5.0. 6.0. EDSR 03-08-1999 ELK RIVER ECONOMIC DEVELOPMENT AUTHORITY
MEMORANDUM
TO: Economic Development Authority
Pi _FROM: Paul Steinman, Director of Economic
Development
DATE: March 5, 1999
SUBJECT: Agenda Memo for March 8, 1999
Meeting
5. Review Mevissen/Warden Appraisals- TIF 19 Redevelopment
Project Update
These appraisals are currently in the process of being completed. Staff
may provide one of the appraisals for review at the EDA meeting if it
is available. The second appraisals will not be completed until some
• time later in the week. Upon completion, the appraisals will be
provided to Mevissen and Warden for their review, at which time the
developer has also agreed he will sit down with the two parties and
proceed with negotiation based upon the appraised commercial value
of the properties.
Tony Gleekel, representing Associated Developers, will be present at
the EDA meeting to address any questions that might arise from the
EDA. Mr. Gleekel will also participate in a redevelopment project
update regarding progress on the commercial and industrial
components of the proposed project.
6. Business Incubator Sublease Extensions-Protectorcare and
Watermark
Two Business Incubator companies, Protectorcare and Watermark, are
coming up on the end of their one year sublease term. The reason a
one year sublease term was negotiated with these two companies was
that the EDA had not taken action to extend its initial two year master
lease with Larry Hickman prior to negotiating the subleases with
Protectorcare and Watermark. Therefore, the EDA could not agree to
io subleases with Protectorcare and Watermark which would extend
13065 Orono Parkway •P. O. Box 490 • Elk River, MN 55330-1743 • (612) 441-7420 • Fax (612) 441-7425
Equal Opportunity Housing and Equal Opportunity Employment
Economic Development Agenda Memo
March 5, 1999
Page 2
• beyond the term of the master lease. Last year in approximately May,
the EDA agreed to extend its initial two year master lease term with
Larry Hickman by an additional two years. The Incubator master
lease between the EDA and Larry Hickman is now scheduled to end on
April 14, 2001.
Both incubator companies, Protectorcare and Watermark, had
indicated at the beginning of their sublease term that they wished to
have a minimum of two full years in the incubator program. With this
in mind, staff suggests the EDA agree to allow staff to negotiate a one
year sublease extension with both these companies, as it is currently
doing with SolarAttic, Inc.
A sublease extension will potentially result in a higher cash rent
payment and distribution of more shares of the respective incubator
companies.
Recommendation
Staff recommends the EDA authorize staff to negotiate and execute
one year sublease extensions with Protectorcare and Watermark.
i
Attachments
• Protectorcare Sublease/Memorandum of Understanding
• Watermark Sublease/Memorandum of Understanding
AL
• WATERMARK,LLC.
SUBLEASE
THIS SUBLEASE, made this,2o day of /142't - 199 j , by and between the
City of Elk River Economic Development Authority, a Public Body Corporate and Politic
(hereinafter called "Sublessor"), and Watermark, LLC., a Minnesota Limited Liability
Corporation, (hereinafter called "Sublessee");
WITNESSETH, THAT:
WHEREAS, Sublessor has leased certain space in an office/industrial complex known as
the Elk River Business Incubator and located at 16820 Highway 10 in the City of Elk River, for
the purpose of supporting the development and growth of high technology companies in the City
of Elk River. Such space being leased by Sublessor shall be referred to herein as the "Elk River
Business Incubator."
WHEREAS, Sublessor is leasing the Elk River Business Incubator pursuant to the terms
and conditions of that certain lease (hereinafter called "Prime Lease") dated March 18, 1997,
between Larry Hickman (hereinafter called "Landlord"), as landlord, and Sublessor, as lessee, a
true and correct copy of which is attached hereto as Exhibit A and made a part hereof.
• WHEREAS, Sublessee desires to lease 1,493 square feet of space in the Elk River
Business Incubator designated on Exhibit B attached hereto and made a part hereof(hereinafter
called the "Subleased Premises") and Sublessor desires to sublease the Subleased Premises to
Sublessee.
WHEREAS, Sublessee desires to utilize the Subleased Premises for office,
administration, marketing,research and development, and light assembly activities.
NOW, THEREFORE, in consideration of the rents to be paid and the covenants to be
performed by the Sublessee as hereinafter set forth, Sublessor does hereby demise and sublease
the Subleased Premises to the Sublessee, and Sublessee does hereby hire and take the Subleased
Premises from Sublessor upon the terms and conditions hereinafter set forth.
(1) Assumption of Obligations. Except as may be herein otherwise specifically
provided, Sublessee shall have all the rights and privileges and assume and agree to keep, obey
and perform all of the obligations, restrictions and conditions, agreements and covenants of the
Sublessor as lessee under the Prime Lease as fully and to the same extent as if the provisions of
the Prime Lease were set forth herein.
Sublessee hereby accepts the demise and Sublease of the Subleased Premises expressly
subject to all of the terms, covenants and conditions set forth in the Prime Lease, and agrees to
• comply with all of the terms, covenants and provisions thereof. Any failure by Sublessee to
perform such duties, liabilities and obligations under the Prime Lease shall also be a default
eda/doc/wateleas 1
• under this Sublease.
(2) Rent and Other Charges. In consideration of the aforesaid subleasing, Sublessee
covenants and agrees to pay to the Sublessor, without setoff or deduction whatsoever, rent in the
amount of $186.63 per month payable on the fifteenth day of each month during the Term of
March 15, 1998 to March 14, 1999, and $248.83 per month during the Term of March 15, 1999
to April 14, 1999. In the event that the Term begins or ends on other than the fifteenth or
fourteenth day of the month, rent shall be pro-rated for such partial month. Sublessor shall be
responsible for payment of all rent due to the Landlord under the Prime Lease.
(3) Term. Notwithstanding any provisions relating to the Term or Renewal Term
contained in the Prime Lease, the Term of this Sublease shall be for the period commencing on
March 15, 1998 and terminating on April 14, 1999. In the event the Sublessor takes action to
extend the Term or Renewal Term of the Prime Lease, the Term of this Sublease shall be
extended, upon agreement of both Sublessor and Sublessee, to March 14, 2000 and upon such
extension, Sublessee covenants and agrees to pay Sublessor, without setoff or deduction
whatsoever, rent in the amount of$248.83 per month during the Term of such extension, which
Term shall be April 15, 1999 to March 14, 2000. In the event Sublessor does not extend the
Term of the Prime Lease, notice shall be provided to Sublessee 90 days prior to April 14, 1999.
(4) Quiet Enjoyment. Sublessor covenants that Sublessee, subject to the Prime Lease
and on paying the rents and performing the covenants herein set forth, shall and may peaceably
• and quietly have, hold and enjoy the Subleased Premises for the Term hereof free of all claims
made by persons claiming by,through or under Sublessor.
(5) Exclusions. The following rights, if any, reserved to the Sublessor under the
Prime Lease shall be reserved to the Sublessor, and Sublessee shall have no right therein:
(a) The right to sublease, assign or sublet.
(b) Any right on the part of the Sublessor under the Prime Lease to terminate
the Prime Lease in the event of damage by casualty or taking by eminent
domain,the default of the Landlord, or for any reason whatsoever.
(c) Any option or right to extend the Term or any Renewal Term.
(6) Maintenance. The Sublessee agrees to accept the Subleased Premises as of the
commencement of the Term in their then "as is" condition and that they will take good care of the
Subleased Premises, and will commit no waste, and will not do, suffer or permit to be done any
injury to the same; that they will keep said Subleased Premises in at least as good order,
condition and state of repair required of Sublessor under the Prime Lease; that they will permit
the Sublessor to enter onto the Subleased Premises at any and all reasonable times to inspect the
same or for any other proper purpose without liability on the part of Sublessor for any loss or
• interruption of business occasioned thereby, and that they will not do or permit to be done any act
or thing contrary to the covenants and agreements made by the Sublessor in the Prime Lease.
eda/doc/wateleas 2
• Sublessee shall also, at their sole cost and expense, comply with all applicable local, state and
federal laws, ordinances, codes and regulations, and with all rules and regulations promulgated
by companies which from time to time insure against loss or damage to, or against injuries or
deaths occurring on or about, the Subleased Premises. In no event shall Sublessee allow the
Subleased Premises to be used for any use which makes void or voidable any insurance in force
with respect to the Subleased Premises or makes it impossible to obtain insurance, creates a
public or private nuisance, or is illegal, unlawful, immoral, or is a hazardous business, trade,
occupation, activity or purpose.
