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20160977 Ver 2_signed Bucher MBI_20200217AGREEMENT TO ESTABLISH THE BUCHER MITIGATION BANKING INSTRUMENT IN THE UPPER NEUSE RIVER BASIN FOR RIPARIAN BUFFER MITIGATION CREDITS PURSUANT TO THE FALLS LAKE WATER SUPPLY NUTRIENT STRATEGY AND THE NEUSE RIVER BASIN NUTRIENT MANAGEMENT STRATEGY TABLE OF CONTENTS I. PREAMBLE............................................................................................................................2 U. LOCATION AND GEOGRAPHIC SERVICE AREA ....................................................... 2 III. AUTHORITIES................................................................................................................... 3 IV. ESTABLISHMENT OF BANK PARCEL.......................................................................... 3 V. BANK PARCEL DEVELOPMENT PACKAGE............................................................... 4 VI. POST CONSTRUCTION DOCUMENTATION FOR THE BANK PARCEL ................. 6 VII. CALCULATION OF MITIGATION CREDITS FOR THE BANK PARCEL .................. 9 VIII. CREDIT RELEASE SCHEDULE................................................................................. 10 IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS ............ 11 X. BANK PARCEL CLOSURE............................................................................................. 12 XI. GENERAL PROVISIONS FOR THE BANK PARCEL .................................................. 12 ATTACHMENTS & REFERENCES A — Division of Water Resources Authority Document B — Riparian Buffer Mitigation Rule' C — Buffer Restoration & Preservation Ledger Template 1 http://reporis.oah.state.nc.us/neac/title°/a2015a%20%20environmental%20quality/chapter/`2002%20- %20environmental%20management/subchapter%20b/ 15a°/u20ncac%2002b%20.0295.pdf I I. PREAMBLE This Mitigation Banking Instrument ("Instrument") regarding the establishment, use, operation, and maintenance of the Bucher Buffer Mitigation Bank Parcel ("Bank Parcel", to provide Neuse Riparian Buffer mitigation credits ("Riparian Buffer Credits") is made and entered into by and among EBX-Neuse 1, LLC acting as the Bank Sponsor ("Sponsor"), and the North Carolina Department of Environmental Quality — Division of Water Resources ("DWR"). This Instrument is in accordance with the Consolidated Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachments B). The purpose of this Bank is: A. To restore and preserve riparian vegetation adjacent to mitigated streams with the intent to improve water quality within the 8-digit Hydrologic Unit Code ("HUC") 03020201 Upper Falls Lake Watershed of the Neuse River Basin (8-digit Hydrologic Unit Code ("HUC") 03020201). B. To provide mitigation and sell any resulting Riparian Buffer Credits to third parties in the Neuse River Basin, including the Falls Lake Watershed for development (both existing and proposed) requiring such mitigation. IL LOCATION AND GEOGRAPHIC SERVICE AREA A. The Geographic Service Area ("GSA") is the designated area wherein a Bank can reasonably be expected to sell Riparian Buffer Credits for impacts due to development activities. B. The GSA for this Instrument is limited to the 8-digit HUC 03020201 of the Neuse River Basin in the State of North Carolina, United States Geological Survey. C. Sale or transfer of Riparian Buffer Credits shall be limited to the 8-digit HUC 03020201 Neuse River Basin including the Falls Lake Watershed, unless otherwise authorized by the DWR or delegated local government in accordance with 15A NCAC 02B .0295. D. The following table provides site -specific details of the Bank Parcel proposed under this Instrument, within the Neuse River Basin (8-digit HUC 03020201); Table 1.0 — Site -specific Details Bank 8-Digit USGS DWR Named Parcel County Hydrologic Project # Project Location Receiving Primary Land Use/s Name Unit Code Stream Mature natural forest, Bucher Durham 03020201 20160977v2 36.035494, Rocky some areas of non- -78.786872 Branch forested fields, and a large in -line pond. 2 III. AUTHORITIES A. The Bank will be used to provide Riparian Buffer Credit in accordance with the requirements in the DWR Authority document referenced herein as "Attachment A" and attached to this Instrument. B. Projects eligible for utilization of the credits are those requiring authorization under the requirements of Attachment A and any new approved North Carolina ("State") statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy and the Falls Lake Water Supply Nutrient Strategy. C. The selling of mitigation credits generated from the Bank Parcel approved under this Instrument, shall be consistent with approved North Carolina ("State") statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy and the Falls Lake Water Supply Nutrient Strategy. D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel Development Packages (BPDP) to generate Riparian Buffer Credits shall be consistent with North Carolina ("State") statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy and the Falls Lake Water Supply Nutrient Strategy that are in place at the time a complete BPDP is submitted to DWR. IV. ESTABLISHMENT OF BANK PARCEL A. In accordance with 15A NCAC 02B .0295, DWR has provided a "Site Viability Letter" for the Bank Parcel proposed under this Instrument. The site viability letter is not an approval of the site to generate mitigation credits, but is a preliminary review of the Bank Parcel that details and confirms existing land -use conditions, defines the riparian zone sites (Enhancement, Preservation or Restoration), and identifies features (streams, ditches, ponds, etc.) that meet general criteria to be suitable to generate mitigation credits. The Site Viability Letter for this Bank Parcel was issued by NCDWR on July 31, 2018 and will expire on July 31, 2020 or upon the submittal of an As -Built Report to DWR. B. A valid Site Viability Letter is required prior to submittal of the BPDP. Site Viability Letters will either expire upon the submittal of a BPDP to the DWR or on the dates listed above, whichever comes first. If a Site Viability Letter expires prior to submittal of a complete BPDP as described in Section V to DWR, then the Sponsor must submit a formal request to DWR for a new Site Viability Letter for that Bank Parcel. C. The Bank Parcel proposed for inclusion under this Instrument shall require a BPDP be submitted to, and approved by, the DWR prior to use of the individual Bank Parcel for mitigation purposes or for any sale or transfer of any associated credits. The contents of the BPDP are provided in Section V. 3 D. This Bank Parcel is also part of the Neu -Con Stream and Wetland Umbrella Mitigation Bank, Bucher Mitigation Plan Army Action lD #SAW- SAW-2016-01988. This mitigation plan has been submitted to the Interagency Review Team (IRT) for review and approval. E. The BPDP submitted under this instrument will be placed on public notice and made available for public commenting for 15 calendar days. F. Most of the Riparian Buffer Credits on this Bank Parcel will be generated along newly formed stream channels through an old pond footprint and along restored stream channels that are proposed for stream mitigation. Stream Mitigation Plans will be submitted under the Neu -Con Stream and Wetland Umbrella Mitigation Bank referenced in "D" in this section. Additionally, all activities conducted within riparian buffers and adjacent riparian areas for purposes of generating Riparian Buffer Credits will be conducted in concurrence with stream mitigation activities. Riparian Buffer Credit on this Bank Parcel may be achieved through restoration and preservation of DWR riparian buffers as they are defined in 15A NCAC 02B .0233, and other riparian areas allowed per 15A NCAC 02B .0295 (n) and (o) on the Bank Parcel. Riparian Buffer Credits are only attainable if the width of the restoration site and preservation site is at least 20 feet from top of bank. G. The Bank Parcel is intended to provide Neuse Riparian Buffer mitigation as follows: 1. Planting hardwood trees on a Restoration Site as defined in 15A NCAC 02B .0295(b) adjacent to mitigated streams. 2. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295 (b) by placing a conservation easement around riparian areas along streams as allowed by 15A NCAC 02B .0295 (o). 3. Diffused flow will be maintained onsite to the maximum extent practicable. E. The total area of buffer mitigation on this Bank Parcel is expected to be 31.69 acres. V. BANK PARCEL DEVELOPMENT PACKAGE A. The Bank Parcel Development Package (BPDP) submitted under this Instrument shall be submitted to DWR for review and must be approved by DWR prior to any construction on the Bank Parcel. The BPDP must describe any changes that have occurred to the site between the date of the Site Viability Letter and the date the BPDP is submitted to DWR. The BPDP shall include detailed information consistent with the sections below concerning; 1) site location (8-digit HUC is required); 2) existing conditions with current photos; 3) proposed buffer mitigation activities including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) associated buffer mitigation calculations, which shall include credit generation, service area, and accounting as appropriate for each regulatory authority; 7) stream buffer determination letter from DWR, and 8) Site Viability Letter from DWR; 9) a figure