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HomeMy WebLinkAboutWPO201800058 Agreement - Nutrient Credits 2018-09-24NUTRIENT CREDIT PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), made as of the Effective Date (as defined herein) of this Agreement, is made by and between The Hills -Dale Farm, LLC a Virginia limited liability company ("Seller"), and the Lee S and Joanne Cutcliff ("Buyer"). RECITALS: 1. Seller owns certain rights in and to the Elk Island Nutrient Bank (the "Bank") located in Goochland County, Virginia. The Virginia Department of Environmental Quality ("DEQ") has authorized, pursuant to the Chesapeake Bay Watershed Nutrient Exchange Program (Va Code § 62.1-44.19:14 et seq.) and Va Code § 62.1-44.15:35 and associated guidance and regulations, the generation and sale of nonpoint source nutrient phosphorous and nitrogen credits ("Nutrient Credits") generated at the Bank to third parties for nutrient related water quality permit compliance. 2. Buyer has obtained VSMP Authority Permit No. Pending ("Permit"), for the "Fodia Residence — VSMP Plan" Proiect # WPO-2018-00058 on the condition that the Buyer acquire 0.32 pounds of phosphorus credits (the "Credits") from Seller and Seller retiring 1.44 pounds of the Bank's associated nitrogen credits. 3. Buyer wishes to purchase and Seller wishes to sell on the terms set forth in this Agreement the Credits to meet the Permit's requirement. AGREEMENT: NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00), cash in hand paid by Buyer to Seller and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as follows: 1. Agreement to Sell and to Purchase. Pursuant to this Agreement, Seller shall sell and Buyer shall purchase, subject to the terms and conditions herein, the Credits. 2. Deposit and Purchase Price. Within five (5) days of the Effective Date, Buyer shall pay to Seller a deposit of Five Hundred ($500.00) (the "Deposit"). Except under the terms of this Agreement, the Deposit shall be non-refundable but shall be fully applicable to the Purchase Price. Buyer shall pay Seller Three Thousand Two Hundred ($3,200.00), less any Deposit, at Closing (as defined herein). The Deposit and Purchase Price shall be paid by company, certified or cashier's check, or by wire transfer of immediately available funds to an account and financial institution designated in writing by Seller. 3. Closing. (a) Timing. Closing ("Closing") shall occur on or before 5:00 p.m. September 30, 2018 ("Closing Date") unless Seller agrees in writing to a later date. Closing shall occur at such place mutually agreeable to Buyer and Seller. TIME IS OF THE ESSENCE as to the Closing Date. (b) Deliveries between Buyer and Seller. Buyer shall pay the Purchase Price, less any Deposit, to Seller at Closing. Seller shall execute and deliver to Buyer at Closing (i) an Affidavit of Phosphorus Credit Sale in substantially the form attached hereto as Exhibit A (the "Affidavit"), and (ii) a Bill of Sale in substantially the form attached hereto as Exhibit B. (c) Deliveries to DEQ. No more than fourteen (14) days after Closing, Seller shall provide DEQ with an original, executed Affidavit and any water quality enhancement fee required by Va Code § 62.1-44.15:35. (d) Closing Costs. Seller shall pay the cost of preparing the Bill of Sale and Affidavit, and Seller's attorney's fees. Buyer shall pay Buyer's attorney's fees and other costs of Closing, if any. 4. Seller's Representations and Warranties. Seller hereby makes the following representations and warranties: (a) The individual signing this Agreement on behalf of Seller has the authority to bind the Seller to the agreements set forth herein. (b) During the period beginning on the Effective Date and ending upon the earlier of (i) Closing or (ii) termination of this Agreement, Seller shall reserve sufficient Nutrient Credits at the Bank for the purpose of satisfying Seller's obligations under this Agreement. (c) Seller will comply with all applicable laws and regulations relating to the generation, maintenance and sale of the Credits to Buyer. 5. Buyer's Representations and Warranties. Buyer hereby makes the following representations and warranties as of the Effective Date. The individual signing this Agreement on behalf of Seller has the authority to bind the Seller to the agreements set forth herein. 6. Default. (a) By Buy. If Buyer defaults in performing any of Buyer's obligations under this Agreement, and if such default continues for a period of ten (10) days after Seller has provided written notice to Buyer of such default, Seller may, at Seller's option, terminate this Agreement by providing written notice to Buyer whereupon this Agreement shall terminate. Seller shall retain the Deposit, if any, and Buyer and Seller shall have no further 2 obligations hereunder. Seller agrees that it waives any and all other rights and remedies against Buyer and all other claims for damages against Buyer arising from Buyer's default under the terms of this Agreement. (b) By Seller. If Seller defaults in performing any of Seller's obligations under this Agreement, and such default continues for a period of ten (10) days after Buyer has provided written notice to Seller of such default, the Buyer's sole remedies shall be to terminate this Agreement by providing written notice thereof to Seller, and to receive a refund of the Deposit, if any. Neither Seller nor Buyer shall have any further rights or obligations hereunder, except as expressly provided herein. Buyer hereby expressly waives any right that Buyer may have to damages, whether compensatory, consequential or otherwise as a result of Seller's default. (c) Attorneys' Fees. In the event of any litigation between Seller and Bum, the prevailing party shall be entitled to an award of its costs, including reasonable attorneys' fees and costs, and court costs, incurred in such litigation. 