20100806 Ver 1_Mitigation Bank Information_20131217

Strickland, Bev
From: Kukz,Eho
Sent: Tuosday, December 17, 2013 10:24 AM
To: Strickland, Bev
Subject: FYV: Chatham Mitigation Bank Doos
Attachments: 20100800v1 Chatham UMB Instrument markups.pd�2010O800v1 Chatham UMB|nstrumonLpd�
2010O800v2 Stinking Creek Mitigation Plan August 2013.pdf
New mitigation bank. Chatham Umbrella Stream and Wetland Bank. UMB| and related documents are 1O4]QO6v1and
the Stinking Creek Mitigation Plan is1O-OQO6v2.
Eric VV.Ku|z
Environmental Senior Specialist
4O1 and Buffer Permitting Unit
N[DENR DivisionofVVaterResources — VVaterCWa|ityPermittingSection
1650 MSC
E-mail correspondence toondƒrom this address may besubject to the North Carolina Public Records Low and may be
disclosed to third parties
From: Bob Zarzecki
Sent: Tuesday, December 17, 2013 9:19AM
To: Kubz,Ehc;
Cc: 'Philip Culpepper ; Andrew. E.Williams2(a)usace.army. mil
Subject: RE: Chatham Mitigation Bank
Eric:
Attached are P[]FsQfthe documents. I don't have BRMSWQPd copy Qf the most current MBI. [F0
sending this email to the bank's attorney, Ken Eagle.
Eric Kulz with DWR has been tasked to help us finalize the mitigation bank. Can you update the MBI
,?nd change all "Division of Water Quality'and "DWQ" to "Division of Water Resources" and "DWR"
respectfully? Also, the signatory for DWR should be listed as "Mr. Tom Reeder, Director N.C.
Division of Water Resources".
Once you make these changes to the MBI. Can you email the MBI to Eric (copy me) and send over
paper copies (maybe 3) of the MBI and mitigation plan (attached)? Eric's contact information and
mailing address is below. Best to have it couriered to him to avoid delays with the State's mail
P.ervice center. Feel free to contact him if you have any questions.
Mr. Eric Kulz

From: Kulz, Eric [mailto:eric.kulz(d)ncdenr.aov]
Sent: Tuesday, December 17, 2013 8:06 AM
To: Bob Zarzecki
Subject: Chatham Mitigation Bank
Hey Bob:
I was over at USACE looking at the file yesterday. We may have something in the RRO, as it looked like Lauren
Witherspoon was working on it some.
Can you please send over the most updated mitigation plan and instrument? Hard copies would be great, as we don't
have the printing capabilities here to print long documents.
Also, FYI you will need to revise the instrument to reflect DWR, not DWQ. Tom Reeder will be the signatory.
Thanks!
Eric W. Kulz
Environmental Senior Specialist
401 and Buffer Permitting Unit
NCDENR - Division of Water Resources — Water Quality Permitting Section
1650 MSC
Raleigh, NC 27699 -1650
Phone: [phone]
E -mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be
disclosed to third parties

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Original document: M:AOPEN FILES \Chatham Park Investors - 11023 \Mitigation Bank & Conservation
Easement\mitigation bank 1 -7.wpd
Revised document: M:AOPEN FILES \Chatham Park Investors - 11023 \Mitigation Bank & Conservation
Easement\mitigation bank 1- 7c.wpd
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AGREEMENT TO ESTABLISH
THE CHATHAM UMBRELLA MITIGATION BANK
This Agreement To Establish The Chatham Umbrella Mitigation Bank (the "Umbrella Bank "),
hereinafter called the "Umbrella Mitigation Banking Instrument" or "UMBI ", is made and entered into this
_______ day of _____________________. ________. by and among Chatham Park Investors LLC, a North
Carolina limited liability company ( "Sponsor "), the U. S. Army Corps of Engineers ( "USACE "), and each
of the following governmental agencies who execute this UMBI: the Environmental Protection Agency
( "USEPA "), the U.S. Fish and Wildlife Service ( "USFWS "), the North Carolina Wildlife Resources
Commission ( "NCWRC "), and the North Carolina Division of Water Quality ( "NCDWQ "). USACE, together
with the State and Federal agencies who execute this UMBI, are hereinafter collectively referred to as the
"Governmental Agencies."
The goal of the Umbrella Bank is to restore, enhance, create and preserve stream and wetland systems
to compensate in advance of unavoidable stream and wetland impacts authorized by USACE and NCDWQ
pursuant to Sections 401 and 404 of the Clean Water Act, and Sections 15A NCAC 0213.0234, 0213.0235, or
0213.0242 of the North Carolina Administrative Code, in circumstances deemed appropriate by the USACE
and /or NCDWQ after review through any applicable permit review process. The Umbrella Bank may also
be used to provide nitrogen offset credits pursuant to 15A NCAC 02B .0240.
As more particularly described herein, the Sponsor will implement stream and /or wetland mitigation
projects at sites in the Haw River Basin ( "Mitigation Sites "). The mitigation projects to be performed on a
Mitigation Site will be described in a site - specific mitigation plan submitted to the Interagency Review Team
( "IRT ") for review and approval ( "Site- Specific Mitigation Plan "). A Mitigation Site and the mitigation
credits associated therewith will become a part of the Umbrella Bank upon: (i) written approval of the Site -
Specific Mitigation Plan for such Mitigation Site by the IRT, acting through the USACE, in the case of
impacts to waters of the United States; and (ii) amendment of this UMBI to incorporate the Mitigation Site.
NOW, THEREFORE, the parties hereto agree as follows:
L Interagency Review Team.
A. Establishment of the IRT. The Governmental Agencies shall establish an IRT for the
purpose of performing the technical review, approval, and oversight functions as described in 40 CFR Part
230, Compensatory Mitigation for Losses of Aquatic Resources ( "Compensatory Mitigation Rules "). The
IRT shall consist of a designated representative of each of the Governmental Agencies who execute this
UMBI and shall be chaired by the designated representative of USACE, Wilmington District.
B. Termination of Participation. Any member of the IRT may terminate its participation in
the IRT with notice in writing to all other parties to this UMBI. Termination shall be effective seven (7) days
from placing said notices in the United States mail. A member withdrawal shall not affect any prior sale or
use of credits and all remaining parties shall continue to implement and enforce the terms of this UMBI.
II. Establishment of the Umbrella Bank and Mitigation Sites.
A. Establishment of Umbrella Bank. Pursuant to the Compensatory Mitigation Rules, the
Sponsor hereby establishes the Umbrella Bank, which shall be governed by this UMBI. The parties
acknowledge and agree that the "Prospectus" that the Sponsor submitted for this Umbrella Bank is acceptable.
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B. Mitigation Sites.
1. Site - Specific Mitigation Plans. The Sponsor shall develop a Site - Specific
Mitigation Plan for each Mitigation Site pursuant to the requirements of the Compensatory Mitigation Rules.
In order to obtain mitigation credits from a Mitigation Site, the Sponsor shall perform all necessary work in
accordance with the provisions of this UMBI and the approved Site - Specific Mitigation Plan to establish
and /or maintain the Mitigation Site until it has been determined that all the conditions herein and in the Site -
Specific Mitigation Plan have been satisfied. Approved Mitigation Sites shall be described in Exhibit A to
this UMBI. Approved Site - Specific Mitigation Plans shall be incorporated into Exhibit B to this UMBI.
