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HomeMy WebLinkAboutWPO201700011 Agreement - Nutrient Credits 2017-11-29PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of November 29, 2017 is made by and between CBAY-VA LLC, a Virginia limited liability company ("Seller's, and Ballif Investments, LLC ("Purchaser"). RECITALS: 1. Seller owns certain rights in and to certain real property located in the Commonwealth of Virginia, known as the Eastview Farm Nutrient Bank (the "Property"). Pursuant to Va Code § 62.1-44.15:35 the Virginia Department of Environmental Quality ("DEQ") and the Virginia Department of Conservation and Recreation ("DCR') have authorized, or will authorize, the generation and sale of nonpoint source nutrient credits ("Credits") generated at the Property to third parties to offset nutrient -related water quality permit needs. 2. Pursuant to Permit No. Pending ("Permit"), DEQ has approved the use of Credits for the project site described in the Permit (the "Project') upon the condition that Purchaser acquire 0.55 pounds of phosphorus Credits from Seller (the "Credit Obligation") and that Seller retire 0.74 pounds of the Property's associated nitrogen Credits. 3. Purchaser wishes to purchase and Seller wishes to sell on the terms set forth in this Agreement the phosphorus Credits for the purpose of satisfying the Credit Obligation. AGREEMENT: NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00), cash in hand paid by Purchaser to Seller and other good and valuable consideration, the receipt and sufficiency of which are hereby. acknowledged, Seller and Purchaser hereby agree as follows: 1. Agreement to Sell and to Purchase. Seller shall sell to Purchaser, and Purchaser shall buy from Seller, the phosphorus Credits for the purpose of satisfying the Credit Obligation. 2. Purchase Price. In consideration of Seller entering into this Agreement, Purchaser shall pay to Seller the sum of Six Thousand Three Hundred Twenty -Five and 00/100 Dollars ($6,325.00) at Closing by company, certified or cashier's check or by wired transfer of immediately available funds to an account and financial institution designated in writing by Seller (the "Purchase Price"), and once paid, the Purchase Price shall be considered fully earned and non-refundable. CBAYNA LLC Eastvie Farm Purchase and Sale Agreement 1 11/29/2017 3. CloSm* . (a) Date and Location. Closing under this Agreement ("Closing") shall occur by 5:00 p.m. on or before the date that is fifteen (15) days from the date first above written ("Closing Date") unless Seller agrees in writing to a later date. Closing shall occur at Seller's office in Richmond, Virginia, or at such other place as Purchaser and Seller may agree. TIME IS OF THE ESSENCE as to the Closing Date. (b) Deliveries at Closine. At Closing, Seller shall (i) execute and deliver to Purchaser an Affidavit of Phosphorus Credit Sale in substantially the form attached hereto as Exhibit A (the "Affrdavit'j, and (ii) execute and deliver to Purchaser a Bill of Sale in substantially the form attached hereto as Exhibit B. At Closing, Purchaser shall pay the Purchase Price to Seller. (c) Delivery to DEONSMP Authority. Promptly following Closing, Seller shall provide DEQ and/or the Virginia Stormwater Management Program ("VSMP") Authority with an original, executed Affidavit. (d) Closing Costs. Seller shall pay the cost of preparing the Bill of Sale and Affidavit, and Seller's attorney's fees. Purchaser shall pay Purchaser's attorney's fees and other costs of Closing, if any. (e) Water Quality Enhancement Fee. Promptly following Closing, Seller shall pay the water quality enhancement fee required by Va Code § 62.1-44.15:35 Subsection E. (f) Termination. If Closing does not occur on or before the Closing Date then this Agreement shall automatically terminate and be of no further force or effect. In the event of such termination, Purchaser and Seller shall each be released from all further duties or obligations contained herein. 4. Seller's Representations and Warranties. Seller hereby makes the following representations and warranties: (a) Authorization. Execution and Delivery. This Agreement has been duly authorized, executed and delivered by all necessary action on the part of Seller, constitutes the binding agreement of Seller and is enforceable in accordance with its terms. (b) Reservation of Credit Capacity. During the period beginning on the date of execution of this Agreement and ending upon the earlier of (i) Closing or (ii) termination of this Agreement, Seller will not sell Credits from the Property that would cause the remaining Credits to be insufficient for the purpose of satisfying Seller's obligations under this Agreement. (c) ComRfiance with Laws. Seller will comply with all applicable laws and regulations relating to the sale of the phosphorus Credits to Purchaser. CBAY-VA LLC Eaatview Ferro Purchase and Sale Agreement 2 11/29/2017 5. Purchaser's Representations and Warranties. Purchaser hereby makes the following representations and warranties as of the date of this Agreement. (a) Authorization. Execution and Deliverv. This Agreement has been duly authorized, executed and delivered by all necessary action on the part of Purchaser, constitutes the valid and binding agreement of the Purchaser and is enforceable in accordance with its terms. (b) Reliance. In entering into this Agreement, Purchaser 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 herein. 