20090858 Ver 1_Mitigation Bank Approval_20120412

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North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Charles Wakild P E Dee Freeman
Governor Director Secretary
April 16 2012
DWQ Project # 09 0858
Orange County
Mr Thom Rinker Mr Tommy Cousins
EBX EM LLC EBX EM, LLC
10055 Red Run Blvd Suite 130 909 Capability Drive Suite 3100
Owings Mills MD 21117 Raleigh NC 27606
Re Cape Fear Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument (UBI)
REVISION REQUEST
Dear Mr Rinker
On April 10 2012 the Division of Water Quality ( DWQ) received a revised UBI stating a different
name to be used as the Bank Sponsor This UBI was originally approved on February 3 2011 under
Earthmark North Carolina LLC The request we received was to change the name of the Bank Sponsor
on the UBI from EarthMark North Carolina LLC to EBX EM LLC DWQ has approved the revisions
made to the UBI DWQ has the following additional comments
• Transfer or assign all conservation easements on bank parcels under this UBI to EBX EM LLC
If these easements do not need to be transferred or assigned to EBX EM LLC then a formal
letter from your attorney is needed that states is not necessary DWQ has determined that the
following mitigation banks are affected by this name change Carl Lloyd Bank Parcel Ivey
Ferguson Bank Parcel, and Forrest Creek UT 2 Bank Parcel
• Revise all monitoring bonds to reflect this name change if applicable
• Please note the physical address for DWQ listed in the UBI will be changing soon Please send
all future correspondences regarding nutrient offset banking to the following address
NC Division of Water Quality— Wetlands & Stormwater Branch
Attn Nutrient Offset Bank Coordinator
1650 Mail Service Center
Raleigh NC 27699 1650
DWQ will be unable to approve credit releases on applicable protects until the issues have been resolved
with the conservation easements
Wetlands Buffers Stormwater Compliance & Permitting Unit
1650 Mail Service Center Raleigh North Carolina 276991650
Location Archdale Bldg 91h Floor 512 N Salisbury St Raleigh NC 27604
Phore 919 -807 63001 FAX [phone]
Internet http //portal nodenr org/web/wq /swp/ws /webscape
An Equal Opportunity 1 Affirmative Action Employer
NorthCarolina
Naturally

EBX EM LLC
Page 2 of 2
April 16 2012
Please feel free to contact Katie Merritt at [phone] if you have any questions regarding this
correspondence
Sincerely
` Iv
Karen Higgins Supervisor
Wetlands Buffers Stormwater, Compliance and
Permitting Unit
KAHI kym
Attachments Cape Fear Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument (UBI)
cc
File Copy Katie Merritt

AGREEMENT TO ESTABLISH THE CAPE FEAR RIPARIAN BUFFER AND
NUTRIENT MITIGATION
UMBRELLA BANKING INSTRUMENT
HUC 03030002
I PREAMBLE
This Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument regarding the
establishment use operation and maintenance of the Cape Fear River Bann Riparian Buffer
and Nutrient Mitigation Umbrella Bank (Bank) is made and entered into by and among EBX
EM LLC (EBX EM) acting as the Bank Sponsor and the North Carolina Department of
Environment and Natural Resources — Division of Water Quality (DWQ)
The purpose of the Bank is to
Improve water quality through the restoration of riparian buffer habitat the
installation of new stormwater best management practices (BMPs) and the
renovation of existing stormwater BMPs within the Cape Fear River Basin in the
State of North Carolina United States Geological Survey (USGS) Hydrologic Unit
Code (HUC) 03030002
2 To provide mitigation for buffer impacts and development (both existing and
proposed) requiring nutrient offset payments within the Cape Fear River Basin and
to sell any resulting credits to third parties
II AUTHORITIES
The Bank will be used to provide nutrient offset and riparian buffer mitigation in accordance
with the requirements of the following proposed administrative code sections
1 15A NCAC 213
0264 Agriculture
2 15A NCAC 213
0265 Stormwater Management for New Development
3 15A NCAC 2B
0266 Stormwater Management for Existing Development
4 15A NCAC 2B
0268 Mitigation for Riparian Buffers
5 15A NCAC 02
0269 Riparian Buffer Mitigation Fees to the NC Ecosystem
Enhancement Program
6 15A NCAC 213
0270 Wastewater Discharge Requirements and
7 15A NCAC 213
0271 Stormwater Requirements for State and Federal Entities
8 15A NCAC 213
0273 Options for Offsetting Nutrient Loads
All activities will be consistent with permanent rules for the Jordan Water Supply Nutrient
Strategy approved by the Environmental Management Commission and approved by the
North Carolina Office of Administrative Hearings Rules Review Commission (RRC) on
October 16 2008 and November 20 2008
Any changes to the proposed Jordan Water Supply Nutrient Strategy legislation that occur
during review by the General Assembly will also be adhered to as part of this banking
instrument

