20040325 Ver 2_Other Agency Comments_20110222

DEPARTMENT THE ARMY
CO v
WILMINGTON DISTRICT, CORPS OF ENGINEERS �j
69 DARLINGTON AVENUE I
WILMINGTON, NORTH CAROLINA 28403 -1343
REPLY TO
ATTENTION OF February 22, 2011
Regulatory Division
Action ID. 2009 -00189
Southern Produce Distributors, Inc.
c /o: Mr. Stewart Precythe
Post Office Box 130
Faison, North Carolina 28341
Dear Mr. Precythe:
Enclosed is one copy of the executed Mitigation Banking Instrument (MBI) establishing
Barra Farms Phase II Wetland Mitigation Bank located in Harrison Creek Bay, near Cedar Creek
Community, Cumberland County, North Carolina.
Please be reminded that credits will not be available until Section VII, Part A (3 -5) on page
(8) of the MBI has been executed. Once these items have been completed, a copy of the
documents must be provided to our office for confirmation.
If you have any questions or comments, please contact Mr. Mickey Sugg at the
Wilmington Regulatory Field Office, telephone [phone].
Sincerely,
6- f-A' I t
S. Kenneth Jolly,
Chief, Regulatory Division
Wilmington District
Copies furnished w/ enclosures:
Mr. Christian Preziosi
Land Management Group, Inc.
Post Office Box 2522
Wilmington, North Carolina

-2-
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh North Carolina 27636 -3726
Mr. John Dorney
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, North Carolina 27626 -0535
Ms. Becky Fox
U.S. Environmental Protection Agency
Wetland Section- Region 4
1307 Firefly Road
Whittier, NC 28789
Mr. Steve Sollod
North Carolina Division of Coastal Management
1638 Mail Service Center
Raleigh, North Carolina 27699 -1638
Mr. Ron Sechler
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
Ms. Molly Ellwood
North Carolina Wildlife Resources Commission
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Copy Furnished (without enclosure):
Pace Wilber, Ph.D.
Atlantic Branch Chief,
Charleston (F /SER47)
Southeast Regional Office, NOAA Fisheries
PO Box 12559
Charleston, SC 29422 -2559

-3-
Ms. Cyndi Karoly
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, North Carolina 27626 -0535
Ms. Jennifer Derby, Chief
Wetlands Section - Region IV
Water Management Division
Environmental Protection Agency
61 Forsyth Street
Atlanta, Georgia 30303 -8960

AGREEMENT TO ESTABLISH THE BARRA FARMS PHASE II WETLAND
MITIGATION BANK
IN CUMBERLAND COUNTY, NORTH CAROLINA
(Corps Action ID. 2009 - 00189)
This Mitigation Banking Instrument (MBI) is made and entered into on the _22 day of
, 2011, by Southern Produce Distributors, hereinafter Sponsor, and the U. S. Army
Corps of ngineers (Corps), and each of the following agencies, upon its execution of this MBI,
the Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS), the
National Marine Fisheries Service (NMFS), the North Carolina Wildlife Resources Commission
(NCWRC), the North Carolina Division of Coastal Management (NCDCM), and the North
Carolina Division of Water Quality (NCDWQ). The Corps, together with the State and Federal
agencies that execute this MBI, are hereinafter collectively referred to as the Interagency Review
Team (IRT).
WHEREAS the purpose of this agreement is to establish a mitigation bank (Bank) providing
compensatory mitigation for unavoidable wetland impacts separately authorized by Section 404
Clean Water Act permits and /or Section 10 of the Rivers and Harbors Act permits in appropriate
circumstances;
WHEREAS the Sponsor is the record owner of that certain parcel of land containing
approximately 1,838 acres located in Cumberland County, North Carolina, described in the July
2010 Barra Farms Phase II Wetland Mitigation Bank Wetland Mitigation Plan (Mitigation Plan),
and as shown on the attached survey (Property);
WHEREAS the agencies comprising the IRT agree that the Bank site is a suitable mitigation
bank site, and that implementation of the Mitigation Plan is likely to result in net gains in
wetland and/or stream functions at the Bank site, and have therefore approved the Mitigation
Plan;
THEREFORE, it is mutually agreed among the parties to this agreement that the following
provisions are adopted and will be implemented upon signature of this MBI.
Section I: General Provisions
A. The Sponsor is responsible for assuring the success of the restoration, enhancement, and
preservation activities at the Bank site, and for the overall operation and management of the
Bank. The Sponsor assumes the legal responsibility for providing the compensatory mitigation
once a permittee secures credits from the Sponsor and the DE receives documentation that
confirms the Sponsor has accepted responsibility for providing the required compensatory
mitigation.