7. Condemnation, Regulatory Action or Force Majeure. (a) Condemnation. If the Property or any part thereof is taken prior to Closing pursuant to eminent domain proceedings, or if such proceedings are commenced prior to Closing, and as a result Seller determines that it will be unable to sell the Credits to Buyer as specified in this Agreement, then Seller may terminate this Agreement by providing written notice to Buyer at any time prior to Closing. If Seller elects to terminate this Agreement as provided in this subparagraph, any Deposit shall be refunded to Buyer and neither party shall have any further rights or obligations hereunder, except as expressly provided herein. (b) Re u�ry Action. (i) If Seller is unable to sell the Credits to Buyer as provided in this Agreement because of the action or order of any regulatory agency, regardless of whether or not Seller has contested or challenged such action or order, Seller may terminate this Agreement by providing written notice to Buyer. If Seller elects to terminate this Agreement as provided in this subparagraph, and such termination occurs prior to Closing, then any Deposit shall be refunded to Buyer and neither party shall have any further rights or obligations hereunder, except as expressly provided herein. (ii) If prior to Closing Buyer is prevented by any regulatory agency from satisfying the Permit by purchasing the Credits as provided in this Agreement, Buyer may terminate this Agreement by providing written notice to Seller. If Buyer elects to terminate this Agreement as provided in this subparagraph, then any Deposit shall be refunded to Buyer and neither party shall have any further rights or obligations hereunder, except as expressly provided herein. (c) Force Majeure. If Seller is unable to transfer the Credits to Buyer as provided in this Agreement because of damage to or loss of the Bank property resulting from fire, flood, storm, drought or other natural disaster, or from any other cause that is not the fault of Seller and is beyond Seller's reasonable ability to prevent or control, Seller may terminate this Agreement by providing written notice to Buyer at any time prior to Closing, and neither party shall have any further rights or obligations hereunder, except as expressly provided herein. 8. Indemnities. (a) Seller's Indemnities. Seller shall indemnify, defend and hold harmless Buyer and Buyer's authorized successors and assigns from and against any action, order, investigation or proceeding initiated by any government agency and arising from or based upon Seller's breach of the representations and warranties contained in Paragraph 4. (b) Buyer's Indemnities. Buyer shall indemnify, defend and hold harmless the Seller from and against any action, order, investigation or proceeding initiated by any government agency and arising from or based upon Buyer's breach of the representations and warranties contained in Paragraph 5 and Buyer's failure to comply with any permit, authorization or condition thereof relating to Buyer's plan to satisfy the Permit. (c) Survival. The indemnity provisions of this Paragraph shall survive Closing or earlier termination of this Agreement for a period of three (3) years after the Effective Date. 9. Notices. All notices and communications required or permitted to be given in this Agreement shall be in writing and hand delivered or mailed by certified or registered mail, postage prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service, addressed as follows: If to Seller: The Hills -Dale Farm, LLC ATTN: Andrew W. Pryor 3376 Pryor Road Goochland, VA 23062 With a copy to: If to Buyer: Lee S and Joanne Cutcliff 1495 Taylors Gap Road Charlottesville, VA 22903 With a copy to: Notice shall be deemed to have been given upon receipt or refusal. Each party shall have the right to change its address by providing the other party with at least ten (10) days prior written notice of the change. 10. Brokers. Each party hereunder represents and warrants that, except for the "Seller's Broker" or "Buyer's Broker" identified in this Paragraph 10, if any, it did not consult or deal with any broker or agent with regard to this Agreement or the transactions contemplated hereby, and each party agrees to indemnify and hold harmless the other party from all liability, expense, loss, cost or damage, including reasonable attorney's fees, that may arise by reason of any claim, demand or suit of any agent or broker arising out of or constituting a breach by the other party of this representation and warranty. This indemnity shall survive Closing and termination of this Agreement and shall not be limited by any provision specifying liquidated damages. Seller shall be responsible for the payment of the brokerage fee or commission, payable only upon Closing, to NA (the "Seller's Broker"). Buyer shall be responsible for the payment of the brokerage fee or commission, payable only upon Closing, to NA (the "Buyer's Broker"). 