Review of Site - Specific Mitigation Plans.
a. Mitigation plans for waters of the United States. The Sponsor shall
submit to USACE any Site - Specific Mitigation Plan for waters of the United States that the Sponsor develops
to generate credits for this Umbrella Bank, with a sufficient number of copies for each member of the IRT.
After determining that the Site - Specific Mitigation Plan is complete, USACE shall promptly distribute copies
of the Site - Specific Mitigation Plan to the members of the IRT. The IRT shall review and comment on all
submittals in accordance with the Compensatory Mitigation Rules. To the extent authorized by USACE, the
IRT will utilize the streamlined review process specified in the Compensatory Mitigation Rules. If the Site -
Specific Mitigation Plan is not approved by the IRT as originally submitted by the Sponsor, the IRT shall
provide the Sponsor with specific reasons or rationale for not approving the Site - Specific Mitigation Plan.
The Sponsor may resubmit the Site - Specific Mitigation Plan with specific modifications or justifications that
address the IRT's concerns. Following the approval of any Site - Specific Mitigation Plan, the credits
associated with the approved Site - Specific Mitigation Plan shall be deemed deposited into the Umbrella Bank
in accordance with the credit release schedule contained in the approved Site - Specific Mitigation Plan.
b. Mitigation Plans for Non - jurisdictional Wetlands. For Mitigation Sites
that restore, enhance, or preserve non - jurisdictional wetlands, the Sponsor shall submit to NCDWQ each Site -
Specific Mitigation Plan the Sponsor develops to generate credits for this Umbrella Bank. NCDWQ shall
review and comment on all submittals within 35 days of receipt of such submittal. If the Site - Specific
Mitigation Plan is not approved by NCDWQ as originally submitted by the Sponsor, NCDWQ shall provide
the Sponsor with specific reasons or rationale for not approving the Site - Specific Mitigation Plan. The
Sponsor may resubmit the Site - Specific Mitigation Plan with specific modifications or justifications that
address NCDWQ's concerns. Following the approval of any Site - Specific Mitigation Plan, the credits
associated with the approved Site - Specific Mitigation Plan shall be deemed deposited into the Umbrella Bank
in accordance with the credit release schedule contained in the approved Site - Specific Mitigation Plan.
3. Environmental Documentation, Permits and Authorizations; Construction. If
the Sponsor elects to proceed with the implementation of an approved Site - Specific Mitigation Plan, it shall
(a) prepare any required environmental documentation and obtain all required permits or other authorizations
needed to perform mitigation projects on Mitigation Sites included in the Umbrella Bank (this UMBI does
not fulfill or substitute for such permits or authorizations); and (b) perform any construction and related
activities on the Mitigation Site in accordance with the Site - Specific Mitigation Plan.
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4. Monitoring and Assurance of Success.
a. The Sponsor shall perform all necessary work to monitor a Mitigation Site and
to demonstrate compliance with the success criteria established in the Site - Specific Mitigation Plan.
Members of the IRT may conduct, at their own expense and in coordination with other Federal and State
resource agencies, field investigations to review and evaluate the mitigation project and determine the
functions and values of the Mitigation Sites. The IRT shall use its best professional judgment to determine
wetland, stream, upland, and habitat functions and values. Any member of the IRT who generates a written
report resulting from any such investigation shall promptly provide the report to the Sponsor and its
designated agents.
b. The Sponsor shall be responsible for assuring the success of the restoration,
creation, enhancement and preservation activities at the Mitigation Sites, including performing any
remediation required by USACE or NCDWQ, as applicable.
c. The Sponsor shall submit to the USACE and NCDWQ, an annual report
describing the conditions of Mitigation Sites and evaluating the conditions of the Mitigation Sites against the
success criteria in the applicable Site - Specific Mitigation Plans. The Sponsor shall submit monitoring reports
for each Mitigation Site to USACE and NCDWQ for the time period specified in the applicable Site - Specific
Mitigation Plan, unless success criteria have not been met at which point USACE or NCDWQ, as applicable,
will determine an appropriate extension(s) of the monitoring period.
d. USACE shall review the annual monitoring reports, and may, at any time, after
consultation with the Sponsor and the IRT, direct the Sponsor to take remedial action at a Mitigation Site if
the performance criteria contained in the applicable Site - Specific Mitigation Plan have not been met.
e. In the event that USACE requires remedial action or the Sponsor determines that
remedial action may be necessary to achieve the required performance criteria, it shall provide advance notice
of such proposed remedial action to all members of the IRT. Any proposed remedial action shall be designed
to achieve the performance criteria specified in the Site - Specific Mitigation Plan and shall include a work
schedule and monitoring criteria that take into account the physical and biological condition of the Mitigation
Site. The Sponsor shall not, except to the extent required to address emergency situations, initiate any
remedial action prior to receiving approval thereof by the IRT.
5. Access. The Sponsor shall allow the members of the IRT reasonable access to the
Mitigation Sites for the purposes of inspection of the Mitigation Sites and monitoring compliance with the
Site - Specific Mitigation Plan.
6. Phasing. The Sponsor shall document in the Site - Specific Mitigation Plan any plans
for phased construction of mitigation projects on Mitigation Sites. The scope and timing of each phase shall
be at the discretion of Sponsor, subject to IRT approval. However, if the Sponsor performs mitigation in
areas of a Mitigation Site beyond those for which the design has been approved by the IRT, the Sponsor must
receive approval for this modification of the Site - Specific Mitigation Plan prior to mitigation credits from
such additional areas being added to this Umbrella Bank. Credit release for phases of a Mitigation Site will
be in accordance with the credit release schedule contained in the Site - Specific Mitigation Plan for each phase
of a Mitigation Site. If phasing is used on a Mitigation Site, each phase shall be individually reviewed,
tracked, and monitored by the Sponsor and the IRT.
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7. As -Built Report. The Sponsor shall submit an as -built report for each Mitigation
Site or phase of a Mitigation Site to the IRT as soon as practical after construction of a mitigation project on
the Mitigation Site, but in no event later than 60 days after the completion of construction.
8. Perpetual Protection /Real Estate Provisions. The Sponsor shall protect each
Mitigation Site that provides compensatory mitigation for impacts to waters of the United States by a
conservation easement or deed restriction ( "Conservation Instrument ") approved by USACE pursuant to the
current regulatory guidance of the Wilmington District of USACE. The Sponsor shall protect all other
Mitigation Sites by a Conservation Instrument approved by NCDWQ. The Conservation Instrument shall
be perpetual, preserve all natural areas, and prohibit all use of the property inconsistent with its use as
mitigation property, including any activity that would materially alter the biological integrity or functional
and educational value of natural resources within the Mitigation Site, consistent with the Site - Specific
Mitigation Plan. The Sponsor shall obtain the written approval by USACE, USACE Wilmington District
Office of Counsel, or by NCDWQ, as applicable, of the form of the Conservation Instrument, including the
initial grantee of the Conservation Instrument. Upon the approval of a Conservation Instrument by USACE
or NCDWQ, as applicable, the Sponsor or other initial grantee shall record the Conservation Instrument in
the Office of the Register of Deeds of the county in which the Mitigation Site is located. The Sponsor shall
provide a copy of the recorded Conservation Instrument, showing book and page numbers of the recorded
location, to USACE or NCDWQ, as applicable. After recording the Conservation Instrument, the City or
other initial grantee may, with the approval of USACE or NCDWQ, as applicable, convey the Mitigation Site
property either in fee or by granting an easement to a qualified land trust, state agency, or other appropriate
nonprofit organization. The terms and conditions of this conveyance shall not conflict with the intent and
provisions of the Conservation Instrument nor shall such conveyance enlarge or modify the uses specified
in the Conservation Instrument.
