Westside Partnership Agreements, Agenda V April 7, 2004 - STAFF REPORT

 

 

 

TOLEDO METROPOLITAN AREA COUNCIL OF GOVERNMENTS

EXECUTIVE COMMITTEE AGENDA

April 21, 2004

 

Westside Partnership Agreements

 

The Westside Corridor includes approximately 11 miles of former Toledo Terminal right of way extending from a point near the crossing of Jackman Road just south of Laskey Road through Bowman Park, along Ottawa Park, through the University of Toledo, Medical College of Ohio, crossing the abandoned Maumee River bridge near the Ohio Turnpike, and then along the WW Knight Preserve in Wood County to its endpoint near Bates Road in Perrysburg Township.  CSX and NS filed abandonment applications for this right of way, the most recent when Conrail was split between the two companies.  NS operates over a portion of the line but CSX owns the line and is not planning to maintain any ownership interest in the line.  A partnership of the University of Toledo, Metroparks, Wood County Parks, and Medical College of Ohio is working through TMACOG to purchase CSX ownership interest in the line.  A more detailed briefing was presented to the Transportation Council in March.

 

There are two agreements proposed to facilitate the partnership to purchase the CSX interest in the Westside Corridor.  The first is the “Cooperation and Transfer Agreement.”  It spells out the general agreements between the partners – who will contribute, who will receive fee simple ownership of property, what TMACOG will do to facilitate the purchase.  The second agreement is the “Declaration of Covenants, Conditions, Easement and Restrictions” that will be filed with the County Recorder and be attached to the property by TMACOG before the transfer of the property to the various partners.  This spells out the protections permanently attached to the property to maintain the contiguity of the property and set up easements for anticipated future public uses of the property.  It also establishes an ongoing Westside Corridor Coordinating Committee to guide development efforts.  These agreements are patterned after the successful Wabash Cannonball Corridor effort.

 

The partners have been asked to have their respective Boards review and approve these documents in April.  They are drafts until we have met to resolve any comments or modifications requested by the Boards.  If there are major changes requested we will return to our boards to review the revised documents.  We anticipate approaching the railroad in May or June to negotiate the purchase.  The negotiations may result in further changes and we hope to have the final agreements and purchase process completed this Summer. 

 

Legal counsel for TMACOG has reviewed the document and approved it as to form and process.  The Transportation Council is being asked to authorize staff to enter into the agreement on behalf of TMACOG.  Please review the agreements as you feel necessary and feel free to contact staff prior to the meeting if there are questions or concerns.

 


Agreement # 1:           COOPERATION AND TRANSFER AGREEMENT

 

 

This Cooperation and Transfer Agreement (“Agreement”) is entered into effective as of April ___, 2004 by and among:

(i)                U.T. Foundation Real Estate Corp. (“Foundation”), an Ohio nonprofit corporation;

(ii)              Board of Commissioners of the Metropolitan Park District of the Toledo Area (“Metroparks District”), a park district duly organized and existing under Ohio Rev. Code Chapter 1545;

(iii)             Toledo Metropolitan Area Council of Governments, an association of local governments duly organized and existing under Ohio Revised Code Chapter 167 (“TMACOG”);

(iv)            Board of Commissioners of the Wood County Park District (“Wood Park District”), a park district duly organized and existing under Ohio Rev. Code Chapter 1545; and

(v)              The Medical College of Ohio (“MCO”). 

(The Foundation, Metroparks District, TMACOG, Wood Park District and MCO are hereinafter collectively referred to as the “Contracting Parties.”)

