The following procedures detail the referenced Real Estate Provisions contained in Section III.1.C. of the GDOT Umbrella Mitigation Banking Instrument (GUMBI). A copy of the most recent version (as of the date of signing of the GUMBE) of the Corps' Model Declaration of Covenants and Restrictions is attached to Appendix B.
Easements and Restrictive Covenants
GDOT shall obtain fee title or shall obtain an easement for each parcel submitted for inclusion in the Umbrella Bank. Under this agreement, for each parcel added to the Umbrella Bank where GDOT is the fee title owner of the property, GDOT's legal counsel shall prepare a draft declaration of covenants and restrictions using the most current draft model version located on the Savannah District Web Site or obtained by request from the Corps' Project Manager. Exhibits to the restrictive covenant shall include: (1) the banking instrument and any amendments or addendums, (2) a platted survey in compliance with the requirements provided in the instructions for surveys located with the draft restrictive covenant, (3) a legal description of the property, and (4) a summary page specifying the present and/or planned ecological functions and values of the bank site. A copy of the deed of title, easement or order of condemnation shall be provided with each restrictive covenant.
Where GDOT has an option agreement to acquire an easement from owner/s of the property or where GDOT has an easement on property, the attorney for the holder/s of fee title to the property will prepare a draft restrictive covenant using the most current draft model version located on the Savannah District Web Site or obtained by request from the Corps' Project Manager for approval by the Corps' counsel. The restrictive covenant must set forth in its text, and must reference as an exhibit, in addition to the other exhibits required, any agreement entered into by and between GDOT and the owner of land as to the conveyance of the easement to GDOT with a recital of the consideration and/or reference to receipt and sufficiency of consideration. Both the owners of the property and GDOT shall sign the restrictive covenant where GDOT holds a recorded easement on property prior to the recording of the restrictive covenant. Where GDOT executes an easement after the recording of the restrictive covenant, the easement should incorporate by reference, the recorded restrictive covenant and provide its recorded location by book and page numbers. Parcels of land where the owner/s are unwilling to execute and record a restrictive covenant shall not be considered for purposes of inclusion in this UBI. Where GDOT holds a conservation easement, both GDOT and the holder/s of fee title to the property shall be legally responsible for any violation of the terms and conditions of the restrictive covenant. Contracts between GDOT as easement holder and the owner/s of the property regarding responsibilities, obligations, and limits of liability shall not be binding upon the U.S. Army Corps of Engineers.
All draft restrictive covenants with exhibits and required documents shall be sent to the Corps' Office of Counsel for review. Upon approval of the draft documents and exhibits, the Corps' Office of Counsel shall provide Counsel for GDOT and/or the Counsel for the owner of the property, with written approval of the restrictive covenant. The restrictive covenant shall be recorded by GDOT or Counsel for the owner of the property, with the Clerk of the Superior Court in the county in which the land is located and a copy of the recorded restrictive covenant and exhibits shall be provided to the Corps' Office of Counsel.
Upon receipt by the Corps' counsel of a copy of the properly executed and recorded restrictive covenant, the Corps' counsel shall forward a copy of the recorded declaration of covenants and restrictions to the Corps' point of contact in the Savannah District Regulatory Branch and the restrictive covenant portion of the UBI requirement shall be completed.
If GDOT intends for the restricted property on a Bank Site to be accessed and/or utilized by the public for passive recreational uses, such as hunting, fishing, walking, bird watching, horseback riding, or other activities, said uses must be set forth in the Site Specific Mitigation Plan approved by the Bank Site MBRT, including how the uses will be monitored/managed. If it is GDOT's intent that GDNR-WRD, shall manage the property, then an MOU between GDOT and GDNR reflecting said long-term management should be attached to the restrictive covenant as an exhibit. If, at the time of preparing a Site Specific Mitigation Plan for a Bank Site, GDOT knows of plans for future GDOT/FHWA road and bridge crossings or other construction other than for purposes of restoration/enhancement mitigation in the area set aside as restricted, then said construction shall be set out in the Site Specific Mitigation Plan approved by the MBRT and shown as proposed on the survey of record. Consultation with GDNR, counties, municipalities, conservation land trusts, or any other entity should occur early in the site selection process in order for the Long-Term Management Plan, regarding use of property and further construction on the property, to be incorporated into the exhibits to the restrictive covenant.
Amendments to the declaration of covenants and restrictions after recording are discouraged due to the time, procedure, cost, and potential lack of finality associated with the compensatory mitigation requirement of the permit process. However, should an amendment be necessary and unavoidable, amendments are addressed in the instructions to the Declaration of Covenants and Restrictions and should be referenced. Mitigation for impacts to wetlands, streams, stream side lands, buffers, and uplands are significantly greater where the impact is to property protected by a restricted covenant.
GDOT has condemnation power. It is the intent of GDOT to develop mitigation on sites with willing property owners. However, condemnation may be used to obtain mitigation sites. GDOT will include similar restrictive covenants on properties that are condemned.
GDOT intends to record easements and restrictive covenants prior to construction of a Bank Site. However, there are instances (weather, seasonality, and construction efficiencies of phasing, etc.) when there may be a benefit to initiate construction prior to the recording of easements/restrictive covenants. In instances where GDOT initiates the work prior to recording, it does so at its own risk. The MBRT will not release credits for such work that are tied to the recording of the restrictive covenants in the agreed to credit release schedule, until the documents have been recorded.
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