(7) Alterations. Sublessee agrees that any alterations or improvements will be made
in good and workmanlike manner and that it will not make any alterations or improvements in or
to the Subleased Premises except in compliance with Prime Lease and with all applicable laws,
ordinances, codes and regulations and without obtaining the prior written consent of the
Sublessor, but such consent will not be unreasonably withheld if Landlord grants its consent
thereto. Sublessor may require Sublessee, at the end of the term and at Sublessee's expense, to
remove all alterations and improvements made by Sublessee and to repair any damage caused by
such removal.
(8) Liability of Sublessor: Assignment of Right of Action. Sublessor shall have no
responsibility whatsoever with respect to the Subleased Premises or the condition thereof.
Sublessor shall not be liable for any nonperformance of or noncompliance with or breach or
failure to observe any term, covenant or condition of the Prime Lease upon Landlord's part to be
• kept, observed, performed or complied with, or for any delay or interruption in Landlord's
performing its obligations thereunder. Sublessor hereby assigns unto Sublessee, for so long as
this Sublease shall be in force and effect, any and all rights and causes of action which it may
have against Landlord with respect to the Subleased Premises due to defaults by Landlord under
the Prime Lease. Sublessor agrees to cooperate with and join Sublessee in claims or suits
brought by Sublessee against Landlord under the Prime Lease, provided that the costs and
expenses of such participation shall be borne by Sublessee. Sublessor reserves the right at
Sublessor's option to tender to Sublessee the defense of any claim made against Sublessor arising
out of the Prime Lease, the Sublease or any use of the Subleased Premises, in which instance
Sublessee shall defend the claim using counsel reasonably acceptable to Sublessor. In any event,
the expense of all such costs and attorney's fees shall be borne by Sublessee.
(9) Insurance; Indemnification. Sublessee shall continuously maintain public liability
insurance with respect to death or injury to persons and damage to or destruction of property
occurring at or about the Subleased Premises. Such policy of insurance shall be in form and
amount reasonably satisfactory to Sublessor, shall name Sublessor and/or Landlord as an
additional insured party and shall be delivered to Sublessor. Sublessee hereby agrees to
indemnify and hold harmless Sublessor from, and shall reimburse Sublessor for, all costs and
expenses, including reasonable legal expenses, incurred by Sublessor in connection with the
defense of all claims and demands of third persons, whether or not suit is brought, including but
not limited to those for death, for personal injuries, or for property damage, arising out of any
• default of Sublessee in performing or observing any term, covenant, condition or provision of
this Sublease, or out of the use or occupancy of the Subleased Premises by the Sublessee, or out
eda/doc/wateleas 3
• of any of the acts or omissions of the Sublessee, its agents, representatives, employees,
customers, guests, invitees or other persons who are doing business with Sublessee or who are at
the Subleased Premises with Sublessee's consent. Sublessee, for itself and its insurers, hereby
further expressly waives all claims against Sublessor for any and all damages to persons or
property caused by or resulting from any thing or circumstance. Sublessee agrees that said
insurance policies shall contain waiver of subrogation rights against Sublessor.
(10) Termination; Surrender of Subleased Premises. This Sublease shall terminate at
the end of the term hereof or upon any default arising under the Prime Lease without the
necessity of any notice from either Sublessor or Sublessee to terminate the Sublease. Sublessee
hereby agrees that they will peacefully and quietly vacate and surrender the Subleased Premises
to the Sublessor at the expiration of the term, in as good order and repair as required under this
Sublease and the Prime Lease. It is further understood and agreed by and between the parties
hereto that existence of this Sublease is dependent and conditioned upon the continued existence
of the Prime Lease, and in the event of the cancellation or termination of said Prime Lease, this
Sublease automatically shall be terminated. Sublessor shall have no liability to Sublessee due to
the termination of the Prime Lease by reason of any default by Sublessee hereunder, by reason of
any condemnation or destruction of the Subleased Subleased Premises, or by any other reason not
within the control of Sublessor.
(11) Sublease and Subletting. Sublessee may not assign this Sublease or sublet all or
any part of the Subleased Premises. Sublessee may not pledge this Sublease, or allow any liens
to be placed hereon, or suffer this Sublease or any portion thereof to be attached or taken upon
execution.
(12) Sublessor's Right to Cure Defaults. If Sublessee shall default in the observance or
performance of any of Sublessee's covenants, agreements or obligations hereunder, Sublessor
may, but it is not obligated, and without limiting any other remedy which Sublessor may have by
reason of such default, cure the default and charge the cost thereof to Sublessee including,
without limitation, reasonable attorney's fees. Sublessee shall pay the same within ten (10) days
after receipt of an invoice therefore from Sublessor, together with interest thereon at the lesser of
the rate of twelve percent(12%)per annum or the maximum rate allowed by law.
Sublessor shall provide Sublessee written notice of Sublessors default under the Prime Lease.
(13) Default by Sublessee. If Sublessee shall default in the payment of any installment
of rent or other monies to be paid under this Sublease, or if Sublessee shall default in the
observance or performance of any of Sublessee's other covenants, agreements or obligations
hereunder, or if any proceeding is commenced by or against Sublessee for the purpose of
subjecting the assets of Sublessee to any law relating to bankruptcy or insolvency, or for
appointment of a receiver for Sublessee or for any of Sublessee's assets, or if Sublessee makes a
general Sublease of Sublessee's assets for the benefit of creditors; then Sublessor, at its option,
and subject to the right of a trustee in a bankruptcy proceeding to assume the Sublease, may
terminate this Sublease, may reenter the Subleased Premises and remove all persons and property
therefrom, and have, regain and enjoy possession of the Subleased Premises and, in addition,
eda/doc/wateleas 4
Sublessor shall have all of the rights and remedies against Sublessee as are available to Landlord
against Sublessor pursuant to the Prime Lease.
Sublessee hereby expressly waives service of any notice of Sublessor's intention to
reenter and waives all right of restoration to possession of the Subleased Premises after reentry or
after judgment for possession thereof. In case of any such termination, and in addition to any
other remedies which Sublessor may have, Sublessee shall indemnify Sublessor for all damages
Sublessor may incur by reason of such default, including the cost of recovering the Subleased
Premises, attorney's fees and expenses incurred in enforcing any term of this Sublease, and the
rent reserved in this Sublease for the remainder of the Term, all of which amounts shall be
immediately due and payable to Sublessor. Sublessor shall have no obligation whatsoever to
mitigate the aforesaid costs, expenses or damages incurred or suffered by Sublessor.
(14) Security Interest. Sublessor shall have a security interest in all trade fixtures,
exterior signs, floor coverings,or drapes, or any other equipment or property owned by Sublessee
and installed on the Subleased Premises, for rent and other sums which may become due
Sublessor, or upon any default, under this Sublease and the Prime Lease. Sublessee agrees to
execute such UCC filings as Sublessor may require as necessary to perfect such security interest.
(15) Expenses and Attorney's Fees. Sublessee shall pay to Sublessor within ten (10)
days after receipt of an invoice therefore an amount equal to any costs, legal or otherwise,
including attorney's fees, incurred by Sublessor in protecting Sublessor's interest in the
• Subleased Premises or in enforcing Sublessor's rights under this Sublease, whether or not a
lawsuit is involved.
(16) Relocation. In the event that the Landlord exercises its rights, if any under the
Prime Lease to relocate the Leased Premises, then Sublessor shall have the same right to relocate
the Subleased Premises,upon mutual agreement of Sublessor and Sublessee.
