HomeMy WebLinkAboutWPO201400041 Agreement - Nutrient Credits 2014-07-18AGREEMENT FOR PURCHASE AND SALE
OF NUTRIENT OFFSET CREDITS
THIS AGREEMENT FOR PURCHASE AND SALE OF NUTRIENTS OFFSET
CREDITS (this "Agreement") is dated this 18th day of Jul 2014, by and between Joy P. Massie
and James P. Massie, Jr. Irrevocable Trust ufa December 21, 2012,
Paul A. Layton and Alexander G. B. Massie, Trustees,("Seller") and MTAP LLC
("Purchaser").
RECITALS
A. Seller has established the Shaefer Nutrient Bank, (the "Bank") on approximately
18.7 acres located in Goochland County, Virginia in accordance with applicable statues and
regulations of the Virginia Department of Environmental Quality ("DEQ") and the Virginia
Department of Conservation and Recreation ("DCR").
B. The Bank has obtained all necessary permits and taken all necessary actions to
create nutrient reductions such that the Bank has nutrient offsets transferable to those entities
requiring offsets in accordance with the Chesapeake Bay Watershed Nutrient Credit Exchange
Program, DCR's Stormwater Offset Program, and the Virginia Soil and Water Conservation
Board's Guidance Document and Stormwater Nonpoint Nutrient Offsets approved on July 23,
2009, to those regulated entities qualifying for nutrient offsets.
C. Purchaser desires to purchase from Seller and Seller desires to sell to Purchaser
nutrient offsets measured in pounds of nitrogen or phosphorus (one pound of nitrogen or
phosphorus equals one nitrogen or phosphorus nutrient offset credit, as the case may be),
pursuant to. the terms and conditions set forth herein.
-1-
AGREEMENT
In consideration of the purchase price paid by Purchaser to Seller, and other good and
valuable consideration, the receipt and sufficient of which are hereby acknowledged, the parties
agree as follows:
1. Agreement to Sell and Purchase. Seller shall sell to Purchaser or its assigns, and
Purchaser or its assignees shall purchase from Seller 1.21 (nitrogen and/or phosphorus) nutrient
offset credits (the "Credits'). Seller acknowledges and agrees that, notwithstanding the payment
of the Purchase Price (as defined below) contemporaneously with the execution and delivery of
this Agreement, Purchaser may be purchasing the Credits for use on future projects, and the
Credits purchased herein shall be conveyed by Bill of Sale to Purchaser, its successors or assigns
in accordance with Section 3 herein, when and as Purchaser directs from time to time in writing
to Seller.
Upon payment of the Purchase Price, Purchaser shall have such rights as permitted by
law to re -convey all or a portion of its interest in the Credits to its successors in interest or
assignees for use on future projects, and Seller consents to such re -conveyances and agrees to
cooperate with and assist Purchaser in the documentation of such re -conveyances, including
delivery of notices of such re -conveyances to the DEQ, DCR and any other governing agency
with jurisdiction over the transfer of nutrient offsets.
2. Purchase Price. The purchase price for the Credits shall be $14,000.00 per lb. [of
nitrogen and/or phosphorus] for each Credit for a total Purchase Price of $16,940.00 for the
Credits. The Purchase Price shall be paid in collected funds on the date of execution of this
Agreement by both parties. Upon payment of the Purchase Price in full, neither Purchaser, nor
-2-
its successors, nor assigns shall be liable for the payment of any other consideration or fee to
Seiler in connection with the conveyance or assignment and/or re -conveyance of the Credits.
3. Delivery of Credits. Upon payment of the Purchase Price, Seller shall deliver to
Purchaser, its successors, or assignees the following documents to evidence the conveyance of
the Credits:
(a) An affidavit in substantially the same form as Exhibit A attached hereto, with the
project number filled in, and which shall also be delivered to the DEQ and, if appropriate, DCR,
by Seller.
hereto.
(b) A Bill of Sale for the Credits in substantially the same form. as Exhibit B attached
Seller acknowledges and agrees that Purchaser may request the conveyance of up to the
total amount of Credits purchased by Purchaser in one or more transactions to satisfy the
requirements of one or more permits issued by the DEQ, DCR and/or any other governing
agency all in accordance with the provisions of this Agreement.
