HomeMy WebLinkAboutDepartment of natural Resources
Augusta Richmond GA
DOCUMENT NAME: ~~. ~ ('(X\U'(oJ '(e8:)u'(ct:S
DOCUMENT TYPE: ~'< ee.rY\~
YEAR: D \
BOX NUMBER: \ 5
FILE NUMBER: \ 5C\ '1 \
NUMBER OF PAGES: \0
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AGREEMENT, made and entered into this t~1!aay of
,2001, by and between the State of Georgia, Department of Natural
e ces (hereinafter, DNR), with its address at 205 Butler Street, S. E., Suite 1252,
Atlanta, Georgia 30334, and Augusta, Georgia, a political subdivision of the State of
Georgia with its address at 530 Greene Street, Augusta, Georgia 30911 (hereinafter,
GRANTEE).
WHEREAS, the Georgia Constitution authorizes grants of State funds to counties
and municipalities within the State, Ga. Const. 1983, Art. VII, Sec. III, Para. III; and
WHEREAS, in Chapter 22 of Title 36 of the afficial Code of Georgia
Annotated, a.C.G.A S 36-22-1 et seq., (hereinafter referred to as "the Georgia
Greenspace Act" or the "Act"), the General Assembly recognized the unique
characteristics of each region in the state and the need for a flexible framework within
which populous and rapidly growing cities and counties can develop community
greenspace preservation programs; and
WHEREAS, the Code provides that it is the intent of the legislature "to promote
the adoption in developed and rapidly developing areas of the state of policies, rules, and
regulations which will have the effect of preserving at least 20 percent of the land area as
connected and open greenspace which can be utilized for informal recreational activities
and protection of natural reiources," a.c.G.A. S 36-22-1; and
WHEREAS, the Georgia Greenspace Act established the Georgia Greenspace
Commission (the "Commission") which has the power and duty under the Act to review
greenspace progranls submitted by a county, a.c.G.A. S36-22-8, and greenspace
programs in which a county participates with a municipality, a.c.G.A. SS36-22-4(c) and
36-22-6(3), and to determine their eligibility for an award of a greenspace grant,
a.c.G.A. S36-22-8; and
WHEREAS, the Georgia Greenspace Act established the Georgia Greenspace
Trust Fund to be administered by DNR in furtherance of the purposes of the Georgia
Greenspace Act, see a.c.G.A. S 36-22-4; and
WHEREAS, GRANTEE is eligible under the provisions of a.c.G.A. S 36-22-10
of the Act and the Rules and Regulations of DNR to submit, and has submitted, a
greenspace program requesting a grant from the Georgia Greenspace Trust Fund (the
"Greenspace Program"); and
WHEREAS, the Commission has determined that the Community Greenspace
Program submitted by GRANTEE complies with the terms and conditions set out in the
Georgia Greenspace Act; and
WHEREAS, the Commission has advised DNR that GRANTEE has become
eligible for, and is to receive, a greenspace grant (hereinafter, the "Grant"); and
WHEREAS, the Code provides that DNR is to "administer the fund . . .[and]
expend moneys held in the fund in furtherance of the purposes of and pursuant to the
provisions of' the Act; and
WHEREAS, DNR and the GRANTEE (the "Parties") desire to enter into a
contract to document the objectives, terms, conditions and restrictions regarding the
Grant;
NOW, THEREFORE, for and in consideration of the mutual promises, the
public purposes and the acknowledgments and agreements contained herein, together
with other good and adequate consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
I. AWARD
A. Pursuant to a.c.G.A. S 36-22-4 and the decision of the Commission, DNR hereby
awards a Grant to GRANTEE in the amount of FIVE HUNDRED NINETY TWO
THOUSAND, EIGHT HUNDRED TWENTY SIX DOLLARS AND NO CENTS
($592,826.00) (the "Grant Funds").
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B. Hereinafter, "Grant Funds" includes the original funds awarded plus, after receipt by
the GRANTEE, all interest earned on those funds.