(17) Notice. Any notices or demands (not to include invoices) permitted or required
hereunder shall be deemed given or made if, and shall not be deemed to have been delivered or
made unless, in writing and delivered personally or deposited in the United States mails,
registered or certified,postage prepaid, addressed to Sublessor and Sublessee jointly as follows:
If to Sublessor: City of Elk River Economic Development Authority
Elk River City Hall
P.O. Box 490
Elk River, Minnesota 55330-0490
Attention: Paul Steinman
If to Sublessee:
•
eda/doc/wateleas 5
. which addresses may be changed from time to time by notice as above provided. Sublessee
agrees to furnish Sublessor immediately upon Sublessee's receipt thereof any and all
communications received by Sublessee from the Landlord under the Prime Lease. Sublessee
further agrees to give Sublessor concurrent notice of any notice or demand given to said
Landlord.
(18) Relationship of the Parties. This Sublease does not and shall not create the
relationship of principal and agent, or of partnership, or of joint venture, or of any other
association between Sublessor and Sublessee, the sole relationship between the parties hereto
being strictly Sublessor and Sublessee.
(19) Severability. If any term, condition or provision of this Sublease, or the
application thereof to any person or circumstance, shall, to the extent be held to be invalid or
unenforceable, the remainder hereof, and the application of such term, provision, and condition
to persons or circumstances other than those as to whom it shall be held invalid or unenforceable,
shall not be affected thereby, and this Sublease, and all of the terms, provisions, and conditions
hereof, shall, in all other respects, continue to be effective and to be complied with to the full
extent permitted by law.
IN WITNESS WHEREOF,the parties hereto have fully executed this Sublease on the day
and year first written above.
11111
SUBLESSOR:
City of Elk River Economic Development
Authori
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SUBLESSEE:
Watermark, LLC.
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eda/doc/wateleas
• Exhibit A
Prime Lease
411
eda/doc/wateleas 7
FINAL
MEMORANDUM OF UNDERSTANDING
• MEMORANDUM OF UNDERSTANDING ("Agreement") is made and
entered into this ?O day of . , 19 TY by and between the City
of Elk River Economic Development Authority (EDA), Larry Hickman,
Genesis Portfolio Partners, LLC., and Watermark, LLC., a Minnesota
Limited Liability Corporation.
BACKGROUND
The EDA has created the Elk River Business Incubator (ERBI) to
support the development of new high technology companies ("Member
Companies") during the early years of such Member Companies'
development.
The Company has been approved as a potential Member Company, and
the Company desires the support, services, and programs of the EDA as part
of the Elk River Business Incubator.
EDA, through its creation of the Elk River Business Incubator, is
prepared to arrange for the provision of certain services in accordance with
the terms of this Agreement.
• NOW, THEREFORE, in consideration of the premises and of the
mutual promises and covenants contained in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties covenant and agree as follows:
1. SERVICES OF ERBI
1.1. Rent of Available Space. At the time of execution of this
Memorandum of Understanding, the Company shall have executed a
Sublease for space within the Elk River Business Incubator. The terms and
conditions of such space rental shall be strictly in accordance with the
Sublease, substantially in the form of Exhibit A attached hereto.
1.2. Leasehold Improvements. In order for the Company (and
additional companies) to occupy space within the Elk River Business
Incubator, the EDA has provided leasehold improvements in the form of
construction of restroom facilities, partition walls, doors, windows, carpeting,
and other improvements, at a total cost of$75,063. Such leasehold
improvements were constructed in order to make the Elk River Business
Incubator available to all qualified applicants, including the Company.
41/
eda/doc/watagrmt 1
2. CONSIDERATION
2.1. Issuance of Units. In consideration for the services
provided to the Company hereunder, the Company, at the time of execution of
the Company lease attached as Exhibit A hereto, shall convey and issue to
the EDA (Landlord), Larry Hickman (Building Owner), and Genesis Portfolio
Partners, LLC. (EDA Business Incubator Consultant), Units of the Company
as follows:
A) For the service provided in Rent of Available Space (1493
square feet @ $10 per square foot) :
EDA (Landlord) 1,536 Units which is
equal to $4.75 per square
foot of space leased per
year, at a value of$5 per
Unit.
Larry Hickman (Building 970 Units which is equal
Owner) to $3 dollars per square
foot of space leased per
110 year, at a value of$5 per
Unit.
Genesis Portfolio Partners, 728 Units which is equal
LLC. (EDA Business to $2.25 per square foot of
Incubator Consultant) space leased per year, at
a value of$5 per Unit.
All Units issued to the EDA, Larry Hickman, and Genesis Portfolio Partners,
LLC., pursuant to this Agreement shall be subject to any restrictions on
transferability under state and federal securities laws, and shall be entitled
to all rights and privileges to which other Units of the Company are subject.
2.2. Adjustments Stock Issued. In the event that the Units of
the Company are changed into or exchanged for a different number or kind of
Units or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, split, combination of Units, or dividends payable, the
Company shall convey and issue to the EDA, Larry Hickman, and Genesis
Portfolio Partners, LLC. additional Units of the Company, so that the value
of current Units owned by EDA, Larry Hickman, and Genesis Portfolio
Partners, LLC. is not less than the value used to determine number of Units
set forth in Section 2.1.(A) of this Agreement.
eda/doc/watagrmt 2
•
2.3. Continuing Obligation. The EDA may agree to exercise
• its option to extend or renew the term of the Sublease. In such event,
additional Units shall be issued to the EDA, Larry Hickman, and Genesis
Portfolio Partners, LLC., at the commencement of such extension or renewal
on the same basis as is set forth in Section 2.1., except that an appropriate
proportional adjustment shall be made to the number of Units issued in the
event that subsequent to the date of this Memorandum, there has been any
change in the voting Units of the Company by reason of any reorganization,
merger, consolidation, recapitalization, reclassification, split, Unit price
dilution, combination of Units, or dividend payable.
2.4. Anti-dilution Clause. In the event that the Units of the
Company are sold to parties other than EDA, Larry Hickman, and Genesis
Portfolio Partners, LLC., at a value which is less than the value used to
determine number of Units set forth in Section 2.1.(A) of this Agreement, the
Company shall convey and issue to EDA, Larry Hickman, and Genesis
Portfolio Partners, LLC., additional Units of the Company so that the value
of current Units owned by EDA, Larry Hickman, and Genesis Portfolio
Partners, LLC., is not less than the value used to determine number of Units
set forth in Section 2.1.(A) of this Agreement.
2.5. Location Commitment; Mandatory Repurchase; Put
• Options. So long as EDA is owner of any Units of the Company, the
Company's administrative, marketing, product development, assembly,
warehouse and manufacturing facilities shall be located within the City of
Elk River. In the event that the Company no longer maintains ALL such
facilities within the City of Elk River, the EDA shall have the option to
require the Company to repurchase the Units owned by EDA within 30 days
of written demand. The repurchase price shall be the last price per Unit
offered in any private or public offering authorized by the Board of Directors
of the Company, but not less than twice the price used to calculate Units
provided to the EDA under 2.1.(A) of this Agreement.
3. COMPANY RESPONSIBILITIES
3.1. Financial Statements and Employee Reports. The
Company shall provide EDA with "bookkeeper-prepared" semi-annual
financial statements and all available audited financial statements (Note:
EDA does not require the Company to incur the cost of"audited" statements
as a requirement of this agreement). The Company shall also provide EDA
with detailed periodic data on all employees of the Company, including
salaries, number and names of Company employees, titles and positions of
each employee, and the names and positions of the Company's officers and
40 Board members.
eda/doc/watagrmt 3
3.2. Annual Objectives. The Company shall maintain a
written policy statement on an annual basis defining its objectives with
respect to its growth and development, and shall provide EDA with copies of
such written policy statement. The Company shall also provide to EDA
periodic reports on the Company's growth and development, as may be
reasonably requested by EDA from time to time.
