HomeMy WebLinkAboutWPO202200047 Agreement - Nutrient Credits 2023-03-24 (3)NUTRIENT OFFSET PURCHASE AGREEMENT
THIS NUTRIENT OFFSET PURCHASE AGREEMENT ("Agreement") is made and entered into
this 28th day of Fe rua 2023, (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 SOUTHWOOD CHARLOTTESVILLE, L.L.C., a Virginia limited
liability company, having an address of 967 2nd Street SE, Charlottesville, VA 22902 ("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 02080204) 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 Southwood Villages 3 & 4 (WPO202200047L(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): 090A1-00-00-001DO within the Rivanna River
watershed (HUC: 02080204); 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 = 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 2.20 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 Thirty -Three
Thousand and 00/100 Dollars ($33,000.00) (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").
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 Bank'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 March 10th, 2023 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.
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 22Q nonpoint
nutrient offset credits. Seller has good and sufficient title to the Credits it will sell to Buyer. 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.
1102 Carlton Avenue
Charlottesville, VA 22902
P: (540) 578-4296
Jon@ecosystemservices.us
SOUTHWOOD CHARLOTTESVILLE, L.L.C.,
c/o Habitat for Humanity of Greater Charlottesville
Dan Rosensweig, President/CEO
967 2nd Street SE
Charlottesville, VA 22902
P: (434) 249-5775
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.
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 may be, 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.
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
By:
Name: Jonathan R. Roller
Title: Manager -Authorized Representative
Date: March 2, 2023
BUYER:
Southwood Charlottesville, L.L.C.,
a Virginia limited liability company
By:
Name: Dan Rosensweig
Title: President/CEO
Date: �Ty.'L�i