HomeMy WebLinkAboutWPO202000012 Agreement - Nutrient Credits 2020-09-17AGREEMENT FOR PURCHASE AND SALE OF
NONPOINT NUTRIENT OFFSET CREDITS
This Agreement for the Purchase and Sale of Nonpoint Nutrient Offset Credits (this
"Agreement") is made this24/4&y of -- , 2020 (the "Effective Date"), between
OVERLAND VA II, LLC, a Virginia limitedliability company ("Seller") and RIVANNA
WATER AND SEWER AUTHORITY ("Purchaser").
RECITALS
A. Seller is the owner and sponsor of an approved nonpoint nutrient offset generation bank
entitled the Troublesome Creek Nutrient Mitigation Bank (the "Bank") consisting of 106.02
acres, more or less, located on the eastern intersection of Buffalo Road and South Constitution
Road in Buckingham County in the James River Basin. The Bank has been authorized by the
Virginia Department of Environmental Quality ("VDEQ") to generate and transfer nonpoint
source offsets in accordance with i) the Chesapeake Bay Watershed Nutrient Credit Exchange
Program (VA Code 62.1-44.19:14 et seq), ii) the Virginia stormwater offset program (VA Code
10.1-603.8:1), and iii) the Virginia Soil and Water Conservation Board's Guidance Document on
Stormwater Nonpoint Nutrient Offsets approved on July 23, 2009 to those regulated entities
qualifying for nutrient offsets. The Bank is approved to generate 347.75 pounds of nitrogen
reduction and 103.90 pounds of phosphorous reduction within the James River Watershed.
Operation, management and maintenance of the Bank are subject to the requirements of the
Nonpoint Nutrient Offset Generation Certification approved by the VDEQ on July 16, 2019 and
to the statutes, regulations and policies cited therein.
B. Purchaser has applied for a permit from the VDEQ for approval of a site plan
requirement to control 0.29 pounds of phosphorous each year as part of the Crozet Flow
Equalization Tank and Pumping Station Upgrade project (Project Number: WPO-2020-00012)
located at 4466 Rockfish Gap Turnpike, Charlottesville, VA within the James River Watershed
(HUC 02080204). Purchaser proposes to offset the annual nutrient control requirement by
purchasing 0.29 Nutrient Credits (the "Nutrient Credits") from Seller.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual premises and agreements
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as follows:
1. Recitals. The foregoing Recitals are hereby incorporated into this Purchase Agreement
as a matter of contract and not mere recital.
2. Sale and Purchase. Seller agrees to sell, and Purchaser agrees to purchase, 0.29 Nutrient
Credits from the Bank for the purchase price of three thousand and 00/100 Dollars ($ 3,000.")
(the "Purchase Price") and in accordance with the terms and conditions set forth in this
Agreement.
3. Payment of Purchase Price. Purchaser shall pay the Purchase Price to Seller on or before
the date of Closing (as hereinafter defined) in cash by either delivering a check made out to
OVERLAND VA II, LLC or by making a wire transfer of immediately available federal funds
to an account at a financial institution designated in writing by Seller.
4. Seller's Representation 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. Compliance with Laws. Seller will comply with all applicable laws and
regulations relating to the sale of the Nutrient Credits, the Bank, and the Nonpoint Nutrient
Offset Generation Certification.
C. Credit Availability. As of the date of Closing, Seller shall have the Nutrient
Credits available for Purchaser.
5. Purchaser's Representations and Warranties. Purchaser hereby makes the following
representations and warranties.
a. Authorizations 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 Purchaser and is enforceable in accordance with its terms.
b. As Is Where Is Sale. Purchaser acknowledges and agrees that Purchaser is
purchasing the Nutrient Credits "AS IS, WHERE IS," at Closing. The Seller has not made and
does not make any representations or warranties, either express or implied, with respect to the
Nutrient Credits, other than as expressly set forth in Paragraph 4, and 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. This Paragraph
shall survive Closing and delivery of the Nutrient Credits.
6. Closing. Closing on the purchase and sale of the Nutrient Credits pursuant to this
Agreement ("Closing") shall be held at a location mutually agreeable to Purchaser and Seller, at
a time and date to be agreed upon by the Parties, but not later than 5:00 p.m. on July 31, 2020,
unless Seller consents in writing to a later date, TIME BEING OF THE ESSENCE TO THIS
AGREEMENT.