9. Financial Assurance.
a. No financial assurance shall be required for the preservation portion of any
mitigation project. For all other forms of mitigation, prior to the release of any credits from a Mitigation Site,
the Sponsor shall provide USACE or NCDWQ, as applicable, with a performance bond, letter of credit,
escrow agreement, or other financial assurance instrument acceptable to the IRT, USACE, and /or NCDWQ,
as applicable, sufficient to assure completion of all remaining mitigation work, required reporting and
monitoring, and any remedial work required pursuant to this UMBI . In determining the amount of the
financial assurance to be provided, the parties acknowledge and agree that the following items should be
considered, together with any additional items appropriate for the particular mitigation work to be performed:
site design; topographic and boundary surveys; purchase, installation and maintenance of hydrology
monitoring devices; sediment and erosion control; grading; regrading contingency ( +30% of grading cost);
planting; replanting contingency ( +30% of planting cost); control and /or eradication of undesirable plant
species; control of herbivory; measures to control access and human impacts; as -built surveys; five years of
monitoring; land acquisition and /or easement acquisition and preparation costs; and Corps administrative
expenses (10% of estimated costs), for each credit released for sale. Financial assurances structured to
provide funds to the Corps of Engineers in the event of default by the Sponsor are not acceptable.
10. Election Not to Utilize Mitigation Site. Notwithstanding any other provision of
this UMBI, the Sponsor may at any time elect not to utilize a Mitigation Site for the generation of mitigation
credits, in which case the Sponsor shall have no further obligations with respect to such Mitigation Site
pursuant to this UMBI; provided, however, that (i) if any mitigation credits have been released but not debited
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from such Mitigation Site, such credit release shall be reversed, and (ii) if any mitigation credits have been
debited from such Mitigation Site, the Sponsor shall replace those credits with comparable credits from
another Mitigation Site acceptable to the IRT or NCDWQ, as applicable.
III. Operation of Umbrella Bank.
A. Geographic Service Area. The Geographic Service Area ( "GSA ") is the designated area
wherein credits from the Umbrella Bank may be used to compensate for impacts to streams and wetlands.
The GSA for the Umbrella Bank will include the area within the Haw River watershed USGS Hydrologic
Unit Code ( "HUC ") 03030002. Use of the Umbrella Bank to compensate for impacts outside of the GSA
may be authorized by USACE or NCDWQ, as applicable.
B. Use of the Umbrella Bank. The Umbrella Bank may be used for mitigation required in the
GSA. The Sponsor may sell credits in the Umbrella Bank to third parties. The amount of compensatory
mitigation required for any project shall be established by the permit or authorization for that project. The
USACE, after consultation with the appropriate Federal and State review agencies through the applicable
permit review process, shall make final decisions concerning the amount and type of compensatory mitigation
required for unavoidable, permitted stream or wetland impacts, and whether or not credits from the Umbrella
Bank may be used to provide compensatory mitigation for such impacts. In the case of stream or wetland
impacts that do not require a USACE permit and that are authorized by NCDWQ shall determine whether
or not credits from the Umbrella Bank may be used for such impacts /offsets.
C. Credit Deposit and Release.
1. Credit Deposit. Upon the addition of a Mitigation Site to the Umbrella Bank by
amendment of this UMBI, the projected mitigation credits to be generated by the mitigation project on the
Mitigation Site, as documented in the approved Site - Specific Mitigation Plan, shall be deposited to the
Umbrella Bank.
2. Additional Financial Assurance. Upon the addition of a Mitigation Site to the
Umbrella Bank by amendment of this UMBI, additional financial assurance shall be provided by the Sponsor
for such additional Mitigation Site in the manner specified in Section II.B.9 of this UMBI.
3. Immediate Release of Credits. Fifteen percent (15 %) of the total credits generated
by a restoration, enhancement or creation project on any Mitigation Site and one hundred percent (100 %) of
the total credits generated by preservation projects on any Mitigation Site shall be released (i.e., available for
use) from the Umbrella Bank immediately upon completion of all of following actions:
a. Approval by the IRT of the Site - Specific Mitigation Plan for the Mitigation
Site;
b. Inclusion of the Mitigation Site in this executed UMBI, as amended from
time to time;
C. Recordation of the Conservation Instrument for the Mitigation Site, as well
as provision of a title opinion acceptable to USACE or NCDWQ, as applicable; and
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d. Delivery of financial assurances as required by this UMBI.
The Sponsor shall complete the initial physical and biological improvements to each Mitigation Site that
generates credits for the Umbrella Bank no later than the first full year following initial deposit of credits
generated from the Mitigation Site to the Umbrella Bank.
4. Subsequent Release of Credits. Subject to the Sponsor's continued satisfactory
completion of all required success criteria and monitoring for restoration or enhancement projects, additional
mitigation credits from each Mitigation Site shall be released from the Umbrella Bank on the following
schedules as applicable to wetlands and streams:
Wetlands
Action
Project Milestone
Percent ( %)
of Credit
Release
Construction
Complete all initial physical and biological improvements pursuant to the
Site - Specific Mitigation Plan
15
1" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
2 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
3" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
4 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
5 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
6 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
7 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
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Streams
Action
Project Milestone
Percent ( %)
of Credit
Release
Construction
Complete all initial physical and biological improvements pursuant to
the Site - Specific Mitigation Plan
15
1" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
2 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
3" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
4 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
5 " Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
15
Bankfull Events*
Occurrence of two Bankfull Events*
15
* The release of 15 percent is contingent upon at least two bankfull event occurrences, in separate years, provided that
the stream channel is stable and all other success criteria are met. In the event that less than two bankfull events occur
during the monitoring period, the release of the remaining credit shall be at the discretion of the Interagency Review
Team.
Alternative Credit Release Schedules or Additional Conditions on Credit
Release. The Site - Specific Mitigation Plan for a Mitigation Site may contain an alternative release schedule
or alternative credit release conditions. If the credit release schedule or conditions in the approved Site -
Specific Mitigation Plan for any Mitigation Site are different from those contained in this Section IILC., the
credit release schedule and conditions in the Site - Specific Mitigation Plan shall govern the release of credits
generated by the Mitigation Site. If the approved Site - Specific Mitigation Plan contains additional conditions
on the release of credits generated by the Mitigation Site, the Sponsor shall not release any such credits from
the Umbrella Bank until the additional conditions are met.
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6. Approval of Credit Release.
a. Credits for Waters of the United States. All releases of credits in the
Umbrella Bank for mitigation of waters of the United States shall be made in accordance with the
Compensatory Mitigation Rules.
b. Credits for Non - jurisdictional Wetlands. In order to release credits in the
Umbrella Bank for mitigation of Non - jurisdictional Wetlands, the Sponsor shall request that NCDWQ
approve such credit release and shall submit documentation demonstrating that the action for which the
Sponsor seeks the release of credits has been successfully completed. NCDWQ shall review the Sponsor's
request for a release of credits and if NCDWQ determines that a visit to the applicable Mitigation Site is
necessary, cooperate with the Sponsor to schedule the site visit as soon as is practicable. NCDWQ shall use
best efforts to notify the Sponsor within 30 days from the date of the Sponsor's request and submittal of
supporting documentation of its decision as to whether the required action has been completed and the credits
can be released.