II. GRANTEE'S OBLIGATIONS AND DUTIES
A. USE OF GRANT FUNDS - As consideration for the award of the Grant Funds,
GRANTEE has established a Community Greenspace Trust Fund pursuant to a.C.G.A. S
36-22-7 and accepts the Grant Funds in trust and promises to expend the Grant Funds
solely for their intended purpose. GRANTEE further promises to:
1. Deposit the Grant Funds into the GRANTEE's Community Greenspace Trust Fund.
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2. Administer the Grant Funds in a manner consistent with the purposes of the Georgia
Greenspace Act and the Rules and Regulations promulgated by DNR and the terms and
conditions of this Agreement.
3. Utilize the Grant Funds to acquire interests in real property located within Richmond
County; and
4. Use the Grant Funds solely for the Costs of Acquisition of greenspace as defined in
O.c.G.A. 936-22-2(3) of the Act and the Rules and Regulations of DNR (hereinafter,
"the Greenspace Property").
5. Specifically reference this Agreement .in GRANTEE's deed or other instrument of
acquisition of Greenspace Property, when Grant Funds were used in whole or in part for
the acquisition, and recite that the State of Georgia is a third-party beneficiary under this
Agreement and that, if the property is used for anything other than as Greenspace
Property, the State of Georgia has a right to require specific performance of this
Agreement and require that the property be returned to the use as provided herein.
6. Record on its Capital Account as Greenspace Property each interest in that land was
acquired in whole or in part with Grant Funds.
7. Operate and maintain lands designated as Greenspace Property in such a manner as to
achieve one or more of the nine statutory goals of the Act including, protecting or
enhancing water quality, providing flood protection, providing natural habitat and
corridors for native plant and animal species, protecting archaeological and historic
resources, providing passive recreation, or providing connective links between lands
contributing to the goals of the Georgia Greenspace Act.
8. Expend the Grant Funds by no later than June 30, 2003, unless GRANTEE is given an
extension of time in writing pursuant to the Rules and Regulations promulgated by DNR.
9. In the event that GRA~TEE fails to expend the Grant Funds on or before June 30,
2003, or to obtain an extension of time in writing pursuant to the Rules and Regulations
promulgated by DNR, then GRANTEE shall immediately return the Grant Funds
remaining in GRANTEE'S Community Greenspace Trust Fund account to DNR in
certified funds to the address written above.
10. Reimburse the Georgia Greenspace Trust Fund for any principal and interest amount
of the Grant Funds which were not expended as follows:
(a) in accordance with the terms of this Agreement, and
(b) in compliance with the Act and the Rules and Regulations promulgated there
under.
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11. Assure that no property acquired, in whole or in part, with Grant Funds is converted
to any use inconsistent with the Act unless such conversion is conducted under the terms
and conditions for Conversion provided below.
12. Acquire the Greenspace Property subject to a restriction in writing in the deed or
other instrument of acquisition that the property must be used in perpetuity as greenspace
property as provided in O.C.G.A. S 36-22-1 et seq. and the restriction will be enforced by
the State of Georgia.
B. OPINION OF COUNSEL AND TITLE INSURANCE POLICY
After the expenditure of any Grant Funds for Greenspace Property, GRANTEE must
promptly deliver to DNR an originally signed opinion of counsel regarding the interest
that GRANTEE owns in the acquired Greenspace Property (fee simple or lesser interests
in land as set forth in Grantee's Greenspace Program), and that GRANTEE holds good
and marketable title thereto, with specific reference to the instrument or instruments of
acquisition and their recording data. The opinion must be addressed to GRANTEE and
DNR. It must further state that the Greenspace Property is encumbered as required by
this Agreement and is not encumbered in any way prohibited by this Agreement or in any
way which impairs the status or use of the Greenspace Property for the Greenspace
Program. GRANTEE must further provide DNR with a copy of a consistent AL T A title
insurance policy, which insures GRANTEE'S right, title and interest in the Greenspace
Property, subject only to the Greenspace encumbrances or encumbrances permitted by
this Agreement and which insures the interest of the State of Georgia in the Greenspace
Property under this Agreement.