4. Re resentations Warranties and Covenants. Seller hereby warrants, represents to
and covenants with Purchaser as follows:
(a) The matters set forth in Recitals A and B above; provided, however, Seller makes
no warranty or representation with respect to the eligibility of the Credits sold hereunder to
satisfy the permit requirements of any DEQ, DCR or other permittee.
(b) Seller has a sufficient number of credits in the Bank to consummate the
transactions contemplated herein.
(c) Seller shall follow and comply with all the requirements for maintenance of the
Bank as required by the DEQ, DCR and any other agency having jurisdiction over the Bank.
-3-
(d) To the best of Seller's knowledge, there is no pending or threatened action or
proceeding affecting Seller before any court, governmental agency or arbitrator that would
adversely affect Seller's ability to comply with its obligations hereunder.
(e) Seller shall be solely responsible, at its sole cost and expense, for compliance with
the requirements of with all federal, state and local statues, regulations and other requirements
applicable to the operation, management and maintenance of the Bank (collectively the Bank
Regulatory Requirements"),
{ That the execution and delivery of this Agreement on behalf of Seller has been
duly authorized and such execution and delivery shall constitute the valid and binding agreement
with Seller and is enforceable in accordance with its terms.
All of Seller's representations, warranties and covenants herein shall survive the sale of Credits
under this Agreement and the delivery of the Bill of Sale pursuant to this Agreement for a period
of 10 years.
S. Miscellaneous
(a) Notices. Any notice, demand or request which is required or permitted
hereunder shall be deemed effective when hand delivered, sent by a receipted overnight delivery
service, or mailed, via certified mail, return receipt requested to the following addresses:
-4-
Seller: Joy P. Massie and James P. Massie, Jr. Irrevocable Trust u/a December
21, 2012, Paul A. Layton and Alexander G. B. Massie, Trustee
P.O. Box 5035
Glen Allen, VA. 23058
Purchaser: MTAP, LLC
2903 N. Augusta St.
Stauto VA.24401
The parties may change the address for notices by delivery of a change of address to the other
party in accordance with the requirements set forth above.
(b) Brokerage Commission. Seller warrants to Purchaser that it shall pay a
5% brokerage fee to Stadia Development, Inc. (`Broker"); and also a b% water quality
enhancement fee to the permit issuing authority in connection with this transaction.
(c) Entire Agreement; Modification. There are no other agreements or
understandings, written or oral, between the parties with regard to the subject matter of this
Agreement. This Agreement shall not be modified or amended except by a written document
executed by both parties.
(d) Governing Law. The validity, interpretation and enforcement of this
Agreement shall be governed and construed in accordance with the laws of the Commonwealth
of Virginia, except to the extent that any applicable Federal Law or regulation shall supersede
Virginia law in relation to the matter set forth in the Agreement, in which case Federal Law shall
apply. Jurisdiction and venue for any litigation brought pursuant to this Agreement shall lie
exclusively in the state courts of Amelia County, Virginia or the United States District Court for
the Eastern District of Virginia to the express exclusion of any other jurisdiction or venue.
-5-
(e) Com liance with A licable Laws. Both parties shall comply with all
applicable federal, state and local laws, rules, regulations and orders in the conduct of their
obligations hereunder.
(f) Severability. The provisions of this Agreement shall be deemed severable
and, if any terms herein shall be held invalid, illegal or unenforceable, the remainder of this
Agreement shall continue to be effective and binding on the patties.
(g) Additional Assurances. Both of the parties agree to execute and deliver
any other document or documents that may be requested from time to time by the other party
necessary to perform such party's obligations under this Agreement.
(h) Nature of Credits. The sale and conveyance of the Credits pursuant to this
Agreement shall not constitute the conveyance or transfer of any right, interest or ownership of
real property or the Bank, nor shall such conveyance impose upon Purchaser any obligation, duty
or liability arising from or incident to ownership of an interest in real property,
(i) Assignability. Purchaser may assign its rights and obligations hereunder
to any person or entity. Seller shall not assign its obligations hereunder except in connection
with a sale or transfer of the real estate on which the Bank is located, without prior written
consent of Purchaser, which may not be unreasonably withheld by Purchaser.
G) Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which shall together constitute one and the same
Agreement.
WITNESS the following authorized signatures:
SELLER: Joy P. Massie and James P. Massie, Jr. Irrevocable Trust u/a December
21, 2012, Paul A. Layton and Alexander G. B. Massie, Trustees
By: C�
Paul A. Layton, Trustee
By:44�4j 4 rZ---
Alexander G. B. Massie, Trustee
PURCHASER: MTAP. LLC
BY: -- /-�U_ �
-7-
EXHIBIT A
AFFIDAVIT OF NUTRIENT CREDITS
I, Paul A. Layton and Alexander G.B. Massie, certify that I am now, and at all times
mentioned herein have been, a Trustees for Joy P. Massie and James P. Massie, Jr. Irrevocable
Trust u/a December 21, 2012 (the "Irrevocable Trust"), which is the owner of the Shaefer
Nutrient Bank located in Goochland County, Virginia, and as such I hereby certify the
following:
1) Pursuant to that certain Acquisition and Sale Agreement dated July 18,2014 ("The
Agreement'), between Irrevocable Trust (as Seiler) and MTAP.LLC, ("Acquirer"),
the Irrevocable Trust, for the benefit of the Acquirer, agree to sell 1.21 pounds of
phosphorus offsets and retire 4.05 pounds of nitrogen (representing the ratio of
nitrogen offsets to the phosphorus offsets at the offset generating facility) offsets to
Acquirer;
2) The irrevocable "1'rust and the Acquirer, as of the date hereof, have
closed the transaction contemplated by the Agreement and the Company has sold to
Acquirer phosphorus offsets and retired 4.05 pounds of nitrogen (representing the
ratio of nitrogen offsets to the phosphorus offsets at the offset generating facility )
offsets.
The execution and delivery of this Affidavit has been duly authorized and is not in
violation of the Documents of the Irrevocable Trust or any other agreement, document or
obligation to which the Irrevocable Trust is bound.
E:11
IN WITNESS WHEREOF, I have duly executed this Affidavit as of the !S day of
2014.
By P./ _TKtl 4
Paul A. Layton, Trustee
COMMONWEALTH OF VIRGINIA,
Ci Coun of r to -wit:
ll_" Sworn to and subscribed before me this'j day ofAwd 2014, the undersigned
Notary Public for and in the jurisdiction aforesaid, by Paul A. Layton, Trustee for Joy P. Massie
and James P. Massie, Jr. Irrevocable Trust u/a December 21, 2012.
Notary P lie ; •�N FENS7FR
w NO�ARY'•••Cy i
My commission ex iresPUS
: J 13� IZU�7 i LIc '
Registration No.: 2 - (5: 720sV41.
x . REG # MISS
MY OflM z -
C) ' EXPIRES .
IN WITNESS WHEREOF, I have duly executed this Affidavit as of the 1 day of
2014.
By: 'A, �/3 /z, lI'iGtlffY
'Alexander G. B. Massie, Trustee
COMMONWEALTH OF VIRGINIA,
City/ oun of &t"f �4 k , to -wit:
Sworn to and subscribed before me this tday of �.f' 2014, the undersigned
Notary Public for and in the jurisdiction aforesaid, Alexander G. . Massie, Trustee for Joy P.
Massie and James P. Massie, Jr. Irrevocable Trust u/a December 21, 2012.
Notary c
My Commission expires: 3 / 3 / 'LO -,��N, Erv37FR ••,,��
Registration Na. rn Z_ •~T�Y pUBL C
z .• REG # 7297274 : 7p
Y 'OwSSION
0 ' EXPIRES ,c Z
C� 31f2oV C9
-9-
Acquirer: MTAP, LLC
Name of Project: Goodwill Mill Creek Drive Charlottevile VA.
Phosphorus offsets: 1.21
Nitrogen offsets: 4.05
-10-
EXHIBIT B
BILL OF SALE
THIS BILL OF SALE is made as of the 18th day of July. 2014, by Joy P. Massie and
James P. Massie, Jr. Irrevocable Trust u/a December 21, 2012, Paul A. Layton, Trustee and
Alexander G. B. Massie, Trustee, ("Seller") and MTAP. LLC, ("Purchaser").
