HomeMy WebLinkAboutWPO201600083 Agreement - Nutrient Credits WPO VSMP 2017-06-16SPONSOR: 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
February 13, 2017
For: B Properties, LC
RE: 1.01 of Nonpoint Nutrient Offset Credits for your project
in the Albemarle County, Virginia
GENERAL INSTRUCTIONS
Enclosed is the Agreement for Purchase and Sale of Nonpoint Nutrient Offset Credits, per your
request.
a. 3 aol
We have set a closing date of on or before on ur nutrient offset credit purchase
as set forth above and an automatic termination date of Matek; 2017, please let us know if you
should need to extend either date. m"
Only return the Agreement for Purchase and Sale of Nonpoint Nutrient Offset Credits (pages 1-
6), signed and dated with your payment. The samples and other documents are for information
purposes.
Within 2 days after finds (payable to Hotel Street Capital, L.L.C.) are wired to our account, we
will send you the completed and fully executed original Agreement for Purchase and fully
executed Exhibits A & B. (Samples enclosed).
Please don't hesitate to contact us with any questions or concerns.
Sincerely,
Thomas James Ross lI
540-687-0171 (cell)
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 day of (the "Effective Date"), between
HOTEL STREET CAPITAL, L.L.C., a Virginia Limited liability company ("Seller") and B
Properties, LC ("Purchaser").
RECITALS
A. Seller is the owner and sponsor of an approved nonpoint nutrient offset generation bank
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) the Department of Conservation and Recreation's (OCR) stonn water offset
program (VA Code 10.1-603.8:1), and iii) the Virginia Soil and Water Conservation Board's
Guidance Document on Storm water Nonpoint Nutrient Offsets approved on August 29, 2016 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 from the VDEQ with a site plan requirement to control
1.01 pounds of phosphorous each year as part of the Better Living Berk -mar Drive project in
Albemarle County located on d--Rio R( and within the James River Basin
(HUC 02080204). Purchaser proposes to offset the annual nutrient control requirement by
purchasing 1.01 Nutrient Cre its (the "Nutrient Credits") from Seller and Seller has such credits
available for sale.
AGREEME
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 1.01 Nutrient
Credits for a purchase price of $ l 2,120.00 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
regulations relating to the sale of the Nutrient
Offset Generation Certification.
will comply with all applicable laws and
Credits, the Bank, and the Nonpoint Nutrient
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
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 purchaser 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 , unless Seller consents in writing to a later date, TIME
BEING OF THE ESSENCE O THIS AGREEMENT.
'. 3 , aol`l '
7. Seller's Deliveries. (Y)a�
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. Closing 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 attorney's fees. Purchaser shall pay any taxes
customarily paid by Purchaser, Purchaser's attorney's 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.
10. Effect of Condemnation, Re latory 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
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 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 Maieure. 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 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.
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 Agreement. This Agreement sets forth the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior negotiations and
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.
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 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: B Properties, LC
P. O. Box 7627
Charlottesville, Virginia 22906
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 Tennination. 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 time Warrenton, Virginia time on A4areh-i, 491-9"
M"s,ao11
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.G.
a Virginia limited liability company
BY: GRAYSON LOVE &
COMPANY
By `Thomas James Ross 11
I Manager
Date:
PURCHASER: B Properties, LC
— � /C� " ,
B John G. Nunley
It Member Manager
Date:
6
BILL OF SALE
Nonpoint Nutrient Offset Credits
BILL OF SALE, made as of May 3, 2017, by HOTEL STREET CAPITAL, L.L.C., a
Virginia limited liability company ("Seller"), to B Properties, a Virginia limited liability company
("Purchaser").
WHEREAS, Seller and Purchaser have entered into that certain Agreement for Purchase
and Sale of Nutrients Mitigation Credits, dated as of May 3, 2017, (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, 1.01 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 it's duly
authorized representative as of the date first above written.
HOTEL STREET CAPI ' , L.L.C.
A Virginia limite i y company
Name: T mas ames Ross 11
Its: Ma eer
Permit#:
Permitee: B Properties, LC
Phosphorous Offsets: 1.01 pounds
Project name: Better Living Berkmar Dr. TMP 04500-00-00-112BO
7
AFFIDAVIT OF PHOSPHOROUS OFFSET SALE
HOTEL STREET CAPITAL, L.L.C., a Virginia limited liability company ("Seller"), hereby
certifies the following:
Pursuant to that certain Agreement for Purchase and Sale of Nutrients Mitigation
Credits, dated May 3, 2017 (the "Purchase Agreement", the Terms of which are
incorporated herein by reference and made a part hereof) between Seller and B
PROPERTIES, LC, ("Purchaser"), for the benefit of the Purchaser, Seller agreed
to sell 1.01 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 3.04 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.
WITNESS the following signature:
HOTEL STREET CAP
aGRAYS
nia limite
By:
Date: J - l By:
STATE OF VIRGINIA
CITYICOUNTY OF FAUQUIER:
VI;, L.L.C.
company
v�PANY, LLC, Manager
Sworn and subscribed before me this ytHk day of , 2017, by Thomas James
Ross II, Manager, on behalf of HOTEL STREET CAPITAL, L. C., a Virginia limited liability
KELLY LYNN ESTc rt
NOTARY PUBLIC
`y REG. #7511805
COMMONWEALTH OF VIRGINIA
±Ter MY COMMISSION FXPIRE Notary is
My ommissi t4
Project name: Better Living Berkmar Dr. TMP 04500-00-00-112BO
WPO-2016-00083
Bank Sponsor: Hotel Street Capital, LLC - HUC No. 02080203
Permitee: B Properties, LC
Phosphorous Offsets: 1.01 pounds Associated Nitrogen Offsets: 3.04 pounds
8