Anthony Nelson | Galena
Real Estate Purchase and Performance Contract
1. The City of Galena agreed to purchase the property located at the Highway 69A and Lostine on the terms established by the contract.
2. The City of Galena purchased the property from Jordan Disposal for $1.00. Jordan Disposal will pay all taxes up to the date the deed is delivered to the city.
3. The closing date of this contract takes place within thirty days of the effective date of the contract, unless both parties agree to a different date. Title of Property will pass to the city after the title clears all obligations as a Special Warranty Deed.
4. CONTINGENCIES: The City of Galena has within thirty days of the contract’s effective date to investigate the property, including surveys, tests, and permit acquisition. For Jordan Disposal to uphold its end of the contract, the City of Galena agrees to obtain all required permits, licenses, authorizations, etc., for the use of the property as a waste and sanitary disposal landfill. The city also agrees to enter into a long term Waste Management Contract with Jordan Disposal (Exhibit C, attached to contract).
5. Both the City of Galena and Jordan Disposal deny employing any broker or third party that is to receive a commission in connection to the sale of the property.
6. Before closing, if the property is damaged by fire or other event, or taken under the power of eminent domain, then either the city or Jordan Disposal have five days after the event to terminate the contract. If not terminated, the contract is unaffected.
7. The City of Galena accepts the property with no promises or guarantees as to its condition; suitability for any purpose; its compliance with laws or ordinances; compliance with any environmental protection, pollution, or land use laws, or the existence of hazardous materials in/on the property; nor any other matter regarding the property.
Galena accepts that it must rely only on its own investigation of the property, not on any information provided by Jordan Disposal, and waive any objections stemming from the property or any hazardous materials on the property. Galena also agrees that Jordan Disposal has not kept information as to the condition of the property from the city.
Galena accepts the property “as is.”
8. The contract is binding on the successors and assigns of both parties. Jordan Disposal may assign the contract to another party, but the contract’s obligations must be met by that new party.
9. DEFAULT AND/OR TERMINATION OF WASTE MANAGEMENT CONTRACT: If the City of Galena defaults before closing, Jordan Disposal would have the
right to seek a remedy in court. If the city defaults on its obligations Jordan Disposal, the property could be reverted back to Jordan Disposal. Jordan Disposal could instead demand ten million dollars ($10,000,000) if the city does not remedy a breach of contract, or if Jordan Disposal is not able to secure the full financial benefit and full term of operation of thirty years.
By signing the contract, the city—“having been carefully advised by counsel”—agrees that the damages to be paid would be reasonable given the financial commitments made by Jordan Disposal.
If the Waste Management Contract (Exhibit C) is terminated for a reason other than the city defaulting, Jordan Disposal could demand the property back, or go to court if the city refuses.
If Jordan Disposal defaults, the city has all remedies available to it at law or in equity.
10. Miscellaneous Provisions: If either party waives any breach of any term in the contract, the waiver does not apply to any other breach of any other term. Any waiver must be in writing and signed by both parties.
– All notices, requests, demands, etc., must be in writing.
– “Time is of the essence:” both parties understand the need for the quick/timely execution of the elements of the contract.
– Severability: if any provision is found to be unenforceable, the rest of the contract is still valid.
– Amendment: both parties must agree in writing to amend the contract.
– The parties agree to all provisions within the contract, but are not bound to any agreements or implied obligations not contained in the contract.
– The City of Galena is not allowed to record any memorandum or other document concerning the subject matter of the contract.
Contract for Operation of Waste Management Facility (Galena Municipal Landfill)
1. The operator, Jordan Disposal, has to construct, install, operate, and maintain the Galena Municipal Landfill at the annexed site.
a. The operator must construct and operate a solid waste facility on the site, including: constructing roads, berms, ditches, stream diversions, embankments, temporary waste holding and storage facilities, office structures, laboratories, equipment shelters, and anything else required.
b. The operator must conduct engineering and testing, excavate and extract gravel, soil, clay, and other minerals required and install liners as needed.
c. The operator must drill and maintain water wells and install utilities. The City of Galena “shall use its best efforts” to bring utilities to the site.
d. The operator must carry out all waste handling, storage treatment, and disposal, including pending, cover stock piling, liners, fill and cover placement and compaction, drainage, containment pods, pollution and nuisance prevention.
e. The operator has to deposit all non-radioactive waste within the facility, except that excluded by law.
f. The city has to obtain all required permits and renew them when necessary.
g. The operator must maintain all roads and rights of way on the site and reimburse Galena or Cherokee County if they repair Lostine Road from Hwy 69 eastward to any entrances to the site.
h. The operator must provide security to prevent unauthorized entry. A five-strand barbed wire fence will be constructed.
i. The operator will be allowed to use all water rights of the city that are part of the site. The city is to help the operator obtain additional water rights if needed, but the city is not obligated to fund them.
j. The city agrees to give Jordan Disposal sole rights to the site for the life of the contract.
