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Home My WebLink AboutWPO202000055 Agreement - Nutrient Credits 2021-10-20 (3)NUTRIENT OFFSET PURCHASE AGREEMENT THIS NUTRIENT OFFSET PURCHASE AGREEMENT ("Agreement') is made and entered into this 8th day of July 2021, (the "Effective Date") by and between IVY CREEK NUTRIENT BANK, L.L.C., a Virginia limited liability company, having an address of 1705 Lambs Road, Charlottesville, VA 22901 ("Seller'), and WHITE GABLES II LLC, a Virginia limited liability company, having an address of 912 Marsh Lane, Charlottesville, VA 22903 ("Buyer"). RECITALS: WHEREAS, Seller is the Sponsor of the Ivy Creek Nutrient Bank, located in Albemarle County, VA, with the Rivanna River Watershed (HUC's 020802040202) and permitted by the Virginia Department of Environmental Quality ("DEQ") pursuant to a Nonpoint Nutrient Offset Generation Certificate (Cert No. James-044) agreement duly executed by the Seller and the DEQ on January 14, 2019, and amended on June 17, 2019; and WHEREAS, Buyer seeks to fulfill the requirements of the Virginia Stormwater Management Program permit associated with the White Gables CWPO2020-00055) Project (the "Project') from the DEQ under the Virginia Stormwater Management Program (VA Code § 62.1-44.15:35) so as to allow the use of offsite nonpoint nutrient offset credits to compensate for additional impervious created associated with the project at TMP(s): 60-26 within the Rivanna River watershed (HUC: 020802040202);and WHEREAS, as a condition to the issuance of such Permit for the Project by the DEQ, the Buyer is required to compensate for additional impervious area generated, and elects to do so through the purchase of nonpoint nutrient offset credits from Seller under the provisions of this Agreement; and WHEREAS, the DEQ has determined that Buyer shall be required to purchase 1.84 nonpoint nutrient offset credits (as defined below) resulting from the Project NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed as follows: 1) RECITALS: The recitals are hereby incorporated herein by this referenced and made a part of this Agreement 2) DEFINITIONS: The following terms shall have the following meanings in the Agreement: a) CREDITS: "Credits" shall mean credits sold from the Ivy Creek Nutrient Bank as determined by the DEQ and provided for by the nonpoint nutrient offset generation certificate. b) NUTRIENT BANK: "Nutrient Bank" shall mean the bank sponsored by Seller with nonpoint nutrient offset Credits for sale to the open market in connection with those entities requiring offsets in accordance with the Chesapeake Bay Watershed Nutrient Credit Exchange Program (VA Code § 62.1-44.19:14 et seq). These offsets are also transferable in accordance with the Virginia stormwater management program (VA Code § 62.1-44.15:35) and 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. 3) CREDITS PURCHASED: Subject to the terms and conditions of this Agreement, Buyer shall purchase from Sellers and Seller shall sell to Buyer 1.84 Credits. 4) COMPENSATION: In exchange for the Credits being purchased hereunder, Buyer shall, subject to terms and conditions this Agreement, pay to the Seller the sum of Twenty -Seven Thousand Six Hundred and 00/100 Dollars ($27,600.00) (the "Purchase Price'). a) PAYMENT OF PURCHASE PRICE: On or before ten (10) days from the Effective Date of this Agreement, Buyer shall pay to Seller the Purchase Price as stated herein ("Closing"). At Closing, Seller shall deliver to Buyer a signed Bill of Sale and an Affidavit of Nutrient Offset Sale substantially in the form of Exhibits A and B attached hereto and incorporated herein, evidencing the sale of 1.84 Credits by Seller to Buyer. b) METHOD OF PAYMENT OF PURCHASE PRICE: Buyer shall pay the Purchase Price by either a wire transfer, Automated Clearing House (ACH) transfer, or couriered cashier's check. Buyer shall pay fees associated with payment associated with their financial institution. Seller shall not accept payment in any form of check that is not sent via courier. In no instance shall Credits be transferred by Seller prior to Seller having received full payment of the Purchase Price. Instructions for wire transfers will be provided upon request. Upon its receipt of payment of the full Purchase Price, Seller shall promptly, within not more five (5) business days after closing, notify the DEQ that Buyer has acquired the Credits from the Nutrient Bank, with such notification to take the form of an update to the Seller's nutrient credit ledger and an Affidavit of Nutrient Offset Sale, a copy of the Affidavit which shall contemporaneously be sent to Buyer. c) TERMINATION: At Seller's discretion, this Agreement shall automatically terminate if Buyer does not pay the full Purchase