3.3. Regular Meetings. The Company shall conduct and hold
regular periodic meetings with the EDA Executive Director and members of
the EDA Commission as determined appropriate for the purpose of reviewing
the Company's progress. The Company acknowledges that as part of the
services provided to it hereunder, the Company shall receive advice and
counsel from such Executive Director and EDA Commissioners. The
Company shall hold and conduct such meetings at least once every quarter
during the term of this Agreement.
3.4. Board Meetings. The Company shall provide EDA with 7,42'
written notice of, and allow an EDA representative or designee to attend, all
regular and special meetings of the Company's Board of Direeters-and/or
Board of Advisors (collectively the `Boards"). Although an EDA 6°v `kAngs
representative or designee may offer guidance or advice to the Boards, no
officer, director, agent, or employee of EDA shall be deemed a member of the
• Company's Boards. Any EDA representative or designee attending the
meetings for the Company's Boards shall attend without a vote, without
compensation, and without fiduciary or legal responsibility to the Company,
its officers, directors, or unitholders. The Company shall indemnify the EDA,
including its representative or designee attending such Board meetings,
against all costs and liabilities to the same extent as the Company so
indemnifies its officers and/or directors. The EDA, or its representative or
designee, shall hold all Company information in strict confidence.
3.5. Job Openings. The Company agrees to post all job
openings with the Private Industry Council 5 at 657 Main Street NW, Elk
River, Minnesota 55330, Phone 441-5903, and the Company agrees to keep a
written record of all persons interviewed and hired by completing the Notice
to Employee attached as Exhibit B. The Company acknowledges that a
portion of the funds used to facilitate the Elk River Business Incubator are
provided from Federal Community Development Block Grants and as such,
the EDA and Company are required to meet certain standards for the use of
such funds.
3.6. Vendor Contracts. The Company shall make available to
the EDA Executive Director, its vendor contracts. Such vendor contracts will
be used to provide opportunities to local manufacturing companies and
• service providers in order to create and retain jobs in our community. The
Company is strongly encouraged to utilize local businesses in its
eda/doc/watagrmt 4
manufacturing and production of goods, however the Company is allowed to
411 make the final decision on its own vendors at all times.
4. INDEMNIFICATION. The Company shall indemnify and hold
harmless the EDA from any loss, damage, expense, liability, or claim,
including without limitation attorneys' fees and expenses of litigation, to
which such parties may become subject arising out of: (a) any failure of the
Company to perform any of its covenants, agreements or undertaking
contained in this Agreement, the lease of space, or in any other agreement
executed in connection with the transactions contemplated herein; or (b) any
other action or inaction of the Company, its directors, officers, employees, or
designees, which action or inaction is not a result of any fault on the part of
the EDA.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
A. The EDA agrees that during the term of this Agreement
and for a period of two (2) years immediately thereafter, it shall not, other
than to EDA Commissioners, and in a non-public format, disclose to any
individual, firm, corporation, partnership, or other business entity, or use for
its own financial gain or benefit, any Confidential Information (defined
below), that it obtained during the term of this Agreement. "Confidential
Information" shall mean any and all information (other than trade secrets)
relating to the Company's business provided to the EDA during the term of
this Agreement or to which the EDA had access or which it compiled during
the term of this Agreement, not generally known to the public, and with
respect to which (i) the Company has clearly indicated to the EDA that such
information is confidential and proprietary, or (ii) the Company has provided
written notice to the EDA confirming that such information is confidential
and proprietary. The Company agrees and acknowledges that it will not be
required by this Agreement to disclose to the EDA (and the EDA neither
desires access to or disclosure of), any trade secrets of the Company or any
third party.
B. Section 5A. shall not apply to any information:
(i) Generally known in the trade or to the public
through no fault of the EDA; or
(ii) Disclosed to the EDA by any party having
legitimate possession thereof and the unrestricted right to
make such disclosure; or
(iii) Hereafter published in any publication for public
distribution or filed as public information with any
governmental authority; or
•
eda/doc/watagrmt 5
(iv) Required to be disclosed by applicable law or legal
11,
process with the exception of the Open Meeting Laws
governing public boards and commissions; or
(v) Within the EDA's legitimate possession prior to the
Company's disclosure.
6. TERMS AND TERMINATION.
6.1. Term. The term of this Agreement shall be for a period
equal to the term of the Sublease, and any extensions thereof, attached
herein as Exhibit A. Either party may terminate this Agreement with or
without cause by providing written notice to the other party ninety (90) days
prior to termination. The provisions in this Agreement calling for
performance by any party after termination shall continue in full force and
effect.
6.2. Termination by the EDA for Cause. The EDA may
immediately terminate this Agreement, without providing any prior notice to
the Company, for cause, defined as follows:
A. The Company materially breaches any of the terms or
conditions of this Agreement, the Sublease, or, and any other
agreement in connection with the subject matter hereof, if such
• breach continues for ten (10) days after the EDA has provided
the Company with written notice of the breach; or
B. The Company intentionally engages in conduct or
activities materially damaging to the EDA.
6.3. Termination by Company for Cause. The Company may
immediately terminate this Agreement, without providing any prior notice to
the EDA, for cause, defined as follows:
A. The EDA materially breaches any of the terms or
conditions of this Agreement, the Sublease, or, and any other
agreement in connection with the subject matter hereof, if such
breach continues for ten (10) days after the Company has
provided the EDA with written notice of the breach; or
B. The EDA intentionally engages in conduct or activities
materially damaging to the Company.
7. GOVERNING LAW. This Agreement shall be governed,
construed, and enforced in accordance with the substantive laws, but not the
conflicts, of the State of Minnesota.
eda/doc/watagrmt 6
8. BINDING ARBITRATION. Any controversy or claim arising
• out of or relating to this contract, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator(s) may
be entered in any court having jurisdiction thereof.
9. SEVERABILITY. If any provision or covenant of this
Agreement should be held by any court to be invalid or unenforceable, either
in whole or in part, such invalidity or unenforceability shall not affect the
validity of enforceability of the remaining provisions or covenants of this
Agreement, all of which shall remain in full force and effect. Should any
covenant contained herein be held by any court of competent jurisdiction to
be overly broad and unenforceable, the parties agree that any such court may
enforce so much of such covenant or restriction as is otherwise enforceable.
10. NOTICES. All communications provided for hereunder shall be
in writing and shall be deemed to be given when delivered in person or
deposited in the United States Mail, First Class, Certified Mail, Return
Receipt Requested, with proper postage prepaid, and addressed to the party
and at the address specified below.
11. ENTIRE AGREEMENT. This Agreement and the Schedules
attached hereto represent the complete and mutual understanding of the
• parties with respect to the subject matter hereof, and supersede and cancel
all previous and contemporaneous written and oral agreements and
communications with respect to the subject matter hereof, except for the
Sublease herein attached as Exhibit A.
IN WITNESS WHEREOF, the parties have set their hands and seals
as of the day first above written.
CITY OF ELK RIVER EDA: WATERMARK, LLC.
MICNAEL GILL
By ''ILIA 1 / Al A../:A By
•d Na•le . s. . i. '1: &.. Type. ame /!'l i cJ o.e L lr r'LL
T' le �. ! Titled'�^ 'c;c',s�r--
Date 3 •30 •q7 Date 3 '.71-o - y`e
By 11111T- 1.PBy
•ed Name °. ' e• n..'a,.` Typed Name
Title LX.'~'`{ Q-i-ci Title
Date 3 •3 o •TT Date
411
eda/doc/watagrmt 7
LARRY HICKMAN
By 4.024 .!r A�
Typed Name Ail,
Title O W N E''
Date 061q P
GEN SAW RTF 0 PARTNERS, LLC.
By .ia, d ifL
Types?'
ame
. T c-‘
Title ret i L
Date - 3 .40.,,_ ' '8
•
eda/doc/watagrmt 8
Exhibit A
• Sublease
eda/doc/watagrmt 9
FINAL
• PROTECTORCARE,INC
SUBLEASE
THIS SUBLEASE, made this / 7t43ay of ✓.�-_' . �) , 199 f , by and between the
City of Elk River Economic Development Authority, a Public Body Corporate and Politic
(hereinafter called "Sublessor"), and Protectorcare, Inc., a Minnesota Corporation, (hereinafter
called "Sublessee");
WITNESSETH,THAT:
WHEREAS, Sublessor has leased certain space in an office/industrial complex known as
the Elk River Business Incubator and located at 16820 Highway 10 in the City of Elk River, for
the purpose of supporting the development and growth of high technology companies in the City
of Elk River. Such space being leased by Sublessor shall be referred to herein as the "Elk River
Business Incubator."