D. Effect of Debit from the Umbrella Bank. The Sponsor shall be legally responsible for
providing compensatory mitigation in the amount of any debit from the Umbrella Bank either when the
credits are used for the Sponsor's own project or when the Sponsor transfers credits to a third -party permittee.
E. Accounting. The Sponsor shall establish and maintain ledgers to account for all credit
deposit, release and debit transactions of the Umbrella Bank. The Sponsor shall maintain a separate ledger
for each of the following types of transactions:
1. wetlands; and
2. streams.
The Sponsor shall notify the USACE or NCDWQ, as applicable, in writing of each such transaction within
30 days. The Sponsor shall provide the USACE or NCDWQ, as applicable, with updated credit deposit,
release, and debit ledgers annually. The ledgers shall include the following information with respect to each
debit: project name, permittee, permit number, type of permit, locality, type of impacted system, amount of
impacts, amount of debit from the Umbrella Bank, USGS HUC, and date of transaction. With respect to
credits, the ledgers shall specify the type of activity that generated each credit (for example, preservation,
enhancement, or restoration).
F. Annual Report. Until such time as all credits proposed for inclusion in the Umbrella Bank
have been debited or this UMBI is otherwise terminated, the Sponsor shall prepare and submit to USACE
and each member of the IRT an annual report on each anniversary of the date of execution of this UMBI.
The annual report shall identify, by type, all credits deposited to, released, and debited from the Umbrella
Bank and the balance of credits remaining, and, for each credit debited from the Umbrella Bank, the USACE
Action ID number and /or DWQ Permit Number and Project Name for the project for which the credits were
debited.
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IV. Default.
A. Notice and Effect of Default. If USACE or NCDWQ determines that the Sponsor is in
material default of any provision of this UMBI, the agency making such determination may notify the
Sponsor in writing that the debit of any credits from the Umbrella Bank is suspended until the default is
cured; provided, however, that if the default relates to the implementation of a Site - Specific Mitigation Plan
for a Mitigation Site, the suspension shall apply only to the debit of credits from that Mitigation Site. Upon
notice of such suspension, the Sponsor shall comply with the terms of the suspension until it is lifted by the
issuing agency.
B. Failure to Submit Required Monitoring Reports. No credits associated with the submittal
of an annual monitoring report to USACE or NCDWQ may be released until the report has been submitted
by the Sponsor. If the Sponsor fails to submit one or more required annual monitoring reports, in addition
to any other remedy that may be imposed by USACE or NCDWQ pursuant to this UMBI or applicable laws
and regulations, the Sponsor shall perform an additional year of monitoring and submittal to the USACE or
NCDWQ of the associated annual monitoring report.
C. Failure to Cure Default. If the Sponsor fails to cure a noticed default in a timely fashion,
the USACE or NCDWQ may terminate all future debits from the Umbrella Bank. In the event of such
termination, the Sponsor shall perform all obligations under this UMBI relating to credits that were debited
prior to termination.
D. Events not constituting default. Any delay or failure by the Sponsor to carry out its
obligations under the UMBI shall not constitute a default hereunder if and to the extent that such delay or
failure is primarily caused by any act, event or conditions beyond the Sponsor's reasonable control, including:
(i) acts of God, lightning, earthquake, fire, landslide, drought, hurricane, storm, flood, or interference by third
parties; (ii) condemnation or other taking by any governmental body; (iii) change in applicable law,
regulation, rule, ordinance or permit condition, or the interpretation or enforcement thereof, (iv) any order,
judgment, action or determination of any federal, state or local court, administrative agency or government
body; or (v) the suspension or interruption of any permit, license, consent, authorization or approval. If the
performance of the Sponsor is affected by any such event, Sponsor shall give written notice thereof to the
USACE or NCDWQ as soon as is reasonably practicable. If such event occurs before the final availability
of all credits for sale, the Sponsor shall take remedial action to restore the property to its condition prior to
such event, in a manner sufficient to provide adequate mitigation to cover credits that were debited prior to
such delay or failure to compensate for impacts to waters, including wetlands, authorized by USACE permits.
Such remedial action shall be taken by the Sponsor only to the extent necessary and appropriate, as
determined by the USACE or NCDWQ.
V. Closure.
The Umbrella Bank shall not be closed until all Mitigation Sites from which credits have been debited
from the Umbrella Bank have met all applicable success criteria. If all Mitigation Sites have met all
applicable success criteria, the Umbrella Bank shall be deemed closed upon (i) the debit of the last credit in
the Umbrella Bank or (ii) or upon written approval by USACE or NCDWQ after written request by the
Sponsor to close the Umbrella Bank.
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VI. General Provisions.
A. Third -Party Beneficiary. No third party shall be deemed a beneficiary hereof and no one
except the signatories hereof, their successors and assigns, shall be entitled to seek enforcement hereof.
B. Entire Agreement. This UMBI constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior agreements or undertakings.
C. Severability. In the event any provision contained in this UMBI is held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other
provisions hereof, and this UMBI shall be construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
D. Governing Laws. This UMBI shall be governed by and construed in accordance with the
laws of North Carolina and the United States, as appropriate.
E. Execution in Counterparts. This UMBI maybe executed by the parties in any combination,
in one or more counterparts, all of which together shall constitute but one and the same instrument. The last
date that this UMBI is executed by a party is the date of execution of this UMBI and shall be inserted in the
first paragraph hereof.
F. Notices. All notices and required reports shall be sent by regular mail to each of the parties
at their respective addresses, provided below:
SPONSOR:
Chatham Park Investors LLC
Attu: Timothy R. Smith
100 Weston Estates Way
Cary, North Carolina 27513
USAGE:
'd (, -t n 1, e K 'd a 1111 e `, s
U.S. Army Corps of Engineers, Regulatory Division
Raleigh Regulatory Field Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
USEPA:
U.S. Environmental Protection Agency
1349 Firefly Road
Whittier, North Carolina 28789
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USFWS:
U.S. Fish and Wildlife Service, - -- 1 —1-1 — - I — �
I I�Ili CLIIU
6, . t ,l . B (, -t x " " 7 26
IZaleitih, N( "7 "E ?7"
NCDWQ:
NCDENR, Division of Water Quality, 401/ Wetlands Unit
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604
NCWRC:
North Carolina Wildlife Resources Commission
Sedalia, N( '7`42-0129
{Signature pages follow}
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Chatham Umbrella
Mitigation Bank
Page 11

Chatham Umbrella
Mitigation Bank
Page 12
IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish
The Chatham Umbrella Mitigation Bank" in legal and binding form.
Chatham Park Investors LLC
By:
Timothy R. Smith, Manager
D ate:
U.S. Army Corps of Engineers
By: _
Title:
D ate:
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Chatham Umbrella
Mitigation Bank
Page 13
IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish
The Chatham Umbrella Mitigation Bank" in legal and binding form.
U.S. Environmental Protection Agency
By: _
Name:
'ide:
D a, e:
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Chatham Umbrella
Mitigation Bank
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish
The Chatham Umbrella Mitigation Bank" in legal and binding form.