III ESTABLISHMENT OF BANK PARCEL(S)
A Each tract of land subject to a conservation easement or restrictive covenants described in
Section 111 E ( Bank Parcel ) to be included in the Bank shall require a Bank Parcel
Development Package (BPDP) including detailed information concerning site location
existing conditions proposed buffer restoration activities or stormwater best management
practice (BMP s) activities monitoring and maintenance plans financial assurances and
associated buffer mitigation /nutrient credit calculations (to include credit generation
service area and accounting as appropriate for each regulatory authority cited above)
Additional Parcels may be added to the Bank at any time upon approval of the associated
BPDP by the DWQ and prior to use of the parcel for mitigation purposes Please note the
service area for each Bank Parcel will be limited to the 8 digit HUC and the affected arm
of B Everett Jordan Lake (i e Upper New Hope Lower New Hope or Haw River) in
which the Bank Parcel is located
B For each BPDP EBX EM agrees to perform all necessary work in accordance with the
provision of this Banking Instrument to establish and / or maintain and monitor riparian
buffers or to install and / or renovate stormwater BMPs until it is demonstrated to the
satisfaction of the DWQ that the restored property (buffers) or installed / renovated
BMPs comply with all conditions contained herein or until all credits from that Bank
Parcel are sold whichever is later but at a minimum of (5) years
C EBX EM will obtain all appropriate environmental documentation permits or other
authorizations needed to construct and maintain the Bank Parcel This Banking
Instrument does not qualify or substitute for such authorization
D Financial Assurance Requirements Following approval of the BPDP EBX EM shall
provide a Performance Bond from a surety company that is rated no less than an A as
rated by A M Best The Performance Bond amount shall be 100% of the estimated cost
for implementation of the buffer restoration / stormwater management plan included in
the BPDP but no less than $150 000 00 in amount Alternatively in lieu of posting the
Performance Bond EBX EM may elect to construct the project prior to the first credits
release After completion of the restoration / construction a Monitoring Bond will be
substituted for the Performance Bond The sum of said Monitoring Bond shall be for
100% of the estimated cost to implement the monitoring and maintenance plan but no
less than $100 000 00 in amount The Monitoring Bond shall be in effect for a period of
five years but may be lowered each year based on the adjusted cost to finish the
monitoring
E Property Disposition Prior to the release of any credits EBX EM shall acquire a
permanent conservation easement(s) or record restrictive covenants at the county clerk s
office to the deed(s) on all Bank Parcels to provide protection to the restored riparian
buffer and / or stormwater BMPs in perpetuity from activities that would impair their
ability to provide nutrient abatement to waters of the Cape Fear River Basin including B
Everett Jordan Lake The form of the conservation easement or restrictive covenants shall
be consistent with the standards employed by the State of North Carolina in the
protection of restored riparian buffers and / or stormwater BMPs and shall be approved
by the DWQ prior to the certification of any credits EBX EM shall not grant additional
easements rights of way or any other property interest in or to the project areas without
the written consent of the DWQ or its designee in the case of a conservation easement
EBX EM will hold the easement until an approved third party land steward is identified
at a time prior to bank parcel closure Prior to bank parcel closure the conservation
easement(s) may be permanently transferred to a DWQ approved land trust non profit
group or governmental entity to be held in perpetuity

