5.4a EMRUSR 10-11-2022SECOND AMENDMENT TO
SERVICE AGREEMENT
This SECOND AMENDMENT TO THE SERVICE AGREEMENT (the “Second
Amendment”) is entered into as of October , 2022 by and between Elk River Landfill, Inc. (“ERL”)
and Elk River Municipal Utilities (“ERMU”) (each a “Party” and collectively the “Parties”).
Recitals
A. ERL and ERMUentered into a Service Agreement on or about March 21, 2002, as subsequently
amended on or about March 17, 2006 (collectively, the “Agreement”); and,
B. The Agreement, by its terms, expires as of October 31, 2022. ERL and ERMU desire to amend
the Agreement to accomplish a transfer of applicable facilities from ERMU to ERL and to windup
the Agreement, all as set forth below.
NOW, THREFORE, in consideration of the premises, the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties agree to amend the Agreement in the following manner:
1) Terms. All capitalized terms not defined in this Second Amendment shall have the meaning set
forth in the Agreement.
2) Commercial Operation Date. For the avoidance of doubt, the Parties agree that the Commercial
Operation Date of the Facility was November 1, 2002. Accordingly, the Service Agreement shall
terminate automatically and without further action by the Parties at 11:59 P.M. on October 31, 2022.
3) Transfer of ERMU Facilities. The Parties wish to transfer certain ERMU property inside and
outside the generating and educational center structure to ERL, including structures, all electric generating
facilities, mechanical systems, furniture, and electrical devices outside the building including service
cabling from transformer to building, and two transformers.
4) AS-IS Basis. Subject to the terms and conditions of this Second Amendment, as of Transfer Date
set forth in Section 5, ERMU sells, conveys, transfers, assigns and sets over to ERL, its successors and
assigns, all of the right, title, and interest of ERMU in and to the ERMU Facilities. ERL hereby accepts
the assignment of the right, title, and interest of ERMU in and to the ERMU Facilities. The ERMU
Facilities are transferred by ERMU and accepted by ERL on an "as is, where-is" basis, with all faults, and
with no warranty or representation, express or implied, as to condition, design, or compliancewith
applicable law. Upon transfer, ERL assumes all responsibility and liability for the ERMU Facilities,
including their condition, maintenance, operation, and disposal.
5)Effective Date of Transfer.The transfer of ERMU Facilities to ERL shall occur on the later of
payment by ERL as described in Section 6, or November 1, 2022 (the “Transfer Date”). On the Transfer
Date, ERMU will surrender up and deliver ownership and possession of the ERMU Facilities to ERL, free
and clear of all liens and encumbrances relating to debt incurred or services performed by or on behalf of
ERMU. The Parties acknowledge and agree that the County of Sherburne (the “County”) holds a security
1
79
interest in the Facility, for which ERMU and the County are in the process of documenting satisfaction.
The Parties shall cooperate in good faith, including reasonable documentation, to achieve the satisfaction
and removal of the County’s security interest in the Facility.
6) Payment. As consideration for the ERMU Facilities, ERL shall pay ERMU the amount of Forty-
Five Thousand Dollars ($45,000.00), payable in same-day funds, by October 31, 2022.
7) ERL Responsibilities.As of the Transfer Date, ERL shall be solely responsible for all taxes,
permitting, licenses, insurance coverage, or regulatory compliance relating to the ERMU Facilities, as
well as any electricity that may be generated by them.
8) Memorialization of Temporary Cost-Share. As further detailed in the document attached as
Exhibit A to this Second Amendment, ERMU has paid the existing invoice for $210,991.95 (invoice #
46365B) to pay for the two engine re-rings on Engines 1 and 2. ERL agrees to provide ERMU with two
separate credits. The first, in the amount of $75,000, was provided February 24, 2022 (Invoice #
2/24/2022-706-770-CR); the second, a separate credit in the amount of $60,000, is pending and will be
incorporated into the final billing statement for 2022.
9) Indemnity. ERL shall indemnify, defend, and hold harmless ERMU and its Commissioners,
officers, employees, and agents, and their successors and assigns, from and against any and all claims,
demands, costs, damages, losses, liabilities, joint and/or several, reasonable attorneys’ fees, expert fees,
and disbursements, judgments, fines, and charges by any third parties, including but not limited to, injury,
death, or damages to any person or property (collectively, “Damages”) arising out of or relating to ERL’s
use, operation, maintenance, or ownership of the ERMU Facilities. This provision shall survive
termination of this Second Amendment. For the avoidance of doubt, the ERMU obligations in Section
5.2 of the Agreement shall expire as of the Transfer Date.