B. The goal of the Bank is to restore, enhance, and preserve non - riparian wetlands and their
functions to compensate in appropriate circumstances for unavoidable wetland impacts
authorized by Section 404 of the Clean Water Act permits and or Section 10 of the Rivers and
Harbors Act permits in circumstances deemed appropriate by the Corps after consultation,
through the permit review process, with members of the IRT.
C. Use of credits from the Bank to offset wetland impacts authorized by Clean Water Act
permits must be in compliance with the Clean Water Act and implementing regulations,
including but not limited to the 404(b)(1) Guidelines, the National Environmental Policy Act,
and all other applicable Federal and State legislation, rules and regulations. This agreement has
been drafted in accordance with the regulations for Compensatory Mitigation for Losses of
Aquatic Resources effective June 9, 2008 (33 CFR Parts 325 and 332) (Mitigation Rule ").
D. The IRT shall be chaired by the District Engineer (DE) of the U.S. Army Corps of Engineers,
Wilmington District. The IRT shall review documentation for the establishment of mitigation
banks. The IRT will also advise the DE in assessing monitoring reports, recommending remedial
measures, approving credit releases, and approving modifications to this instrument. The IRT's
role and responsibilities are more fully set forth in Sections 332.8 of the Mitigation Rule. The
IRT will work to reach consensus on its actions.
E. The DE, after consultation with the appropriate Federal and State review agencies through the
permit review process, shall make final decisions concerning the amount and type of
compensatory mitigation to be required for unavoidable, permitted wetland impacts, and whether
or not the use of credits from the Bank is appropriate to offset those impacts. In the case of
permit applications and compensatory mitigation required solely under the Section 401 Water
Quality Certification rules of North Carolina, the N.C. Division of Water Quality (NCDWQ) will
determine the amount of credits that can be withdrawn from the Bank.
F. The parties to this agreement understand that a watershed approach to establish compensatory
mitigation must be used to the extent appropriate and practicable. Where practicable, in -kind
compensatory mitigation is preferred:
Section II: Geographic Service Area
The Geographic Service Area (GSA) is the designated area within which the bank is authorized
to provide compensatory mitigation required by DA permits. The GSA for this Bank shall
include the Cape Fear River Basin, Hydrologic Unit 03030004 and 03030005 in North
Carolina (refer to Figure 13 in the Mitigation Plan). Note that Table 1 includes a list of the 14-
digit Hydrologic Unit Codes (HUCs) that are excluded from the identified GSA.
The service area is based on the location and scope of the project which will generate tangible
water quality and habitat benefits in the Harrison Creek watershed of the lower Cape Fear River
basin through the cessation of agricultural /silvicultural land use activities and the restoration of
F)

headwater stream and wetland ecosystems. Use of a Bank site to compensate for impacts beyond
the GSA (including areas within the excluded 14 -digit HUCs identified below) may be
considered by the Corps or the permitting agency on a case -by -case basis.
Table 1. Excluded Watersheds of Proposed GSA (listed as 14 -digit units)
Excluded Watersheds of
03030004
Excluded Watersheds of
03030005
03030004010010
03030005030020
03030004010020
03030005030030
03030004010030
03030005030040
03030004020010
03030005030050
03030004020020
03030004030010
03030004040010
03030004050010
03030004050030
Section III: Mitigation Plan
Any Mitigation Plan submitted pursuant to this agreement must contain the information listed in
332.4(c)(2) through (14) of the Compensatory Mitigation Rule.
A. The Bank site is a currently managed for silvicultural and agricultural production. A more
detailed description of the baseline conditions on the site is contained in the Mitigation Plan.
B. The Sponsor will perform work described in Section 5.0 of the Mitigation Plan. Work will
be completed in four sections as described below. Mitigation activities will result cumulatively
in 987 acres of non - riparian wetland restoration, 175 acres of non - riparian wetland enhancement,
and 596 acres of non - riparian wetland preservation. A total of 80 acres of uplands is included
within the boundary of the Bank site. Twenty -four (24 acres) of the upland acreage will consist
of restored pine savannah. An additional 56 acres will be set aside as upland buffer. The work
associated with the Bank will include backfilling of existing ditches and planting of native
hardwood seedlings.
The purpose of this work, and the objective of the Bank, is to restore, enhance, and preserve the
wetlands associated with headwaters of Harrison Creek. Development of the Bank will reduce
nutrient inputs, stormwater discharge, and flow velocities in a watershed that is experiencing
rapid development. Implementation of the Bank will be conducted in four separate sections.
3