7. Seller's Deliveries.
a. At Closing, Seller shall deliver to Purchaser a signed Bill of Sale, Affidavit, and
DEQ Water Quality Enhancement Fee Form substantially in the form of Exhibits A, B, and C
attached hereto and incorporated herein by this reference, evidencing the sale to Purchaser of the
Nutrient Credits from the Bank.
b. Not more than thirty (30) calendar days following the Closing, Seller shall
deliver, or cause to be delivered, to Purchaser a copy of Seller's Ledger entry, or other
documentation, recording the sale of the Nutrient Credits to Purchaser as provided herein and
debiting the Nutrient Credits sold to Purchaser against the outstanding Nutrient Credits in the
Bank in accordance with the Nonpoint Nutrient Offset Generation Certification.
8. Closing Costs. Seller shall pay the cost of preparing the Bill of Sale, Affidavit, and DEQ
Water Quality Enhancement Fee Form, any taxes and costs customarily paid by Sellers including
the DEQ Enhancement Fee, and Seller's attorney's fees. Purchaser shall pay any taxes
customarily paid by Purchaser, Purchaser's attorney's fees and all other costs of Closing, if any.
9. 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 whereupon this Agreement shall terminate and Purchaser
and Seller shall have no further obligations hereunder. Seller agrees that it waives any and all
other rights and remedies against Purchaser and all other claims for damages against Purchaser
arising from Purchaser's default under the terms of this Agreement.
b. By Seller. If Seller defaults in performing any of Seller's obligations under this
Agreement, and if such default continues for a period of ten (10) days after Purchaser has
provided written notice to Seller of such default, Purchaser's sole remedy shall be either to
(i) terminate this Agreement by providing written notice thereof to Seller and receive a refund of
any amounts paid to Seller, in which event neither party shall have any further rights or
obligations hereunder, except as expressly provided herein, or (ii) seek specific performance of
Seller's obligation to sell the Nutrient Credits to Purchaser. Purchaser hereby expressly waives
any right it may have to damages (compensatory, consequential or otherwise), as well as any
other remedies the Purchaser may have, as a result of such default.
10. Effect of Condemnation Regulatory Action or Force Maieure.
a. Condemnation. If the Bank 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 transfer the Nutrients 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, any deposit shall be refunded to Buyer and
neither party shall have any further rights or obligations hereunder, except as expressly provided
herein.
b. Regulatory Action.
i. If Seller is unable to transfer the Nutrients Credits to Purchaser as
provided in this Agreement because of the action or order of any municipality or 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 at any time prior
to Closing, and neither party shall have any further rights or obligations hereunder, except as
expressly provided herein.
ii. If Purchaser is prevented by any municipality or regulatory agency from
acquiring the Nutrients Credits from Seller as provided in this Agreement, or if Purchaser's
nonpoint nutrient offset plan is not approved by any municipality or regulatory agency,
Purchaser may terminate this Agreement by providing written notice to Seller at any time prior
to Closing, and neither party shall have any further rights or obligation s hereunder, except as
expressly provided herein.
C. Force Maieure. If Seller is unable to transfer the Nutrient Credits to Purchaser as
provided in this Agreement because of damage to or loss of the Bank property resulting from
fire, flood, storm, drought or other natural disaster, or from any other cause that is not the fault of
Seller and is beyond Seller's reasonable ability to prevent or control, Seller may terminate this
Agreement by providing written notice to Purchaser at any time prior to Closing, and neither
party shall have any further rights or obligations hereunder, except as expressly provided herein.
11. Indemnification.
a. Seller's Indemnification. Seller shall be solely responsible for compliance
with the Nonpoint Nutrient Offset Generation Certification and with all statutes, regulations and
requirements applicable to the operation, management and maintenance of the Bank, and for
ensuring the payment of all taxes owed by the Bank or assessed against the Bank property
(`Bank Regulatory Requirements"). 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 failure to comply with any Bank Regulatory Requirement. Seller's duty to indemnify
Purchaser under this Paragraph 11 shall survive Closing.
