HomeMy WebLinkAboutWPO201800033 Agreements 2019-02-12 Chesapeake Bay Nutrient Land Trust.LLC
5735 S.Laburnum Ave.
Richmond,Virginia 23231
PURCHASE AND SALE AGREEMENT
• THIS PURCHASE AND SALE AGREEMENT(this "Agreement"), dated as of
February 12.2019, is made by and between CHESAPEAKE BAY NUTRIENT LAND
TRUST,LLC, a Virginia limited liability company("Seller"), and Foster Well and Pump
Co,.Inc.("Purchaser").
RECITALS:
l. Seller owns certain rights in and to certain real property consisting of
approximately 68.63+-acres of land conversion areas located in Appomattox County,
Virginia (the "Property"). Pursuant to VA Code § 62.1-44.15:35 the Virginia Department of
Environmental Quality ("DEQ") has authorized the generation and sale of nonpoint source
nutrient credits("Credits")generated at the Property to third parties to offset nutrient-related
water quality permit needs.
2. Pursuant to DEQ Permit No. Pending("Permit"), DEQ has approved the use
of Credits for the project site described in the Permit (the"Project")upon the condition that
Purchaser acquire j4 pounds of phosphorus Credits from Seller(the "Credit Obligation")
and that Seller retire 3.01 pounds of the Property's associated nitrogen Credits.
3. Purchaser wishes to purchase and Seller wishes to sell on the terms set forth in
this Agreement the phosphorus Credits for the purpose of satisfying the Credit Obligation.
AGREEMENT:
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS($10.00),cash
in hand paid by Purchaser to Seller and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Agreement to Sell and to Purchase. Seller shall sell to Purchaser,and
Purchaser shall buy from Seller, the phosphorus Credits for the purpose of satisfying the
Credit Obligation.
2. Purchase Price. In consideration of Seller entering into this Agreement,
Purchaser shall pay to Seller the sum of Sixteen Thousand One Hundred Twenty and
No/100 Dollars ($16,120.00) as follows: (a) N/A and No/l00 Dollars ($N/A)upon the full
execution of this Agreement by all of the parties hereto as a non-refundable (except as
provided in Sections 7(b), 8(a)and 8(b))deposit(the"Deposit"), and(b) Sixteen Thousand
One Hundred Twenty and No/100 Dollars ($16,120.00) at Closing by company, certified or
cashier's check or by wired transfer of immediately available funds to an account and
financial institution designated in writing by Seller.
3. Deposit. The full amount of the Deposit shall be applied toward the Purchase
Price at Closing; returned to Purchaser in the event that Seller defaults; or disbursed to Seller
in the event of Purchaser's default.
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Purchase and Sale Agreement
Chesapeake Bay Nutrient Land Trust,LLC
5735 S.Laburnum Ave.
Richmond,Virginia 23231
4. Closing.
(a) Date and Location. Closing under this Agreement ("Closing")shall
Occur on or before 5:00 p.m. on or before N/A ("Closing Date")unless Seller agrees in
writing to a later date. Closing shall occur at Seller's attorney's office in Richmond, Virginia,
or at such other place as Purchaser and Seller may agree. TIME IS OF THE ESSENCE as to
the Closing Date.
(b) Deliveries at Closing. At Closing, Seller shall (i)execute and deliver to
Purchaser an Affidavit of Phosphorus Credit Sale in substantially the form attached hereto as
Exhibit A (the"Affidavit"),and(ii)execute and deliver to Purchaser a Bill of Sale in
substantially the form attached hereto as Exhibit B. At Closing, Purchaser shall pay the
Purchase Price to Seller.
(c) Delivery to DEO. Promptly following Closing, Seller shall provide
DEQ with an original, executed Affidavit.
(d) Closing Costs. Seller shall pay the cost of preparing the Bill of Sale
and Affidavit, and Seller's attomey's fees. Purchaser shall pay Purchaser's attorney's fees
and other costs of Closing, if any.
(e) Water Ouality Enhancement Fee. Promptly following Closing, Seller
shall pay the water quality enhancement fee required by Va Code § 62.1-44.15:35 Subsection
E.
5. Seller's Representations 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) Reservation of Credit Capacity. During the period beginning on the
date of execution of this Agreement and ending upon the earlier of(i)Closing or(ii)
termination of this Agreement, Seller will not sell Credits from the Property that would cause
the remaining Credits to be insufficient for the purpose of satisfying Seller's obligations under
this Agreement.
(c) Compliance with Laws. Seller will comply with all applicable laws
and regulations relating to the sale of the phosphorus Credits to Purchaser.
6. Purchaser's Representations and Warranties. Purchaser hereby makes the
following representations and warranties as of the date of this Agreement.
(a) Authorization, Execution and Delivery. This Agreement has been duly
authorized, executed and delivered by all necessary action on the part of Purchaser,
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6736 S.Laburnum Ave.
Richmond,Virginia 23231
constitutes the valid and binding agreement of the Purchaser and is enforceable in accordance
with its terms.