U.S. Fish and Wildlife Service
Im
Name:
Title:
D ate:
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Chatham Umbrella
Mitigation Bank
Page 15
IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish The
Chatham Umbrella Mitigation Bank" in legal and binding form.
NC Division of Water Quality
By: _
e:
r
I) a,e:
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Chatham Umbrella
Mitigation Bank
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish The
Chatham Umbrella Mitigation Bank" in legal and binding form.
NC Wildlife Resources Commission
Im
D j,e:
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a lil e

EXHIBIT A
APPROVED MITIGATION SITES
1. Stinking reek `site
Chatham Umbrella
Mitigation Bank
Page 17
LYING A N 1) Q[ I N Q i vi €,r near 1. lie w vi 1, 1, s J--') o rc,, W a k e u vi 1, v, N (,-, ri. h Ca rct I i vi a , a vi d J--') e i vi
al—l" Parl lcularly—described It, 1111111" "1
Ccn-iserNal.icn-i Easemevij, � J, conjainin- 19.604 acres (85-�,,942�, u Ltre _e I, -,re (,,r less, nd
��aSetjjej.jj C01,11L_
'=4— Ire fe-J.), mc�re (,-,r less, as sllcm�n cn-i a plal,
vi s e rN a 1, i (,-� vi tininu 24 acres (1,0',9,52�
Ll L
reccrded in J,he Chatham Ccwvij.y, Ncm.h Carolina 1Ze,.iisjv, in alai , Slid 0
J-v, reference as if' fills, sel, cmi. herein.
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EXHIBIT B
SITE - SPECIFIC MITIGATION PLANS
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Chatham Umbrella
Mitigation Bank
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AGREEMENT TO ESTABLISH
THE CHATHAM UMBRELLA MITIGATION BANK
This Agreement To Establish The Chatham Umbrella Mitigation Bank (the "Umbrella Bank "),
hereinafter called the "Umbrella Mitigation Banking Instrument" or "UMBI ", is made and entered into this
_ day of _ by and among Chatham Park Investors LLC, a North
Carolina limited liability company ( "Sponsor "), the U. S. Army Corps of Engineers ( "USACE "), and each
of the following governmental agencies who execute this UMBI: the Environmental Protection Agency
( "USEPA "), the U.S. Fish and Wildlife Service ( "USFWS "), the North Carolina Wildlife Resources
Commission ( "NC W RC "), and the North Carolina Division of Water Quality ("NCDWQ"). USACE, together
with the State and Federal agencies who execute this UMBI, are hereinafter collectively referred to as the
"Governmental Agencies."
The goal of the Umbrella Bank is to restore, enhance, create and preserve stream and wetland systems
to compensate in advance of unavoidable stream and wetland impacts authorized by USACE and NCDWQ
pursuant to Sections 401 and 404 of the Clean Water Act, and Sections 15A NCAC 02B.0234, 0213.0235, or
028.0242 of the North Carolina Administrative Code, in circumstances deemed appropriate by the USACE
and /or NCDWQ after review through any applicable permit review process. The Umbrella Bank may also
be used to provide nitrogen offset credits pursuant to 15A NCAC 02B .0240.
As more particularly described herein, the Sponsor will implement stream and/or wetland mitigation
projects at sites in the Haw River Basin ( "Mitigation Sites "). The mitigation projects to be performed on a
Mitigation Site will be described in a site- specific mitigation plan submitted to the Interagency Review Team
( "IRT ") for review and approval ( "Site- Specific Mitigation Plan "). A Mitigation Site and the mitigation
credits associated therewith will become a part of the Umbrella Bank upon: (i) written approval of the Site -
Specific Mitigation Plan for such Mitigation Site by the IRT, acting through the USACE, in the case of
impacts to waters of the United States; and (ii) amendment of this UMBI to incorporate the Mitigation Site.
NOW, THEREFORE, the parties hereto agree as follows:
I. Interagency Review Team.
A. Establishment of the IRT. The Governmental Agencies shall establish an IRT for the
purpose of performing the technical review, approval, and oversight functions as described in 40 CFR Part
230, Compensatory Mitigation for Losses of Aquatic Resources ( "Compensatory Mitigation Rules "). The
IRT shall consist of a designated representative of each of the Governmental Agencies who execute this
UMBI and shall be chaired by the designated representative of USACE, Wilmington District.
B. Termination of Participation. Any member of the IRT may terminate its participation in
the IRT with notice in writing to all other parties to this UMBI. 'Termination shall be effective seven (7) days
from placing said notices in the United States mail. A member withdrawal shall not affect any prior sale or
use of credits and all remaining parties shall continue to implement and enforce the terms of this UMBI.
H. Establishment of the Umbrella Bank and Mitigation Sites.
A. Establishment of Umbrella Bank. Pursuant to the Compensatory Mitigation Rules, the
Sponsor hereby establishes the Umbrella Bank, which shall be governed by this UMBI. The parties
acknowledge and agree that the "Prospectus" that the Sponsor submitted for this Umbrella Bank is acceptable.
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Chatham Umbrella
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B. Mitigation Sites.
1' Site-Specific Mitigation Plans. The Sponsor obuD dc,uhp u Site-Specific
Mitigation Plan for each Mitigation Site pursuant to the requirements of the Compensatory Mitigation Rules.
In order to obtain mitigation credits from a Mitigation Site, the Sponsor shall perform all necessary work in
u0000Junoe with the provisions of this 0MBl and the approved 3do'0pocific Mitigation Plan to establish
and/or maintain the Mitigation Site until b has been determined that all the conditions herein and io the Site-
Specific MidgeuinoP\uubuveheouoadxOud. Approved Mitigation Sites shall he described in Exhibit A to
thiuU688L Approved Site-Specific Mitigation 9|una shall be incorporated into Exhibit B to this UMB[
%' Review e6 Site-Specific Mitigation Plano'
u' Mitigation plans for waters of the United States. The Sponsor shall
submit m0S/\CEany Site-Specific Mitigation Plan fox*ute, of the United States that the Sponsor develops
to generate credits for this Umbrella Bank, with a sufficient number of copies for each member of the IRT.
After determining that the Site-Specific Mitigation Plan is complete, USACE shall promptly distribute copies
oC the Site-Specific Mitigation Plan /o the members o[ the 1DT. The IRT shall review and comment ouall
submittals io accordance with the Compensatory Mitigation Rules. To the extent authorized hyDSACB,the
IRT will utilize the streamlined review process specified in the Compensatory Mitigation Rules. lf the Site-
Specific K0hiDminn Plan is not approved by the lDT as oh06nuqy ouhnuiucd by the Sponsor, Nbo|I<T shall
provide the Sponsor with specific reasons or rationale for not approving the Site-Specific Mitigation Plan.
