LOUISIANA WETLANDS, L.L.C. – PURCHASE AGREEMENT
(Bottomland Hardwoods)
This PURCHASE AGREEMENT (“Agreement”) is made and entered into as of this ____ day of __________, 20 __ (the “Effective Date”), by and between Louisiana Wetlands, L.L.C. (the “Seller”) and ____________________ (the “Purchaser”), Seller and Purchaser being hereinafter at times collectively referred to as the “parties”.
Recitals
Seller is the Sponsor and operates the Bayou Teche Wetlands Mitigation Area in St. Mary Parish, Franklin, Louisiana (the “Mitigation Area”), established pursuant to the Bayou Teche Wetlands Mitigation Area Interagency Agreement dated ___________________ (the “Interagency Agreement”) previously approved by the U.S. Army Corps of Engineers (the “Corps”) and other federal and state member agencies of the Mitigation Banking Review Team (“MBRT”).
Purchaser desires to buy from Seller wetlands mitigation credits to meet the compensatory mitigation requirements of U.S. Army Corps of Engineers (the “USCOE”) Permit No. ___________________ issued pursuant to Clean Water Act Section 404 (the “Permit”), and Seller agrees to sell such wetlands mitigation credits to Purchaser, under the terms and conditions set out in this Agreement.
Agreement
NOW, THEREFORE, for and in consideration of the covenants and conditions herein contained, the receipt and sufficiency of which is hereby acknowledged by the parties, Seller and Purchaser agree as follows:
1. SELLER’S SERVICES:
A. Seller shall perform or has performed ____ acres of bottomland hardwoods wetlands mitigation with a Mitigation Potential of 0.66 per acre (the “Credits”). B. Upon the closing and receipt in full of the payment specified in Paragraph 2,
Seller shall: (1) sell to Purchaser ____ Credits, to meet the compensatory mitigation requirements of the Permit, such sale being complete without the necessity of execution of any additional sale or other agreement between the parties; and (2) assume the responsibility to perform the wetlands mitigation specified in Paragraph A above in accordance with the terms and conditions of the Interagency Agreement.
C. Purchaser acknowledges and agrees that does not have and shall not hereafter have: (1) any rights to any monies generated by or related to the Mitigation Area (whether the surface or the subsurface of the Mitigation Area); or (2) any rights of ownership, use, or otherwise in the Mitigation Area.
2. PAYMENTS/CLOSING:
A. At Closing, Purchaser shall pay to Seller the purchase price of
for each Credit specified in Paragraph 1 for a total sum of ____________________ ($ ) DOLLARS, in full, in cash or immediately available funds. The purchase price is non-refundable, for any reason, except as otherwise provided in Paragraph 4.B.
B. The Closing shall take place on or before ________________, 200__, but not more than 30 days from the Effective Date of this Agreement (the “Termination Date”). This Agreement shall automatically terminate without any action or
notice by or from either party if the Closing has not taken place on or before the Termination Date, unless this Agreement is extended by written agreement both of the parties.
3. WARRANTY:
A. Seller’s Warranty: Seller represents and warrants that it is a duly authorized Louisiana Limited Liability Company; is in good standing; and has the authority and approval from the Corps and the MBRT, pursuant to the Interagency Agreement, to sell the Credits and warrants that the wetlands mitigation shall be or has been performed in accordance with the terms and conditions of the Interagency Agreement.
B. Purchasers’ Warranty:
(1) Purchaser warrants that it is a Louisiana resident or domiciliary or is an entity authorized to do business in Louisiana, as the case may be, and is duly authorized to enter into this Agreement and purchase the Credits. Purchaser further warrants it has the financial capability to perform under this Agreement and, to the best of Purchaser’s knowledge, there are no legal impediments restricting or otherwise existing that would prevent Purchaser from performing its obligations hereunder. (2) Purchaser shall pursue issuance of the Permit with due diligence.
(3) Purchaser further represents and warrants that the Corps and/or Purchaser have calculated and determined the appropriate number of acres of bottomland hardwoods wetlands mitigation, with a mitigation potential of 0.66, that are necessary to compensate for the wetlands loss attributed to the Permit; that Seller is relying on Purchaser with respect thereto; and that Seller has made no
representations or warranties to Purchaser with respect to the necessary number of acres or Credits for Purchaser’s needs.