2. Jordan Disposal has to obtain the following insurance:
a. Workers’ compensation
b. Automobile liability
c. General liability
d. Owner’s liability
3. While the landfill is in operation, Jordan Disposal will be responsible for all liabilities, penalties, fines, demands, suits, etc. Once the landfill is closed or the agreement has ended, Jordan Disposal will not be liable.
4. Term of Agreement: Thirty years, beginning ninety days after the contract takes effect.
5. Any governmental agency with jurisdiction over the landfill, including the city, can inspect the site and its operations.
6. Compensation of Method of Payment
a. Jordan Disposal will pay the city $5.50 per ton from tipping fees. From that, the city has to pay the State of Kansas $1.00. The city then has to allocate $0.50 from its compensation for the Closure and Environmental Maintenance Fund as required by the state.
b. The city has agreed that it will not receive any fees from Jordan Disposal for any material used for ground cover or environmental control.
c. Jordan Disposal has agreed to reduce the tipping fee by 25% for the city, individual residents of the county, and municipalities in the county. Businesses and other commercial entities do not receive the discounted rate.
7. State Required Closure and Environmental Maintenance Fund and Bond. In addition to the $0.50 per ton sent to the state, the city will fund any required closure bond. The fund will also be used to pay:
a. Expenses incurred from extraordinary environmental events that are nonrecurring.
b. Legal and other reasonable expenses used to defend against environmental claims against the operator or the city. The fund is the only fund Jordan Disposal will have to provide for post-operations maintenance and environmental control.
8. Title to Waste: Jordan Disposal will have title to all solid waste, chemical, liquid, and hazardous waste until the closure of the site, at which point the title to all waste is vested in the city.
9. Title to Facilities: Upon completion of the term (30 years) of this agreement, or if the agreement is terminated, Jordan Disposal has 180 days to remove any equipment, personal property, or improvements purchased and installed by the operator. After 180 days anything left on the site becomes the city’s property.
10. Chemical Waste Transportation or Solidification Business: Operator, or an affiliated corporation, has the right to build facilities for a chemical waste and/or solid waste transportation and/or solidification business at an appropriate location on the site.
11. Condemnation: If the site is taken by any other governmental authority or through eminent domain, or if any part of the site is substantially interfered with that renders the site unsuitable for operation, Jordan Disposal can continue operation on the remaining portion of the site or cancel the agreement.
12. Force Majeure: If events beyond the operator’s control prevent the carrying out of its obligations, the agreement could be suspended.
13. Independent Contractor: Jordan Disposal will be an independent contractor on the site. Neither Jordan Disposal, nor anyone employed by Jordan Disposal, may be considered representatives, agents, employees, etc., of the city.
14. Assignment and Subletting: Jordan Disposal may assign this agreement to another entity with the written consent of the city.
15. Taxes: Any and all taxes, assessments or fees relating to the use of the site by Jordan Disposal, or construction, or operations on the site will be paid by the city.
16. Notices: All notices regarding this agreement must be delivered in writing.
17. Entire Agreement: Both parties agree to the whole agreement, and can only be changed by both parties in writing.
18. Governing Law and Severability: The agreement will be governed by the laws of the State of Kansas. If any provision is shown to be unenforceable, the remaining provisions are still in effect. The city agrees that no future ordinance or rule will be passed that will interfere with Jordan Disposal’s operation of the landfill.
19. Discrimination prohibited in hiring and employment.
20. Default: if the City of Galena or Jordan Disposal fails to uphold its end of the agreement, the defaulting party has thirty days correct that failure. Both parties can seek remedy if either defaults on the agreement.
21. Special Conditions: For Jordan Disposal to take on the contract’s obligations, within ninety days the Galena City Council must approve the agreement by ordinance, the city must apply for all permits for operation of the landfill. Once the city fulfills those obligations, Jordan Disposal has ninety days to commence with its obligations in the contract.