10) No Removal/Remediation. For the avoidance of doubt, ERMU shall have no obligation to
remove any ERMU Facilities or to restore the real property containing them.
11) No Assignment. Neither Party may assign the rights, obligations, or benefits of this Second
Amendment, without the prior written consent of the other Party.
12) Dispute Resolution. In the event that a dispute arises between the Parties as to the interpretation
or performance of this Second Amendment, then upon written request of either Party, representatives with
settlement authority for each Party shall meet in person and confer in good faith to resolve the dispute. If
the Parties are unable to resolve the dispute, they shall make every effort to settle the dispute through
mediation or other alternative dispute resolution methods. If the Parties are unable to resolve the dispute
through these methods, either Party may commence an action in the Sherburne County District Court.
13) Impact on the Agreement. Except as modified herein, the terms and conditions of the Agreement
shall continue in full force and effectuntil 11:59 on October 31, 2022, when the Agreement shall
terminate. Thereafter, the Second Amendment shall remain in full force and effect. For the avoidance of
doubt, the letter of intent dated as of December 20, 2018, by the Parties is null and void.
\[Signature page follows.\]
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80
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be executed by their
duly authorized representatives effective as of the day and year first above written.
Elk River Landfill, Inc. Elk River Municipal Utilities
By: By:
Name:Name:
Title: Title:
Date:Date:
3
81
EXHIBIT A
20212022
Additional MOR$162,013.10Not to Exceed $5,000 per month.
Additional Re-ring$48,978.85$ 60,000.00
Total$210,991.95$ 60,000.00
Grand Total of Additional Expenses$ 270,991.95
WM Contribution Total$ 135,000.00
Accounting for WM Contribution
ERMU Paid Invoices 2021 or will Pay 2022$210,991.95$ 60,000.00WM Bill after work completed
WM provide Credit$ (75,000.00)$ (60,000.00)WM Provide credit at same time as billed
Total Credits Provided by WM$ (135,000.00)
Total Paid by ERMU$135,991.95
*Note: Total Paid does not include extra monthly costs not to exceed $5,000/month
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82
A.ERL and ERMU entered into a Service Agreement on or about March 21, 2002, as subsequently
amended on or about March 17, 2006 (collectively, the “Service Agreement”); and,
B.The Service Agreement, by its terms, expires as of October 31, 2022. ERL; and
C.ERMU desire to amend the Agreement to accomplish a transfer of applicabledesires to sell and
ERL desires to purchase certain facilities from ERMU to ERL and to windup the Service
Agreement, all as set forth below.
NOW, THREFORE, in consideration of the premises, the mutual promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree to amend the Agreement in the following manneras follows:
1)Terms. All capitalized terms not defined in this Second AmendmentAgreement shall have the
meaning set forth in the Service Agreement.
2)Commercial Operation Date. For the avoidance of doubt, the Parties agree that the Commercial
Operation Date of the Facility was November 1, 2002. Accordingly, the Service Agreement shall
terminate automatically and without further action by the Parties at 11:59 P.M. on October 31, 2022 (the
“Termination Date”).
3)Transfer of ERMU Facilities. The Parties wish to transfer certain ERMU property inside and
outside the generating and educational center structure to ERL, including structures, all electric
generating facilities, mechanical systems, furniture, and electrical devices outside the building including
service cabling from transformer to building, and two step-up transformers (collectively, the “ERMU
Facilities”).
4)AS-IS Basis. Subject to the terms and conditions of this Second AmendmentAgreement, as of
Transfer Date set forth in Section 5, ERMU sells, conveys, transfers, assigns and sets over to ERL, its
successors and assigns, all of the right, title, and interest of ERMU in and to the ERMU Facilities. ERL
hereby accepts the assignment of the right, title, and interest of ERMU in and to the ERMU Facilities.