Prior to the implementation of each section, the Sponsor will provide formal notification to the
IRT. The notification for each separate section will include a conservation easement agreement,
financial assurances, title search, boundary survey, monitoring plan map (depicting the location
for the hydrologic wells and vegetation sampling plots), any proposed construction
modifications, updated credit release schedule, and other pertinent information as requested by
the IRT.
Implementation of any section will not occur without prior notification to, and verification by,
the IRT as outlined above and receipt of applicable 404/401 authorizations and the sediment and
erosion control permit. Acreage totals for each of the four sections are provided in Table 2.
Table 2. Acreage Totals by Section
Barra Farms Regional Mitigation Bank - Phase II
Section One
Acrea e
Non - Riparian Wetland Restoration
33
Non - Riparian Wetland Enhancement
31
Non - Riparian Wetland Preservation
225
Uplands/Non-Restored Areas
2
Sub -Total
291
Section Two
Non - Riparian Wetland Restoration
246
Non - Riparian Wetland Enhancement
136
Non - Riparian Wetland Preservation
355
Uplands/Non-Restored Areas
40
Sub -Total
777
Section Three
Non - Riparian Wetland Restoration
431
Long-Leaf Pine Restoration Non - Wetland
24
Sub -Total
455
Section Four
Non - Riparian Wetland Restoration
277
Non - Riparian Wetland Enhancement
8
Non - Riparian Wetland Preservation
16
Uplands/Non-Restored Areas
14
Sub -Total
315
Total Acreage
1,838
4

C. The Sponsors shall monitor the Bank Site as described in Section 7.0 of the Mitigation Plan,
until such time as the IRT determines that the success criteria of the Mitigation Plan have been
met.
D. The members of the IRT will be allowed reasonable access to the Property for the purposes
of inspection of the Property and compliance monitoring of the Mitigation Plan.
Section IV: Revortina
A. The Sponsor shall submit to the DE, for distribution to each member of the IRT, an annual
report describing the current condition of the Bank and the condition of the Bank in relation to
the success criteria in the Mitigation Plan. The Sponsor shall provide to the DE any monitoring
reports described in Section 7.0 of the Mitigation Plan.
B. The Sponsor shall provide ledger reports documenting credit transactions as described in
Section VIII of this MBI.
C. Each time an approved credit transaction occurs, the Sponsor must notify the DE within 30
days of the transaction.
Section V: Remedial Action
A. The DE shall review the monitoring reports, and may, at any time, after consultation with the
Sponsor and the IRT, direct the Sponsor to take remedial action at the Bank site. Remedial
action required by the DE shall be designed to achieve the success criteria specified in the
Mitigation Plan. All remedial actions required under this section shall include a work schedule
and monitoring criteria that will take into aceount physical and climactic conditions.
B. The Sponsor shall implement any remedial measures required pursuant to the above.
C. In the event the Sponsor determines that remedial action may be necessary to achieve the
required success criteria, it shall provide notice of such proposed remedial action to all members
of the IRT. No remedial actions shall be taken without the concurrence of the DE, in
consultation with the IRT.