C. AUDIT AND ACCOUNTING
1. Pursuant to O.C.G.A. S 36-81-8.1, GRANTEE shall provide, at its own expense, an
annual audit of GRANTEE's Community Greenspace Trust Fund and a completed Grant
Certification Form. (A dmple Grant Certification Form and the instructions for
completing the same are attached hereto.)
2. GRANTEE's annual audit is to be conducted in accordance with the generally
accepted government auditing standards as provided in O.c.G.A. S 36-81-7, including the
Uniform Chart of Accounts mandated by O.C.G.A. S 36-81-3. Within 30 days of
completion of such audits, GRANTEE shall submit to DNR, without charges or fees from
DNR, copies of all audits covering the award period.
D. REPORT
GRANTEE will submit a report to DNR within 60 days after the expenditure of any
Grant Funds regarding the amount of funds expended, the interest in property acquired, a
copy of the recorded deed and other acquisition documents, the Georgia Greenspace Act
goal furthered by acquisition of the property, a reference to the part of GRANTEE's
Greenspace Program which describes the acquired property, and a property description in
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digital format provided by the surveyor. This report may be submitted with the opinion
of counsel required by paragraph II. B. above.
m. USE OF GREENSPACE PROPERTY
A. Certain uses of Greenspace Property are not inconsistent with the Greenspace goals
served by Greenspace Property. Such uses do not require converting or substituting
property if the Greenspace Property is used in any of the specific ways listed in
paragraphs 1 through 5 below and GRANTEE need not apply to the Commissioner of
DNR for approval for these listed uses. However, recognition that a particular use is not
inconsistent with the purpose served by the Greenspace Property does not affect in any
way GRANTEE's responsibility to obtain all necessary permits, or GRANTEE's
obligation to comply with all local, state and federal requirements to undertake the
proposed activity on Greenspace Property.
1. UTILITIES - The construction, operation, repair, maintenance, or removal of
underground utilities in a manner that does not significantly affect the recreational utility,
natural resources protection, or habitat value of the land, and which does not hamper the
ability of the property to meet the goals of the Act, will not constitute a conversion.
2. PUBLIC FACILITIES - Construction of minimal public facilities such as benches,
swing sets, slides, picnic tables, grills, bathrooms, or shelters, to the extent needed to
accommodate the users of that property, and covering less than 5% of the total
Greenspace Property area, will not constitute a conversion.
3. TRAILS AND PATHS - Trails associated with passive recreational uses or alternative
transportation routes for pedestrians or bicycle travel, provided that less than 5% of the
total Greenspace Property is covered in impervious-surfaced trails and that there are not
significant negative impacts on natural resource values of the property, will not constitute
a converSIOn.
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4. ACCESS FACILITIES - Parking areas, boat ramps and necessary access roads, which
limit as much as possible the use of impervious surfaces, which do not have significant
negative impacts on natural resource values of the property, are limited to accommodate
only the users of the Greenspace Property, and which do not cover more than 5% of the
Greenspace Property will not constitute a conversion.
5. TOTAL DEVELOPED AREA - When totaled, the Greenspace Property developed for
Public Facilities, Trails and Paths and Access shall not exceed 15% of the Greenspace
Property .
B. GRANTEE must apply to the Commissioner of DNR in writing for approval of other
types of development or use of Greenspace Property which GRANTEE believes to also
not be inconsistent with the Greenspace goals served by Greenspace Property. The
decision of the Commissioner that a proposed use is or is not consistent with the
Greenspace goals of the Greenspace Property shall be conclusive and not subject to
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appeal under the Georgia Administrative Procedures Act or any other judicial or appellate
proceedings.
IV. RELA TIONSIllP
No agency relationship is created by this Agreement and neither GRANTEE nor its
employees are agents or representatives of DNR or the State of Georgia. GRANTEE
shall act at its own sole cost and liability in implementing the Grant.
V. THIRD-PARTY BENEFICIARY
The State of Georgia is a third-party beneficiary of this Agreement and has the right to
enforce the terms and conditions of this Agreement specifically in equity and at law.
VI. PERPETUAL TERM
This Agreement commences as the date referenced above and, pursuant to the Georgia
Constitution, Ga. Const. 1983, Art. VII, Sec. III, Para. III, and the legislation creating the
Greenspace Program, O.C.G.A. 936-22-3, it shall continue in perpetuity.