The Sponsor may resubmit the Site-Specific Mitigation Plan with specific modifications orjustifications that
address the 8lT`a concerns. Following the approval of any 8de'Synoific Mitigation Plan, the credits
associated with the approved Site-Specific Mitigation Plan shall be deemed deposited into the Umbrella Bank
in accordance with the credit release schedule contained in the approved Site-Specific Mitigation Plan.
b. Mitigation Plans for Non-jurisdictional Wetlands. For Mitigation Sites
that restore, enhance, o,p,uwcrvc wetlands, the Sponsor shall submit wNCDW0 each Site-
Specific Mitigation Plan the Sponsor develops oo generate credits for this Umbrella Burk. NCDWO ybuO
review and comment omall submittals within 35 days of receipt ofsuch submittal. If the Site-Specific
Mitigation y7an in not approved hyNCDVVg uo originally submitted by the 8poumnc NCDYV(} shall provide
the Sponsor with vpcmi§o reuanuv or rationale for not approving the 8bn-Spooifio &Yitigudmu Plan. The
Sponsor may mumuhmoi\ the Site-Specific Mitigation Plan with specific modifications or justifications that
address NCD\m0`o concerns. Following the approval of any Site-Specific Mitigation Plan, the credits
associated with the approved Site-Specific Mitigation Plan shallbe deemed deposited into the Umbrella Bank
in accordance with the credit release schedule contained in the approved Site-Specific Mitigation Plan.
3' Environmental Documentation, Permits and Authorizations; Construction, If
the Sponsor elects to proceed with the implementation of an approved Site-Specific Mitigation Plan, it shall �
(a) prepare any required environmental documentation and obtain all required permits or other authorizations
needed to perform mitigation projects included io the Umbrella Bank (tbis[7&4Bl Jven�
not fulfill or nvhadu^tc for such pcouda or authorizations); and (h) pczfouzu any construction and related
activities oothe KJbigutino Site iu accordance with the Site-Specific Mitigation Plan.
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Chatham Umbrella
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4. Monitoring and Assurance of Success.
a. The Sponsor shall perform all necessary work to monitor a Mitigation Site and
to demonstrate compliance with the success criteria established in the Site - Specific Mitigation Plan.
Members of the IRT may conduct, at their own expense and in coordination with other Federal and State
resource agencies, field investigations to review and evaluate the mitigation project and determine the
functions and values of the Mitigation Sites. The IRT shall use its best professional judgment to determine
wetland, stream, upland, and habitat functions and values. Any member of the IRT who generates a written
report resulting from any such investigation shall promptly provide the report to the Sponsor and its
designated agents.
b. The Sponsor shall be responsible for assuring the success of the restoration,
creation, enhancement and preservation activities at the Mitigation Sites, including performing any
remediation required by USAGE or NCDWQ, as applicable.
c. The Sponsor shall submit to the USACE and NCDWQ, an annual report
describing the conditions of Mitigation Sites and evaluating the conditions of the Mitigation Sites against the
success criteria in the applicable Site- Specific Mitigation Plans. The Sponsor shall submit monitoring reports
for each Mitigation Site to USACE and NCDWQ for the time period specified in the applicable Site - Specific
Mitigation Plan, unless success criteria have not been met at which point USACE or NCDWQ, as applicable,
will determine an appropriate extension(s) of the monitoring period.
d. USACE shall review the annual monitoring reports, and may, at any time, after
consultation with the Sponsor and the IRT, direct the Sponsor to take remedial action at a Mitigation Site if
the performance criteria contained in the applicable Site - Specific Mitigation Plan have not been met.
e. In the event that USACE requires remedial action or the Sponsor determines that
remedial action may be necessary to achieve the required performance criteria, it shall provide advance notice
of such proposed remedial action to all members of the IRT. Any proposed remedial action shall be designed
to achieve the performance criteria specified in the Site- Specific Mitigation Plan and shall include a work
schedule and monitoring criteria that take into account the physical and biological condition of the Mitigation
Site. The Sponsor shall not, except to the extent required to address emergency situations, initiate any
remedial action prior to receiving approval thereof by the IRT.
5. Access. The Sponsor shall allow the members of the IRT reasonable access to the
Mitigation Sites for the purposes of inspection of the Mitigation Sites and monitoring compliance with the
Site - Specific Mitigation Plan.
b. Phasing. The Sponsor shall document in the Site - Specific Mitigation Plan any plans
for phased construction of mitigation projects on Mitigation Sites. The scope and timing of each phase shall
be at the discretion of Sponsor, subject to IRT approval. However, if the Sponsor performs- mitigation in
areas of a Mitigation Site beyond those for which the design has been approved by the IRT, the Sponsor must
receive approval for this modification of the Site - Specific Mitigation Plan prior to mitigation credits from
such additional areas being added to this Umbrella Bank. Credit release for phases of a Mitigation Site will
be in accordance with the credit release schedule contained in the Site- Specific Mitigation Plan for each phase
of a Mitigation Site. If phasing is used on a Mitigation Site, each phase shall be individually reviewed,
tracked, and monitored by the Sponsor and the IRT.
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7, As-Built Report. The Sponsor shall submit un as-built report for each Mitigation
Site or phase of a Mitigation Site to the IRT as soon as practical after construction of a mitigation project on
the Mitigation Site, but in no event later than 60 days after the completion of construction.
0' Perpetual 0mmmx Provisions. The Sponsor shall protect each
Mitigation Site that provides compensatory mitigation for impacts to n/utmm of the United Stux:o by u
conservation easement or deed restriction ("Conservation Instrument") approved by USACE pursuant to the
current regulatory guidance of the Wilmington District ofDSACG. The Sponsor shall protect all other
Mitigation Sites by u Conservation luntrumnu/ approved byNCDVV0. The Conservation luaunm'oux shall
be perpetual, preserve all uumrul umuo, and prohibit all use of the property inconsistent with its use as
nuidgodoo propmny, including any activity that would materially alter the biological integrity orfunctional
and educational value of natural resources vvidbiu the Mitigation Site, consistent with the Site-Specific
Mitigation Plan. The Sponsor shall obtain the written approval by DS&CE. DS/\[B Wilmington District
Office of Counsel, or by NCDWQ, as applicable, of the form of the Conservation Instrument, including the
initial grantee of the Conservation Instrument. Upon the approval ofu Conservation Instrument hYDS/\C£
orlVC|]T90, as applicable, the Dyouoo/ or other initial grantee shall record the Conservation lomnumueut in
the Office of the Register of Deeds of the county in which the Mitigation Site is located. The Sponsor shall
provide a copy of the recorded Conservation Instrument, showing book and page numbers of the recorded
\ooudnu, to OS/\C6 o,]NCDW(), as applicable. /\Dor o:unrJiog the Conservation Instrument, the City or
other initial grantee may, with the approval of USACE orNCDWQ, as applicable, conveythe Mitigation Site
property either in fee or by granting an easement to a qualified land trust, state agency, or other appropriate
nonprofit organization. The mouv and conditions of this couvnyuoou shall not conflict with the intent and
provisions of the Conservation Instrument nor shall such uoovoyuuoe enlarge nr modify the uses specified
in the Couero/minu bunuunocnt.
m' Financial Assurance.