Section VI: Use of Mitigation Credits
- Description of Wetland Community Types:
A. Wetland community types found in a mitigation bank will be described in accordance with the
procedures found in the NC Wetland Assessment Method (NC WAM, USACE, 2007). It is
expected that impacts to the NC WAM types listed below will be compensated by the Mitigation
Types as listed in order to qualify as "In- Kind" mitigation. Exceptions to the use of "In- Kind"
mitigation may be allowed at the discretion of the permitting agencies on a case -by -case basis.
Table 3. Wetland Commu ity Types
Mitigation Type
NCWAM Type
CAMA Coastal Wetland
Salt/Brackish Marsh*
Riparian ( Riverine)
Riverine Swamp Forest/Non -Tidal Freshwater Marsh, Tidal
Freshwater Marsh
Riparian (Non - Riverine)
Bottomland Hardwood Forest, Headwater Wetland, Flood -
Plain Pool, Mountain Bog*, Estuarine Wood
Non - Riparian
Non - Riverine Swamp Forest, Seep, Small Basin Wetland,
Pocosins, Pine Flat, Pine Savannah, Hardwood Flat
B. It is anticipated by the parties that in most cases in which the DE, after consultation with the
IRT, has determined that mitigation credits from the Bank may be used to offset wetland impacts
authorized by Section 404 permits and/or Section 10 permits, that the Restoration Equivalents, as
enumerated above, constitute credits that are considered to be equal to restoration credits for the
purposes of compensatory mitigation. Therefore, the use of Restoration credits or Restoration
Equivalents credits, or any combination thereof, is acceptable to the DE for any permit
requirement so long as the required amount of credits are debited for a given mitigation
requirements. It is also understood that in order to satisfy mitigation requirements imposed by
the NC Division of Water Quality, restoration impact amounts must be at a minimum of 1:1 such
that for every one acre of impact, at least one acre of mitigation must be in the form of
restoration. Additionally, decisions regarding stream mitigation will be made consistent with
current policy and guidance and will be made on a case by case basis. Wetland and stream
compensation ratios are determined by the DE on a case -by -case basis based on considerations of
functions of the wetlands and/or streams impacted, the severity of the wetland and/or stream
impacts, the relative age of the mitigation site, whether the compensatory mitigation is in -kind,
and the physical proximity of the wetland and/or stream impacts to the Bank site.
C. Notwithstanding the above, all decisions concerning the appropriateness of using credits from
the Bank to offset impacts to waters and wetlands, as well as all decisions concerning the amount
and type of such credits to be used to offset wetland and water impacts authorized by Department
of the Army permits, shall be made by the DE, pursuant to Section 404 of the Clean Water Act
.1

and implementing regulations and guidance, after notice of any proposed use of the Bank to the
members of the IRT, and consultation with the members of the IRT concerning such use. Notice
to and consultation with the members of the IRT shall be through the permit review process.
Table 4. Mitigation Tvve /Quantity and Credits
Barra Farms Regional Mitigation Bank
- Phase II
Section One
Acrea a
Credits r or re
Non-Riparian Wetland Restoration
33
33 r
Non-Riparian Wetland Enhancement
31
15.5 re
Non-Riparian Wetland Preservation
225
32 re
Uplands/Non-Restored Areas
2
0
Section One Sub -Total
291
80.5
Section Two
Non-Riparian Wetland Restoration
246
246 r
Non-Riparian Wetland Enhancement
136
68 re
Non-Riparian Wetland Preservation
355
50.7 re
Uplands/Non-Restored Areas
40
0
Section Two Sub -Total
777
364.7
Section Three
Non-riparian Wetland Restoration
431
431 r
Long Leaf Pine Restoration (Non-
Wetland
24
0
Section Three Sub -Total
455
431
Section Four
Non-riparian Wetland Restoration
277
277 r
Non-Riparian Wetland Enhancement
8
4 re
Non-Riparian Wetland Preservation
16
2.3 re
Uplands/Non-Restored Areas
14
0
Section Four Sub -Total
315
283.3
GRAND TOTAL
1,838
1,159.5
r = Restoration Credit; re = Restoration - Equivalent Credit
(2 acres of Enhancement = 1 RE) (7 acres of Preservation = 1 RE)
7