depicting the proposed stream mitigation areas; and 10) service area figure for each mitigation type 4 B. The Sponsor will obtain all applicable federal, state, and local documentation, permits, or authorizations needed to construct and maintain the Bank Parcel. This Instrument does not qualify as, or substitute for, such documentation, permit, or authorization. C. Any restoration activities or proposed construction within the riparian buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer Credit must be approved by DWR in writing prior to implementation. The failure of the Sponsor to comply with this requirement may result in a revised or reduced credit release schedule for that specific mitigation site. All restoration activities must be performed in concurrence with any stream mitigation activities and not before. D. Requests for deviation from the approved BPDP must be submitted to DWR in writing. Written approval from the DWR must be received prior to implementing any deviation from the approved BPDP. Property Disposition & Long Term Management for the Bank Parcel E. Prior to the release of any credits, the Sponsor shall record permanent conservation easements at the Durham County Register of Deed's office that is sufficient to ensure protection, operation and maintenance of restored riparian buffers and other riparian areas for the duration specified in the approved BPDP. F. The form of the conservation easement shall be consistent with the standards employed by the State of North Carolina in the protection of restored riparian buffers and riparian areas and shall be approved by the DWR and Army Corps of Engineers (ACOE) prior to the release of any credits. G. The Sponsor shall not grant additional easements, right of ways, or any other property interest in or to the project areas, without prior approval from the DWR and the USACE. H. The Sponsor agrees to transfer or assign the conservation easement and its interests in perpetuity to a qualified holder under NC General Statute ("GS") 121-34 et seq. and 170(h) of the Internal Revenue Code prior to the submittal of the Year 4 Monitoring Report. The holder shall be a land trust or stewardship program that will hold and enforce the conservation easement and the interests in perpetuity. The Sponsor shall choose a land trust or stewardship program that is accredited by the Land Trust Accreditation Commission and/or has been approved by DWR prior to the end of the fourth year monitoring period. A land trust must be certified under 501(c)(3) of the Internal Revenue Code. I. In the event the Sponsor is also the owner of the underlying fee interest in the property, the conveyance of the conservation easement to a land trust or stewardship fund must be arranged at the outset of the approved BPDP. Financial Assurances for the Bank Parcel J. Following approval of the BPDP for the Bank Parcel, the Sponsor shall provide Perform ance/Maintenance Bonds from a surety company that is rated no less than an "A-" 5 as rated by A.M. Best, to construct the site according to the approved BPDPs. It is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with each annual bond renewal. K. The amount of each Performance Bond shall be 100% of the estimated cost for implementation of the mitigation activities of the Bank Parcel as described in the approved BPDP. No bond shall be less than $150,000.00 to cover construction costs. L. Alternatively, in lieu of posting Performance Bonds, the Sponsor may elect to construct the projects prior to the first credit release. M. For the Bank Parcel, once DWR has released all credits for completion of all the items listed below, then the Bank Sponsor will be released from its performance obligations under the performance bond required in Item J and K of this section: 1. Instrument and BPDP Approved by DWR, Conservation Easement Recorded, Financial Assurance Posted; 2. Mitigation Site Earthwork and Planting and Installation of Monitoring Devices Completed; 3. As -Built Report as described in Section VI has been received by DWR; and 4. DWR has submitted a written approval of the As -Built Report N. To comply with this section, DWR must be the Obligee on all performance bonds. VI. POST CONSTRUCTION DOCUMENTATION FOR THE BANK PARCEL As -Built Report A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Instrument and corresponding BPDP, to establish, maintain, and monitor Neuse Riparian Buffers or other riparian areas until Item B (1) and (2) of Section X have been satisfied. B. When all stream mitigation activities have commenced, the Sponsor will submit an as -built plan and report for the Bank Parcel within 30 calendar days after completing the establishment of the riparian buffer mitigation areas. The as -built report will describe any deviation from the approved BPDP and will document the following: 1. Buffer restoration and planting details, invasive species control, confirmation of fence installation (if applicable), monitoring device locations, vegetation plot locations, photo point locations, surface and groundwater elevations, as appropriate. 