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.
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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:
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DOUGLAS T. SLOAN
Deputy City Attorney
1746428v1 / 19040.0001