12. Credit Not Real Estate. The sale and conveyance of the Nutrient Credits to Purchaser in
accordance with this Agreement shall not constitute the conveyance or transfer of any right,
interest or ownership in real property or in the Bank, nor shall such sale and conveyance impose
upon Purchaser any obligation, duty or liability arising from or incident to ownership of or
interest in real property. Purchaser shall have no right of access to Bank property.
13. Miscellaneous.
a. No Joint Venture. This Agreement is made solely for the purposes set forth
herein and no joint venture, partnership or other relationship between Purchaser and Seller is
created hereby.
b. No Third -Party Beneficiary. This Agreement shall bind and inure to the benefit
of the Parties hereto and their respective successors and authorized assigns. This Agreement
does not create or convey any rights, benefits or interests on behalf of any other person.
C. Assignment. This Agreement may be assigned prior to Closing only by written
agreement of both parties, and any assignee shall assume the rights and obligations of its
assignor.
d. Entire Agreement. This Agreement sets forth the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior negotiations and
agreements, written or oral. Each provision contained in this Agreement shall be severable from
all other provisions hereof and the invalidity of any such provision shall not affect the
enforceability of the other provisions of this Agreement. This Agreement may be modified only
by a written instrument duly executed by both Seller and Purchaser.
e. Choice of Laws. This Agreement shall be construed, performed and enforced
under the laws of the Commonwealth of Virginia.
f. Counte arts. This Agreement may be executed in one or more counterparts by
the Parties. All counterparts shall collectively constitute a single agreement.
0
g. Notices. All notices shall be in writing and sent by hand, facsimile transmission,
overnight delivery service or certified mail, return -receipt requested, to the following addresses:
If to Seller: Overland VA II, LLC
Attn: Chris Snow
1800 Bayberry Ct, Suite 101
Richmond, VA 23226
Telephone:
Fax:
If to Purchaser: Rivanna Water and Sewer Authority (RWSA)
Attn: William I. Mawyer, Jr., P.E.
695 Moores Creek Lane
Charlottesville, VA 22902
Telephone: 434-977-2970
Fax: 434-293-8858
Notices shall be deemed received (i) if hand delivered, when received, (ii) if given by facsimile,
when transmitted to the facsimile number specified above during normal business hours and
confirmation of complete receipt is received during normal business hours (provided a copy of
the same is sent by overnight delivery service on the same day), (iii) if given by overnight
delivery service, the first business day after being sent prepaid by such overnight delivery
service, or (iv) if given by certified mail, return receipt requested, postage prepaid, two (2) days
after posting with the United States Postal Service. Either party may change its address by
notifying the other party in a manner described above.
14. Automatic Termination. This Agreement shall automatically terminate and become null
and void in the event it has not been executed on behalf of Purchaser and returned to the Seller,
no later than 5:00 p.m. local Richmond, Virginia time on July 31, 2020.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS whereof, Seller and Purchaser have caused this Agreement to be executed
on their behalf by their duly authorized representatives as of the dates indicated below.
SELLER:
OVERLAND VA II, LLC, Virginia limited liability
company
By:�.—
Name: Chris Snow
Its: Managing Member
PURCHASER:
RIVANNA WATER AND SEWER AUTHORITY
By: vC�
Name: William I. Ma er Jr. P
Its: Executive Director. RWSA
EXHIBIT A
BILL OF SALE
Nonpoint Nutrient Offset Credits
BILL OF SALE, made as of ��, 2020, by OVERLAND VA II, LLC, a
Virginia limited liability company ("Seller" , to RIVANNA WATER AND SEWER
AUTHORITY ("Purchaser").
WHEREAS, Seller and Purchaser have entered into that certain Agreement for Purchase
and Sale of Nutrients Mitigation Credits, dated as of -2q, 2020 (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 purchase by Purchaser of Compensatory Nutrient
Mitigation Credits held in Seller's Nonpoint Nutrient Offset Bank in Buckingham County,
Virginia.
NOW THEREFORE, for and in consideration of the payment of the Purchase Price (as
defined in the Purchase 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, 0.29 Nutrient Credits ("Credits")
as such are described in the Purchase Agreement.
TO HAVE AND TO HOLD all such Nutrient 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.