2. Provide confirmation that the construction of all stream mitigation activities have been completed. 0 3. Boundary Survey of the conservation easement area, signed and sealed by a licensed surveyor, including an inventory of the final mitigation areas for riparian buffer mitigation credits in both square feet and acres. 4. As -built map of the mitigation area showing where riparian restoration and preservation was performed and any deviations to the Bank Parcel from what was approved in the BPDP. 5. As -Built map of the stream mitigation areas. 6. Aerial map of the mitigation area that was included in the approved BPDP. Financial Assurance for Bank Parcel C. After completion of the restoration/construction on the Bank Parcel, a Performance/Maintenance Bond will be secured for 100% of the estimated cost to implement the monitoring and maintenance plan as described in the approved BPDP and As -Built Report applicable for the site. The Bond must be from a surety company that is rated no less than an "A-" as rated by A.M. Best, and it is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with annual bond renewal. D. A Performance/Maintenance Bond shall be secured each year for a minimum of five years, and until DWR has released all mitigation credits to the Bank Sponsor. Upon receiving a written notification from DWR approving a monitoring report with no contingencies, the bond may be lowered by a maximum of 20% for that next year's monitoring based on the adjusted cost to complete the monitoring. No bond shall be less than $100,000 initially, to cover monitoring and maintenance costs. E. Once DWR has released 100% of all credits for completion of all Bank Parcel milestones described in Table 2 of Section VIII and in the corresponding BPDP, the Bank Sponsor will be released from its performance obligations under the performance bond required in "C-D" of this Section. F. To comply with this section, DWR must be the Obligee on all performance bonds. Monitoring and Maintenance Reports G. The Sponsor shall monitor the Bank Parcel as described in the BPDP until such time as DWR determines that the performance standards described below have been met. The monitoring period shall be a minimum of five consecutive years. H. Performance Standards for Vegetation: Native hardwood trees or native hardwood tree and shrub species should be planted at a density sufficient to provide 260 stems per acre after five years. A minimum of four (4) native hardwood trees or four (4) native hardwood tree and shrub species must be planted. No one species shall be greater than 50% of the planted stems. A list of species for planting will be detailed in the BPDP for approval. Native hardwood tree volunteer species may be included to meet performance standards as determined by the DWR. A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height. J. If the performance standards of the vegetation are not met, supplemental plantings may be required. Supplemental plantings will be utilized until the required densities have been achieved and maintained for five years. Bank Parcel maintenance, such as ensuring diffuse flow, managing invasive species, and pest control will be included in the BPDP. K. Monitoring Reports for Riparian Buffer Credit: Reporting criteria of the vegetation shall be based on the Carolina Vegetation Survey (CVS) — EEP Protocol for Recording Vegetation Level 2 Plot Sampling only version 4.0 or any updated versions of this protocol in place on the date of acceptance of the BPDP. The Sponsor shall submit to the DWR an annual monitoring report no later than December 31 of each year for a minimum of five consecutive years after the first full growing season. This report will describe the conditions of the Bank Parcel, including an evaluation of the performance standards of the vegetation contained within the approved BPDP. Reports shall contain the following: 1. A U.S. Geological Survey map showing location of the Bank Parcel; 2. A detailed narrative with supporting photos summarizing the condition of the Bank Parcel along with any maintenance or remediation performed that year; and A map, survey, or other figure showing locations of sampling plots, permanent photo points, location of transects, etc.; and 4. Monitoring data, including specific vegetative counts showing that the trees or tree and shrub species planted are meeting performance standards and updated photographs; and 5. A copy of the most recent Bank credit/debit ledgers; and 6. Corresponding verification letters from designated local governments upon request; and 7. Corresponding Mitigation Transfer Certificates upon request. 