VII. ADDITIONAL TERMS AND CONDITIONS
A. The local government attorney of GRANTEE shall issue an opinion that GRANTEE
has full power and authority to enter into and perform this Agreement, and that the person
signing on behalf of GRANTEE has been properly authorized and empowered to enter
into this Agreement. I
B. GRANTEE agrees that it has complied, and will continue to comply, with the
requirements of Chapter 14 of Title 50 of the Official Code of Georgia Annotated
pertaining to open meetings, and with Chapter 18-70 et. seq. of Title 50 of the Official
Code of Georgia Annotated pertaining to open records, in regard to Greenspace Program
activities.
C. GRANTEE further acknowledges that it has read this agreement, understands it, and
agrees to be bound by it.
D. This Agreement contains the entire agreement between the parties with regard to its
subject matter and supersedes all other prior and contemporaneous agreements and
understandings between the parties. This Agreement may be modified only by mutual
consent of the parties. Any modification must be in writing and signed by both parties.
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E. GRANTEE shall not assign its right, title or interest hereunder or delegate any of its
duties or obligations without the express written consent of DNR.
F. Any failure by DNR to enforce performance by the GRANTEE of any provision of
this Agreement shall not impact or affect the right of DNR to thereafter strictly enforce
this Agreement, nor shall any action of DNR be construed as a waiver of any breach or a
modification or rescission of the Agreement.
G. GRANTEE hereby attests that none of its officials have violated any applicable
conflict of interest provisions, under either state law (O.C.G.A.SS45-IO-21 through 45-
10-28 and 36-67 A-I through 36-67 A-4) or under any applicable local ordinance, charter,
rule, or regulation and that they shall comflly with the same throughout the term of this
Agreement.
H. No report, survey, or other document produced in whole or in part under this
Agreement shall be the subject of any application for copyright by or on behalf of
GRANTEE.
1. Time is of the essence of this Agreement.
IX. REQUIREMENTS FOR CONVERTING GREENSPACE
PROPERTY
A. BACKGROUND
I. GRANTEE agrees that the intention of the Georgia General Assembly in enacting the
Georgia Greenspace Act was that any interest in real property acquired in whole or in
part with Grant Funds ("Greenspace Property"), should, in perpetuity, achieve the goal of
preserving that Greenspace Property in a natural or undeveloped condition, or in a
condition that achieves one or more of the statutory goals provided in the Act. In
accepting Grant Funds, GRiANTEE acknowledges this legislative intent to permanently
preserve Greenspace Property for future generations.
2. DNR recognizes that in a rare, exceptional circumstance, GRANTEE may find it
necessary to convert Greenspace Property to property used for some alternative public
purpose. In that event, GRANTEE agrees to the following mandatory requirements for
achieving such a conversion:
(a) GRANTEE may make a proposal to the Commissioner t~ GI{A.NTEE be
permitted to substitute other property which is located entirely in lL\: c.M~
County in lieu therefore ("Substituted Property").
(b) The Substituted Property must meet one or more of the Act's goals. It is
preferred that the Substituted Property would address the same Greenspace goal as the
property being converted, but if that is not feasible, the Substituted Property should
provide comparable value to the Greenspace Program as the Greenspace Property being
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converted. The Substituted Property must have been acquired, (or if not yet acquired,
will be acquired) by GRANTEE with funds other than Georgia Greenspace Trust Funds
or interest thereon.
(c) GRANTEE must provide in writing a document showing that the proposed
conversion was approved by two-thirds of its local governing body after a duly advertised
public hearing on the issue. GRANTEE shall attach a transcript of the public hearing to
its request for conversion.
(d) GRANTEE must provide the public with the information listed in Section
VII, B below at least 10 days prior the public hearing.
(e) GRANTEE must obtain the written approval of the Commissioner of the
Department of Natural Resources accepting the Substituted Property.
(f) The Substituted Property must be of equal or greater monetary value and of
equal or greater value to the Georgia Greenspace Program as the Greenspace Property.