Section VII: Credit Release Schedule
All credit releases must be approved by the DE, in consultation with the IRT, based on a
determination that required success criteria have been achieved. A total of four separate credit
release schedules will be initiated corresponding to the construction of each section as described
in Section 6.0 of the Mitigation Plan and as shown in Table 4 of this MBI.
Each schedule will follow the guidelines listed below.
A. Credit Release Schedule for Forested Wetlands: If deemed appropriate by the IRT, fifteen
percent (15 %) of the Section One Bank's total restoration credits shall be available for sale
immediately upon completion of all of the following:
1. Execution of this MBI by the Sponsor, the DE, and other agencies eligible for membership
in the IRT who choose to execute this agreement;
2. Approval of the final Mitigation Plan;
3. Mitigation bank site has been secured;
4. Delivery of the financial assurance described in Section IX of this MBI; and
5. Recordation of the long -term protection mechanism described in Section X of this MBI, as
well as a title opinion covering the property acceptable to the DE.
The Sponsor must complete the initial physical and biological improvements to the Bank site
pursuant to the Mitigation Plan no later than the first full growing season following initial
debiting of the Bank. Subject to the Sponsor's continued satisfactory completion of all required
success criteria and monitoring, additional restoration mitigation credits will be available for sale
by the Sponsor on the following schedule:
1. 15 % upon completion of all initial physical and biological improvements made pursuant
to the Mitigation Plan (total 30 %);
2. 10% after first year, if interim success measures are met (total 40 %);
3. 10% after second year, if interim success measures are met (total 50 %);
4. 10% after third year, if interim success measures are met (total 60 %);
5. 10% after fourth year, if interim success measures are met (total 70 %);
6. 10% after fifth year, if Success Criteria are met (total 80 %);
7. 10% after sixth year, if vegetative Success Criteria are met (90 %); and
8. 10% after seventh year, if vegetative Success Criteria are met (100 %).
Provided that all Success Criteria are met, the IRT may allow the Sponsor to discontinue
hydrologic monitoring after the fifth year. The Sponsor will be required to monitor vegetation
for an additional two years after the fifth year for a total of seven years.
For the subsequent Sections (Two, Three, and Four), fifteen percent (15 %) of total credits for
each individual Section shall be available for sale immediately upon completion of all of the
following for that particular Section:

1. The Section has been secured;
2. Delivery of the financial assurance for the individual Section, described in Section IX of
this MBI; and
3. Recordation of the long -term protection mechanism described in Section X of this MBI,
as well as a title opinion covering the property acceptable to the DE.
Each Section must be completed in its entirety prior to the release of credits in the subsequent
Sections. For example, all initial physical and biological improvements must be made pursuant
to the Mitigation Plan for Section Two prior to the release of any credits for Section Three. The
initial physical and biological improvements must be completed no later than the first full
growing season following initial debiting of that Section. Once improvements are completed,
each Section will be subject to the credit release schedule stated in 1 -8 above.
Table 5 identifies the specific credit release schedule for Section One of the Barra II bank site.
Table 5. Credit Release Schedule for Section One of Barra Farms Phase II
0
Projected
Percentage of
Credits
Cumulative
Task
Completion
Credits Released
Released
Credits
Date
% cumulative
Released
1.0 Signing of the MBI;
10 /1 /10
15 (15)
12.1
12.1
Recordation of Conservation
Easement Deed; Delivery of
Financial Assurances
2.0 Completion of Physical
3/2011
15 (30)
12.1
24.2
and Biological Improvements
3.0 Year 1: Fulfill Success
1/2012
10 (40)
8.0
32.2
Criteria
4.0 Year 2: Fulfill Success
1/2013
10 (50)
8.0
40.2
Criteria
5.0 Year 3: Fulfill Success
1/2014
10 (60)
8.0
48.2
Criteria
6.0 Year 4: Fulfill Success
1/2015
10 (70)
8.0
56.2
Criteria
7.0 Year 5: Fulfill Success
1/2016
10 (80)
8.0
64.2
Criteria
8.0 Year 6: Fulfill Success
1/2017
10 (90)
8.0
72.2
Criteria
9.0 Year 7: Fulfill Success
1/2018
10 (100)
8.3
80.5
Criteria
TOTAL
100%
80.5
0