6. Default. (a) By Purchaser. If Purchaser defaults in performing any of Purchaser's obligations under this Agreement, and if such default continues for a period of ten (10) days after Seller has provided written notice to Purchaser of such default, Seller may terminate this Agreement by providing written notice to Purchaser. Upon such termination neither party shall have any further rights or obligations hereunder, except as expressly provided herein. Seller hereby expressly waives any right that Seller may have to damages, whether compensatory, consequential or otherwise, or to seek specific performance from Purchaser as a result of such default. (b) By Seller. If Seller defaults in performing any of Seller's obligations under this Agreement, and such default continues for a period often (10) days after Purchaser has provided written notice to Seller of such default, the Purchaser's sole remedies shall be to demand and receive specific performance of Seller's obligation hereunder including release of Affidavit of Phosphorous Credit Sale and Bill of Sale upon payment of the Purchase Price, in such event neither party shall have any further rights or obligations hereunder, except as expressly provided herein. Purchaser hereby expressly waives any right that Purchaser 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 Purchaser, the prevailing party shall be entitled to an award of its costs incurred in such litigation, including reasonable attorneys' fees and costs, and court costs. Effect of Condemnation. Regulatory Action or Unavoidable Delays. (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 phosphorus Credits to Purchaser at Closing as specified in this Agreement, then Seller may terminate this Agreement by providing written notice to Purchaser at any time prior to Closing. If Seller elects CBAYNA LLC Eastview Farm Purchase and Sale Agreement 3 11/29/2017 to terminate this Agreement as provided in this subparagraph, neither party shall have any further rights or obligations hereunder, except as expressly provided herein. (b) Reodatory Action. (i) If Seller is unable to sell the phosphorus Credits to Purchaser 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 Purchaser. If Seller elects to terminate this Agreement as provided in this subparagraph, and such termination occurs prior to Closing, then neither party shall have any further rights or obligations hereunder, except as expresslyprovided herein. (ii) If prior to Closing Purchaser is prevented by any regulatory agency from satisfying the Credit Obligation by purchasing the phosphorus Credits as provided in this Agreement, Purchaser may terminate this Agreement by providing written notice to Seller. If Purchaser elects to terminate this Agreement as provided in this subparagraph, then neither party shall have any further rights or obligations hereunder, except as expressly provided herein. Indemnities. (a) Seller's Indemnities. Seller shall indemnify, defend and hold harmless Purchaser and Purchaser'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) Purchaser's Indemnities. Purchaser 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 Purchaser's breach of the representations and warranties contained in Paragraph 5 and Purchaser's failure to comply with any permit, authorization or condition thereof relating to Purchaser's plan to satisfy the Credit Obligation. (c) Survival. The indemnity provisions of this Paragraph shall survive Closing and termination of this Agreement for a period of three (3) years after the date of this Agreement. 9. Notices. Each notice, request, demand or other communication hereunder will be in writing and will be deemed to have been duly given (i) when delivered by hand, or (ii) three (3) business days after deposit in United States certified or registered mail, postage pre- paid, return receipt requested, or (iii) one (1) business day after delivery to a recognized overnight courier service, in each case addressed to the parties at the following addresses: CBAYNA LLC EmMew Farm Purchase and Sale Agreement 4 11/29/2017 If to Seller: CBAY-VA LLC c/o Resource Environmental Solutions, LLC ATTN: Elizabeth M. Yost 1408 B Roseneath Road Richmond, VA 23230 With a copy to: If to Purchaser: Ballif Investments, LLC 170 South Pantops Drive Charlottesville, VA 22911 Attn: Frank Ballif With a copy to: 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. 