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Home My WebLink AboutWPO201700053 Agreement - Nutrient Credits 2020-06-26 (2)PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of June 3, 2020 is made by and between CBAY-VA LLC, a Virginia limited liability company ("Seller"), and County of Albemarle, Virginia, a political subdivision of the Commonwealth of Virginia ("Purchaser"). RECITALS: 1. Seller owns certain rights in and to certain real property located in the Commonwealth of Virginia, known as the Seven Islands 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 0.95 pounds of phosphorus Credits from Seller (the "Credit Obligation") and that Seller retire 4.27 pounds of the Property's associated nitrogen Credits. 3. Purchaser wishes to purchase, and Seller wishes to sel I 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. A reement t Sell and to Purchase. Seller shall sell to Purchaser, and Purchaser shall buy from Seller, 0.95 pounds of phosphorus Credits for the purpose of satisfying the Credit Obligation, and Seller shall retire 4.27 pounds of the Property's associated nitrogen Credits. 2. Purchase Price. in consideration of Seller entering into this Agreement, and agreeing to sell the Credits to Purchaser, Purchaser shall pay to Seller the sum of Ten Thousand Four Hundred Fifty and 00/100 Dollars ($10,450.00) 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. CBAY-VA LLC Seven Islands Purchase and Sale Agroement 1 4/20/2020 3. Closine. (a) Date and Lz tion. Closing under this Agreement ("Closing") shall occur by 5:00 p.m. on or before the date that is thirty (30) 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 Closing. 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 "Affidavit"), 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 DE /VSMP 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 § 62.144.15:35 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, i^Yecution and Delivc� v. 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 Capack. . 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 has sufficient Credits to satisfy the Credit Obligation and 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. CBAY•VA 1.LC Seven (elands Purchase and Sale Agreement 2 4120/2080 (c) Compliance with Laws. Seller has and will comply with all applicable laws and regulations relating to (i) the maintenance of the Property in accordance with the rules and regulations of the DEQ and DCR, and (H) the sale of the phosphorus Credits to Purchaser, including, without limitation, the retirement of associated nitrogen Credits applicable thereto. 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 Delivery. 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. d. 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) B - 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 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, and upon the completion of such obligations 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, each [)arty will he responsible for its owli legal Ices. 7. 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 CBAY-VA LLC Seven Islands Pumhase and Sale Agreement 3 4/2012M 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 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) Regulatory 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 expressly provided 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. 8. 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) 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: C$AY-VA LLC Seven Islands Purchase and Sale Agreement 4 4/20/2020 If to Seller: CBAY-VA LLC c/o Resource Environmental Solutions, LLC ATTN: Caitlan B. Parker 3600 Glenwood Avenue, Suite 100 Raleigh, NC 27612 With a copy to: If to Purchaser: County of Albemarle, Virginia, a political subdivision of the Commonwealth of Virginia 401 McIntire Road Charlottesville, Virginia 22902-4596 Attn: Jeffrey B. Richardson With a copy to: Each party shall have the right to change its address by providing the other party with at least ten 0 0) days prior written notice of the change. 10. Entire A reement and Modifcajons. 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. Gove Ring 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. 12. -Compliance with &,1 1icable 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. 52YAMbffily. 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 as provided herein. CBAYNA LLC Seven Islands Purchase and Sale Agreement 5 4120l2020 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. 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. [SIGNATURE PAGES TO FOLLOW] CBAY•VA LLC Seven islands Purchase and Sale Agreement 6 41=2020 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 Name: Caitlan B. Parker Title: Credit Sales Coordinator TIN: 27-4832003 C$AY•VA LLC Seven Islands Purchase and gale Agreement 7 4/20/2020 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: County of Albemarle, Virginia, a political subdivision of the Commonwealth of Virginia By: Name: Jeffrey B. Richardson Title: CountCountv Executive TIN: Project: Avon Street Extended Sidewalk Ap ro t Fortn: Y-LIPUL 24 D County Attorney Date EXHIBITS Exhibit A - Affidavit of Phosphorus Credit Sale Exhibit B — Bill of Sale Seven Islands Purchase and Sale Agreement 8 4/20/2020 Exhibit A CBAY-VA LLC — SEVEN ISLANDS NUTRIENT BANK 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 June 3. 2020 (the "Agreement"), between the Company (as Seller) and Counly of Albemarle Virginia. a }olitical subdivision of the Commonwealth of Virginia ("Purchaser"), the Company, for the benefit of the Purchaser, agreed to sell 0.95 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 4.27 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 company By: - Authorized Signatory Date: June 26, 2020 Sworn to and subscribed before me this 26th day of _ June , 2020, by Caitlan B. Parker , Authorized Signatory, on behalf of CBAY-VA LLC, a Virginia limited liability company. State of North Carolina Notary registration number: County/City of. Wake My commission expires: 09/04/2023 AMY STAL.EY NOTARY PUBLIC Johnston County /4" North Carolina My Commission Expires Sept. 4. 2029 Notary Public Avon Street Extended, Albemarle County, VA WPO#: WP0201700053 Project Name: Albemarle County Sidewalks Number of Phosphorus Credits: 0.95 lb. TMPs: 90-33, 90E-Al, 91-IF, 91-11), 91-13, 77-43, 77-44, 77-45, 77-46, 77-47 Project HUC: 02080204 Bank Sponsor HUC: 02080203 Permittee: County of Albemarle, Virginia CBAY-VA LLC Seven Islands Purchase and Sale Agreement 9 4/20/2020 Exhibit B CBAY-VA LLC — SEVEN ISLANDS NUTRIENT BANK BILL OF SALE BILL OF SALE, made as of June 26, 2020, by CBAY-VA LLC, a Virginia limited liability company ("Seller"), to County of Albemarle, Virginia, a political subdivision of the Commonwealth of Virginia ("Purchaser"). WHEREAS, Seller and Purchaser have entered into that certain Purchase and Sale Agreement as of June 3, 2020 (the "Agreement"), with respect to the sale by the Seller and purchase by the Purchaser of nonpoint source phosphorus Credits generated within the Seven Islands Nutrient Bank 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 of which are hereby acknowledged, Seller hereby sells, transfers, assigns, conveys, delivers and sets over to Purchaser, its successors and assigns, 0.95 pounds of phosphorus Credits and retires 4.27 pounds of nitrogen Credits associated with the phosphorous Credits generated at the Property, as such terms are described in the Agreement. TO HAVE AND TO HOLD all such phosphorus Credits hereby sold and transferred to Purchaser 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 Avon Street Extended, Albemarle County, VA WPO#: WP0201700053 Project Name: Albemarle County Sidewalks Number of Phosphorus Credits: 0.95 lb. TMPs: 90-33, 90E-A1, 91-1F, 91-1D, 91-13, 77-43, 77-44, 77-45, 77-46, 77-47 Project HUC: 02080204 Bank Sponsor HUC: 02080203 Permittee: County of Albemarle, Virginia CBAY-VA LLC Seven Islands Purchase and Sale Agreement 10 4/20/2020