The ERMU Facilities are transferred by ERMU and accepted by ERL on an "as is, where-is" basis, with
all faults, and with no warranty or representation, express or implied, as to condition, design, or
compliance with applicable law. Upon transfer, ERL assumes all responsibility and liability for the
ERMU Facilities arising out of events or conditions occurring after the Transfer Date, including, but not
limited to, the condition, maintenance, operation, and disposal of the ERMU Facilities.
1
40616580.2
HANDOUT AT MEETING - REDLINE PURCHASE-SALE AGREEMENT
SECOND AMENDMENT TO
SERVICEPURCHASE AND SALE AGREEMENT
This SECOND AMENDMENT TO THE SERVICEPURCHASE AND SALE
AGREEMENT (the “Second AmendmentAgreement”) is entered into as of October
, 2022 by and between Elk River Landfill, Inc. (“ERL”) and Elk River Municipal Utilities (“ERMU”)
(each a “Party” and collectively the “Parties”).
Recitals
2
40616580.2
HANDOUT AT MEETING - REDLINE PURCHASE-SALE AGREEMENT
5) Effective Date of Transfer. The transfer of ERMU Facilities to ERL shall occur on the later of
payment by ERL as described in Section 6, or November 1, 2022 (the “Transfer Date”). On the Transfer
Date, ERMU will surrender up and deliver ownership and possession of the ERMU Facilities to ERL,
free and clear of all liens and encumbrances relating to debt incurred or services performed by or on
behalf of ERMU, and this obligation shall survive the Termination DataDate. The County of Sherburne
(the “County”) holds a security interest in the Facility relating to debt incurred by ERMU, and ERMU
agrees to satisfy and remove that security interest, and this obligation shall survive the Termination
Date. The Parties acknowledge that this process is ongoing and shall cooperate in good faith, including
reasonable documentation, to achieve the satisfaction and removal of the County’s security interest in
the Facility.
6) Payment. As consideration for the ERMU Facilities, ERL shall pay ERMU the amount of
Forty-Five Thousand Dollars ($45,000.00), payable in same-day funds, by October 31, 2022.
7) ERL Responsibilities. As of the Transfer Date and as between the Parties, ERL shall assume
responsibility for all future taxes, permitting, licenses, insurance coverage, or regulatory compliance
relating to the ERMU Facilities, as well as any electricity that may be generated by them.
8) Memorialization of Temporary Cost-Share. As further detailed in the document attached as
Exhibit A to this Second AmendmentAgreement, ERMU has paid the existing invoice for $210,991.95
(invoice # 46365B) for the two engine re-rings on Engines 1 and 2. ERL agrees to provide ERMU with
two separate credits. The first, in the amount of $75,000, was provided February 24, 2022 (Inv oice #
2/24/2022-706-770-CR); the second, a separate credit in the amount of $60,000, is pending and will be
incorporated into the final billing statement for 2022.
9) Indemnity. Commencing with the Transfer Date, ERL shall indemnify, defend, and hold
harmless ERMU and its Commissioners, officers, employees, and agents, and their successors and
assigns, from and against any and all claims, demands, costs, damages, losses, liabilities, joint and/or
several, reasonable attorneys’ fees, expert fees, and disbursements, judgments, fines, and charges by any
third parties, including but not limited to, injury, death, or damages to any person or property
(collectively, “Damages”) arising out of or relating to ERL’s use, operation, maintenance, or ownership
of the ERMU Facilities as of the Transfer Date. This provision shall survive termination of this
Agreement.
10) 9) No Removal/Remediation. For the avoidance of doubt, ERMU shall have no obligation to
remove any ERMU Facilities or to restore the real property containing them.
11) 10) No Assignment. Neither Party may assign the rights, obligations, or benefits of this Second
AmendmentAgreement, without the prior written consent of the other Party.
12) Governing Law; Venue. The Agreement shall be interpreted and construed according to the
laws of the State of Minnesota. All litigation regarding this Agreement shall be venued in Minnesota
District Court in Sherburne County, Minnesota.
13) 11) Impact on theScope of Agreement. This Agreement (including recitals and exhibits
hereto) constitutes the entire Agreement and, with respect to the sale of ERMU Facilities, supersedes all
prior agreements and understandings, oral and written, between the Parties hereto. For the avoidance of
doubt, the letter of intent dated as of December 20, 2018, by the Parties is null and void.