WHEREAS, Sublessor is leasing the Elk River Business Incubator pursuant to the terms
and conditions of that certain lease (hereinafter called "Prime Lease") dated March 18, 1997,
between Larry Hickman (hereinafter called "Landlord"), as landlord, and Sublessor, as lessee, a
true and correct copy of which is attached hereto as Exhibit A and made a part hereof.
•
WHEREAS, Sublessee desires to lease the space in the Elk River Business Incubator
designated on Exhibit B attached hereto and made a part hereof (hereinafter called the
"Subleased Premises") and Sublessor desires to sublease the Subleased Premises to Sublessee.
NOW, THEREFORE, in consideration of the rents to be paid and the covenants to be
performed by the Sublessee as hereinafter set forth, Sublessor does hereby demise and sublease
the Subleased Premises to the Sublessee, and Sublessee does hereby hire and take the Subleased
Premises from Sublessor upon the terms and conditions hereinafter set forth.
(1) Assumption of Obligations. Except as may be herein otherwise specifically
provided, Sublessee shall have all the rights and privileges and assume and agree to keep, obey
and perform all of the obligations, restrictions and conditions, agreements and covenants of the
Sublessor as lessee under the Prime Lease as fully and to the same extent as if the provisions of
the Prime Lease were set forth herein.
Sublessee hereby accepts the demise and Sublease of the Subleased Premises expressly
subject to all of the terms, covenants and conditions set forth in the Prime Lease, and agrees to
comply with all of the terms, covenants and provisions thereof. Any failure by Sublessee to
perform such duties, liabilities and obligations under the Prime Lease shall also be a default
under this Sublease.
i (2) Rent and Other Charges. In consideration of the aforesaid subleasing, Sublessee
eda/doc/protleas 1
• covenants and agrees to pay to the Sublessor, without setoff or deduction whatsoever, rent in the
amount of$260.17 per month payable on the first day of each month during the Term of March
1, 1998, to February 28, 1999, and $325.21 per month during the Term of March 1, 1999 to April
14, 1999. Such rent includes Real Estate Taxes, Insurance Premiums and Common Area
Expenses as indicated in the Prime Lease. In the event that the Term begins or ends on other
than the first or last day of the month, rent shall be pro-rated for such partial month. Sublessor
shall be responsible for payment of all rent due to the Landlord under the Prime Lease.
(3) Term. The Term of this Sublease shall be for the period commencing on March 1,
1998 and terminating on April 14, 1999. In the event the Sublessor takes action to extend the
Term or Renewal Term of the Prime Lease, the Term of this Sublease shall be extended, at the
option of Sublessee, to February 28, 2000 and, if such extension is so agreed to by Sublessee,
Sublessee covenants and agrees to pay Sublessor, without setoff or deduction whatsoever, rent in
the amount of$325.21 per month during the Term of such Sublessee's extension, which Term
shall be April 15, 1999 to February 28, 2000.
(4) Quiet Enjoyment. Sublessor covenants that Sublessee, subject to the Prime Lease
and on paying the rents and performing the covenants herein set forth, shall and may peaceably
and quietly have, hold and enjoy the Subleased Premises for the Term hereof free of all claims
made by persons claiming by, through or under Sublessor. Subleased Presmises shall be used for
the purpose of warehousing, final assembly, shipping/receiving and, at the option of Sublessee,
marketing, administrative and product development activities. Sublessor shall provide, at no cost
• to Sublessee, all utilities described in the Prime Lease, such utilities being electricity, gas, water,
fuel, sewer charges, and trash hauling.
(5) Exclusions. The following rights, if any, reserved to the Sublessor under the
Prime Lease shall be reserved to the Sublessor, and Sublessee shall have no right therein:
(a) The right to sublease, assign or sublet.
(b) Any right on the part of the Sublessor under the Prime Lease to terminate
the Prime Lease in the event of damage by casualty or taking by eminent
domain,the default of the Landlord, or for any reason whatsoever.
(c) Any option or right to extend the Term or any Renewal Term.
(6) Maintenance. The Sublessee agrees to accept the Subleased Premises as of the
commencement of the Term in their then "as is" condition and that they will take good care of the
Subleased Premises, and will commit no waste, and will not do, suffer or permit to be done any
injury to the same; that they will keep said Subleased Premises in at least as good order,
condition and state of repair required of Sublessor under the Prime Lease; that they will permit
the Sublessor to enter onto the Subleased Premises at any and all reasonable times to inspect the
same or for any other proper purpose without liability on the part of Sublessor for any loss or
• interruption of business occasioned thereby, and that they will not do or permit to be done any act
or thing contrary to the covenants and agreements made by the Sublessor in the Prime Lease.
eda/doc/protleas 2
• Sublessee shall also, at their sole cost and expense, comply with all applicable local, state and
federal laws, ordinances, codes and regulations, and with all rules and regulations promulgated
by companies which from time to time insure against loss or damage to, or against injuries or
deaths occurring on or about, the Subleased Premises. In no event shall Sublessee allow the
Subleased Premises to be used for any use which makes void or voidable any insurance in force
with respect to the Subleased Premises or makes it impossible to obtain insurance, creates a
public or private nuisance, or is illegal, unlawful, immoral, or is a hazardous business, trade,
occupation, activity or purpose. Sublessor warrants that the Subleased Premises meet all local
and state building codes/ordinances and local ordinances pertaining to zoning regulations.
(7) Alterations. Sublessee agrees that any alterations or improvements will be made
in good and workmanlike manner and that it will not make any alterations or improvements in or
to the Subleased Premises except in compliance with Prime Lease and with all applicable laws,
ordinances, codes and regulations and without obtaining the prior written consent of the
Sublessor, but such consent will not be unreasonably withheld if Landlord grants its consent
thereto. Sublessor may require Sublessee, at the end of the term and at Sublessee's expense, to
remove all alterations and improvements made by Sublessee and to repair any damage caused by
such removal, should such alterations and improvements be determined be Sublessor and
Sublessee to limit Sublessors ability to re-lease the Subleased Premises. Sublessor agrees to pay
costs to place Sublessees name on one sign (two panels) in front of the Elk River Business
Incubator.
• (8) Liability of Sublessor; Assignment of Right of Action. Sublessor shall have no
responsibility whatsoever with respect to the Subleased Premises or the condition thereof.
Sublessor shall not be liable for any nonperformance of or noncompliance with or breach or
failure to observe any term, covenant or condition of the Prime Lease upon Landlord's part to be
kept, observed, performed or complied with, or for any delay or interruption in Landlord's
performing its obligations thereunder. Sublessor hereby assigns unto Sublessee, for so long as
this Sublease shall be in force and effect, any and all rights and causes of action which it may
have against Landlord with respect to the Subleased Premises due to defaults by Landlord under
the Prime Lease. Sublessor agrees to cooperate with and join Sublessee in claims or suits
brought by Sublessee against Landlord under the Prime Lease, provided that the costs and
expenses of such participation shall be borne by Sublessee. Sublessor reserves the right at
Sublessor's option to tender to Sublessee the defense of any claim made against Sublessor arising
out of the Prime Lease, the Sublease or any use of the Subleased Premises, in which instance
Sublessee shall defend the claim using counsel reasonably acceptable to Sublessor. In any event,
the expense of all such costs and attorney's fees shall be borne by Sublessee.
