HomeMy WebLinkAboutWPO202000024 Agreement - Nutrient Credits 2020-11-06AGREEMENT FOR PURCHASE AND SALE OF NONPOINT NUTRTIENT OFFSET
CREDITS
made as of this 6th day of November 2020 (the "Effective Date"), between Hotel
Street Capital, L.L.C., a Virginia limited liability company ("Seller") and East Grace LLC, a
Virginia limited liability company ("Purchaser").
RECITALS
A. Seller is the owner and sponsor of an approved nonpoint nutrient offset generation bank
entitled Rivanna River Nutrient Offset Credit Bank (the "Bank") consisting of 102.01 acres, more
or less, located at the intersection of James Madison Highway, and Friendship Way in Fluvanna
County, Virginia (Bank HUC 02080204). 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 storm water offset program (VA Code 62.1-44.15:35
et seq.), and iii) the Virginia Soil and Water Conservation Board's Guidance Document on Storm
water Nonpoint Nutrient Offsets approved on July 23, 2009 to those regulated entities qualifying
for nutrient offsets. The Bank is approved to generate 817.10 pounds of nitrogen reduction and
178.52 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 (Certificate No. James-039) approved by the VDEQ on September
5, 2018 and to the statutes, regulations and policies cited therein.
B. Purchaser has applied for a permit from the VDEQ with a site plan requirement to control
1.49 pounds of phosphorous each year as part of the Christopher -Shilling Residence Project
WPO2020-00024 located at 1220 Zack Lane, Charlottesville, VA 22901 having Albemarle
County -tax map and parcel numbers of 05900-00-00-037D0, 05900-00-00-037C4 and a
PROJECT HUC of 02080204. Purchaser proposes to offset the annual nutrient control
requirement by purchasing 1.49 Nutrient Credits (the "Nutrient Credits") from Seller and Seller
has such credits available for sale.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual premises and agreements
contained herein and for the other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as follows:
l . 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 1.49 Nutrient
Credits for a purchase price of $13,037.50 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) 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 Executions 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 (or
by mail) on or before November 30, 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
OCR 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.
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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 OCR
Water Quality Enhancement Fee Form, any taxes and costs customarily paid by Sellers including
the OCR 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 Mai eure.
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, 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 Nutrient 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 prior to Closing, and neither
party shall have any further rights or obligations hereunder, except as expressly provided herein.
C. Force Majeure. 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. 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
e. 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.
f. Choice of Laws. This Agreement shall be construed, performed and enforced
under the laws of the Commonwealth of Virginia.
g. Counterparts. This Agreement may be executed in one or more counterparts by the
Parties. All counterparts shall collectively constitute a single agreement.
h. 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: Hotel Street Capital, L.L.C.
Attn: Thomas James Ross II
31 Garrett Street
Warrenton, Virginia 20186
Telephone: (540) 347-1000
Fax: (540) 349-8166
Email: tjross@mrwlawfirm.com
If to Purchaser: East Grace LLC
(Tanner Shilling)
817 Montrose Ave
Charlottesville, VA 22902
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, (iv) email
or (v) 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 if has not been executed on behalf of Purchaser and returned to the Seller, no
later than 5:OOp.m., local time Warrenton, Virginia time on November 30, 2020.
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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:
Hotel Street Capital, L.L.C.
a Virginia limited liability company
BY: Grayson a Company,
LLC, M ,
By: Thomas James Ross II
Its- By:
Member
Date: 11
PURCHASER:
East Grace, LLC.
By: 44�l�k
Its: Authorized Officer
Date: tit 1 xz-e:�
BILL OF SALE
Nonpoint Nutrient Offset Credits
BILL OF SALE, made as of tP , 2020, by Hotel Street Capital, L.L.C., a
Virginia limited liability company ("Seller") and East Grace, LLC., a Virginia limited liability
company ("Purchaser").
WHEREAS. Seller and Purchaser have entered into that certain Agreement for Purchase
and Sale of Nutrients Mitigation Credits, dated as of November �0, 2020, (the "Purchase
Agreement", the terms of which are incorporated herein by reference and made part hereof), with
respect to the sale by Seller and purchase by Purchaser of Compensatory Nutrients Mitigation
Credits held in Seller's Nonpoint Offset Bank in Fluvanna County, Virginia (HUC 02080204).
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, 1.49 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.
HOTEL STREET CAPITAL, L.L.C.
a Virginia limited liabili company
by Grayson Love mpany, LLC, its
manager
By:
James Ross Il
Its:
Owner: East Grace LLC
Project Name and Number: Christopher -Shilling Residence WP02020-00024
Location: 1220 Zack Lane, Charlottesville, VA 22901
Credits Req.: 1.49 lbs.
Albemarle County TMPs: 05900-00-00-037D0, 05900-00-00-037C4
Project HUC: 02080204
AFFIDAVIT OF PHOSPHOROUS OFFSET SALE
Hotel Street Capital, L.L.C., a Virginia Limited liability company ("Seller"), hereby
certifies the following:
1. Pursuant to that certain Agreement for Purchase and Sale of Nutrients Mitigation
Credits, dated as of _(2_, 2020 (the "Purchase Agreement"), the Terms of
which are incorporated herein by reference and made a part hereof) between Seller East Grace
LLC, a Virginia limited liability company ('Purchaser") for the benefit of the Purchaser, Seller
agreed to sell 1.49 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 6.82 pounds of nitrogen offsets relating to the Project known
as Christopher -Shilling Residence WP02020-00024, located at 1220 Zack Lane, Charlottesville,
VA 22901
2. Seller and Purchaser, as of the date hereof, have closed the transaction contemplated by
the Agreement and the Seller has sold to Purchaser the phosphorous offsets.
WITNESS the following signature:
By:
Date: t�ia_h! �—
STATE OF VIRGINIA
COUNTY OF FAUQUIER:
HOTEL STREET CAPITAL, L.L.C.
a Virginia limited 1' ' ' company
GRAYSO E & OMPANY, Lam, Manager
Ross II, Managing Member
Sworn and subscribed before me this In day of 2020, by Thomas James
Ross 1I, Managing Member of Grayson Love & Company, LLC, Manager of HOTEL STREET
t u
CAPITAL, L.L.C., a Vir i yuyI � .... bility company.
�
REGISTRATION NO. to
Notary Pa
lc
My Commission expiEgs I. COMM. rx3IREs'
1 Mnt MM
Owner: East Grace LLC'�:,�Tq�y"PU6�
Project Name and Number.' Ghrislbpher-Shilling Residence WP02020-00024
Location: 1220 Zack Lane, Charlottesville, VA 22901
Credits Req.: 1.49 lbs.
Albemarle County TMPs: 05900-00-00-037D0, 05900-00-00-037C4
Project HUC: 02080204