u. No financial assurance shall bo required for the preservation portion ofany
mitigation project. For all other forms of mitigation, prior to the release of any credits from a Mitigation Site,
the Sponsor ahuU provide D3/kCE orNCD\Y0, as uppKouh1e, with u performance bond, |ouor of credit,
escrow agreement, or other -financial assurance instrument acceptable to the IRT, USACE, and/or NCDWQ,
as applicable, xn[Doieu/ to aapu,o conupicdou of all remaining mitigation work, ,nguim:d reporting and
ououdvrimg` and any remedial work required yuzvuuut to this lJ&8Bl . In determining the amount of the
financial assurance tohz provided, the parties acknowledge and agree that the following items should be
considered, together with any additional items appropriate for the particular mitigation work to be performed:
site design; topographic and boundary surveys; purchase, iusraUudoa and ruuiuteumzoo of hydrology
monitoring devices; sediment and erosion control; grading; regrading contingency (+30% of grading cost);
planting; replanting contingency (+30% of planting coud; control and/or eradication n[ undesirable plant
species; control of herbivory; measures to control access and human impacts; as-built surveys; five years of
monitoring; land acquisition and/or easement acquisition and preparation unota; and Corps administrative
�expenses (10% of estimated costs), for each credit released structured
provide funds tu the Corps nf Engineers iuthe event of default by the Sponsor are not acceptable,
10, Election Not to Utilize Mitigation Site. Notwithstanding any other provision *f
this DNB[ the Sponsor may at any time elect not m utilize o Mitigation Site for the generation ufmitigation
crrJba, in which ouau the Sponsor shall have no fbubcr obligations with respect to such &ddigubou Site
pursuant to this UMBI; provided, however, that (i) if any mitigation credits have been released but not debited
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Chatham Umbrella
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from such Mitigation Site, such credit release shall be reversed, and (ii) if any mitigation credits have been
debited from such Mitigation Site, the Sponsor shall replace those credits with comparable credits from
another Mitigation Site acceptable to the IRT or NCDWQ, as applicable.
III. Operation of Umbrella Bank.
A. Geographic Service Area. The Geographic Service Area ( "GSA ") is the designated area
wherein credits from the Umbrella Bank may be used to compensate for impacts to streams and wetlands.
The GSA for the Umbrella Bank will include the area within the Haw River watershed USGS Hydrologic
Unit Code ( "HUC ") 03030002. Use of the Umbrella Bank to compensate for impacts outside of the GSA
may be authorized by USACE or NCDWQ, as applicable.
B. Use of the Umbrella Bank. The Umbrella Bank maybe used for mitigation required in the
GSA. The Sponsor may sell credits in the Umbrella Bank to third parties. The amount of compensatory
mitigation required for any project shall be established by the permit or authorization for that project. The
USACE, after consultation with the appropriate Federal and State review agencies through the applicable
permit review process, shall make final decisions concerning the amount and type of compensatory mitigation
required for unavoidable, permitted stream or wetland impacts, and whether or not credits from the Umbrella
Bank may be used to provide compensatory mitigation for such impacts. In the case of stream or wetland
impacts that do not require a USACE permit and that are authorized by NCDWQ shall determine whether
or not credits from the Umbrella Bank may be used for such impacts /offsets.
C. Credit Deposit and Release.
1. Credit Deposit. Upon the addition of a Mitigation Site to the Umbrella Bank by
amendment of this UMBI, the projected mitigation credits to be generated by the mitigation project on the
Mitigation Site, as documented in the approved Site- Specific Mitigation Plan, shall be deposited to the
Umbrella Bank.
2. Additional Financial Assurance. Upon the addition of a Mitigation Site to the
Umbrella Bank by amendment of this UMBI, additional financial assurance shall be provided by the Sponsor
for such additional Mitigation Site in the manner specified in Section II.B.9 of this UMBI.
3. Immediate Release of Credits. Fifteen percent (15 %) of the total credits generated
by a restoration, enhancement or creation project on any Mitigation Site and one hundred percent (100 %) of
the total credits generated by preservation projects on any Mitigation Site shall be released (i.e., available for
use) from the Umbrella Bank immediately upon completion of all of following actions:
Approval by the IRT of the Site- Specific Mitigation flan for the Mitigation
Site;
b. Inclusion of the Mitigation Site in this executed UMBI, as amended from
time to time;
C. Recordation of the Conservation Instrument for the Mitigation Site, as well
as provision of a title opinion acceptable to USACE or NCDWQ, as applicable; and
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Chatham Umbrella
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d. Delivery of financial assurances as required by this UMBI.
The Sponsor shall complete the initial physical and biological improvements to each Mitigation Site that
generates credits for the Umbrella Bank no later than the first full year following initial deposit of credits
generated from the Mitigation Site to the Umbrella Bank.
4. Subsequent Release of Credits. Subject to the Sponsor's continued satisfactory
completion of all required success criteria and monitoring for restoration or enhancement projects, additional
mitigation credits from each Mitigation Site shall be released from the Umbrella Bank on the following
schedules as applicable to wetlands and streams:
Wetlands
Action
Project Milestone
Percent ( %)
of Credit
Release
Construction
Complete all initial physical and biological improvements pursuant to the
Site - Specific Mitigation Plan
15
I` Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
2 °d Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
3'a Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
4" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
5t° Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
6`b Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
7"' Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
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Streams
Action
Project Milestone
Percent
of Credit
Release
Construction
Complete all initial physical and biological improvements pursuant to
the Site-Specific Mitigation Plan
15
V Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
2" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
3" Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
4"' Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
10
5' Year Monitoring
Submit monitoring report and Mitigation Site meets success criteria
15
Bankfull Events*
Occurrence of two Bankfull Events*
15
~ The release of|5 percent is contingent upon ou least two hunkful| event occurrences, iu separate years, provided that
the stream channel ivstable and all other success criteria are met. In the event that less than two bankfull events occur
during the monitoring period, the release of the remaining credit shall be at the dk^nrebno of the Interagency Review
Team.
5' Alternative Credit 0|ulemeo Schedules or Additional Conditions on Credit
Release. The Site-Specific Mitigation Plan for a Mitigation Site may contain an altemative release schedule �
or ubc,uauh/c credit release onudidoua. If the credit release schedule or conditions in the approved Site-
Specific Mitigation Plan for any Mitigation Site are different from those contained in this Section III.C., the
credit release schedule and conditions in the Site-Specific Mitigation Plan shall govern the release of credits
generated h the Mitigation Site. If the approved Site-Specific
mo the release of credits generated hy the Mitigation Site, the Sponsor shall not release any such credits from
the Umbrella Bank until the additional conditions are met.
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6. Approval of Credit Release.
a. Credits for Waters of the United States. All releases of credits in the
Umbrella Bank for mitigation of waters of the United States shall be made in accordance with the
Compensatory Mitigation Rules.
b. Credits for Non - ,jurisdictional Wetlands. In order to release credits in the
Umbrella Bank for mitigation of Non - jurisdictional Wetlands, the Sponsor shall request that NCDWQ
approve such credit release and shall submit documentation demonstrating that the action for which the
Sponsor seeks the release of credits has been successfully completed. NCDWQ shall review the Sponsor's
request for a release of credits and if NCDWQ determines that a visit to the applicable Mitigation Site is
necessary, cooperate with the Sponsor to schedule the site visit as soon as is practicable. NCDWQ shall use
best efforts to notify the Sponsor within 30 days from the date of the Sponsor's request and submittal of
supporting documentation of its decision as to whether the required action has been completed and the credits
can be released.
D. Effect of Debit from the Umbrella Bank. The Sponsor shall be legally responsible for
providing compensatory mitigation in the amount of any debit from the Umbrella Bank either when the
credits are used for the Sponsor's own project or when the Sponsor transfers credits to a third -party permittee.
E. Accounting. The Sponsor shall establish and maintain ledgers to account for all credit
deposit, release and debit transactions of the Umbrella Bank. The Sponsor shah maintain a separate ledger
for each of the following types of transactions:
wetlands; and
2. streams.