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. This Agreement shall not be modified or amended except by a written document executed by both parties to this Agreement. 11. Governing Law. The validity, interpretation and performance ofthis 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. 12. 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. 13. 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 CBAY-VA LLC Eastview Farm Purchase and Sale Agreement 5 11129/2017 this Agreement shall be effective and binding upon the parties. The Recitals are incorporated as part of this Agreement as provided herein. 14. 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. 15. CounMarts. 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. [SIGNATURE PAGES TO FOLLOW] CEAYNA LLC Eastview Farm Purchase and Sale Agreement 6 11/2912017 IN TESTIMONY WHEREOF, the parties hereto have signed, executed and acknowledged this instrument as their free and voluntary acts, in multiple originals, on the date first set forth above. SELLER: CBAY-VA LLC, a Virginia limited liability company By: Ckz ",6w6lo Name: Claire Wolanski Title: Solutions Analyst TIN: 27-4832003 CBAY-VA LLC Eastview Farm Purchase and Sate Agreement 7 12112/2017 IN TESTIMONY WHEREOF, the parties hereto have signed, executed and acknowledged this instrument as their free and voluntary acts, in multiple originals, on the date first set forth above. PURCHASER: BALLIF INVES TS, L C By: Name: Frank Ballif Title: Manager TIN: 20-PLI553O Project: Meade Builders Office Building EXHIBITS Exhibit A - Affidavit of Phosphorus Credit Sale Exhibit B — Bill of Sale CSAYNA LLC Eastview Farm Purchase and Sale Agreement 8 11I29/2017 Exhibit A CBAY-VA LLC — EASTVIEW FARM AFFIDAVIT OF PHOSPHORUS CREDIT SALE CBAY-VA LLC, a Virginia limited liability company (the "Company"), hereby certifies the following: 1. Pursuant to that certain Purchase and Sale Agreement dated November 29, 2017 (the "Agreement"), between the Company (as Seller) and Ballif Investments, LLC ("Purchaser"), the Company, for the benefit of the Purchaser, agreed to sell 0.55 pounds of nonpoint source phosphorus Credits to Purchaser and retire the associated ratio of nonpoint source nitrogen Credits at the credit generating facility in the amount of 0.74 pounds of nitrogen Credits; 2. The Company and the Purchaser, as of the date hereof, have closed the transaction contemplated by the Agreement and the Company has sold to Purchaser the phosphorus Credits. WITNESS the following signature: CBAY-VA LLC, a Virginia /limited liability /fcompany By: Authorized Signatory Date: December 14, 2017 Sworn to and subscribed before me this 14 day of December , 2017, by Claire Wolanski Authorized Signatory, on behalfofCBAY-VA LLC, a Virginia limited liability company. State of Virginia My commission expires: 03/31/2021 City / County of: Richmond 0Te Elizabeth Mary Yost Commonwealth of Virginia Notary Public Commission No. 7750691 MY commission Expires 3131/2021 Notary PU is rmir#-Pend�dm __ Project Description: Meade Builders Office Building, Albemarle, VA Permittee: Ballif Investments, LLC Phosphorus Credits: 0.55 pounds Associated Nitrogen Credits: 0.74 Pounds WPO Application N: WPO-2017-00011 TMP(s): 07800-00-00-015C3 Bank Sponsor HUC: 02080203 CBAY-VA LLC Eastview Farm Purchase and Sale Agreement 9 12/14/2017 4. Exhibit B CBAY-VA LLC — EASTVIEW FARM BILL OF SALE BILL OF SALE, made as of December 12, 2017, by CBAY-VA LLC, a Virginia limited liability company ("Seller"), to Ballif Investments. LLC ("Purchaser"). WHEREAS, Seller and Purchaser have entered into that certain Purchase and Sale Agreement as of November 29, 2017 (the "Agreement"), with respect to the sale by the Seller and purchase by the Purchaser of nonpoint source phosphorus Credits generated within the Eastview Farm Property in Buckingham 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 ofwhich are hereby acknowledged, Seller hereby sells, transfers, assigns, conveys, delivers and sets over to Purchaser, its successors and assigns, 0.55 pounds of phosphorus Credits and retires 0.74 pounds of nitrogen Credits associated with the phosphorous Credits generated at the Eastview Farm Property 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 first above written. CBAY-VA LLC, a Virginia Limited �Liability 'Company By. — Authorized Signatory CBAY-VA LLC Eaatview Farm Purchase and Sale Agreement 10 1V121201/