F Operation and Maintenance Agreements Pnor to the release of any credits EBX EMwill
provide DWQ with the necessary operation and maintenance agreements for the newly
constructed or renovated stonnwater BMPs (if applicable) These agreements shall be
consistent with the standards adopted by DWQ and shall be approved by the DWQ prior
to the certification of any credits
G As Built Reports EBX EM will submit an as built plan and report for each Bank Parcel
within 30 days after completing the establishment of the buffer and / or construction or
renovation of stonnwater BMPs (if applicable) The as built report will describe in detail
any deviation from the BPDP in addition the as built report will document the
appropriate aspects of the Bank depending upon the type as follows
a Buffer restoration planting details invasive species control monitoring device
locations vegetation plot locations photo point locations surface and
groundwater elevations as appropriate
b Stormwater BMPs outlet structure information surface area / volume
computations hydrograph routing information planting details monitoring
device locations photo point locations as appropriate
c Boundary Survey of easement area
IV MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A Operation and Maintenance Provisions EBX EM agrees to perform all necessary work to
operate and maintain the Bank Parcel(s) consistent with the operation and maintenance
criteria established in Section iIi F of this instrument EBX EM shall continue with such
activities until all credits are sold and all success criteria have been met Deviation from
the approved BPDP is subject to review and written approval by DWQ or its designee
B Monitoring Provisions EBX EM shall monitor the Bank Parcel as described in the BPDP
for each Bank Parcel until such time as DWQ determines that the success criteria
described below have been met The monitoring period shall be a minimum of five (5)
years
Riparian Buffer Restoration
C Vegetative Success Criteria Vegetative Success Criteria will be based upon the density
and growth of character tree species Character Trees are defined as planted or
volunteer species identified from a survey of local vegetation on less degraded sections of
the specified stream and from reference literature that details native species A list of
Character Tree species for each Bank Parcel will be detailed in that Parcel s BPDP
Vegetative Success Criteria will be based upon guidelines set forth in the Guidelines for
Riparian Buffer Restoration prepared by the North Carolina Ecosystem Enhancement
Program (or subsequent updated versions of this Guidance in place at the date of
acceptance of a BPDP) Success is defined as the survival of an average density of 320
desirable trees per acre after five (5) years If vegetative success criteria are not met
supplemental plantings may be required Supplemental plantings will be utilized until the
required densities have been achieved after five (5) years Success criteria of the riparian
buffer restoration and enhancement shall be based on the CVS EEP Protocol for
Recording Vegetation Level 1 2 Plot Sampling Only Version 4 0
D Monitoring Reports EBX EM shall submit to the DWQ an annual monitoring report no
later than December 31 each year for five years after the first full growing season

describing the conditions of each Bank Parcel and relating those conditions to the success
criteria Reports shall be submitted annually and shall contain the following
I A U S Geological Survey map showing location of the Bank Parcel(s)
2 A detailed narrative summarizing the condition of the Bank Parcel(s) and all regular
maintenance activities
3 Appropriate topographic survey showing location of sampling plots permanent photo
points location of transects etc
4 Monitoring data including specific vegetative counts and photographs and
5 A copy of the Bank credit/debit ledger
E Contingency Plans /Remedial Actions In the event the Bank fails to achieve the success
criteria described in this instrument EBX EM shall develop necessary contingency plans
in coordination with the DWQ or designee and implement appropriate remedial actions
for the Bank Depending on the degree of remedial actions required DWQ reserves the
authority to extend or re start the monitoring period as necessary to demonstrate site
success
If the DWQ determines that the Bank is operating at a deficit (i a EBX EM is closing on
sales and transferring credit not yet available) the sale /transfer of credits will
immediately cease and the DWQ in consultation with EBX EM will determine what
remedial actions are necessary to correct the situation
Construction / Renovation of Stormwater BMIPs
F Stormwater BMP Success Criteria The success of a stormwater BMP will be based upon
the type and its associated design criteria as approved by DWQ at time of submission of
the BPDP For purposes of this agreement the design criteria shown in the North
Carolina Division of Water Quality Stormwater Best Management Practices Manual
(October 2007) or as amended / updated and the approved operation and maintenance
agreement from Section III F of this agreement shall be the basis forjudgmg the success
of a specific device
G Monitoring Reports EBX EM shall submit to the DWQ an annual monitoring report no
later than December 31 each year for five years after the initial installation / renovation of
the stormwater BMP describing the conditions of each Bank Parcel and relating those
conditions to the success / approved design criteria Reports will be submitted annually
and shall contain the following
1 A U S Geological Survey map showing location of the Bank Parcel(s)
2 A detailed narrative summarizing the condition of the Bank Parcel(s) and all regular
maintenance activities
3 A copy of the Bank credit/debit ledger
H Contingency Plans /Remedial Actions In the event the Bank fails to achieve the success
criteria described in this instrument EBX EM shall develop necessary contingency plans
in coordination with the DWQ or designee and implement appropriate remedial actions
for the Bank
If the DWQ determines that the Bank is operating at a deficit (i a EBX EM is selling or
transferring credit not yet available) the sale /transfer of credits will immediately cease
and the DWQ in consultation with EBX EM will determine what remedial actions are
necessary to correct the situation

