The URL can be used to link to this page

Home My WebLink AboutWPO201400074 Agreement - Nutrient Credits 2018-04-30 . r AGREEMENT 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 as of this 30th day of April, 2018 (the "Effective Date"), between HOTEL STREET CAPITAL,L.L.C.,a Virginia Limited liability company("Seller")and Riverside Village Properties, Inc., a Virginia corporation("Purchaser"). RECITALS A. Seller is the owner and sponsor of an approved nonpoint nutrient offset generation bank (Bank Sponsor HUC 02080203) entitled Gold Hill Nutrient Offset Credit Bank (the "Bank") consisting of 28.50 acres,more or less, located on Route 15 James Madison Highway, southwest of the Gold Hill Road intersection in Buckingham 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)Virginia storm water offset program(VA Code 62.1- 44.15:35),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 92.04 pounds of nitrogen reduction and 27.3 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-014)approved by the VDEQ on August 29,2016 and to the statutes,regulations and policies cited therein. B. Purchaser has applied for a permit (Application # - WPO-2014-00074)from the VDEQ with a site plan requirement to control 2.63 pounds of phosphorous each year as part of the VSMP Plan for Riverside Villa a Block 1 WPO Amendment l located at the corner of Stoney Point Road and Trailside Drive Albemarle County, Virginia(PIN 078G0-00-01-000A0)and within the James River Basin (HUC 02080204). Purchaser proposes to offset the annual nutrient control requirement by purchasing 2.63 Nutrient Credits (the "Nutrient Credits")from Seller. 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: 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, 2.63 Nutrient Credits for a purchase price of S27,615.00 in accordance with the terms and conditions set forth in this Agreement. 1 3. Pa;..;•ient of Purchase Price. Purchaser shall pay the Purchase Price to Seller on or before the date of Closing (as hereinafter defined) in cash 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 Re :resentation and Warranties. Seller hereby makes the following representations and warranties: a. Authorization. Execution and Deliver',. 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. Corn fiance 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 Availabilit,.As of the date of Closing, Seller shall have the Nutrient Credits available for Purchaser. 5. Purchaser's Rey, resentations 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 by mutual agreement, before May 1, 2018, 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. 2 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. Closin 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 attomey's fees. Purchaser shall pay any taxes customarily paid by Purchaser, if any, and Purchaser's attorney's fees. Purchaser shall not be responsible for payment of any broker fee. 9. Default. a. B; 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. B 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 Re. ulatory Action or Force Maeure. 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. Re.Tulatory 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 3 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 obligations hereunder, except as expressly provided herein. c. Force Maeure. 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 Beneficia . 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. 4 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 A eement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations and may not be contradicted by evidence of any prior or contemporaneous agreement, oral or written, and this Agreement may not be explained or supplemented by evidence of consistent additional terms. No previous course of dealing will be admissible to explain, modify or contradict the terms of this Agreement. This Agreement supersedes, merges, and voids all prior representations, statements, negotiations,understandings,proposed agreements, and other agreements,written or oral,relating to its subject matter. 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 without regard to its rules of conflicts or choice of laws. g. Counte arts. 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: Riverside Village Properties, Inc. Attention: C. Henry 200 Garrett Street, Suite 0 Charlottesville,Virginia,22911 Telephone: (540)353-0183 Email: chenry@stonypointdb.com 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 5 service, the first business day after being sent prepaid by such overnight delivery service,(iv)if given by email,the earlier of receipt or the first business day after transmission 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 5:00p.m.local Warrenton,Virginia time on May 15,2018. 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 LOVE& COMPANY, anager S,,. .,_..