OVERLAND VA II, LLC,
a Virginia limited liability company
By: t ?6 `
Name: Chris Snow
Bank Sponsor HUC: 02080203 Its: Managing Member
Project HUC: 02090204
Project Name: Crozet Flow Equalization Tank and Pumping Station Upgrade
Project #: W PO 2020-00012
Applicant: Rivanna Water and Sewer Authority
Phosphorous Offsets: 0.29
Associated Nitrogen Offsets: 0.96
Tax Map Parcel ID: TMP 05700-00-00-035AO
7
EXHIBIT B
AFFIDAVIT OF PHOSPHORUS OFFSET SALE
OVERLAND VA II, LLC, a Virginia limited liability company ("Seller"), hereby
certifies the following:
Pursuant to that that certain Agreement for Purchase and Sale of Nutrients Mitigation
Credits, dated as of } 2020 (the "Purchase Agreement", the terms
of which are incorporated -herein by reference and made a part hereof) between Seller
and RIVANNA WATER AND SEWER AUTHORITY ("Purchaser"), Seller, for
the benefit of the Purchaser, agreed to sell 0.29 pounds of nonpoint source
phosphorus offsets (the Nutrient Credits) to Purchaser and retire the associated ratio
of nonpoint source nitrogen offsets at the offset generating facility in the amount of
0.96 pounds of nitrogen offsets.
2. Seller and Purchase, as of the date hereof, have closed the transaction contemplated
by the Agreement and the Seller has sold to Purchaser the phosphorus offsets.
WITNESS the following signature:
OVERLAND VA II, LLC,
Virginia limited liability company
By: 0"(,�
Name: Chris Snow
Title: Managing Member
Date: )2 �-/ �Z0
T
Yt, 20 Za i
Sworn to and subscribed before me this ? 4 day ofAlAnlst , 29I-_, by hr,5 Sno J
Manager, on behalf of the OVERLAND VA II, LLC, a Virginia limited liability company.
My commission expires: o 6 / 3�� 1.0 a /
Countyof: N"roc-o
Q rah K. D✓
Notary Public
Bank Sponsor HUC: 02080203
Project HUC: 02080204
Project Name: Crozet Flow Equalization Tank and Pumping Station Upgrade
Project#: WPO-2020-00012
Applicant: Rivanna Water and Sewer Authority
Phosphorous Offsets: 0.29
Associated Nitrogen Offsets: 0.96
Tax Map Parcel 1D: TMP 05700-00-00-035AO
�'�GJ0�tia55�G : a
EXHIBIT C
DEPARTMENT OF ENVIRONMENTAL QUALITY
WATER QUALITY ENHANCEMENT FEE FORM
Instructions:
Nonpoint nutrient offset brokers are required to pay a water quality enhancement fee equal to six percent of the amount paid by the
permittee for the nonpoint nutrient offsets.
With submittal of this payment, brokers should complete this form and submit it with their payment. Payment should be in the form
of check or money order payable to "Treasurer of Virginia" and should be mailed to:
Department of Environmental Quality
Receipts Control
P.O. Box 1104
Richmond, Virginia 23218
You should retain a copy for your records. Please direct any questions regarding this form or fee payment to
andrew hammondlc)dec vircinia aov
Offset Broker:
Name: Ner"r_( I/A Z— LLL FIN: 2-0 el 2 2-Oc i
Mailing Address: I go 0 l
City: ffn vt! t Q> State: VA Zip: 23 2 Z 4 Phone:
Daytime Phone Number: ( U u( ) f o o _ D 0'7 o
Name and Location of Construction Activity:
Name: CC07ST R-W C� -) z�•t1 n it. t` A+�.� iYNMT,"9 S'E'a�r u,1 Up.3,eJe-
Town, City, or County:
u6M4-Pe�: IOrode<� wpo - 20 -.2 0 ooc t a
Nutrient Bank:
Bank Name: r-.61 so Crime IC
Total Phosphorus
Purchased: 0 Z q
Amount of Fee Submitted
(6% of the amount paid for the nonpoint nutrient offsets): _$ 1 So , G0
FOR DEQ USE ONLY
Date: DC #:
(DEQ 199-210) (06/13) 9