(b) Reliance. 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.
7. 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. Upon such termination the Deposit shall
be disbursed to Seller as Seller's sole and exclusive remedy and neither party shall have any
further rights or obligations hereunder, except as expressly provided herein. Seller hereby
expressly waives any right that Seller may have to damages, whether compensatory,
consequential or otherwise, or to seek specific performance from Purchaser as a result of such
default.
(b) By Seller. If Seller defaults in performing any of Seller's obligations
under this Agreement, and such default continues for a period of ten (10) days after Purchaser
has provided written notice to Seller of such default, the Purchaser's sole remedies shall be to
terminate this Agreement by providing written notice thereof to Seller,and to receive a refund
of the Deposit, in which event neither party shall have any further rights or obligations
hereunder,except as expressly provided herein. Purchaser hereby expressly waives any right
that Purchaser may have to damages, whether compensatory, consequential or otherwise as a
result of Seller's default.
(c) Attorneys' Fees. In the event of any litigation between Seller and
Purchaser,the prevailing party shall be entitled to an award of its costs incurred in such
litigation, including reasonable attorneys' fees and costs, and court costs.
8. Effect of Condemnation, Regulatory Action or Unavoidable Delays.
(a) Condemnation. If the 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 sell the phosphorus
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, the Deposit shall be
refunded to Purchaser and neither party shall have any further rights or obligations hereunder,
except as expressly provided herein.
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Purchase and Sale Agreement
, Chesapeake Bay Nutrient Land Trust.LLC
5735 S.Lsburnum Ave.
Richmond,Virginia 23231
(b) Regulatory Action.
(i) If Seller is unable to sell the phosphorus Credits to Purchaser as
provided in this Agreement because of the action or order of any 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. If Seller elects to
terminate this Agreement as provided in this subparagraph, and such termination occurs prior
to Closing,then the Deposit shall be refunded to Purchaser and neither party shall have any
further rights or obligations hereunder, except as expressly provided herein.
(ii) If prior to Closing Purchaser is prevented by any regulatory
agency from satisfying the Credit Obligation by purchasing the phosphorus Credits as
provided in this Agreement, Purchaser may terminate this Agreement by providing written
notice to Seller. If Purchaser elects to terminate this Agreement as provided in this
subparagraph, then the Deposit shall be refunded to Purchaser and neither party shall have any
further rights or obligations hereunder, except as expressly provided herein.
9. Indemnities.
(a) Seller's Indemnities. 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 breach of the representations and warranties contained in Paragraph 5.
(b) Purchaser's Indemnities. Purchaser shall indemnify, defend and hold
harmless the Seller from and against any action, order, investigation or proceeding initiated by
• any government agency and arising from or based upon Purchaser's breach of the
representations and warranties contained in Paragraph 6 and Purchaser's failure to comply
with any permit, authorization or condition thereof relating to Purchaser's plan to satisfy the
Credit Obligation.
(c) Survival. The indemnity provisions of this Paragraph shall survive
Closing and termination of this Agreement for a period of three(3) years after the date of this
Agreement.
10. Notices. Each notice, request,demand or other communication hereunder will
be in writing and will be deemed to have been duly given (i)when delivered by hand, or(ii)
three(3)business days after deposit in United States certified or registered mail, postage pre-
paid, return receipt requested, or(iii) one (1) business day after delivery to a recognized
overnight courier service, in each case addressed to the parties at the following addresses:
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. Chesapeake Bay Nutrient Land Trust,LLC
5735 S.Laburnum Ave,
•
Richmond,Virginia 23231
If to Seller: Chesapeake Bay Nutrient Land Trust, LLC
ATTN: Scott A. Reed
5735 S. Laburnum Avenue
Richmond, Virginia 23231
With a copy to:
If to Purchaser: Foster Well and Pump Co., Inc.
ATTN:
413 Reas Ford Road
Earlvsville, VA 22936
With a copy to:
Each party shall have the right to change its address by providing the other party with at least
ten (10)days prior written notice of the change.
11. Brokers. Each party hereunder represents and warrants that,except for the
"Broker"identified below,if any,it did not consult or deal with any broker or agent with
regard to this Agreement or the transactions contemplated hereby, and each party agrees to
indemnify and hold harmless the other party from all liability, expense,loss,cost or damage,
including reasonable attorney's fees,that may arise by reason of any claim,demand or suit of
any agent or broker arising out of or constituting a breach by the indemnifying party of the
foregoing representation and warranty. This indemnity shall survive Closing and termination
of this Agreement and shall not be limited by any provision specifying liquidated damages.
Seller shall pay a commission to N/A("Broker")if and when Closing occurs equal to N/A
percent(N/A%) of the Purchase Price.
12. Entire Agreement and Modifications. There are no other agreements or
understandings, written or oral,between the parties regarding this Agreement or the subject
matter hereof. This Agreement shall not be modified or amended except by a written
document executed by both parties to this Agreement.
13. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia without regard to its conflict of laws principals.
