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Home My WebLink AboutWPO202100006 Correspondence 2021-05-06 (2)AGREEMENT FOR PURCHASE AND SALE OF NONPOINT NUTRIENT OFFSET CREDITS This agreement for the Purchase and Sale of Nonpoint Offset Credits (this "Agreement") is made this Pt'" -day of April, 2021 (the "Effective Date"), between Virginia Nutrient Bank, LLC, a Virginia Limited Liability Company ("Seller") and Tobias A. Dengel Trust & Lynn T. Dengel Trust ("Purchaser"). RECITALS A. Seller is the broker and exclusive selling agent of an approved nonpoint nutrient offset generation bank entitled the Upper James Nutrient Bank (James - 050) (HUC:02080203) (the "Bank") consisting of 160.43 acres, more or less, located in Nelson County, Virginia. 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) (VA Code 62.1-44.15:35), 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 was approved on May 31, 2019 to generate 543.15 pounds of nitrogen reduction and 150.68 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 May 31, 2019 and to the statutes, regulations and policies cited therein. B. Purchaser has applied for and obtained site plan approval from Albemarle County for Foothill Farm Drive Maintenance Building site plan. The site plan requires the reduction of 0.42 pounds of phosphorous each year to be obtained with the site development. Purchaser proposes to offset the annual nutrient control requirement by purchasing 0.42 pounds of phosphorus (the "Nutrient Credits") from Seller. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual promises and agreements contained herein and for the 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 0.42 Nutrient Credits from the Bank for the purchase price of $5,880.00 and in accordance with the terms and conditions set forth in this agreement. If this agreement is submitted, reviewed, and critiqued by Albemarle County there will be an additional $1,500.00 fee added to the sale price of the credits. 3. Deposit. 4. Payment of Purchase Price. Purchaser shall pay the Purchase Price, Net of the Deposit, to Seller on or before the date of Closing (as hereinafter defined) in cash, a check made out to Virginia Nutrient Bank, LLC or by making a wire transfer of immediately available federal funds to an account at a financial institution designated in writing by Seller. 5. 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 State of Virginia laws and regulations with regard to Chesapeake Bay Watershed Nutrient Credit Exchange Program and the Virginia Stormwater Offset Program. The intent is for the Seller to legally transfer the Nutrient Credits to the Purchaser. 6. Purchaser's Representations and Warranties. Purchaser 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 Purchaser, constitutes the valid and binding agreement of Purchaser and is enforceable in accordance with its terns. 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 expressed or implied, with respect to the Nutrient Credits, other than as expressly set forth in Paragraph 5, and in entering into this Agreement, Purchaser has not been induced by, and has not relied upon, any representations, warranties or statements, whether expressed 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. 7. 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 4:00 p.m. on . 2021, unless Seller consents in writing to a later date. 8. Seller's Deliveries. a. At Closing, Seller shall deliver to Purchaser a signed Bill of Sale (Exhibit A) and Affidavit of Nutrient Offset Sale (Exhibit B) of Exhibits A. & B attached hereto and incorporated herein by, this reference, evidencing the sale to Purchaser of the Nutrient Credits from the Bank. 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. 9. Closing Costs. Seller shall pay the cost of preparing the Bill of Sale, Affidavit, 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. 10. 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 and exclusive remedy shall be to terminate this Agreement by providing written notice thereof to Seller and receive a refund of any amounts paid to Seller including the Deposit, in which event neither party shall have any further rights or obligations hereunder, except as expressly provided herein. 11. Effect of Condemnation. Regulatory Action or Force Majeure. 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 Nutrient 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 the Deposit will be returned to Purchaser within 5 days of notification, 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 Nutrient 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 the Deposit will be returned to Purchaser within 5 days of notification 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 or site 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 the Deposit will be returned to Purchaser within 5 days of notification, and neither party shall have any further rights or obligations 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 the Deposit will be returned to Purchaser within 5 days of notification, and neither party shall have any further rights or obligations hereunder, except as expressly provided herein. 12. 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 12 shall survive Closing. b. Purchaser's Indemnification. Purchaser shall indemnify, defend and hold harmless Seller from and against any action, order, investigation or proceeding initiated by any government agency and arising from or based upon Purchaser's failure to comply with any permit, authorization or condition thereof relating to Purchaser's nonpoint nutrient offset plan or the Nutrient Credits. Purchaser's duty to indemnify under this Paragraph 12 shall survive Closing. In the event that this Agreement is terminated, Purchaser's duty to indemnify Seller under this Paragraph 12 shall survive for twelve (12) months following the date of termination. 