1.                  Background and Purpose. 

(a)                CSX Transportation (“CSX”) owns a railroad line extending from rail station “Tremainsville” (milepost CSX Toledo Terminal (“CTT”) 5.0) in the City of Toledo and extending southward through the City of Toledo into Perrysburg Township, Wood County, Ohio and terminating at rail station “Bates” (milepost CTT 16.4) in Perrysburg Township, Wood County, Ohio (“Railroad Property”).  The Railroad Property is approximately 11.38 miles in length and contains approximately 100.18 acres.  The Norfolk Southern Railway (“Norfolk Southern”) has an easement interest in a segment of the Railroad Property beginning at rail station  “Vulcan” (milepost CTT 9.2) and terminating at rail station “Gould” (approximately milepost CTT 12.6) (“Norfolk Easement”). The Contracting Parties desire to acquire the Railroad Property to preserve this linear right of way for current and future public uses, including a multi-use trail and a transportation, information, utility and park corridor related to the Toledo Science, Research, and Technology Corridor (a scientific neighborhood of several major research and technology institutions in west Toledo and the greater region).  The following uses are specifically contemplated as further provided and described herein (“Approved Uses”): (i) installation of a fiber optic line or other public utility lines and facilities; (ii) a bike/pedestrian trail (“Pedestrian Trail”); (iii) “people mover” system (“Transport Facility”); and (iv) other uses approved by all of the Contracting Parties that are compatible with the foregoing uses. 

(b)               This Agreement sets forth the agreement among the Contracting Parties with respect to the acquisition, use and disposition of the Railroad Property.  If CSX does not agree to sell the Railroad Property, no Contracting Party shall have any liability or obligation to any other Contracting Party.  If the Railroad Property is not acquired for any reason, other than because of the breach by a Contracting Party of its agreements or obligations hereunder, no Contracting Party shall have any liability or obligation to any other Contracting Party, except for any liability or obligation arising out of such breach.  If the Railroad Property is acquired, then the respective rights and responsibilities of each Contracting Party shall be as set forth in this Agreement. 

(c)                To the extent that this Agreement requires the execution and delivery of any documents relating to the use or occupancy of the Property by the Contracting Parties in connection with or after the closing, (“Contracting Party Documents”), the Contracting Parties shall negotiate and finalize all such Contracting Party Documents prior to the date on which all contingencies set forth in any purchase and sale agreement between TMACOG and CSX (“Purchase Agreement”) are satisfied or waived and any Contracting Party becomes legally obligated to purchase the Railroad Property.

2.                  Acquisition of Railroad Property. 

(a)                TMACOG shall use commercially reasonable best efforts to negotiate, execute and perform a Purchase Agreement with CSX.  TMACOG may enter into a Purchase Agreement on substantially the terms and conditions set forth below and on such other commercially reasonable terms and conditions as TMACOG may determine in its reasonable discretion. 

(i)                  The purchase price (“Purchase Price”) shall not be more than $2,100,000.00 

(ii)                The Purchase Agreement shall contain a due diligence contingency period of not less than ninety (90) days.

(iii)               The Purchase Agreement shall include, at a minimum, the following contingencies:

(A)              TMACOG shall have received a commitment for title insurance, at the expense of the Contracting Parties, showing that CSX has good and marketable fee simple title to the Railroad Property, subject only to such easements, agreements and restrictions of record as are acceptable to TMACOG.

(B)              TMACOG may obtain a survey of the Property, at the expense of the Contracting Parties, and determined, in its reasonable discretion, that there are no conditions or defects affecting or relating to the Property that are not satisfactory to the TMACOG.

(C)              TMACOG shall have obtained a Phase I environmental report, at the expense of the Contracting Parties, showing that there are no recognized environmental conditions or, if there are recognized environmental conditions disclosed by the Phase I report, a Phase II environmental assessment indicating that there is no environmental contamination or other environmental conditions requiring any clean up, remediation or other action on the part of any Contracting Party. 

(D)              The Railroad Company shall have provided evidence that the Railroad Property, other than the area covered by the Norfolk Easement,  has been duly abandoned and that CSX has the authority to convey the Railroad Property.

(iv)              The Purchase Agreement shall not require any Contracting Party to indemnify CSX or Norfolk Southern.

(v)                The closing shall occur no later than 30 days after the end of the due diligence period.