4. INSOLVENCY OF PURCHASER/REMEDIES:
A. In case of the filing of a petition in bankruptcy by or against Purchaser, or the appointment of a receiver for Purchaser, or the insolvency of Purchaser, prior to Purchaser’s full performance under this Agreement, this Agreement shall automatically and immediately terminate without the necessity of any action or notice by or from Seller.
B. Purchaser’s sole remedy with respect to failure of Seller to perform hereunder or in accordance with the specifications of the Interagency Agreement shall be return of the purchase price paid by Purchaser to Seller, if any, and Purchaser agrees and acknowledges it hereby irrevocably waives and releases any and all other rights and remedies that is has or may have at law, in equity, or otherwise.
5. ARBITRATION:
Any controversy or claims arising out of or relating to this Agreement or its breach shall be resolved by binding and final arbitration heard by an independent arbitrator mutually agreed to by Purchaser and Seller and conducted in accordance with the rules of commercial arbitration of the American Arbitration Association in accordance with the Commercial Rules of the American Arbitration Association. The arbitration shall be held in ______________, Louisiana, unless another location is agreed to by Seller, which agreement may be withheld by Seller in its sole discretion. There shall be only one arbitrator and, unless otherwise agreed to by Seller, the arbitrator shall be a lawyer who has practiced for at least 15 years in the field of environmental law. There shall be no discovery, with the exception of discovery agreed to by the parties or as
approved and ordered by the arbitrator; provided, further, that all discovery shall be completed no later than the date set by the arbitrator. Seller and Purchaser, respectively, agree to provide one-half of the advance deposit, if any, required by the arbitrator, and to pay one-half of all fees and expenses billed by the arbitrator to handle the arbitration. The arbitrator shall render its decision within forty-five (45) days of appointment and judgment upon such decision shall be conclusive and final, and may be entered in any court of competent jurisdiction. If the arbitrator fails to render a decision within the forty-five (45) day period, the arbitration provisions shall be terminated, and all controversies or claims shall be resolved by court action the exclusive venue of which shall be the Nineteenth Judicial District Court for East Baton Rouge Parish.
6. SAVINGS AND SERVERABILITY PROVISIONS:
The parties agree that if a portion of this Agreement or if the application of this Agreement to any person or circumstance shall to any extent be declared invalid by a Court of competent jurisdiction, then the remainder of this Agreement and the application of such provisions to persons or circumstances other than those held to be invalid shall not be affected thereby. Moreover, each other such provision of this Agreement shall be valid and enforced to the fullest extent permitted by applicable law.
7. ASSIGNMENT:
This Agreement and the Credits the subject hereof are not assignable and the duties hereunder are not delegable without Seller’s prior written consent.
8. EXPLANATION OF AGREEMENT:
The Agreement contains the entire understanding between the parties with respect to the Subject matter hereof. Furthermore, this Agreement supercedes and revokes all previous communications, negotiations and agreements, whether oral or written, between the parties with
respect to the subject matter of this Agreement. No addition, modification or deletion of or to this Agreement or any waiver of any of its provisions shall be binding on either party unless made in writing and executed both by Seller and Purchaser.
9. JURISDICTION:
This Agreement shall be governed and construed for all purposes under and in accordance with the laws of the State of Louisiana.
10. NOTICE:
Any notice required under this Agreement or otherwise shall be sent to the following person at the address indicated:
The address of Seller: Louisiana Wetlands, L.L.C.
Attn: Mr. James J. Bailey III, Manager P.O. Box 842
Baton Rouge, La. 70802
The address of Purchaser: ___________________________ ___________________________ ___________________________ ___________________________
11. SUCCESSORS AND ASSIGNS:
This Agreement shall be binding upon and inure to the benefit if the parties and their respective successors and assigns.
THUS DONE AND SIGNED in the Parish of East Baton Rouge, State of Louisiana, on the _________ day of _____________, 200___, in the presence of the undersigned competent witnesses and me, Notary, after a due reading of the whole.
WITNESSES: LOUISIANA WETLANDS, L.L.C.
___________________________
By: _______________________________
___________________________
___________________________________
NOTARY PUBLIC
THUS DONE AND SIGNED in the Parish of ________________, State of Louisiana, on the _________ day of _____________, 200___, in the presence of the undersigned competent witnesses and me, Notary, after a due reading of the whole.
WITNESS: ___________________________________ ___________________________ By: _____________________________ _______________, its ___________ __________________________ _______________________________________ NOTARY PUBLIC