Seller and Purchaser have entered into that certain Agreement for Purchase and Sale of
Nutrient Offset Credits dated July 18, 2014, (the "Purchase Agreement"), the terms of which are
incorporated herein by reference and made a part hereof, with respect to the sale by Seller and
the purchase by Purchaser of nutrient offset credits generated by Seller's Shaefer Nutrient Bank
located in Goochiand County, Virginia.
In consideration of the payment of the Purchase Price $16,940.00 and (as defined in the
Purchase Agreement) and other good and valuable consideration, the receipt and sufficiency of
which are mutually acknowledged, Seller hereby sells, transfers, assigns, conveys, delivers, and
sets over to Purchaser, its successors or assigns the following nutrient offset credits (as defined in
the Purchase Agreement):
Nitrogen 4.05 lbs. and
Phosphorus: 1.21 lbs.
WITNESS the following authorized signature:
By: La.
Paul A. Layton, Trustee
By: AI&AA /P&--
Alexander G. B. Massie, Trustee
-11-
AFFIDAVIT OF NUTRIENT CREDITS
. 1, Paul A. Layton and Alexander G.B. Massie, certify that] am now, and at all times
mentioned lain have been, a Trustees for Joy P. Massie and James P. Massie, Jr. irrevocable
Trust Ada Member 21, 2012 (the "irrevocable Trust"), which is the. owner of the Shaefer
Nutrient Ban located in Ck*chland Couray, Virginia, and as such I hereby certify the following;
1) Pursuant to that certain Acquisition and We Agrreement dated duly 18I ,2014 ("The
Agmment"), ktween Irrevocable Trust (as Seller) and MTAP jwm9naettts• LLC,
CAcquirer"}, the Irrevocable Trust, for the benefit of the Acquirer, agree to sell 1.21
pounds of phosphorus offsets and retire pounds ofnitrogen (representing the
ratio of nitrogen offsets to the phosphorus offsets at the offset generating facility)
offsets to Acquirer;
2) The Irrevocable Trust and the Acquirer, as of the date hereof, Have
closed the transaction contemplated by the Agreement and the Company has sold to
Acquirer phosphorus offsets and tedr+ed 4M pounds of n!Uogm (teprmnting the
ratio of nitrogen offsets to the phosphorus offsets at the offset generating facility ?
offsets.
The execution and delivery of this. Affidavit has been duly authorized and is not in
violation of the Documents of the Irrevocable Trust or any other agreement, document or
obligation to which the Irrevocable Trust is bound.
IN FITNESS WRLREOF.I bane duly executed dus Affidavit as ofthe 2 � Of
CPAG VWTMM
OfVWA& By-
" Fab So30,WO Paul Lay
ton, Trust
COMM€3Ni ,!: kLTH OF V'IRGINIA.
City/county of Air" mr. c , to-viit:
Sworn to and subscribed Icforc nme th6 '31 day af„ 0c4w Le- _ .2014. the undasigned
Notary Public for and in the jurisdiction allotessid, by Paul A. Layton. Truster for Joy P. Massie
and Janes P. Massie, Jr. Irrevocable Trust. u/a Dewnber 21, '01 �.
iK
l�a2.1 .Public
My c:omm siun expires: -/ 7f 3D/r
Reotration No.: _ 7�; d 0 3 6/
IN WITNESS WHEREUF. I have duly executed this .'affidavit as cqf the .3! _ day of
Ale dtT G. B. Massie. Trust
COMMONWEAL rH OF VIRGINI&
!pity/County. of .,'tat l , to -wit:
Swom to and subscribed before me thus .� _S ay af- _ .2014; the urt crsigei
Notary Public.for and in ffie i udsdiction afore. d Alexander G. B. Massie, Trustee for Joy P.
Massie and hun" P, Mauiea Jr. In evo(mble Trust uJa December 21. 2012.
t4tf'r
Notary Public
'my CCtiimls.,lQ►i MIMS,
Restration No.
_-
Acquirer: MTAP investments, LIX
Name ofNect: Goodwill Mill Creep Drive, Owtogojl;.VA. [Q�,{Y'l ► nar+G� �' orb-oD-t 4`
Phosphorus ofl: 1,21
Nitiro,gcn offsets: 4.05