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Home My WebLink AboutWPO201800059 Agreement - Nutrient Credits 2019-07-19AGREEMENT FOR PURCHASE AND SALE OF NUTRIENT OFFSET CREDITS THIS AGREEMENT FOR PURCHASE AND SALE OF NUTRIENT OFFSET CREDITS (this "Agreement") is dated this 19th day of July. 2019, by and between Joy P. Massie and James P. Massie, Jr. Irrevocable Trust u/a December 21, 2012, Paul A. Layton and Alexander G. B. Massie, Trustees,("Seller") and University of Virginia Foundation, ("Purchaser"). RECITALS A. Seller has established the Shaefer Nutrient Bank, (the "Bank") on approximately 87.84 acres located in Goochland County, Virginia in accordance with applicable statutes 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. 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 5.80 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 $9,500.00 per lb. [of nitrogen and/or phosphorus] for each Credit for a total Purchase Price of $55.100.00 for the Credits. 3. Payment of Purchase Price. The Purchase Price shall be paid in collected funds on the date of execution of this Agreement by both parties but no later than 45 calendar days from the date of this Agreement unless seller consents in writing to a later date. Upon payment of the -2- Purchase Price in full, neither Purchaser, nor its successors, nor assigns shall be liable for the payment of any other consideration or fee to Seller in connection with the conveyance or assignment and/or re -conveyance of the Credits. 4. 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. 5. Representations, 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 and will maintain sufficient number of credits in the Bank to consummate the transactions contemplated herein. -3- (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. (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 statutes, regulations and other requirements applicable to the operation, management and maintenance of the Bank (collectively the Bank Regulatory Requirements"). (f) 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. 5. 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, Trustees P.O. Box 5035 Glen Allen, VA. 23058 Purchaser: Universi , of Virginia Foundation l Boars Head Pointe Charlottesville, VA 22903 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 Seller shall pay a 5% brokerage fee to RRG, LC, ("Broker"); and also a 6% water quality enhancement fee to the Virginia Department of Environmental Quality ("DEQ") 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 -5- exclusively in the state courts of Goochland County, Virginia or the United States District Court for the Eastern District of Virginia to the express exclusion of any other jurisdiction or venue. (e) Compliance with Applicable 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 parties. (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. 0) 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. -6- WHNESS the following authorized signatures: SELLER: Joy P. Massie and James P. Massie, Jr. Invvovable Trust ula December 21, 2012, Paul A. Layton and Alexander G. B. Massie, Tmstem By: �i CP. - T. t Ae < Paul A. Layton, Trutt yy-- By: Im /'ft" Alexander G. B. Massie, Trustee PURCHASER: University of Virginia Foundation By; � y� Its: Chief Executive Officer and Secretary '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 19, 2019, ("The Agreement"), between Irrevocable Trust (as Seller) and University of Virginia Foundation, ("Acquirer"), the Irrevocable Trust, for the benefit of the Acquirer, agrees to sell 5.80 pounds of phosphorus offsets and retire 26.04 pounds of nitrogen (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 retired 26.04 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. Signatures on Next Page -8- IN WITNESS WHEREOF, I have duly executed this Affidavit as of the _31 day of Tu , 2019. By: _TlN1 {i Q Paul A. Layton, Truste COMMONWEAL H OF V[RGINIA, City/County of , to -wit: �' ` Sworn to and subscribed before me this 31 day of 1 Jam, 2019, the undersigned Notary Public for and in thejurisdiction aforesaid, by Paul A. Layton, Trustee for Joy P. Massie and James P. Massie, Jr. Irrevocable T= 2012. JAMES MARSHALL DIXON Notary Public o P blic Commonwealth of Virginia Regbt.tion No. 9y5A390 My Camml111an Expires Feb 28, 2021 My commission expires: /0 /a (( Registration No.: 0 IN WITNESS WHEREOF, I have duly executed this Affidavit as of the -01 day of Ju, 2019 By: / f16/'L TWfsr Alexander G. B. Massie, Trustee COMMONWEALTH OF VIRGINIA, 6 City/County of Pflrl o to -wit: Sworn to and subscribed before me this day of 0\ , 2019, the undersigned Notary Public for and in the jurisdiction aforesaid, Alexander G. B. Massie, Trustee for Joy P. Massie and James P. Massie, Jr. Irrevocable Trust u/a December 21, 2012. OI. Pu lac JAMES MARSHALL DIXON Notary Public Cammonwealth of Virginia "lutntion No. 77543W My Commission expires: / V / [% ` My Eammbflan ExPirel Eab ze. 2an Registration No.: S t 0 z Masi_-��..-.:s.•t.d2,.�:a,u^_-.ief..:d.,u`N `axsx'oos?�`�nS'..:Pwrt.^va'�'.�k.^.=s..;'i..•�i.rtiY�� r+-s.� s� s.'. j EON o, _:+ is n no} v'r S;i--ads e:^.v.3"-:.. •. + Acquirer: University of Virginia Foundation Name of Project: University of Virginia Foundation Tennis Facilities and Parkin Lot of Expansion WPO Number: WPO-2018-00059 TMP(s): 07500-00-00-06300 Project HUC Code: 02080204 Bank Sponsor HUC: 02080205 VSMP Permit #: Pending Phosphorus offsets: 5.80 Nitrogen offsets: 26.04 -10- EXHIBIT B BILL OF SALE THIS BILL OF SALE is made as of the 3 I day of -3 " ( 2019, by Joy P. Massie and James P. Massie, Jr. Irrevocable Trust u/a December 211, 2012, Paul Layton, Trustee and Alexander G. B. Massie, Trustee, ("Seller") and University of Virginia Foundation, ("Purchaser"). Seller and Purchaser have entered into that certain Agreement for Purchase and Sale of Nutrient Offset Credits dated July 19, 2019, (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 Goochland County, Virginia. In consideration of the payment of the Purchase Price $55,100.00 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): Phosphorus: 5.801bs. and Nitrogen: 26.04 lbs. Project: University of Virginia Foundation Tennis Facilities and Parking Lot Expansion TMP:07500-00-00-06300 WPO Number: 2018-00059 VSMP Permit #: Pendin WITNESS the following authorized signature: By: a. 4- --rmr1tR Paul A. Lay[on, Trustee Alexander G. B. Massie, Trustee -12-