Section VIII: Accounting Procedures
A. The Sponsor shall develop accounting procedures acceptable to the IRT for maintaining
accurate records of debits made from the Bank. Such procedures shall include the generation of
a ledger by the Sponsor showing credits used at the time they are debited from the Bank. All
ledger reports shall identify credits debited and remaining by type of credit and shall include for
each reported debit the Corps ORM ID number for the permit for which the credits were utilized
and the permitted impacts for each resource type. Each time an approved credit transaction
occurs, the Sponsor must notify the DE within 30 days of the transaction.
B. The Sponsor shall prepare an annual ledger report, on each anniversary of the date of
execution of this agreement, showing all credits used, any changes in credit availability (e.g.,
additional credits released, credit sales suspended), and the beginning and ending balance of
credits remaining. The Sponsor shall submit the annual report to the DE, for distribution to each
member of the IRT, until such time as all of the credits have been utilized, or this agreement is
otherwise terminated.
Section IX: Financial Assurances
A. The Sponsor shall provide financial assurances in a form acceptable to the IRT sufficient to
assure completion of all mitigation work, required reporting and monitoring, and any remedial
work required pursuant to this MBI. These financial assurances are provided in the form of two
performance bonds. A construction bond, in the sum of $20,000, represents 30% of the
projected construction, planting, and contingency costs associated with the activities described in
the Mitigation Plan which apply to Section One. The monitoring bond, in the sum of $7,000,
represents 10% of the projected monitoring costs for the seven (7) year schedule described in the
Mitigation Plan which apply to Section One. Future construction and monitoring bonds for
Sections 2 -4 will reflect the same percentages of the total costs associated with the proposed
work. The totals for each of these bonds will be provided to the DE at the time of the required
notification prior to the implementation of each section.
B. Financial assurances shall be payable at the direction of the DE to his designee or to a
standby trust. Financial assurances structured to provide funds to the Corps of Engineers in the
event of default by the Bank Sponsor are not acceptable.
C. A financial assurance must be in the form that ensures that the DE receives notification at
least 120 days in advance of any termination or revocation.
10

Section X: Long -Term Protection
A. Audubon Environmental Land Trust, Inc. (AELT), a registered 501(c)3 entity, will serve as
the holder for each of the four (4) conservation easements (CE) associated with the Bank. AELT
will maintain the CE in perpetuity and provide for the long -term protection of the land through
annual monitoring activities. Titles to the land will reside with the current owner, Mr. Stewart
Precythe. Refer to the attached conservation easement plat for Section One (Appendix B). A
survey of the remaining sections is also provided. The CE 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 wetlands or streams within the Bank site, consistent with the Mitigation
Plan. The purpose of the CE will be to assure that future use of the Bank site will result in the
restoration, protection, maintenance and enhancement of wetland functions described in the
Mitigation Plan.
B. The Sponsor shall deliver a title opinion acceptable to the DE covering the mitigation
property. The property shall be free and clear of any encumbrances that would conflict with its
use as mitigation, including, but not limited to, any liens that have priority over the recorded
preservation mechanism.
C. Subsequent to the recording of the CE, the Sponsor may convey the Bank Site property either
in fee or by granting an easement to a qualified land trust, state agency, or other appropriate
nonprofit organization. The Sponsor is responsible for ensuring that that the CE is re- recorded to
ensure that it remains within the chain of title. The terms and conditions of this conveyance shall
not conflict with the intent and provisions of the CE nor shall such conveyance enlarge or modify
the uses specified in the CE.
The CE must contain a provision requiring 60 day advance notification to the DE before any
action is taken to void or modify the CE, including transfer of title to, or establishment of any
other legal claims over, the project site.
Section XI: Long -Term Management
A. AELT (as identified above) will be responsible for the long -term protection of the land
through annual monitoring activities of the site. The primary objective of the long -term
management is to ensure the protection of the site in its natural state.
B. An endowment will be provided to AELT by the Sponsor to assist with the long -term
management expenses of the Bank site.
11