(9) Insurance; Indemnification. Sublessee shall continuously maintain public liability
insurance with respect to death or injury to persons and damage to or destruction of property
occurring at or about the Subleased Premises. Such policy of insurance shall be in form and
amount reasonably satisfactory to Sublessor, shall name Sublessor and/or Landlord as an
additional insured party and shall be delivered to Sublessor. Sublessee hereby agrees to
indemnify and hold harmless Sublessor from, and shall reimburse Sublessor for, all costs and
expenses, including reasonable legal expenses, incurred by Sublessor in connection with the
eda/doc/protieas 3
• defense of all claims and demands of third persons, whether or not suit is brought, including but
not limited to those for death, for personal injuries, or for property damage, arising out of any
default of Sublessee in performing or observing any term, covenant, condition or provision of
this Sublease, or out of the use or occupancy of the Subleased Premises by the Sublessee, or out
of any of the acts or omissions of the Sublessee, its agents, representatives, employees,
customers, guests, invitees or other persons who are doing business with Sublessee or who are at
the Subleased Premises with Sublessee's consent. Sublessee, for itself and its insurers, hereby
further expressly waives all claims against Sublessor for any and all damages to persons or
property caused by or resulting from any thing or circumstance. Sublessee agrees that said
insurance policies shall contain waiver of subrogation rights against Sublessor.
(10) Termination; Surrender of Subleased Premises. This Sublease shall terminate at
the end of the term hereof or upon any default arising under the Prime Lease without the
necessity of any notice from either Sublessor or Sublessee to terminate the Sublease. Sublessee
shall have the right to cure any default arising under the Sublease. Sublessee hereby agrees that
they will peacefully and quietly vacate and surrender the Subleased Premises to the Sublessor at
the expiration of the term, in as good order and repair as required under this Sublease and the
Prime Lease. It is further understood and agreed by and between the parties hereto that existence
of this Sublease is dependent and conditioned upon the continued existence of the Prime Lease,
and in the event of the cancellation or termination of said Prime Lease, this Sublease
automatically shall be terminated. Sublessor shall have no liability to Sublessee due to the
termination of the Prime Lease by reason of any default by Sublessee hereunder, by reason of any
• condemnation or destruction of the Subleased Subleased Premises, or by any other reason not
within the control of Sublessor.
(11) Sublease and Subletting. Sublessee may not assign this Sublease or sublet all or
any part of the Subleased Premises. Sublessee may not pledge this Sublease, or allow any liens
to be placed hereon, or suffer this Sublease or any portion thereof to be attached or taken upon
execution.
(12) Sublessor's Right to Cure Defaults. If Sublessee shall default in the observance or
performance of any of Sublessee's covenants, agreements or obligations hereunder, Sublessor
may, but it is not obligated, and without limiting any other remedy which Sublessor may have by
reason of such default, cure the default and charge the cost thereof to Sublessee including,
without limitation, reasonable attorney's fees. Sublessee shall pay the same within ten (10) days
after receipt of an invoice therefore from Sublessor, together with interest thereon at the lesser of
the rate of twelve percent(12%) per annum or the maximum rate allowed by law.
(13) Default by Sublessee. If Sublessee shall default in the payment of any installment
of rent or other monies to be paid under this Sublease, or if Sublessee shall default in the
observance or performance of any of Sublessee's other covenants, agreements or obligations
hereunder, or if any proceeding is commenced by or against Sublessee for the purpose of
subjecting the assets of Sublessee to any law relating to bankruptcy or insolvency, or for
• appointment of a receiver for Sublessee or for any of Sublessee's assets, or if Sublessee makes a
general Sublease of Sublessee's assets for the benefit of creditors; then Sublessor, at its option,
eda/doc/protleas 4
may terminate this Sublease, may reenter the Subleased Premises and remove all persons and
property therefrom, and have, regain and enjoy possession of the Subleased Premises and, in
addition, Sublessor shall have all of the rights and remedies against Sublessee as are available to
Landlord against Sublessor pursuant to the Prime Lease.
Sublessee hereby expressly waives service of any notice of Sublessor's intention to
reenter and waives all right of restoration to possession of the Subleased Premises after reentry or
after judgment for possession thereof. In case of any such termination, and in addition to any
other remedies which Sublessor may have, Sublessee shall indemnify Sublessor for all damages
Sublessor may incur by reason of such default, including the cost of recovering the Subleased
Premises, attorney's fees and expenses incurred in enforcing any term of this Sublease, and the
rent reserved in this Sublease for the remainder of the Term, all of which amounts shall be
immediately due and payable to Sublessor. Sublessor shall have no obligation whatsoever to
mitigate the aforesaid costs, expenses or damages incurred or suffered by Sublessor.
Both Sublessor and Sublessee shall in good faith and at all times throughout this
Sublease, act in accordance with the Landlord/Tenant laws of the State of Minnesota.
(14) Security Interest. Sublessor shall have a security interest in all trade fixtures,
exterior signs, floor coverings, or drapes, or any other equipment or property owned by Sublessee
and installed on the Subleased Premises, for rent and other sums which may become due
Sublessor, or upon any default, under this Sublease and the Prime Lease. Sublessee agrees to
execute such UCC filings as Sublessor may require as necessary to perfect such security interest.
(15) Expenses and Attorney's Fees. Sublessee shall pay to Sublessor within ten (10)
days after receipt of an invoice therefore an amount equal to any costs, legal or otherwise,
including attorney's fees, incurred by Sublessor in protecting Sublessor's interest in the
Subleased Premises or in enforcing Sublessor's rights under this Sublease, whether or not a
lawsuit is involved.
(16) Relocation. In the event that the Landlord exercises its rights, if any under the
Prime Lease to relocate the Subleased Premises, then Sublessor shall have the same right to
relocate the Subleased Premises. In the event that Sublessor exercises its rights to relocate the
Subleased Premises Sublessor shall pay actual relocation costs of Sublessee or$1,000, whichever
is less.
(17) Notice. Any notices or demands (not to include invoices) permitted or required
hereunder shall be deemed given or made if, and shall not be deemed to have been delivered or
made unless, in writing and delivered personally or deposited in the United States mails,
registered or certified,postage prepaid, addressed to Sublessor and Sublessee jointly as follows:
• If to Sublessor: City of Elk River Economic Development Authority
eda/doc/protleas 5
Elk River City Hall
P.O. Box 490
Elk River, Minnesota 55330-0490
Attention: Paul Steinman
If to Sublessee: Protectorcare, Inc.
16820 Highway 10
Suite 110
Elk River, Mn. 55330
which addresses may be changed from time to time by notice as above provided. Sublessee
agrees to furnish Sublessor immediately upon Sublessee's receipt thereof any and all
communications received by Sublessee from the Landlord under the Prime Lease. Sublessee
further agrees to give Sublessor concurrent notice of any notice or demand given to said
Landlord.
(17) Relationship of the Parties. This Sublease does not and shall not create the
relationship of principal and agent, or of partnership, or of joint venture, or of any other
association between Sublessor and Sublessee, the sole relationship between the parties hereto
being strictly Sublessor and Sublessee.
(18) Severability. If any term, condition or provision of this Sublease, or the
application thereof to any person or circumstance, shall, to the extent be held to be invalid or
unenforceable, the remainder hereof, and the application of such term, provision, and condition
to persons or circumstances other than those as to whom it shall be held invalid or unenforceable,
shall not be affected thereby, and this Sublease, and all of the terms, provisions, and conditions
hereof, shall, in all other respects, continue to be effective and to be complied with to the full
extent permitted by law.
IN WITNESS WHEREOF,the parties hereto have fully executed this Sublease on the day
and year first written above.
SUBLESSOR:
City of Elk River Economic Development
Authori
aex,e-t-*\ By:
Witness E/( 2. -e
Its:
eda/doc/protleas 6
• SUBLESSEE:
Protectorcare,Inc.
By:
Witne
Its: CEa
Pa4. -P76-t4-Ni
S
S
eda/doc/protieas 7
• Exhibit A
Lease
•
•
eda/doc/protleas 8
FINAL
MEMORANDUM OF UNDERSTANDING
• MEMORANDUM OF UNDERSTANDING ("Agreement") is made and
entered into this / 7f< day of -z. , 19 li by and between the City
of Elk River Economic Development Aut ority (EDA), Larry Hickman,
Genesis Portfolio Partners, LLC, and Protectorcare, Inc. a corporation
organized and existing under the laws of the State of Minnesota (the
"Company").