8. Proof of performance bond renewal to cover the next monitoring year (if applicable) Continency Plans/Remedial Actions L. In the event the Bank Parcel fails to achieve the performance criteria described in this Instrument and the approved BPDP, the Bank Sponsor shall develop necessary contingency plans in coordination with the DWR and implement appropriate remedial actions for the Bank Parcel and the Bank. Depending on the degree of remedial actions required, the DWR may modify the monitoring period. VII. CALCULATION OF MITIGATION CREDITS FOR THE BANK PARCEL Riparian Buffer Credits A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n). B. Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295 (n), and defined in 15A NCAC 02B .0295 (b) may be used for Riparian Buffer Credit. C. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (o) and defined in 15A NCAC 02B .0295 (b), can be used for Riparian Buffer Credit. D. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer credits per one acre. This space left blank intentionally, do not add text to this space. 6 VIII. CREDIT RELEASE SCHEDULE A. Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by DWR, it is agreed that the mitigation credits associated with the Bank Parcel will become available for sale to a third party in accordance with the Credit Release Schedule below in Table 2.0 below: Table 2.0 - Credit Release Schedule for Riparian Buffer Credits % Credit Available for Task Project Milestone Sale Instrument and BPDP Approved by DWR, Draft Stream Mitigation Plan Approved by the IRT, Conservation Easement Recorded*, Financial Assurance Posted, and Item B (1) of Section X in this Instrument has been completed and 12.5*** 1 approved by DWR. All Stream and Buffer Mitigation Site Earthwork Completed, Planting and 10*** 2 Installation of Monitoring Devices Completed and All Applicable 3 Monitoring Financial Assurance Posted and Approval of As -Built Report 32.5 Monitoring Report #1: Approved by the DWR** & financial assurance 4 renewed 10 Monitoring Report #2: Approved by the DWR** & financial assurance 5 renewed 10 Monitoring Report #3: Approved by the DWR** & financial assurance 6 renewed 10 Monitoring Report #4: Approved by the DWR** & financial assurance 7 renewed 5 Monitoring Report #5: Approved by the DWR** and final site visit by DWR 8 has been conducted 10 Total 100 % * For specification, please see Section V in this Instrument ** DWR Approval provided upon a determination that the site is meeting performance standards contained within the approved BPDP * * * Will only receive 2:1 rate of Buffer Preservation and Restoration Credits until the completion of Task 3 due to the work occurring within the pond footprint. At the completion of Task 3, the remaining credits for Buffer Preservation and Restoration will be released. B. DWR may modify credit release schedules based on the information submitted or the order in which required information is received. DWR will notify the Sponsor of any modification to the credit release schedule. C. DWR may consider a Credit Release Schedule for the Bank Parcel based on the extent of change between current onsite conditions and proposed post construction conditions. D. The Sponsor must initiate implementation of the approved BPDP for the site under this Instrument in concurrence with all stream and/or wetland mitigation activities proposed in the approved Mitigation Plan referenced in Item D of Section IV of this Instrument. 10 IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS Credit Ledgers A. The Bank Sponsor shall maintain one credit ledger for the Bank Parcel under this Instrument: The credit ledgers shall provide the accounting for buffer mitigation credits in square feet and acres. B. The credit ledger shall be submitted on a separate 8 '/zin X 11 in spreadsheet with legible font style and font size. The ledger shall be submitted using the template provided in Attachment C of this Instrument or any updated versions to these templates as provided by DWR. Credit Processing C. Riparian Buffer Credits generated on the Bank Parcel will be used to provide mitigation for authorized buffer impacts within the Neuse River Basin according to 15A NCAC 02B .0295 (g). D. The Bank Sponsor shall obtain verification of buffer mitigation required from the delegated local government in the Neuse River Basin, including the Falls Lake Watershed