Section XII: Default and Closure
A. It is agreed to establish and/or maintain the Bank site until (i) credits have been exhausted or
banking activity is voluntarily terminated with written notice by the Sponsor provided to the DE
and other members of the IRT; and (ii) it has been determined and agreed upon by the DE and
IRT that the debited Bank site has satisfied all the conditions herein and in the Mitigation Plan.
If the DE determines that the Bank site is not meeting performance standards or complying with
the terms of the instrument, appropriate action will be taken. Such actions may include, but are
not limited to, suspending credit sales, adaptive management, decreasing available credits,
utilizing financial assurances, and terminating the instrument.
B. Any delay or failure of Bank Sponsor 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 and significantly adversely affects its ability to perform its
obligations hereunder including: (i) acts of God, lightning, earthquake, fire, landslide, 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 Bank Sponsor
is affected by any such event, Bank Sponsor shall give written notice thereof to the IRT 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 sold prior
to such delay or failure to compensate for impacts to waters, including wetlands, authorized by
Department of the Army permits. Such remedial action shall be taken by the Sponsor only to the
extent necessary and appropriate, as determined by the IRT.
C. At the end of the monitoring period, upon satisfaction of the performance standards, the
Sponsor may submit a request to close out the bank site to the DE. The DE, in consultation with
the IRT, shall use best efforts to review and comment on the request within 60 days of such
submittal. If the DE determines the Sponsor has achieved the performance standards in
accordance with the mitigation plan and all obligations under this MBI, the DE shall issue a
close out letter to the Sponsor.
Section XIII: Miscellaneous
A. Any agency participant may terminate its participation in the IRT with notice in writing to all
other parties to this agreement. Termination shall be effective seven (7) days from placing
written notices in the United States mail. Member withdrawal shall not affect any prior sale of
credits and all remaining parties shall continue to implement and enforce the terms of this MBI.
B. Modification of this MBI shall be in accordance with the procedures set forth in 332.8 of the
mitigation rule.
12

C. 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.
D. This MBI constitutes the entire agreement between the parties concerning the subject matter
hereof and supersedes all prior agreements or undertakings.
E. In the event any one or more of the provisions contained in this MBI are held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceablility will not
affect any other provisions hereof, and this MBI shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
F. This MBI shall be governed by and construed in accordance with the laws of North Carolina
and the United States as appropriate.
G. This MBI may be executed by the parties in any combination, in one or more counterparts,
all of which together shall constitute but one and the same instrument.
H. The terms and conditions of this MBI shall be binding upon, and inure to the benefit of the
parties hereto and their respective successors.
I. All notices and required reports shall be sent by regular mail to each of the parties at their
respective addresses, provided below.
Sponsor:
Southern Produce Distributors, Inc.
C /o: Mr. Stewart Precythe
111 West Center Street N
Post Office Box 130
Faison, North Carolina 28341
MBIRT MEMBERS
Corps:
Mr. Mickey Sugg
U.S. Army Corps of Engineers
Regulatory Division
69 Darlington Avenue
Wilmington, North Carolina 28403
13

EPA:
Ms. Becky Fox
Wetlands Section - Region IV
Water Management Division
U.S. Environmental Protection Agency
1307 Firefly Road
Whittier, North Carolina 28789
FWS:
Mr. Howard Hall
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636 -3726
NMFS:
Mr. Ron Sechler
National Marine Fisheries, NOAA
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
NCWRC:
Ms. Molly Ellwood
N.C. Wildlife Resources Commission
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
NCDWQ:
Mr. John Domey
N.C. Division of Water Quality
N.C. Department of Environment
and Natural Resources
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604
14

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Barra Farms Phase II Wetland Mitigation Bank in
Cumberland County, North Carolina ":
Spot
U.S. Army Corps of Engineers:
Inc.
Date: �r � <.
By: 6!�� Date:
S. Kenne& Jolly, Chief
Wilmington Regulatory Division
U.S. Army Corps of Engineers
15

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Barra Farms Phase II Wetland Mitigation Bank in
Cumberland County, North Carolina ":
N.C. Wildlif sou es Com 'ssion:
By: Date: 1 to R-e L Zo 10
Moll El wood
Sou east Permit Coordinator
20

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Barra Farms Phase II Wetland Mitigation Bank in
Cumberland County, North Carolina ":
U.S. Fish
LM
Pete Benjamin,Vield Supervisor
Fish and Wildlife Enhancement
Date: /2 2
17

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Barra Farms Phase II Wetland Mitigation Bank in
Cumberland County, North Carolina":
U.S. Environmental Protection Agency:
By: qatfoda,
enni erby, Chief
ater agement D ion
Wetlands Section - Region IV
Date:
16

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Barra Farms Phase I1 Wetland Mitigation Bank in
Cumberland County, North Carolina":
N.C. Division of Water Quality: %
By: Date: a// —21 a l
ndi Karoly, Branch of
Wetland and Stormwater Branch
19