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Home My WebLink AboutWPO201500001 Agreement - Nutrient Credits 2019-12-17 (2)AGREEMENT FOR PURCHASE AND SALE OF NUTRIENT OFFSET CREDITS THIS AGREEMENT FOR PURCHASE AND SALE OF NUTRIENTS OFFSET CREDITS (this "Agreement") is dated this 15 day of September, 2015, by and between Le Moulin, LLC, a Virginia limited liability company ("Seller") and Larry Hall, ("Purchaser"). RECITALS A. Seller has established the Malvern Environmental Bank (the "Bank") on approximately 50.85 acres located in Powhatan 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 Stonmwater 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: I . Agreement to Sell and Purchase. Seller shall sell to Purchaser or its assigns, and Purchaser or its assignees shall purchase from Seller 0.28 (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 $3,920.00 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 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. 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: -2- (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. (b) A Bill of Sale for the Credits in substantially the same form as Exhibit B attached hereto. 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. 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 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. (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 3- 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: Seller: Le Moulin, LLC c/o Timothy G. Bcnusa 2434 Robert E. Lee Road Powhatan, VA 23139 Purchaser: Larry Hall 1949 Northside Drive Charlottesville, VA. 22911 -4- 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 6% 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. Jurisdiction and venue for any litigation brought pursuant to this Agreement shall lie exclusively in the state courts of Chesterfield County, Virginia. (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. -5- (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. 6) 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: Le Moulin, LLC, a Virginia limited liability company By: - /IN -- Its: Managing Member PURCHASER: Larry Hall -6- EXHIBIT A AFFIDAVIT OF NUTRIENT CREDITS I, TIMOTHY G. BENUSA, certify that I am now, and at all times mentioned herein have been, the Manager of Le Moulin, LLC, a Virginia limited liability company (the "Company"), which is the owner of the Malvern Environmental Bank located in Powhatan County, Virginia, and as such I hereby certify the following: 1) Pursuant to that certain Acquisition and Sale Agreement dated September 15, 2015 ("the Agreement"), between Company (as Seller) and Lam Hall, ("Acquirer"), the Company , for the benefit of the Acquirer, agree to sell 0.28 pounds of phosphorus offsets and retire 1.26 pounds of nitrogen (representing the ratio of nitrogen offsets to the phosphorus offsets at the offset generating facility) offsets to Acquirer; 2) The Company 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 1.26 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 Operating Agreement of the Company or any other agreement, document or obligation to which the Company is bound. -9- 0 IN WITNESS WHEREOF, I have duly executed this Affidavit as of the 12 day of 2015. Le Moulin, LLC, a Virginia limited liability company By: -- Z Name: Timothy G. Benusa Title: Manager COMMONWEALTH OF VIRGINIA, City/County of LiAU0 toll to -wit: ,<L� 2015, the undersigned Sworn to and subscribed before me this 12 day of b Notary Public for and in the jurisdiction aforesaid, by Timothy G. Benusa, the Manager of Le Moulin, LLC, a Virginia. li a ability cote any. ?/ Not ry i'ublic My commission expires: , � / MEREDITH HINES nLLER Registration No.: ''/62kf 6 ` `a �` i . NOTARY PUBLIC 7526345 COMMONWEALTH OF VIRGINIA My Commission EXPires May 31, 2016 Acquirer: Lam Hall Name of Project: Northside Drive Stockpile Plan (Tax Mao 03200-00-00-07000 & 03200-00-00- 07100) HUC: 02080205 Phosphorus offsets: 0.28 Nitrogen offsets: 1.26 -10-