V OPERATION OF BANK
A Nutrient Abatement of Restored Riparian Buffer EBX EM and DWQ agree the pounds
of nitrogen offset per acre of restored riparian buffer shall be two thousand two hundred
and seventy three pounds per acre (2 273 lbs /acre) and the pounds of phosphorus offset
per acre of restored riparian buffer shall be one hundred forty six and four tenths pounds
per acre (146 4 Ibs /acre) or the amount of nitrogen and phosphorus offset per acre per
DWQ policy at the time the BPDP is approved and shall be applied to riparian buffer
based nutrient abatement sites across the State of North Carolina
EBX EM and DWQ further agree that the amount of nutrient offset per acre shall be
fixed as part of the approval of each individual Bank Parcel with the fixed amount not
changing during the development and credit release schedule of each Bank Parcel(s)
Please note nutrient credits sold or transferred from approved Bank Parcels to prospective
purchasers shall account for DWQ approved transport factors between the Bank Parcel
site and the location of the site or development wishing to utilize credits
B Nutrient Abatement of Installed / Renovated Stormwater Best Management Practices
EBX EM and DWQ agree that the pounds of nitrogen and phosphorus available for credit
release from newly renovated or constructed stormwater BMPs shall be based upon the
design calculations / nutrient export calculations submitted to and approved by DWQ as
part of the BPDP
C Establishment and Release of Credits Within thirty (30) days upon submittal of all
appropriate documentation by EBX EM and subsequent approval by DWQ or its
designee it is agreed that the mitigation credits associated with this Bank will become
available for sale to a third party in accordance with the following schedules
Table I Credit Release Schedule for Riparian Buffer Restoration
Task
Project Milestone
% Credit
Available
for Sale
I
Bank Parcel Development Package Approved by DWQ
Conservation Easement or Restrictive Covenants Recorded and
Financial Assurance Posted or Construction Completed as
delivered in Task 2
20
2
Mitigation Site Earthwork Planting and Installation of
Monitoring Devices Completed
20
3
Approval of As Built Report and Monitoring Financial
Assurance Posted
10
4
Monitoring Report #1 to DWQ Approval meets success criteria
10
5
Monitoring Report #2 to DWQ Approval meets success criteria
10
6
Monitoring Report #3 to DWQ Approval meets success criteria
10
7
Monitoring Report #4 to DWQ Approval meets success criteria
10
8
Monitoring Report #5 to DWQ Approval meets success criteria
10
Total
100%

Table 2 Credit Release Schedule for Stormwater Best Management Practices
0264 Agriculture
2 15A NCAC 2B
% Credit
3 15A NCAC 2B
0266 Stormwater Management for Existing Development
Available
Task
Project Milestone
for Sale
Enhancement Program
Bank Parcel Development Package Approved by DWQ
0270 Wastewater Discharge Requirements and
7 15A NCAC 2B
Conservation Easement or Restrictive Covenants Recorded and
8 15A NCAC 2B
0273 Options for Offsetting Nutrient Loads
Financial Assurance Posted or construction is completed as
defined in Task 2 Operation and Maintenance Agreement
I
Approved by DWQ
25
Installation / Renovation of Stormwater BMP in accordance
2
with approved design plans completed
25
3
Approval of As Built Package
50
Total
100%
D Projects Eligible to Use the Bank Projects eligible for utilization of the credits are those
requiring authorization under the requirements of the following administrative code
sections
1 15A NCAC 2B
0264 Agriculture
2 15A NCAC 2B
0265 Stormwater Management for New Development
3 15A NCAC 2B
0266 Stormwater Management for Existing Development
4 15A NCAC 2B
0268 Mitigation for Riparian Buffers
5 15A NCAC 02
0269 Riparian Buffer Mitigation Fees to the NC Ecosystem
Enhancement Program
6 15A NCAC 2B
0270 Wastewater Discharge Requirements and
7 15A NCAC 2B
0271 Stormwater Requirements for State and Federal Entities
8 15A NCAC 2B
0273 Options for Offsetting Nutrient Loads
E Procedure for Debiting or Crediting the Bank EBX EM shall maintain three (3) credit
ledgers one accounting for buffer mitigation credits (in square feet) which are generated
by buffer areas of < 50 feet in width one accounting for nitrogen offset credits which are
generated from buffer areas up to 200 feet in width and from the installation / renovation
of stormwater BMPs and the third accounting for Phosphorus release and debits The
ledgers shall record the area of available buffer credits and pounds of available nutrient
credits for each Bank Parcel and all associated debits and credits Credits can be
converted and transferred from buffer mitigation to nitrogen offsets but the opposite
shall not occur All debits or credits shall be entered into the ledger and notification
provided to DWQ or its designee within thirty (30) days of each transaction All
transactions shall be kept in the ledger Key documents are the Credit Reservation Letter
confirming the credits are available for transfer and debiting and have been legally
contracted and reserved for a specific protect The final document for verification and
transfer is the Transfer Certificate that is issued to DWQ along with the updated credit
ledger after the purchasers permit application is approved and permittee fully funds the
purchase of credits This is the final documentation for DWQ that verifies the permittee
has met the mitigation requirement
F Geographical Service Area (GSA) The GSA is the designated area wherein a bank can
reasonably be expected to provide appropriate riparian buffer and /or nutrient offsets for
impacts due to development activities The GSA for this Bank shall include the Cape
Fear River Basin Hydrologic Unit 03030002 in North Carolina The GSA for each Bank
Parcel will be restricted to the 8 digit HUC in which each Bank Parcel is located