BACKGROUND
The EDA has created the Elk River Business Incubator (ERBI) to
support the development of new high technology companies ("Member
Companies") during the early years of such Member Companies'
development.
The Company has been approved as a potential Member Company, and
the Company desires the support, services, and programs of the EDA as part
of the Elk River Business Incubator.
EDA, through its creation of the Elk River Business Incubator, is
prepared to arrange for the provision of certain services in accordance with
the terms of this Agreement.
•
NOW, THEREFORE, in consideration of the premises and of the
mutual promises and covenants contained in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties covenant and agree as follows:
1. SERVICES OF ERBI
1.1. Rent of Available Space. At the time of execution of this
Memorandum of Understanding, the Company shall have executed a
Sublease for space within the Elk River Business Incubator. The terms and
conditions of such space rental shall be strictly in accordance with the
Sublease, substantially in the form of Exhibit A attached hereto.
1.2. Leasehold Improvements. In order for the Company (and
additional companies) to occupy space within the Elk River Business
Incubator, the EDA has provided leasehold improvements in the form of
construction of restroom facilities, partition walls, doors, windows, carpeting,
and other improvements, at a total cost of$75,063. Such leasehold
improvements were constructed in order to make the Elk River Business
Incubator available to all qualified applicants, including the Company.
•
0 2. CONSIDERATION
2.1. Issuance of Stock. In consideration for the services
provided to the Company hereunder, the Company, at the time of execution of
the Company lease attached as Exhibit A hereto, shall convey and issue to
the EDA (Landlord), Larry Hickman (Building Owner), and Genesis Portfolio
Partners, LLC (EDA Business Incubator Consultant), a number of shares of
the voting common stock of the Company ("Shares") as follows:
A) For the service provided in Rent of Available Space (1,561
sq. ft. @ $8 per sq. ft. in stock):
EDA (Landlord) 2,282 shares - which is
equal to 2.50 dollars per
square foot of space
•
leased per year, at a
value of$2 per share.
Larry Hickman (Building 2,740 shares - which is
Owner) equal to 3.00 dollars per
square foot of space
• leased per year, at a
value of$2 per share.
Genesis Portfolio Partners, 2,282 shares - which is
LLC (EDA Business equal to 2.50 dollars per
Incubator Consultant) square foot of space
leased per year, at a
value of$2 per share.
B) For technical advisory and consultation services provided
by EDA:
EDA (Landlord) The issuance of 10,000
warrants at the issuance
price of.62 (sixty two
cents) per share to be
exercised by EDA at its
discretion anytime five (5)
years after the date of
issuance.
All Shares issued to the EDA, Larry Hickman, and Genesis Portfolio
Partners, LLC, pursuant to this Agreement shall be subject to any
• restrictions on transferability under state and federal securities laws, and
shall be entitled to all rights and privileges to which other shares of voting
common stock the Company are subject.
• 2.2. Adjustments Stock Issued. In the event that the shares of
voting common stock of the Company are changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
another corporation by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock, split, combination of shares of
dividends payable in capital stock, the Company shall convey and issue to the
EDA, Larry Hickman, and Genesis Portfolio Partners, LLC additional shares
of the voting common stock of the Company, so that the value of current
shares owned by EDA, Larry Hickman, and Genesis Portfolio Partners, LLC
is not less than the value used to determine number of shares set forth in
Section 2.1.(A) of this Agreement.
2.3. Continuing Obligation. The Company and the EDA may
mutually agree (however none of the parties are required to so agree) to an
extension or renewal of the lease term, such term and possible extension as is
currently indicated in the Sublease attached as Exhibit A. In such event,
additional shares shall be issued to the EDA, Larry Hickman, and Genesis
Portfolio Partners, LLC, at the commencement of such extension or renewal
on the same basis as is set forth in Section 2.1., except that an appropriate
proportional adjustment shall be made to the number of shares issued in the
event that subsequent to the date of this Memorandum, there has been any
change in the voting shares of the Company by reason of any reorganization,
• merger, consolidation, recapitalization, reclassification, stock split,
combination of shares, or dividend payable in capital stock.
2.4. Anti-dilution Clause. So long as the Sublease attached as
Exhibit A remains in full force and effect, in the event that the shares of
voting common stock of the Company are sold to parties other than EDA,
Larry Hickman, and Genesis Portfolio Partners, LLC, at a value which is less
than the value used to determine number of shares set forth in Section
2.1.(A) of this Agreement, the Company shall convey and issue to EDA, Larry
Hickman, and Genesis Portfolio Partners, LLC, additional shares of the
voting common stock of the Company so that the value of current shares
owned by EDA, Larry Hickman, and Genesis Portfolio Partners, LLC, is not
less than the value used to determine number of shares set forth in Section
2.1.(A) of this Agreement.
2.5. Location Commitment; Mandatory Repurchase: Put
Options. So long as EDA is owner of any Shares of Company stock, the
Company's warehouse, diettaibizitieil, final assembly, and shipping/packaging Oc9
facilities shall be located within the City of Elk River. In the event that the
Company no longer maintains all such facilities within the City of Elk River,
• the EDA shall have the option to require the Company to repurchase the
Shares owned by EDA within 30 days of written demand. The repurchase
price shall be the price used to calculate Shares provided to the EDA under
2.1.(A) of this Agreement.
3. COMPANY RESPONSIBILITIES
3.1. Financial Statements and Employee Reports. The
Company shall provide EDA with "bookkeeper-prepared" quarterly financial
statements and all available audited financial statements (Note: EDA does
not require the Company to incur the cost of"audited" statements as a
requirement of this agreement). The Company shall also provide EDA with
detailed periodic data on all employees of the Company, including salaries,
number and names of Company employees, titles and positions of each
employee, and the names and positions of the Company's officers and Board
members.
3.2. Annual Objectives. The Company shall maintain a
written policy statement on a quarterly and annual basis defining its
objectives with respect to its growth and development, and shall provide EDA
with copies of such written policy statement. The Company shall also
provide to EDA periodic reports on the Company's growth and development,
as may be reasonably requested by EDA from time to time.
3.3. Regular Meetings. The Company shall conduct and hold
regular periodic meetings with the EDA Executive Director and members of
the EDA Commission as determined appropriate for the purpose of reviewing
the Company's progress. The Company acknowledges that as part of the
services provided to it hereunder, the Company shall receive advice and
counsel from such Executive Director and EDA Commissioners. The
Company shall hold and conduct such meetings at least once every quarter
during the term of this Agreement.
3.4. Board Meetings. The Company shall provide EDA with
written notice of, and allow an EDA representative or designee to attend, all
regular and special meetings of the Company's Board of Directors and/or
Board of Advisors (collectively the "Boards"), subject to the right of the
Company's Board of Directors to conduct confidential deliberations without
EDA attendance. Although an EDA representative or designee may offer
guidance or advice to the Boards, no officer, director, agent, or employee of
EDA shall be deemed a member of the Company's Boards. Any EDA
representative or designee attending the meetings for the Company's Boards
shall attend without a vote, without compensation, and without fiduciary or
legal responsibility to the Company, its officers, directors, or stockholders.
The Company shall indemnify the EDA, including its representative or
designee attending such Board meetings, against all costs and liabilities to
the same extent as the Company so indemnifies its officers and/or directors.
• The EDA, or its representative or designee, shall hold all Company
information in strict confidence.
3.5. Job Openings. The Company agrees to post all job
• openings related to their warehouse, dist-Fibuticalr final assembly, and o2<7÷ 13
shipping/packaging with the Private Industry Council 5 at 657 Main Street
NW, Elk River, Minnesota 55330, Phone 441-5903, and the Company agrees
to keep a written record of all persons interviewed and hired by completing
the Notice to Employee attached as Exhibit B. The Company acknowledges
that a portion of the funds used to facilitate the Elk River Business Incubator
are provided from Federal Community Development Block Grants and as
such, the EDA and Company are required to meet certain standards for the
use of such funds.