11. Entire Agreement and Modifications. There are no other agreements or understandings, written or oral, between the parties regarding this Agreement or the subject matter hereof. Buyer has not been induced by, and has not relied upon, any representations, warranties or statements, whether express or implied, made by the Seller or any agent, employee or other representative of the Seller, which are not expressly set forth in this Agreement. This Agreement shall not be modified or amended except by a written document executed by both parties to this Agreement. 12. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its conflict of laws principals. 13. Compliance with Applicable Laws. Both parties shall comply with all applicable federal, state and local laws, regulations and restrictions in the conduct of their obligations under this Agreement. 14. Severability. The provisions of this Agreement shall be deemed severable and, if any portion shall be held invalid, illegal or unenforceable for any reason, the remainder of this Agreement shall be effective and binding upon the parties. The Recitals are incorporated as part of this Agreement. 15. Binding Agreement. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. Any proposed assignment shall be subject to the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same Agreement. 17. Headines. The section and paragraph headings are for convenience of reference only and do not modify or restrict any provisions hereof and shall not be used to construe any provisions. 18. Effective Date. The term "Effective Date" shall be the date upon which the latter of Seller or Buyer executes this Agreement, such date to be evidenced by the date inserted beneath the signature of Seller and Buyer. WITNESS the following signatures SELLER: The Hills -Dale Farm, LLC By: C_L Casey Vensen, on behalf of The Hills -Dale Farm, LLC TIN: 82-4426530 Date: � II 11 _OA BUYER: Lee S and Joanne Cutcliff By. Name: Lee S and Joanne Cutclitt Title: Owners . TIN: Date: /.7 /B ATTACHMENTS Exhibit A - Affidavit of Phosphorus Credit Sale Exhibit B - Bill of Sale Exhibit A AFFIDAVIT OF PHOSPHORUS CREDIT SALE The Hills -Dale Farm, LLC, a Virginia limited liability company (the "Company"), hereby certifies the following: 1. Pursuant to that certain Nutrient Credit Purchase and Sale Agreement, (the "Agreement"), between the Company ("Seller") and Lee S and Joanne CutcliR , (`Buyer"), the Company, for the benefit of the Buyer, agreed to sell from its Elk Island Nutrient Bank in Goochland County, Virginia, 0.32 pounds of nonpoint source phosphorus Credits to Buyer and retire the associated ratio of nonpoint source nitrogen credits at the credit generating facility in the amount of 1.44 pounds of nitrogen credits; 2. The Company and the Buyer, as of the date hereof, have closed the transaction contemplated by the Agreement and the Company has sold to Buyer the 0.32 pounds of phosphorus Credits. WITNESS the following signature: The Hills -Dale Farm, LLC, a Virginia limited liability company By: ( __ Casey Jen n, on behalf of The Hills -Date Farm, LLC Date: "I n I{ / ) G IS Commonwealth of Virginia County / City of to -wit: Sworn to and subscribed before me this day, of ✓k L6 2018, by Casey J. Jensen, (Authorized Representative), on behalf of The Hills -ills- a1�LLC, a Virginia limited liability company. My commissionexp' s: �7 Ji�' �UZI ``�O\PpLEl.ICl. 14-f*,/ 9 6 / � �;o MONLy�c4�04�1 � U : U -Z �= Votary Public _ * ; REG. NO. 7719748 '. m EXPIRES 09,W 2021 Project Name: Foglia Residence —VSMP Plan : 58 Tax Map Peace/ ID N 08800-00-00-003DO i2Q �n�IRG\00':G Permlt8: Pending /// T,q . VN NN` Phosphorusshoe:ee S and Jomme32 CutcliR RV PUBt��� Associated Nitrogen Credit: 1.44 lbs. 8 Digit RUC: 02080205 Exhibit B The Hills -Dale Farm, LLC BILL OF SALE BH.L OF SALE, made as of , i cr LS 2018, by The Hills -Dale Farm, LLC, a Virginia limited liability col pany ("Seller"), to Lee S and Joanne Cuteliff ("Buyer"). WHEREAS, Seller and Buyer have entered into that certain Nutrient Credit Sale Agreement (the "Agreement'), with respect to the sale by the Seller and purchase by the Buyer of nonpoint source phosphorus Credits generated within the Elk Island Nutrient Bank in Goochland County, Virginia. NOW, THEREFORE, for and in consideration of the payment of the Purchase Price (as defined in the Agreement) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller hereby sells, transfers, assigns, conveys, delivers and sets over to Buyer, its successors and assigns, 032 pounds of phosphorus Credits and retires 1.44 pounds of nitrogen credits associated with the phosphorous Credits generated at the Elk Island Nutrient Bank as such are described in the Agreement. TO HAVE AND TO HOLD all such phosphorus Credits hereby sold and transferred to Buyer and its successors and assigns forever. IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed by its duly authorized representative as of the date fast above written. The Hills -Dale Farm, LLC By: Casey Jens , on behalf of The Hills -Dale Farm, LLC Project Name: Foglia Residence— VSMP Plan WP04: WPO-2018-00058 Tax Map Parcel ID p: 08800-00-00-003DO Permit p: Pending Permiffee: Lee Sand Joanne Cuteliff Phosphorus Credits: 032 lbs. Associated Nitrogen Credit: 1.44 lbs. 8 Digit HUC: 02080205 Associated Nitrogen Credit 1.44 lbs.