HomeMy WebLinkAboutWPO202000009 Agreement - Nutrient Credits 2020-08-25AGREEMENT FOR PURCHASE AND SALE
OF NUTRIENT OFFSET CREDITS
THIS AGREEMENT FOR PURCHASE AND SALE OF NUTRIENT OFFSET
CREDITS (this "Agreement") is dated this Sth day of April, 2020, by and between R&J
Investment, LC, a Virginia limited liability company ('`Seller') and "Counri of Albemarle,
Virginia a political subdivision of the Commonwealth of Virginia", ("Purchaser").
RECITALS
A. Seller has established the Hunts Creek Nutrient Bank, (the "Bank") on
approximately 151.00 acres located in Buckingham 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 ("DCW').
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:
l . Agreement to Sell and Purchase. Seller shall sell to Purchaser or its assigns, and
Purchaser or its assignees shall purchase from Seller 0.76 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 and Execution of Agreement. The purchase price for the Credits
shall be $10,000.00 per lb. [of nitrogen and/or phosphorus] for each Credit for a total Purchase
Price of $7,600.00 for the Credits. The Purchase Price shall be paid in collected funds on the date
of execution of this Agreement by both parties. This Agreement shall be executed by both parties
and the Purchase Price paid by the Purchaser within 45 days of the date of this Agreement,
unless Seller agrees in writing to a later date. 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.
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. 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.
(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 deliver% 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.
Miscellaneous
(a) Notices. Any notice, demand or request which is required or permitted
hereunder shall be deemed eflective when hand delivered. sent by a receipted overnight delivery
service, or mailed, via certified mail, return receipt requested to the following addresses:
Seller: R&J Investment, LC
c/o Ronald Pembelton
15961 Goodes Bridge Road
P.O. Box 559
Amelia Courthouse, VA 23002
Purchaser: "County of Albemarle Virginia, a political subdivision of the
Commonwealth of Virginia"
401 McIntire Road
Charlottesville_ VA 22901
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, (" Brokef'); 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
exclusively in the state courts of Buckingham 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.
WITNESS the following authorized signatures:
SELLER: R&J Investment, LC
a Virginia limited liability company
By:
Its: Managing Member
PURCHASER: County of Albemarle. Virginia, a political subdivision of the
Commonwealth of Virginia
401 WIntire Road
ar tte v gtma 22902
B . .�
Da
Name: Jeffrey B. Richardson
Title: County Executive
Approved as to Form: 10
CountyL-j�
EXHIBIT A
AFFIDAVIT OF NUTRIENT CREDITS
I, Ronald Pembelton certify that I am now, and at all times mentioned herein have been,
the Manager of R&J Investment, LC, a Virginia limited liability company (the "Com an ),
which is the owner of the Hunts Creek Nutrient Bank located in Buckingham County, Virginia,
and as such I hereby certify the following: `l1
1) Pursuant to that certain Acquisition and Sale Agreement dated Anril 2, 2029, ("The
Agreement"), between Company (as Seller) and "County of Albemarle Virginia, a
olitical subdivision of the Commonwealth of Virgi n� ("Acquirer"), the
Company, for the benefit of the Acquirer, agrees to sell 0.76 pounds of phosphorus
offsets and retire 2.54 pounds of nitrogen (representing the ratio of nitrogen offsets
to the phosphorus offsets at the offset generating facility) offsets to Acquirer "for the
County of Albemarle's SRTS Greer/Jouett Bicycle & Pedestrian Improvements
Project."
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 2.54 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.
IN WITNESS WHEREOF, I have duly executed this Affidavit as of the day of
Aja gu _- _ 2020.
R&J Investment, LC,
a Virginia limited liability company
By. A�w
�Z .-
Name: konald Pembelton
Title: Manager
COMMONWEALTH OF VIRGINIA,
City/County of 'N+Yu__^ ( 0" _, to -wit:
Sworn to and subscribed before me thisZ day of S . 2020, the undersigned
Notary Public for and in the jurisdiction aforesaid, by Ronald Krnbelton, the Manager of R&J
Investment, LC, a Virginia limited liabilih, company. 0,11"
Public =
C -
My commission expires: 08/3/ l a0&D : r_
Registration No.: ZZLV UA 1..,.........
"SRTS Greer/Jouett Bicycle & Pedestriain Improvements"
Acquirer: "County of Albemarle_ VA"
Name of Project"Albemarle Count' Facilities and Environmental Services Plan and Profile of
Proposed State Highway Albemarle County Route 9885 (Lambs Laney'
VSMP Permit #: Pending
Plan #: WPO 202000009
TMP: 06000-00-00-078AO
Project HUC Code: 02080204
Nutrient Bank HUC: 02080203
Phosphorus offsets: 0.76
Nitrogen offsets: 2.54
EXHIBIT B
BILL OF SALE
THIS BILL OF SALE is made as of theAT day of 2020, by R&J Investment, LC,
a Virginia limited liability company ("Seller") and "County of Albernartc, Virginia a political
subdivision of the Commonwealth of Virginia' ('-Purchaser").
Seller and Purchaser have entered into that certain Agreement for Purchase and Sale of Nutrient
Offset Credits dated April 2. 2020. (the "Purchase Agreement'), the terns of which are incorporated
herein by reference and made a part hereof, with respect to the sale by Seller and the purchase b}
Purchaser of nutrient offset credits generated by Seller's Hunts Creek Nutrient Bank located in
Buckingham County, Virginia.
In consideration of the payment of the Purchase Price $7,600.00 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):
`SRTS GreerAouett Bicycle & Pedestrian Improvements'
Acquirer: County of Albemarle VA
Phosphorus: 0.76 lbs. and
Nitrogen: ?? �4 lbs.
Project: "Albemarle County Facilities and Environmental Services Plan and Profile of
Proposed State Hi hway Albemarle County 9885 (Lambs Lane)"
VSMP Permit #: Pendine
Plan#: WPO0202000009
TMP: 0600-00-00-078A0
Project HUC: 02080204
Nutrient Bank HUC: 02080203
WITNESS the following authorized signature:
R&J Investment, LC, f/
a Virginia limited liabilityJcompan L L/
�d
BY: --
Name: Ronald Pembelton
Title: Manager