or DWR prior to debiting Riparian Buffer Credits from the individual Bank Parcel. E. All credit and debit transactions for the Bank Parcel under this Instrument shall be accurately depicted in the credit ledgers. The Bank Sponsor shall provide DWR up-to-date credit ledgers for the Bank Parcel by the tenth (IOh)of each month. At a minimum and upon request DWR shall receive a hard copy of updated credit ledgers along with the corresponding Mitigation Credit Transfer Certificates ("Certificate") and all corresponding letters from the designated local governments or DWR where applicable, once a year. Notification of all credit sales shall be provided to DWR until all credits that have been released have been sold. Mitigation Credit Transfer Certificates F. All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate") that is required to be provided to the buyer of Riparian Buffer credits, that will include, at a minimum, the following information: 1. Bank Details: (1) sponsor name, (2) bank parcel name as it appears in this Instrument, (3) DWR project number for the BPDP as it appears in Table 1.0. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, and (3 — when applicable) amount of Riparian Buffer Credits purchased in square feet and the confirmation from DWR or the local government of the amount required. 11 3. Permitted Project Details: (1) project name as it appears on DWR or local government permits and/or certifications, (2) 8-digit HUC, (3) river basin, (4) nutrient strategy applicable to the project with the impacts, (5 — when applicable) designated local government requiring Riparian Buffer Credits, and/or (6) DWR authorization number or delegated local government requiring Riparian Buffer Credits for this project. E. If the DWR determines that the Bank is operating at a deficit (e.g. the Sponsor is closing on sales and/or transferring credit that is not available), or the Bank is selling credits out of compliance with statutes, rules or this Agreement, the sale/transfer of credits will immediately cease, and the DWR, in consultation with the Sponsor, will determine what remedial actions are necessary. X. BANK PARCEL CLOSURE A. Bank Parcel Closure shall be identified as the event when the Sponsor is relieved of all of its responsibilities to the Bank Parcel and there are no Riparian Buffer Credits left to sell. B. Bank Parcel Closure shall commence only after all of the following events have occurred: 1. Transfer or assign the conservation easement and all of its interests, in perpetuity, to a land trust or stewardship program as described in Section V of this Instrument. 2. All five years of monitoring completed and all monitoring reports submitted and approved by DWR. 3. All credits have been released and debited and updated ledgers showing zero credit balances have been submitted and approved by DWR. XI. GENERAL PROVISIONS FOR THE BANK PARCEL A. Upon the presentation of proper credentials, and during normal business hours, the Sponsor and the landowner shall grant permission to the Director of DWR, or an authorized representative of the Director of DWR, to enter the property containing the Bank Parcel. B. Amendments: This Banking Instrument may be amended or modified only with written approval of all signatory parties, including the USACE if it is applicable to the amendment. C. Any transfer of the Sponsor's rights or obligations outlined in this Instrument or any other agreement referenced in this Instrument to a third party must be approved by DWR prior to the transfer. D. Force Majeure: After 100% of all of the credits have been released according to the credit release schedule in Section VIII and confirmation has been received by the DWR that the Conservation Easement has been successfully assigned in compliance with Item H of 12 Section V, then the Sponsor will not be responsible for Bank failure that is attributed to natural catastrophes including but not limited to flood, drought, disease, regional pest infestation, etc. that are beyond the control of the Sponsor. E. However, if an event occurs before 100% of all of the credits have been released according to the credit release schedule in Section VIII, then the Sponsor shall take remedial action to restore the property to its condition prior to the 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 the Sponsor only to the extent necessary and appropriate, as determined by DWR and the Sponsor. DWR must concur in writing that a force majeure event has occurred for this provision to apply. F. Oversight: Actions taken by DWR may include, but are not limited to, the following: 1. Site visits, 2. Issuance of Site Viability Letters, 3. BPDP review and approval of items