--- By omas James Ross II It . Manager Date: "1_ . PURCHASER:Riverside ' ,, properties, Inc. ' I ' A orized Officer Date: Ij3-0/1 g 6 BILL OF SALE Nonpoint Nutrient Offset Credits BILL OF SALE, made as of /gd , 2018, by HOTEL STREET CAPITAL, L.L.C., a Virginia limited liabili company ("Seller"), to RIVERSIDE VILLAGE PROPERTIES,INC., a Virginia corporation ("Purchaser"). WHEREAS, Seller and Purchaser have entered into that certain Agreement for Purchase and Sale of Nutrients Mitigation Credits, dated as of April 2)2018, (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 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,2.63 Nutrient Credits("Credits")as such are described in the Purchase Agreement for use on the Project known as VSMP Plan for Riverside Village Block 1. WPO Amendment 1 located at the corner of Stoney Point Road and Trailside Drive Albemarle County, Virginia (PIN 078G0-00-01-000A0), Project Number: Application #- WPO-2014-00074 TO HAVE AND TO HOLD all such Nutrient Credits are 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 limit ilitv company By: i„.---Z_____„\ _ Nal 'ho s James Ross II It Manager Permit#: Application #-WPO-2014-00074 Permitee: RIVERSIDE VILLAGE PROPERTIES, INC. Phosphorous Offsets: 2.63 pounds Associated Nitrogen Offsets: 6.24 pounds AFFIDAVIT OF PHOSPHOROUS OFFSET SALE HOTEL STREET CAPITAL, L. .C., a Virginia limited liability company ("Seller"), hereby certifies the following as of April , 2018: 1. Pursuant to that cert ' Agreement for Purchase and Sale of Nutrients Mitigation Credits,dated April, 2018,(the "Purchase Agreement",the Terms of which are incorporated herein by reference and made a part hereof) between Seller and RIVERSIDE VILLAGE PROPERTIES, INC. ("Purchaser"), for the benefit of the Purchaser, Seller agreed to sell 2.63 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 6.24 pounds of nitrogen offsets. 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 for use on the VSMP Plan for Riverside Village Block 1, WPO Amendment 1 located at the corner of Stoney Point Road and Trailside Drive Albemarle County, Virginia(PIN 078G0-00-01-000A0), Project Number: Application#- WPO-2014-00074 WITNESS the following signature: HOTEL STREET CAPITAL, L.L.C. a Virginia limit ility company By: GRAYS Y, LLC Manager By: , Manager STATE OF VIRGINIA CITY/COUNTY OF FAUQUIER: Sworn and subscribed before me this 3t day of Pv l , 2018, by Thomas James Ross II, Manager, on behalf of HOTEL STREET CAPITAL, L.L.C., a Virginia limited liability company. Notary bl c My Commission expires: tb 13 Jam) KELLY LYNN ESTEPPE I f ';.. � .:• NOTARY PUBLIC Permit#: Application #- WPO-2014-00074 ;y1 ;., REG. os COMMONWEALTHLTH O OF VIRGINIA Permitee: RIVERSIDE VILLAGE PROPERTIES, INCH ^<<' MY C MM SSION EXPIRES Phosphorous Offsets: 2.63 pounds Go�31 '21) Associated Nitrogen Offsets: 6.24 pounds BILL OF SALE Nonpoint Nutrient Offset Credits t BILL OF SALE, made as of ,/& , 2018, by HOTEL STREET CAPITAL, L.L.C., a Virginia limited liabili company ("Seller"), to RIVERSIDE VILLAGE PROPERTIES, INC., a Virginia corporation("Purchaser"). WHEREAS, Seller and Purchaser have entered into that certain Agreement for Purchase and Sale of Nutrients Mitigation Credits, dated as of April 212018, (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 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,2.63 Nutrient Credits("Credits")as such are described in the Purchase Agreement for use on the Project known as VSMP Plan for Riverside Village Block 1,WPO Amendment 1 located at the corner of Stoney Point Road and Trailside Drive Albemarle County, Virginia (PIN 078G0-00-01-000A0), Project Number: Application #-WPO-2014-00074 TO HAVE AND TO HOLD all such Nutrient Credits are 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 limit ilit company By: N : ho James Ross II It Manager Permit#: Application #- WPO-2014-00074 Permitee: RIVERSIDE VILLAGE PROPERTIES, INC. Phosphorous Offsets: 2.63 pounds Associated Nitrogen Offsets: 6.24 pounds SPONSOR: HOTEL STREET CAPITAL,L.L.C. 31 Garrett Street Warrenton, Virginia 20186 540-347-1000 BROKER: HSC—NOTB,LLC 31 Garrett Street Warrenton, Virginia 20186 April 29, 2018 For:Riverside Village Properties,Inc. RE: VSMP Plan for Riverside Villa a Block 1, WPO Amendment 1 2.63 of Nonpoint Nutrient Offset Credits for your project in Albemarle County, VA Application#-WPO-2014-00074 GENERAL INSTRUCTIONS Enclosed is the Agreement for Purchase and Sale of Nonpoint Nutrient Offset Credits,per your request. The closing date has been set for May 1, 2018 on your nutrient offset credit acquisition as set forth above and an automatic termination date of May 15,2018,please let me know if you should need to extend either date. Only return the Agreement for Purchase and Sale of Nonpoint Nutrient Offset Credits (pages 1- 6), signed and dated. The samples and other documents are for information purposes. We will return the signature pages signed by Hotel Street Capital,LLC. Payment of the Purchase Price can be made by wire transfer to Hotel Street Capital, LLC. Wire instructions have previously been provided. Within 2 days after funds(payable to Hotel Street Capital, L.L.C.)are wired to the account, I will send you the completed and fully executed original Exhibits A&B. (Samples enclosed). Please don't hesitate to contact us with any questions or concerns. Sincerely, Thomas James Ross II 540-687-0171 (cell)