14)Amendment. Any alteration, variation, modification, or waiver of the provisions of this
Agreement shall be valid only after it has been reduced to writing and signed by both Parties
15)Drafting. The Parties agree that they participated equally in, and are jointly responsible for, the
drafting of this Agreement. In the event of any dispute, any ambiguity in this Agreement shall not be
construed against either Party. Headings are for convenience and are not a part of this Agreement.
[Signature page follows.]
3
40616580.2
HANDOUT AT MEETING - REDLINE PURCHASE-SALE AGREEMENT
4
40616580.2
By:
Title:Title:
By:
Name:
Date:Date:
Name:
Elk River Landfill, Inc.Elk River Municipal Utilities
HANDOUT AT MEETING - REDLINE PURCHASE-SALE AGREEMENT
16) Counterpart Signatures. This Agreement may be executed in counterpart copies by the Parties
and each counterpart, when taken together with the other, shall be deemed one and the same executed
Agreement. PDF counterpart signatures to this Agreement shall be acceptable and binding.
IN WITNESS WHEREOF, the Parties have caused this Second AmendmentAgreement to be
executed by their duly authorized representatives effective as of the day and year first above written.
EXHIBIT A
5
40616580.2
HANDOUT AT MEETING - REDLINE PURCHASE-SALE AGREEMENT
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HANDOUT AT MEETING - REDLINE PURCHASE-SALE AGREEMENT
1
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (the “Agreement”) is entered into as of October
, 2022 by and between Elk River Landfill, Inc. (“ERL”) and Elk River Municipal Utilities (“ERMU”)
(each a “Party” and collectively the “Parties”).
Recitals
A.ERL and ERMU entered into a Service Agreement on or about March 21, 2002, as subsequently
amended on or about March 17, 2006 (collectively, the “Service Agreement”); and,
B.The Service Agreement, by its terms, expires as of October 31, 2022; and
C.ERMU desires to sell and ERL desires to purchase certain facilities and to windup the Service
Agreement, all as set forth below.
NOW, THREFORE, in consideration of the premises, the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
1)Terms. All capitalized terms not defined in this Agreement shall have the meaning set forth in
the Service Agreement.
2)Commercial Operation Date. For the avoidance of doubt, the Parties agree that the Commercial
Operation Date of the Facility was November 1, 2002. Accordingly, the Service Agreement shall
terminate automatically and without further action by the Parties at 11:59 P.M. on October 31, 2022 (the
“Termination Date”).
3)Transfer of ERMU Facilities. The Parties wish to transfer certain ERMU property inside and
outside the generating and educational center structure to ERL, including structures, all electric generating
facilities, mechanical systems, furniture, and electrical devices outside the building including service
cabling from transformer to building, and two step-up transformers (collectively, the “ERMU Facilities”).
4)AS-IS Basis. Subject to the terms and conditions of this Agreement, as of Transfer Date set forth
in Section 5, ERMU sells, conveys, transfers, assigns and sets over to ERL, its successors and assigns, all
of the right, title, and interest of ERMU in and to the ERMU Facilities. ERL hereby accepts the assignment
of the right, title, and interest of ERMU in and to the ERMU Facilities. The ERMU Facilities are
transferred by ERMU and accepted by ERL on an "as is, where-is" basis, with all faults, and with no
warranty or representation, express or implied, as to condition, design, or compliance with applicable law.
Upon transfer, ERL assumes all responsibility and liability for the ERMU Facilities arising out of events
or conditions occurring after the Transfer Date, including, but not limited to, the condition, maintenance,
operation, and disposal of the ERMU Facilities.
5)Effective Date of Transfer. The transfer of ERMU Facilities to ERL shall occur on the later of
payment by ERL as described in Section 6, or November 1, 2022 (the “Transfer Date”). On the Transfer
Date, ERMU will surrender up and deliver ownership and possession of the ERMU Facilities to ERL, free
and clear of all liens and encumbrances relating to debt incurred or services performed by or on behalf of
HANDOUT AT MEETING - PURCHASE AND SALE AGREEMENT
2
HANDOUT AT MEETING - PURCHASE AND SALE AGREEMENT
ERMU, and this obligation shall survive the Termination Date. The County of Sherburne (the “County”)
holds a security interest in the Facility relating to debt incurred by ERMU, and ERMU agrees to satisfy
and remove that security interest, and this obligation shall survive the Termination Date. The Parties
acknowledge that this process is ongoing and shall cooperate in good faith, including reasonable
documentation, to achieve the satisfaction and removal of the County’s security interest in the Facility.