(g) These conversion provisions apply to the use of any Georgia Greenspace
Trust Fund money, or interest thereon, regardless of the percentage of such Funds utilized
for the acquisition of the interest in real property.
(h) GRANTEE is responsible for compliance with these provisions.
(i) The State of Georgia is responsible for enforcement of these provisions.
B. PREREQUISITES TO CONSIDERATION OF CONVERSION REQUESTS
Before requesting the Commissioner of Natural Resources to accept a proposed property
substitution, the Grantee shall, in writing:
1. Evaluate all practical alternatives to the conversion and prepare explanations why
those alternatives are rejected,
2. Provide appraisals prepared in accordance with uniform appraisal standards, which
establish the fair market value of the Greenspace Property and property GRANTEE
proposes to substitute.
3. Provide a written evaluation of the natural resource value of the Greenspace Property
and the property GRANTEE proposes to substitute.
4. Provide a written evaluation of the Greenspace Property and the property GRANTEE
proposes to substitute with respect to the goal(s) of the Greenspace Program each serves
or will serve.
5. Provide documents establishing that the property GRANTEE proposes to substitute is
not currently, nor has it previously been, permanently protected greenspace property as
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defined in the Georgia Greenspace Act and the Rules and Regulations promulgated there
under or any other analogous federal or state program. The Substituted Property must be
newly protected property.
6. If GRANTEE already owns the Substituted Greenspace Property, GRANTEE must
deliver to DNR an originally signed opinion of counsel that GRANTEE owns the
Substituted Greenspace Property in fee simple, or with all other right and interest
required for the specific Property by GRANTEE Greenspace Program, and holds good
and marketable title thereto, with specific reference to the instrument or instruments of
acquisition and their recording data. The opinion must be addressed to GRANTEE and
DNR. It must further state that the Substituted Greenspace Property will be encumbered
as required by this Agreement and is not- encumbered in any way prohibited by this
Agreement or in any way which impairs the status or use of the Substituted Greenspace
Property for the Greenspace Program. After acceptance of the substitution by the
Commissioner of DNR, GRANTEE must further provide DNR with a copy of a
consistent AL T A title insurance policy, which insures GRANTEE'S right, title and
interest in the Substituted Greenspace Property, subject only to the Greenspace
encumbrances or encumbrances permitted by this Agreement and a copy of the recorded
deed and other acquisition documents. If GRANTEE does not yet own the Substituted
Greenspace Property, GRANTEE must certify that these conditions will be met upon
GRANTEE's acquisition of the Substitute Greenspace Property.
7. Identify the means by which the property GRANTEE proposes to substitute will be
given permanent legal protection.
8. Evaluate the public usefulness of the location, accessibility, connectIvIty to other
properties, water quality enhancement capability, water storage capacity, habitat value,
scenic or historic values, or other Georgia Greenspace Act goals of the existing
Greenspace Property and the property GRANTEE proposes to substitute.
9. Provide the written confurrence of three-fourths of the owners of property which is
adjacent to the existing Greenspace Property.
10. On sites which are being partially converted, provide an evaluation of the projected
impact of use of the proposed partially converted Greenspace Property on the remaining
Greenspace Property.
11. The information above shall be made available to the public at least 10 days prior a
public hearing held by GRANTEE regarding the proposed conversion of the Greenspace
Property .
C. ACTION BY DNR
The Commissioner shall act upon a proposed conversion request within 60 days of its
receipt, or provide a letter to the local governing body regarding the reason additional
time is needed to act upon the request. The Commissioner has the authority to disapprove
conversion requests and reject proposed property substitutions. Disapproval of a
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conversion request by the Commissioner shall be conclusive and not subject to appeal
under the Georgia Administrative Procedures Act or any other judicial or appellate
proceedings.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
GEORGIA DEPARTMENT
OF NATURAL RESOURCES
AUGUST A, GEORGIA
BY~
Lonice Barrett, Commissioner
Sworn to and subscribed
before me this / cl.. v......-
day of v: .
2001.
Sworn to and subscribed
before me this 5~
day of c/~
2001.
7'J~ J '7n~
Notary bhc
Notary Public. Columbia County, Georgia
My Commission Expires Aug. 3, 2002
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