listed in Section V of this Instrument, 4. As -Built Report review and approval of items listed in Section VI of this Instrument, 5. Monitoring Report review and approval of items listed in Section VI of this Instrument, 6. Credit Ledger review and approval of items listed in Section IX of this Instrument, 7. Certificate review of items listed in Section IX of this Instrument and cross analysis to credit ledgers and, 8. Information requests, file reviews and audits Reports, ledgers, files and other information shall be made available to DWR upon request, unless otherwise specified in this or any other document. G. Validity of the Banking Instrument: This Instrument will become valid on the date of the last party's signature. H. 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 Instrument by reference, and that are not legally binding, the specific language within the Instrument shall be controlling. I. Any disputes over decisions regarding this Instrument, shall be referred to the Director of DWR for a decision. The Director's decision is subject to review as provided in Articles 3 and 4 of G.S. 150B. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently, and voluntarily. K. Notices: All notices and other communications which may be or are required to be given or made by any party to the other shall be in writing and shall be deemed to have been properly given and received on the date delivered in person, through email or deposited in 13 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 Bank Sponsor: EBX —Neuse I, LLC Attention: Brad Breslow 302 Jefferson Street Suite 110 Raleigh, North Carolina 27605 bbreslow@res.us If to DWR: NC Division of Water Resources — 401 & Buffer Permitting Branch Attn: Nutrient Offset and Buffer Banking Coordinator 1617 Mail Service Center Raleigh, NC 27699-1617 L. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina. EBX-Neuse I, LLC By: � � rf51 (Print) (Signature) Title:r- Date: --� �Z� { /2oz0 NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY -DIVISION OF WATER RESOURCES I/ 0 Title: l// }�; Date: / 2: 14 (Signature) Updated Nutrient Offset Program & Buffer Mitigation Program 9/6/2016 Authorities for MBI ATTACHMENT A Authorities pertaining to the RES Bucher Mitigation Banking Instrument All Basins General Statutes: G.S. §143-214.11 Ecosystem Enhancement Program G.S. §143-214.26 Nutrient Offset Credits G.S. § 143-214.20-24 Riparian Buffer Protection Program G.S. § 143-214.7 Stormwater runoff rules and programs G.S. § 143-215.8B Basinwide Water Quality Management Plans Session Laws S.L.2015-246 S.L.2015-149 S.L. 2014-90 S.L. 2014-120 S.L.2013-413 S.L.2013-121 S.L. 2013-265 S.L. 2012-200 (Amendment to G.S. §143-214.23 and G.S. §143-215.1) S.L. 2011-343 (Amendment to G.S. §143-214.11) S.L. 2009- 337 (Amendment to G.S. § 143-214.11) Administrative Rules: 15A NCAC 02B .0202 Definitions 15A NCAC 02B .0223 Nutrient Sensitive Waters 15A NCAC 02B .0237 Best Management Practice Cost -Effectiveness Rate 15A NCAC 02B .0240 Nutrient Offset Payments 15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers Neuse River Basin Buffer and Falls Lake Nutrient Strategy General Statutes and Session Laws G.S. §143-214.5 Water Supply Watershed Protection S.L. 2012-187 S.L. 2011-394 S.L. 2009-486 S.L. 1998-221 (Part I) Administrative Rules: 15A NCAC 02B .0232 Basin Nutrient Reduction Goal 15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B .0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B . 0275 Purpose and Scope 15A NCAC 02B .0276 Definitions 15A NCAC 02B .0277 Stormwater Management for New Development 15A NCAC 02B . 0278 Stonnwater Management for Existing Development 15A NCAC 02B . 0279 Wastewater Discharge Requirements 15A NCAC 02B .0280 Agriculture 15A NCAC 02B .0281 Stormwater Requirements for State and Federal Entities 15A NCAC 02B .0282 Options for Offsetting Nutrient Loads ATTACHMENT C *Credits shown below are only for mitigation credits approved by the UMBI, BPDP, and As -Built, (Sponsor Name & Instrument Name) (Parcel Name w/ HUC #) Buffer Restoration and Preservation Credit Ledger Date Last Updated: DWR Bank Parcel Project #: Total Credits Released To Date: Sale/ Release Date Purchaser or %Credit Release Project w/ HUC # Credits Released/Available to Bank Credits Debited/Sold From Bank Buffer Credit Balance Gov't Requiring Square Feet Acres Square Feet Acres SquareAcres Feet v a, J v L U c O m Oc � i VI m z a C � O W O aC� v C cc (Q L z ,cu L o N m O O t0- U 2 3 v E m Z on L Y ::3 > s 0 v 0 � u u c � v L � m Y :6 u Q aJ L � v 0 Q1 m O N u .n 0 o v n L Y LL Q1 LL Q/ v � V O 6 N 0 v v a m Q M > C N Q 0 L \ m U QJ v N a LL m v Ql Q) f0 V S 3 Y Q d Y N V o N O m N N u c a v m �o v m M L @ Qf