Price to Seller by July 18011 2021 or before ten (10) days from the Effective Date of this Agreement. In any event, this Agreement must be fully executed on or before ten (10) days from the Effective Date of this Agreement, or at the discretion of the Seller, any and all rights and obligations of the Seller under this Agreement shall be terminated. If Seller defaults in the performance of any of its obligations under this Agreement or if the Closing does not occur for any reason other than a default by Buyer under this Agreement Buyer may elect to terminate this Agreement by written notice to Seller, in which event the Purchase Price (if previously delivered to Seller) shall be returned by Seller to Buyer within five (5) days of such written notice. 5) SELLER'S COVENANTS AND REPRESENTATIONS: Seller represents that it is fully licensed and is authorized by DEQ to sell Credits from the Nutrient Bank in accordance with the Nonpoint Nutrient Offset Generation Certificate. Seller shall be responsible for the development and maintenance of the Credits and the Nutrient Bank in accordance with the requirements of the Nonpoint Nutrient Offset Generation Certificate and all other applicable laws and regulations. Seller has sufficient available Credits to satisfy Buyer's permit obligation of 1.84 nonpoint nutrient offset credits. Seller further represents and warrants (a) that it has good and sufficient title to the Credits it will sell to Buyer with the right to transfer and convey the Credits to Buyer free and clear of all liens and claims of third parties; and (b) that 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. Buyer shall have no rights or obligations to perform any of the responsibilities of the Seller now or hereafter set forth by the DEQ regarding the development and maintenance of the Credits or the Nutrient Bank nor shall Buyer have any rights or obligations to enforce any of the responsibilities of the Seller under the Nonpoint Nutrient Offset Generation Certificate. 6) NOTICES: Any notices required or permitted hereunder shall be sufficiently given if delivered by overnight courier, by United States mail, return receipt requested, by facsimile or electronic mail to the parties hereto as follows: If to Seller: If to Buyer: IVY CREEK NUTRIENT BANK, L.L.C. c/o Ecosystem Services, L.L.C. (authorized agent) Jonathan R. Roller, Manager of Ecosystem Services, L.L.C. 1739-A Allied Street Charlottesville, VA 22903 P: (540) 578-4296 ion@ecosystemservices.us WHITE GABLES II LLC c/o Mr. Lewis F. Payne, Manager 912 Marsh Lane Charlottesville, VA 22903 P: 202-256-1059 Ifoayne brgya.com Any notice given to pursuant hereto by overnight courier shall be effective as of delivery; any notice given pursuant hereto by First Class United States mail, return receipt requested, shall be effective as of the third business day following its posting, and any notice given pursuant hereto by facsimile or electronic mail shall be effective as of receipt of a confirmation by the sending party. 7) PRIOR AGREEMENTS: This Agreement shall supersede any and all prior understandings and agreements between the parties hereto, whether written or oral, with respect to the subject matter hereof and may be amended only by a written document stating the specifics of such amendment, executed by both Seller and Buyer. DowSign Envelope ID: 5EBOEA7D-4AFE-499A-A4FO-2837CE537FFD 8) APPLICABLE LAW: Seller and Buyer shall be contractually bound to this Agreement, which shall be governed by the laws of the Commonwealth of Virginia and subject to the requirements of any applicable federal or local laws or regulations. Changes in federal, state, or local laws, which might have otherwise impacted this Agreement, shall not be enforced retroactively after execution of this Agreement Each party shall be held harmless for damages sustained by the other party as a result of changes in federal, state, or local laws pertaining to this transaction or the interpretation or enforcement of said changes. 9) SUCCESSORS AND ASSIGNS, This Agreement shall inure to the benefit of and be binding upon the successors and assigns of Seller and Buyer, as the case maybe, and their respective successors and assigns. Neither party hereto shall assign any interest hereunder without the prior written approval of the other, which approval shall not be unreasonably withheld. IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. SELLER: IVY CREEK NUTRIENT BANK, L.L.C., a Virginia limited liability company By: ECOSYSTEM SERVICES, L.L.C., a Virginia limited liability company, authorized agent DMUSM..d by: By: —zivaerooarz>>e_ Name: Jonathan R. Roller Title: Manage r-A thori ed Representative Date: June 15, 2021 1f" NAME: WHITE GABLES II LLC b.F. 7/14/2021 1 9:49 AM PDT