The Sponsor shall notify the USACE or NCDWQ, as applicable, in writing of each such transaction within
30 days. The Sponsor shall provide the USACE or NCDWQ, as applicable, with updated credit deposit,
release, and debit ledgers annually. The ledgers shall include the following information with respect to each
debit: project name, permittee, permit number, type of permit, locality, type of impacted system, amount of
impacts, amount of debit from the Umbrella Bank, USGS HUC, and date of transaction. With respect to
credits, the ledgers shall specify the type of activity that generated each credit (for example, preservation,
enhancement, or restoration).
F. Annual Report. Until such time as all credits proposed for inclusion in the Umbrella Bank
have been debited or this UMBI is otherwise terminated, the Sponsor shall prepare and submit to USACE
and each member of the IRT an annual report on each anniversary of the date of execution of this UMBI.
The annual report shall identify, by type, all credits deposited to, released, and debited from the Umbrella
Bank and the balance of credits remaining, and, for each credit debited from the Umbrella Bank, the USACE
Action ID number and/or DWQ Permit Number and Project Name for the project for which the credits were
debited.
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IV. Default.
A. Notice and Effect of Default. If USACE or NCDWQ determines that the Sponsor is in
material default of any provision of this UMBI, the agency making such determination may notify the
Sponsor in writing that the debit of any credits from the Umbrella Bank is suspended until the default is
cured; provided, however, that if the default relates to the implementation of a Site- Specific Mitigation Plan
for a Mitigation Site, the suspension shall apply only to the debit of credits from that Mitigation Site. Upon
notice of such suspension, the Sponsor shall comply with the terms of the suspension until it is lifted by the
issuing agency.
B. Failure to Submit Required Monitoring Reports. No credits associated with the submittal
of an annual monitoring report to USACE or NCDWQ may be released until the report has been submitted
by the Sponsor. If the Sponsor fails to submit one or more required annual monitoring reports, in addition
to any other remedy that may be imposed by USACE or NCDWQ pursuant to this UMBI or applicable laws
and regulations, the Sponsor shall perform an additional year of monitoring and submittal to the USACE or
NCDWQ of the associated annual monitoring report.
C. Failure to Cure Default. If the Sponsor fails to cure a noticed default in a timely fashion,
the USACE or NCDWQ may terminate all future debits from the Umbrella Bank. In the event of such
termination, the Sponsor shall perform all obligations under this UMBI relating to credits that were debited
prior to termination.
D. Events not constituting default. Any delay or failure by the Sponsor to carry out its
obligations under the UMBI shall not constitute a default hereunder if and to the extent that such delay or
failure is primarily caused by any act, event or conditions beyond the Sponsor's reasonable control, including:
(i) acts of God, lightning, earthquake, fire, landslide, drought, hurricane, storm, flood, or interference by third
parties; (ii) condemnation or other taking by any governmental body; (iii) change in applicable law,
regulation, rule, ordinance or permit condition, or the interpretation or enforcement thereof-, (iv) any order,
judgment, action or determination of any federal, state or local court, administrative agency or government
body; or (v) the suspension or interruption of any permit, license, consent, authorization or approval. If the
performance of the Sponsor is affected by any such event, Sponsor shall give written notice thereof to the
USACE or NCDWQ as soon as is reasonably practicable. If such event occurs before the final availability
of all credits for sale, the Sponsor shall take remedial action to restore the property to its condition prior to
such event, in a manner sufficient to provide adequate mitigation to cover credits that were debited prior to
such delay or failure to compensate for impacts to waters, including wetlands, authorized by USACE permits.
Such remedial action shall be taken by the Sponsor only to the extent necessary and appropriate, as
determined by the USACE or NCDWQ.
V. Closure.
The Umbrella Bank shall not be closed until all Mitigation Sites from which credits have been debited
from the Umbrella Bank have met all applicable success criteria. If all Mitigation Sites have met all
applicable success criteria, the Umbrella Bank shall be deemed closed upon (i) the debit of the last credit in
the Umbrella Bank or (ii) or upon written approval by USACE or NCDWQ after written request by the
Sponsor to close the Umbrella Bank.
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V1. General Provisions.
A. Third-Party Beneficiary. No third party shall be deemed a beneficiary hereof and no one
except the signatories hereof, their successors and assigns, shall be entitled to seek enforcement hereof.
B. Entire Agreement. This UMBI constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior agreements or undertakings.
C. Severability. In the event any provision contained in this UMBI is held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other
provisions hereof, and this UMBI shall be construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
D. Governing Laws. This UMBI shall be governed by and construed in accordance with the
laws of North Carolina and the United States, as appropriate.
E. Execution in Counterparts. This UMBI maybe executed by the parties in any combination,
in one or more counterparts, all of which together shall constitute but one and the same instrument. The last
date that this UMBI is executed by a party is the date of execution of this UMBI and shall be inserted in the
first paragraph hereof.
F. Notices. All notices and required reports shall be sent by regular mail to each of the parties
at their respective addresses, provided below:
SPONSOR:
Chatham Park Investors LLC
Attn: Timothy R. Smith
100 Weston Estates Way
Cary, North Carolina 27513
USACE:
Monte K. Matthews
U.S. Army Corps of Engineers, Regulatory Division
Raleigh Regulatory Field Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
L110-a"t
U.S, Environmental Protection Agency
1349 Firefly Road
Whittier, North Carolina 28789
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USFWS:
U.S. Fish and Wildlife Service
P. O. Box 33726
Raleigh, NC 27363-3726
NCDWQ:
NCDENR, Division of Water Quality, 4011 Wetlands Unit
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604
NCWRC:
North Carolina Wildlife Resources Commission
P. O. Box 129
Sedalia, NC 27342-0129
tSignature pages follow}
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish
The Chatham Umbrella Mitigation Bank" in legal and binding form.
Chatham Park Investors LLC
By:
- --
Timothy lk Smith, , anager
Date: ` _ L 2 `Z
U.S. Army Corps of Engineers
By: _
Title:
Date:
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish
The Chatham Umbrella Mitigation Bank" in legal and binding form.
U.S. Environmental Protection Agency
By: --
Name:
Title:
Date:
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish
The Chatham Umbrella Mitigation Bank" in legal and binding form.
U.S. Fish and Wildlife Service
By: _
Name:
Title:
D ate:
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish The
Chatham Umbrella Mitigation Bank" in legal and binding form.
NC Division of Water Quality
By: _
Name:
Title:
Date:
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IN WITNESS WHEREOF, each of the parties hereto has executed this "Agreement To Establish The
Chatham Umbrella Mitigation Bank" in legal and binding form.
NC Wildlife Resources Commission
By: _
Name:
Title:
D ate:
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EXHIBIT A
APPROVED MITIGATION SITES
I. Stinking Creek Site
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LYING AND BEING in or near the Town of Pittsboro, Wake County, North Carolina, and being
more particularly described as follows:
Conservation Easement #1, containing 19.604 acres (853,942 square feet), more or less, and
Conservation Easement #2, containing 24.323 acres (1,059,524 square feet), more or less, as shown on a plat
recorded in the Chatham County, North Carolina Registry in Plat Slide 2013 -48, said plat being incorporated
by reference as if fully set out herein.
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EXHIBIT B
SITE- SPECIFIC MITIGATION PLANS
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