VI OTHER PROVISIONS
A EBX EM and the landowner will allow or otherwise provide for access to the Parcel(s)
by the DWQ or other parties authorized by the DWQ as necessary for the purpose of
inspection and compliance with the terms and conditions of this Banking Instrument and
the conservation easement or restrictive covenants Inspecting parties shall provide
reasonable notice of not less than 24 hours to EBX EM prior to inspection of Bank
B Force Majeure After the sale of all available credits EBX EM will not be responsible for
Bank failure that is attributed to natural catastrophes such as but not limited to flood
drought disease regional pest infestation etc that are beyond the control of EBX EM
However while EBX EM may not have control of such events if an event occurs before
the final sale of all credits EBX EM shall take remedial action to restore the property to
its condition prior to this event in a manner sufficient to provide adequate mitigation to
cover credits that were sold prior to the occurrence of the event Such remedial action
shall be taken by EBX EM only to the extent necessary and appropriate as determined
by DWQ and EBX EM in order to offset authorized impacts to buffers or to satisfy
nutrient offset buy down requirements imposed during land development activities and
satisfied through payment into the affected Bank Parcel
DWQ must concur in writing that a force majeure event has occurred
C Validity Modification and Termination of the Banking Instrument This Banking
Instrument will become valid on the date of the last party s signature This Banking
Instrument may be amended or modified only with written approval of all signatory
parties
D Specific Language of Banking Instrument Shall Be Controlling To the extent that
specific language in this document changes modifies or deletes terms and conditions
contained in those documents that are incorporated into the Banking Instrument by
reference and that are not legally binding the specific language within the Banking
Instrument shall be controlling
E Dispute Resolution Any disputes between the Bank Sponsor and the DWQ regarding the
attainment of success criteria and release of credits from a specific site and appropriate
monitoring maintenance and /or remedial onsite activities shall first be addressed among
the field staff of DWQ and EBX EM field personnel and then if not resolved raised to
the level of the individual signatories to the Banking Instrument or their designees
F Notices Unless otherwise provided herein all notices and other communications which
may be or are required to be given or made by any party to the other in connection
herewith shall be in writing and shall be deemed to have been properly given and
received on the date delivered in person or deposited in the United States mail registered
or certified return receipt requested to the addresses set out below or at such other
addresses as specified by written notice delivered in accordance herewith

If to EBX EM EBX EM LLC
10055 Red Run Boulevard Suite 130
Owings Mills MD 21117
Attn Mr Thom Rinker
Copy to EBX EM
909 Capability Drive Suite 3100
Raleigh North Carolina 27606
Attn Mr Tommy Cousins
If to DWQ DWQ 401 Oversii,ht ind I YlncsS Neirnittiir Unit
4 V;- 1- Giublr( L B1-,a -- -Suit(- 250
Raleigh 14( -27604
Attn Ms Katie, Mcriitt
G Entire Agreement 1 his Agreement constitutes the sole and entice agreement among the
parties hereto and no modification of this Agreement shall be binding unless in writing
and signed by all parties hereto
H Applicable Law This Agreement shall be construed under the laws of the State of North
Carolina
EBX EM LLC
ar
Name 1 homas L Rinker
Title Principal
Date 3/29/12
NORTH CAROLINA DEPARTMENT OF ENVIRONMI N l AND
NA FURAL RESOURCES DIVISION OF WATER QUAI I1 Y
1)
By
Name
Title Pl f ee- .-1
Date .111 14 / 2,