13. 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. 14. 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. Counterparts. This Agreement may be executed in one or more counterparts by the Parties. All counterparts shall collectively constitute a single agreement. 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: Virginia Nutrient Bank, LLC Attn: Nathan W. Blackwell SEND DOCUMENTS TO: PO Box 142 566 East Market St Penn Laird, VA 22846 Harrisonburg, VA 22801 Telephone: 540-908-1679 Electronic Mail: Nathan@virginianutrientbank.com If to Purchaser: Tobias A. Dengel Trust & Lynn T. Dengel Trust Attn: Conor Murray 1740 Foothill Farm Drive Charlottesville, VA 22911 Telephone: 434-964-7100 Electronic Mail: murraycsl4@gmail.com Notices shall be deemed received (i) if hand delivered, when received, (ii) if given by electronic mail, when transmitted to the electronic mail address 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. 15. 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 4:00 p.m. local Harrisonburg, Virginia time on [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURES APPEAR ON THE FOLLOWING PAGE] Signatures: V6, &_� ' ' Date %02� Sel r- han W. Blackwell Virginia Nutrient Bank, LLC Date Purchaser— Tobias A. Den-, Date Pur —Lynn gel TVIRGINIA NUTRIENT BANK P.O. Box 142 Penn Laird, VA 22846 - (540) 908-1679 - www.VireiniaNutrientBank.com EXHIBIT A — BILL OF SALE Bill of Sale, made as of the t day of April, 2021, by Virginia Nutrient Bank, LLC, a Virginia Limited Liability Company ("Seller"), to Tobias A. Dengel Trust & Lynn T. Dengel Trust ("Purchaser) Whereas, the Seller and Purchaser have entered into an Agreement for Purchase and Sale of Nutrient Offset Credits, dated as of April 1."4' 2021 (the "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 Nutrient Credits held by the Seller's Upper James Nutrient Bank in Nelson County, Virginia within the James River watershed (HUC: 02080203). 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, 0.42 Nutrient Credits out of the Upper James Nutrient Bank as such are described in the Agreement. To Have and To Hold all such Nutrient Credits hereby sold and transferred to Purchaser and its successors and assigns forever for use in connection with Purchaser's project at Foothill Farm Drive Maintenance Building in Albemarle County. This project is located in HUC:02080204. 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. Virginia Nu tri 14, LL-/7 / By: (y �f/ v Name: Na 1a1 W. Blackwell Title: Manager Acquirer: Tobias A. Dengel Trust & Lynn T. Dengel Trust Project: Foothill Farm Drive Maintenance Building (HUC:02080204) TM/PIN#: 62-73B Permittee: Tobias A. Dengel Trust & Lynn T. Dengel Trust 1740 Foothill Farm Drive Charlottesville, VA 22911 VSMP #: <1 acre Nutrient Bank: Upper James — James — 050 (HUC:02080203) Phosphorus Offsets: 0.42 pounds Nitrogen Offsets: 1.51 pounds VIRG I NIA NUTRIENT BANK -SERVING FARMERS, DEVELOPERS. AND LOCALIT'I ES HELPING CLEAN THE CHESAPEAKE BAY ONE SITE AT A TIME .� 2FVIRG-INIA NUTRIENT BANK P.O. Box 142 Penn Laird, VA 22846 - (540) 908-1679 - www.Vii,giniaNutrientBank.com EXHIBIT B - AFFIDAVIT OF NUTRIENT OFFSET SALE Virginia Nutrient Bank, (the "Seller"), hereby certifies the following 1. Pursuant to that certain "Agreement for Purchase and Sale of Nonpoint Nutrient Offset Credits" dated April (,&�-, 2021 (the "Agreement"), the terms of which are incorporated herein by reference and made a part of hereof) between the Seller and Tobias A. Dengel Trust & Lynn T. Dengel Trust ("Purchaser"), the Seller, for the benefit of the Purchaser, agreed to sell 0.42 pounds of phosphorus offsets and retire 1.51pounds of nitrogen offsets (representing the ratio of nitrogen offsets to the phosphorous offsets at the offset generating facility) to Purchaser; 2. The Seller and the Purchaser, as of the date hereof, have closed the transaction contemplated by the Agreement and the Seller has sold to Purchaser 0.42 pounds of phosphorus offsets and retired 1.51 pounds of nitrogen offsets (representing the ratio of nitrogen offsets to the phosphorous offsets at the offset generating facility). WITNESS the following signature: Virginia Nutr' apk, IV By: 2:v /� Name: NKtWn W. Blackwell Title: Managef;�/�2/ Date: [� r State of Virginia - evairty/City of The foregoing Exhibit B - Affidavit of Nutrient Offset Sale was acknowledged before me this 15 day of pnl 20 , by Nathan W. Blackwell, P.E., Manager, on behalf of Virginia Nutrient Bank, LLC. My commission expires: Notary Public Acquirer: Tobias A. Dengel Trust & Lynn T. Dengel Trust Project: Foothill Farm Drive Maintenance Building (HUC:02080204) TM/PIN#: 62-73B Permittee: Tobias A. Dengel Trust & Lynn T. Dengel Trust 1740 Foothill Farm Drive Charlottesville, VA 22911 VSMP #: <1 acre Nutrient Bank: Upper James - James - 050 (HUC:02080203) Phosphorus Offsets: 0.42 pounds Nitrogen Offsets: 1.51 pounds VIRGINIA NUTRIENT BANK - SERVING FARMERS, DEVELOPERS. AND LOCALITIES HELPING CLEAN THE CHESAPE.AKE BAY ONE SITE AT A MIME TDSIAS ALEXANDER DENGEL LYNN THACHER DENGEL 753 ROCKY HOLLOW RD CHARLOTTESVILLE, VA 22911.0000 Pay to the ` ! ! Order of 4886 01 q ,� a[e 94-221/1212 3500 O 1 1 6 GIN SV� High Yield investor Checking m Charles Schwab Bank wesllake, T>' For ..._.._...�- 1;L2L2022LLIe 1440000832L93114aiaG