14. Compliance with Applicable Laws. Both parties shall comply with all
applicable federal, state and local laws, regulations and restrictions in the conduct of their
obligations under this Agreement.
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Purchase and Sale Agreement
. - Chesapeake Bay Nutrient Land Trust,LLC
6736 S.Laburnum Ave.
Richmond.Virginia 23231
15. Severability. The provisions of this Agreement shall be deemed severable and,
if any portion shall be held invalid, illegal or unenforceable for any reason, the remainder of
this Agreement shall be effective and binding upon the parties. The Recitals are incorporated
as part of this Agreement as provided herein.
16. Binding Agreement. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns. Any proposed assignment shall be
subject to the prior written consent of the other party, which consent shall not be unreasonably
withheld or delayed.
17. Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which together shall constitute one and the same
Agreement.
WITNESS the following signatures:
SELLER: CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC,
a Virginia limited liability company
By: Jrr a-
Manager
TIN: 20-5197105
PURCHASER: Foster Well and Pump C Inc.
By:
Name: C. Shane Foster
Title: Vice President
TIN: 54-1542503
EXHIBITS
Exhibit A -Affidavit of Phosphorus Credit Sale •
Exhibit B - Bill of Sale
Chesapeake Bay Nutrient Land Trust,LLC
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Purchase and Sale Agreement
Chesapeake Bay Nutrient Land Trust,LLC
5735 S.Laburnum Ave.
Richmond,Virginia 23231
Exhibit A
CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC—OAK GROVE
AFFIDAVIT OF PHOSPHORUS CREDIT SALE
CHESAPEAKE BAY NUTRIENT LAND TRUST,LLC,a Virginia limited liability
company (the"Company"), hereby certifies the following:
1. Pursuant to that certain Purchase and Sale Agreement dated February 12,2019
(the"Agreement"), between the Company (as Seller) and Foster Well and Pump Co.,Inc.
("Purchaser"), the Company, for the benefit of the Purchaser, agreed to sell 1.24 pounds of
nonpoint source phosphorus Credits to Purchaser and retire the associated ratio of nonpoint
source nitrogen Credits at the credit generating facility in the amount of 3.01 pounds of
nitrogen Credits;
2. The Company and the Purchaser, as of the date hereof,have closed the transaction
contemplated by the Agreement and the Company has sold to Purchaser the phosphorus
Credits;
3. The credits shall apply to Earlysville Business Park VSMP—WPO 201800033.
WITNESS the following signature:
CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC,
a Virgi ited iabili com any
By:
!Manager
Date: -�,5 G1i/ / /``.
Sworn to and subscribed before me this /8 day of e� 7 , 2019, by
.8046-rer t AdA-1.J , Manager, on behalf of Chesapeake Bay Nutrient
Land Trust, LLC, a Virginia limited liability company.
My commission expires:Mi t:t,i 31, tc'Li City/County of: i> ,vrriur
t4ir r2..L
Notary Public
Project Description:Earlysville Business Park VSMP—WPO 201800033
Project Tax Map Parcel ID:03100-00-00-021A0&03100-00-00-021B0
Permittee: Foster Well and Pump Co.,Inc.
Project 8-Digit HUC: 02080204
Oak Grove Nutrient Facility 8-Digit HUC: 02080203 SCOTT A.REED
Phosphorus Credits: 1.24 pounds NOTARY PUBLIC
Associated Nitrogen Credits:3.01 pounds REGISTRATION OF56837
COMMONWEALTH VIRGINIA
Chesapeake Bay Nutrient Land Trust,LLC COMMISSION EXPIRES MARCH 31,2021
Oak Gruve 7
Purchase and Sale Agreement
Chesapeake Bay Nutrient Land Trust,LLC
5736 S.Laburnum Ave.
Richmond,Virginia 23231
Exhibit B
CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC—OAK GROVE
BILL OF SALE
BILL OF SALE, made as of February/8, 2019, by CHESAPEAKE BAY
NUTRIENT LAND TRUST, LLC, a Virginia limited liability company("Seller"),Foster
Well and Pump Co., Inc. ("Purchaser").
WHEREAS, Seller and Purchaser have entered into that certain Purchase and Sale
Agreement as of February 12,2019 (the "Agreement"), with respect to the sale by the Seller
and purchase by the Purchaser of nonpoint source phosphorus Credits generated within the
Oak Grove Property in Appomattox County, Virginia.
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, 1.24 pounds of
phosphorus Credits and retires 3.01 pounds of nitrogen Credits associated with the
phosphorous Credits generated at the Oak Grove Property as such are described in the
Agreement.
TO HAVE AND TO HOLD all such phosphorus Credits hereby sold and transferred
to Buyer 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.
CHESAPEAKE BAY NUTRIENT LAND TRUST, LLC,
a Virginia Limited Liability Company
By:Sid 'II& l� �4/
Manager
Chesapeake Bay Nutrient Land Trust,LLC
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Purchase and Sale Agreement