HomeMy WebLinkAboutWPO201600071 Agreement - Nutrient Credits 2022-12-19SPONSOR: HOTEL STREET CAPITAL, L.L.C.
BROKER: HSC — NOTB, LLC
31 Garrett Street
Warrenton, Virginia 20186
540-347-1000
January 25, 2023
New Belvedere, Inc
Mr. Steve Krohn
skrohn(@,,resortscompanies.com
Dustin Greene, PE
Roudabush, Gale & Associates, Inc
dgreencO,roudabush.com
Project Information
Project Name: Amendment #4 Belvedere Phase IIB VSMP — WP0201600071
Project#: WPO-2016-00071
Project HUC: 02080204
Number of credits 0.18 Ib./yr.
Tax May and Parcels: 06100-00-00-16OR5, 062GO-00-07-0OOEO, 06100-00-00-160R7, 062A3-00-00-001BO
Dear Steve and Dustin
Enclosed is the Agreement for Purchase and Sale of Nonpoint Nutrient Offset Credits, per your
request.
We have set a closing date of on or before January 15, 2023, on your nutrient offset credit
purchase as set forth above and an automatic termination date of January 30, 2023, please let us
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.
Within 2 days after funds (payable to Hotel Street Capital, L.L.C.) are wired to our account, we
will send you the completed and fully executed Exhibits A & B. (Samples enclosed).
Sincerely,
Thomas James Ross II
540-687-0171 (cell)
AGREEMENT FOR PURCHASE AND SALE OF NONPOINT NUTRTIENT OFFSET
CREDITS
made as of the 19th day of December, 2022 (the "Effective Date"), between
Hotel Street Capital, L.L.C., a Virginia limited liability company
31 Garrett Street
Warrenton, Virginia 20186 ("Seller")
and
New Belvedere, Inc.
610 West Rio Road
Charlottesville, VA 22901 ("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
.18 pounds of phosphorous each year as part of the following project:
Project Name: Amendment #4 Belvedere Phase I1B VSMP — WP0201600071
Project #: WPO-2016-00071
Project HUC: 02080204
Number of credits 0.18 IbJyr.
Tax Mao and Parcels: 06100-00-00-16OR5, 062GO-00-07-OOOEO, 06100-00-00-16OR7,
062A3-00-00-001BO
Purchaser proposes to offset the annual nutrient control requirement by purchasing .18
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:
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 .18 Nutrient
Credits for a purchase price of $2,500.00 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
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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 January 15, 2023, 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 and Affidavit,
substantially in the form of Exhibits A and B attached hereto and incorporated herein by this
reference, evidencing the sale to Purchaser of the Nutrient Credits from the Bank.
b. Not more than thirty (30) calendar days following the Closing, Seller shall
(Utilizing the RIBITS System and record 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 and the
requirements of DEQ.
8. Closing Costs. Seller shall pay the cost of preparing the Bill of Sale and Affidavit and any
taxes and costs customarily paid by Sellers and Seller's attorney's fees. Purchaser shall pay any
taxes customarily paid by Purchaser, Purchaser's attorneys 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.
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10. 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 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
The acquisition of 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
C. 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 addresses set forth
above.
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 S:OOp.m., local time Warrenton, Virginia time on January 30, 2023.
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 Loy Company,
LLC, Manager -
By: Ttoma�'James Ross If
Its: M naidnix, Member
Date: " 2/3 /7� -3
PURCHASER:
Ncw Bely Inc.,
a Virg' to
By:
Mr. Steve Krohn, u rorized Officer
Date: q6-17f-23
BILL OF SALE
Nonpoint Nutrient Offset Credits
BILL OF SALE, made as of January 25, 2023, by Hotel Street Capital, L.L.C., a Virginia
limited liability company ("Seller") and New Belvedere, Inc., a Virginia corporation
("Purchaser").
WHEREAS, Seller, as the owner of the Rivanna River Nutrient Offset Credit Bank,
which was approved by the VDEQ on September 5, 2018 (Certificate No. James-039) and
Purchaser have entered into that certain Agreement for Purchase and Sale of Nutrients Mitigation
Credits, dated as of December 19, 2022 (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 .18 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 liabilit company
by Grayson Love && pany, LLC, its
Managing Memb
By: ! .
Name: 7hopids James Ross 11
Its: Minalifine Member
Project Name: Amendment #4 Belvedere Phase IIB VSMP — WPO201600071
Project #: WPO-2016-00071
Project HUC: 02080204
Number of credits 0.18 Ib./yr.
Tax Map and Parcels: 06100-00-00-160115, 062GO-00-07-OOOEO, 06100-00-00-160R7,
062A3-00-00-OO1B0
Bank Sponsor HUC: 02080204
AFFIDAVIT OF PHOSPHOROUS OFFSET SALE
Hotel Street Capital, L.L.C., a Virginia Limited liability company ("Seller"), hereby
certifies the following:
1. Seller, is the owner of the Rivanna River Nutrient Offset Credit Bank, Certificate
No.James-039 approved by the VDEQ on September 5, 2018 (the "Bank") and pursuant to that
certain Agreement for Purchase and Sale of Nutrient Mitigation Credits, dated as of December
19, 2022 (the 'Purchase Agreement"), the terms of which are incorporated herein by reference
and made a part hereof) between Seller and New Belvedere, Inc., a Virginia corporation
('Purchaser"), Seller agreed to sell .18 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 relating to:
Project Name: Amendment #4 Belvedere Phase IIB VSMP - WPO201600071
Project#: WPO-2016-00071
Project HUC: 02080204
Number of credits 0.18 lb./yr.
Tax Mai) and Parcels: 06100-00-00-160R5, 062GO-00-07-OOOEO, 06100-00-00-160R7,
062A3-00-00-OO1B0
Bank Sponsor HUC: 02080204
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 offset credits.
WITNESS the following signature:
Date: Z 7/ 2J By:
STATE OF VIRGINIA
COUNTY OF FAUQUIER:
HOTEL STREET C ITAL, L.L.C.
a Virginia limite lability company
GRAYSON VE & COMPANY, LLC, Managing
Ross 11, Managing Member
Sworn and subscribed before me this_ day of 2023, by Thomas James
Ross 11, Managing Member of Grayson Love & Company, LLC, pager of HOTEL STREET
CAPITAL, L.L.C., a Virginia limited liability company.
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