6) Payment. As consideration for the ERMU Facilities, ERL shall pay ERMU the amount of Forty-
Five Thousand Dollars ($45,000.00), payable in same-day funds, by October 31, 2022.
7) ERL Responsibilities. As of the Transfer Date and as between the Parties, ERL shall assume
responsibility for all taxes, permitting, licenses, insurance coverage, or regulatory compliance relating to
the ERMU Facilities, as well as any electricity that may be generated by them.
8) Memorialization of Temporary Cost-Share. As further detailed in the document attached as
Exhibit A to this Agreement, ERMU has paid the existing invoice for $210,991.95 (invoice # 46365B) for
the two engine re-rings on Engines 1 and 2. ERL agrees to provide ERMU with two separate credits. The
first, in the amount of $75,000, was provided February 24, 2022 (Invoice # 2/24/2022-706-770-CR); the
second, a separate credit in the amount of $60,000, is pending and will be incorporated into the final billing
statement for 2022.
9) Indemnity. Commencing with the Transfer Date, ERL shall indemnify, defend, and hold harmless
ERMU and its Commissioners, officers, employees, and agents, and their successors and assigns, from
and against any and all claims, demands, costs, damages, losses, liabilities, joint and/or several, reasonable
attorneys’ fees, expert fees, and disbursements, judgments, fines, and charges by any third parties,
including but not limited to, injury, death, or damages to any person or property (collectively, “Damages”)
arising out of or relating to ERL’s use, operation, maintenance, or ownership of the ERMU Facilities as
of the Transfer Date. This provision shall survive termination of this Agreement.
10) No Removal/Remediation. For the avoidance of doubt, ERMU shall have no obligation to
remove any ERMU Facilities or to restore the real property containing them.
11) No Assignment. Neither Party may assign the rights, obligations, or benefits of this Agreement,
without the prior written consent of the other Party.
12) Governing Law; Venue. The Agreement shall be interpreted and construed according to the laws
of the State of Minnesota. All litigation regarding this Agreement shall be venued in Minnesota District
Court in Sherburne County, Minnesota.
13) Scope of Agreement. This Agreement (including recitals and exhibits hereto) constitutes the
entire Agreement and, with respect to the sale of ERMU Facilities, supersedes all prior agreements and
understandings, oral and written, between the Parties hereto. For the avoidance of doubt, the letter of
intent dated as of December 20, 2018, by the Parties is null and void.
14) Amendment. Any alteration, variation, modification, or waiver of the provisions of this
Agreement shall be valid only after it has been reduced to writing and signed by both Parties
3
Elk River Landfill, Inc. Elk River Municipal Utilities
By: By:
Name: Name:
Title: Title:
Date: Date:
HANDOUT AT MEETING - PURCHASE AND SALE AGREEMENT
15) Drafting. The Parties agree that they participated equally in, and are jointly responsible for, the
drafting of this Agreement. In the event of any dispute, any ambiguity in this Agreement shall not be
construed against either Party. Headings are for convenience and are not a part of this Agreement.
16) Counterpart Signatures. This Agreement may be executed in counterpart copies by the Parties
and each counterpart, when taken together with the other, shall be deemed one and the same executed
Agreement. PDF counterpart signatures to this Agreement shall be acceptable and binding.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives effective as of the day and year first above written.
4
EXHIBIT A
2021 2022
Additional MOR $162,013.10 Not to Exceed $5,000 per month.
Additional Re-ring $48,978.85 60,000.00$
Total $210,991.95 60,000.00$
Grand Total of Additional Expenses 270,991.95$
WM Contribution Total 135,000.00$
Accounting for WM Contribution
ERMU Paid Invoices 2021 or will Pay 2022 $210,991.95 60,000.00$ WM Bill after work completed
WM provide Credit (75,000.00)$ (60,000.00)$ WM Provide credit at same time as billed
Total Credits Provided by WM (135,000.00)$
Total Paid by ERMU $135,991.95
*Note: Total Paid does not include extra monthly costs not to exceed $5,000/month
HANDOUT AT MEETING - PURCHASE AND SALE AGREEMENT