3.6. Vendor Contracts. The Company shall make available to
the EDA Executive Director, its vendor contracts. Such vendor contracts will
be used to provide opportunities to local manufacturing companies and
service providers in order to create and retain jobs in our community. The
Company is strongly encouraged to utilize local businesses in its
manufacturing and production of goods,'however the Company is allowed to
make the final decision on its own vendors at all times.
4. INDEMNIFICATION. The Company shall indemnify and hold
harmless the EDA from any loss, damage, expense, liability, or claim,
including without limitation attorneys' fees and expenses of litigation, to
which such parties may become subject, as a result of any claim made
• against EDA, arising out of: (a) any failure of the Company to perform any of
its covenants, agreements or undertaking contained in this Agreement, the
lease of space, or in any other agreement executed in connection with the
transactions contemplated herein; or (b) any other action or inaction of the
Company, its directors, officers, employees, or designees, which action or
inaction is not a result of any fault on the part of the EDA.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
A. The EDA, Larry Hickman, and Genesis Portfolio
Partners, LLC agrees that during the term of this Agreement and for a
period of two (2) years immediately thereafter, it shall not, other than to EDA
Commissioners, and in a non-public format, disclose to any individual, firm,
corporation, partnership, or other business entity, or use for its own financial
gain or benefit, any Confidential Information (defined below), that it obtained
during the term of this Agreement. "Confidential Information" shall mean
any and all information (other than trade secrets) relating to the Company's
business provided to the EDA, Larry Hickman, and Genesis Portfolio
Partners, LLC during the term of this Agreement or to which the EDA, Larry
Hickman, and Genesis Portfolio Partners, LLC had access or which it
compiled during the term of this Agreement, not generally known to the
• public, and with respect to which (i) the Company has clearly indicated to the
EDA, Larry Hickman, and Genesis Portfolio Partners, LLC that such
information is confidential and proprietary, or (ii) the Company has provided
written notice to the EDA, Larry Hickman, and Genesis Portfolio Partners,
LLC confirming that such information is confidential and proprietary. The
• Company agrees and acknowledges that it will not be required by this
Agreement to disclose to the EDA, Larry Hickman, and Genesis Portfolio
Partners, LLC (and each neither desires access to or disclosure of), any trade
secrets of the Company or any third party.
B. Section 5A. shall not apply to any information:
(i) Generally known in the trade or to the public
through no fault of the EDA; or
(ii) Disclosed to the EDA by any party having
legitimate possession thereof and the unrestricted right to
make such disclosure; or
(iii) Hereafter published in any publication for public
distribution or filed as public information with any
governmental authority; or
(iv) Required to be disclosed by applicable law or legal
process with the exception of the Open Meeting Laws
governing public boards and commissions; or
(v) Within the EDA's legitimate possession prior to the
Company's disclosure.
6. TERMS AND TERMINATION.
•
6.1. Term. The term of this Agreement shall be for a period
equal to the term of the Sublease attached herein as Exhibit A. Default or
termination of the Sublease by EDA shall cause a repayment to Company of
the stock issued to EDA proportionate to the remaining number of months
left in the Term of such Sublease. Termination of the Sublease is identified
within the Sublease, and shall be governed by the legal regulations of such
Sublease. The Company agrees that no cash disbursement shall be made at
any time to Company by the EDA due to default or termination under this
clause. Either party may terminate this Agreement with or without cause by
providing written notice to the other party ninety (90) days prior to
termination. The provisions in this Agreement calling for performance by
any party after termination shall continue in full force and effect.
6.2. Termination by the EDA for Cause. The EDA may
immediately terminate this Agreement, without providing any prior notice to
the Company, for cause, defined as follows:
A. The Company materially breaches any of the terms or
conditions of this Agreement, the Sublease, or, and any other
agreement in connection with the subject matter hereof, if such
breach continues for ten (10) days after the EDA has provided
the Company with written notice of the breach; or
B. The Company intentionally engages in conduct or
• activities materially damaging to the EDA.
6.3. Termination by Company for Cause. The Company may
immediately terminate this Agreement, without providing any prior notice to
the EDA, for cause, defined as follows:
A. The EDA materially breaches any of the terms or
conditions of this Agreement, the Sublease, or, and any other
agreement in connection with the subject matter hereof, if such
breach continues for ten (10) days after the Company has
provided the EDA with written notice of the breach; or
B. The EDA intentionally engages in conduct or activities
materially damaging to the Company.
7. GOVERNING LAW. This Agreement shall be governed,
construed, and enforced in accordance with the substantive laws, but not the
conflicts, of the State of Minnesota.
8. BINDING ARBITRATION. Any controversy or claim arising
out of or relating to this contract, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator(s) may
be entered in any court having jurisdiction thereof.
9. SEVERABILITY. If any provision or covenant of this
Agreement should be held by any court to be invalid or unenforceable, either
in whole or in part, such invalidity or unenforceability shall not affect the
validity of enforceability of the remaining provisions or covenants of this
Agreement, all of which shall remain in full force and effect. Should any
covenant contained herein be held by any court of competent jurisdiction to
be overly broad and unenforceable, the parties agree that any such court may
enforce so much of such covenant or restriction as is otherwise enforceable.
10. NOTICES. All communications provided for hereunder shall be
in writing and shall be deemed to be given when delivered in person or
deposited in the United States Mail, First Class, Certified Mail, Return
Receipt Requested, with proper postage prepaid, and addressed to the party
and at the address specified below.
11. ENTIRE AGREEMENT. This Agreement and the Schedules
attached hereto represent the complete and mutual understanding of the
parties with respect to the subject matter hereof, and supersede and cancel
all previous and contemporaneous written and oral agreements and
communications with respect to the subject matter hereof, except for the
Sublease herein attached as Exhibit A.
IN WITNESS WHEREOF, the parties have set their hands and seals
as of the day first above written.
CITY OF - 4K RIVER EDA: PROTECTORCARE, INC:
By By - /
Typed Name a, T. Sfe�`r�,.Kac,,, Typed Name Po-ml. ProhsD
Title Exs Title rF o
Date 2• /3 -47 Date `Z/`_7/p p
By By
Typed Name Typed Name
Title Title
Date Date
LAR•= I
By / �G a N
Typ: . aue
Title ®Wife 2 .
Date 3/59
GE , • 'TFOL PAP NERS, LLC
By %//,/
•
TypSITame „J
Titlerti
Date ,/ IN�i�F
r
Exhibit A
• Sublease
•
iky of
Elk ' •
River
March 4, 1999
•
Mr. & Mrs. James Mevissen
11070 181st Avenue NW
Elk River, MN 55330
Mr. & Mrs. Delton Warden
11020 181st Avenue NW
Elk River, MN 55330
Dear Mr. & Mrs. Mevissen and Mr. & Mrs. Warden:
Subject: Eminent Domain Proceedings
The purpose of this letter is to inform you of progress which has been made
over the last several weeks on the issue of eminent domain proceedings
regarding your properties.
At this time a residential property appraisal has been completed for each of
your properties. It is now necessary for that residential property appraisal to
be adjusted to reflect a commercial property value. Both appraisals are
currently in the process of being adjusted to reflect such commercial property
value.
On Monday, March 8, 1999, the Economic Development Authority will be
meeting, in part, to discuss and review the appraisals. You are invited to
attend and take part in this discussion if you so choose. The Economic
Development Authority will not have full appraisals with commercial property
value adjustments for this discussion on Monday, March 8. Therefore, this
issue may simply be an update to the Economic Development Authority on the
appraisal process and future steps in the eminent domain proceedings.
•
13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • TDD&Phone: (612)441-7420 • Fax: (612)441-7425
• If you have any questions or comments, please feel free to call me any time at
441-4905.
Sinc el
Pa 1 T. Steinman
Director of Economic Development
PTS:akh
c: Economic Development Authority
Pat Klaers, City Administrator
Peter Beck via fax @ 340-5584
Tony Gleekel via fax @ 339-6591
•
•