Party may, by written notice to the other, specify a different address for notice. 1746428v1 / I 9040 000 I (b) Entire Agreement. This Agreement and items incorporated herein contain all of the agreements of the Parties with respect to the matters contained herein, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. The Parties further warrant and represent that they have not relied on any inducements, promises, or representations made by any Party or its representative, or any other person, except for those expressly set forth herein. (c) Amendments. No provisions of this Agreement may be amended or modified in any manner whatsoever except by an agreement in writing duly authorized by representatives of both Parties. (d) Counterparts. This Agreement may be signed by the Parties in different counterparts, which together shall constitute one Agreement, even though all Parties may not have signed the same counterpart. lN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. CITY AMBER KINETICS City of Fresno, a municipal corporation Amber Kinetics, lnc., a California corporation By: City Manager ATTEST: WONNE SPENCE, CMC City Clerk Deputy zltlltç APPROVED AS TO FORM:APPROVED AS TO FORM: //o,t& Eà.rr.À Chiao CËQ ßoar[ Mur+¿r DOUGLAS T. SLOAN Deputy City Attorney 1746428v1 / 19040.0001