(b)               Each Contracting Party shall have the right to review all information obtained in connection with TMACOG’s investigations of the Railroad Property (“Due Diligence Information”), including, but not limited to, any commitment for title insurance, survey, environmental reports or other information.  All Due Diligence Information shall be certified to all Contracting Parties.  If any Contracting Party objects to any condition or defect disclosed by the Due Diligence Information, TMACOG shall use commercially reasonable best efforts to cause CSX to correct or otherwise address such condition or defect in a manner reasonably satisfactory to the objecting Contracting Party.  If any objection relating to the Due Diligence Information made by any Contracting Party is not removed or addressed in a manner reasonably satisfactory to that Contracting Party, then that Contracting Party may (1) terminate its agreements and obligations hereunder, or (2) enter into a subsequent agreement with the remaining parties and/or other parties.  If any Contracting Party terminates its agreements and obligations hereunder, then each other Contracting Party may also terminate its agreements and obligations under this Agreement.  Any title policy or polices issued in connection with the acquisition of the Railroad Property shall insure the interest of the Contracting Parties. 

(c)                TMACOG shall use commercially reasonable best efforts to minimize the cost of obtaining the Due Diligence Information and the Closing consistent with the provisions and intent of this Agreement.  The Foundation, Wood Park District Metroparks District and MCO shall each pay one-fourth of all costs associated with conducting the Due Diligence and completing the Closing (excluding the payment of the Purchase Price). 

3.                  Transfer of Railroad Property to Contracting Parties.  

(a)                If TMACOG acquires the Railroad Property, then as soon as reasonably practicable after the closing on the purchase and sale of the Railroad Property, and subject to the other terms and conditions set forth in this Agreement, TMACOG shall convey to each Contracting Party the following portions of the Railroad Property:

Foundation

All portions of the Railroad Property not included in the MCO Segment, the Metroparks District Segment or the Wood Park District Segment. (“Foundation Segment”).

 

 

Wood Park District

All portions of the Railroad Property located in Wood County, Ohio, except the Toledo Terminal Upriver Bridge (and all land on which any supports, foundations or other portions of the Toledo Terminal Upriver Bridge are located (“Wood Park District Segment”).

 

 

Metroparks District

Subject to Section 3(b), the Toledo Terminal Upriver Bridge (“Metroparks District Segment”).

 

 

MCO

All portions of the Railroad Property bordered on the north by Arlington and bordered on the south Glendale Ave.  (“MCO Segment”).

 

TMACOG shall convey the Railroad Property using the same type of deed that TMACOG received from CSX.

(b)               Each Contracting Party acknowledges that the Metroparks District’s agreement to hold title to the Metroparks District Segment is subject to the determination by the Metroparks District that it will have adequate funds to secure, maintain and otherwise pay the ownership costs associated with the Metroparks District Segment.  If the Metroparks District determines it does not desire to hold title to the Metroparks District Segment, and the Metroparks gives notice of that fact to the other Contracting Parties on or before the last day of the due diligence period under the Purchase Agreement, then any Contracting Party may terminate its obligations under this Agreement unless a Contracting Party other than the Metroparks District agrees to acquire the Metroparks District Segment.

4.                  Consideration.  At the closing on the purchase and sale of the Railroad Property, each Contracting Party shall deliver to TMACOG or an escrow agent acceptable to all of the Contracting Parties the following sums:

Foundation

$1,000,000.00

Metroparks District

$1,000,000.00

Wood Park District

$50,000.00

MCO

$50,000.00

 

After TMACOG has closed on the Railroad Property and disbursed funds delivered by the Contracting Parties, TMACOG shall be irrevocably obligated to convey the Railroad Property as provided in this Agreement, subject to the terms and conditions set forth in this Agreement.  Any amounts delivered to TMACOG that are not disbursed shall be repaid proportionately to the Foundation, Metroparks District and Wood Park District. 

5.                  Restrictive Covenants and Operation of the Railroad Property.  Prior to the transfer of any portion of the Railroad Property to another Contracting Party, TMACOG shall record (and any subsequent conveyance shall be subject to) a Declaration of Covenants, Conditions, Easement and Restrictions in substantially the form attached hereto as Exhibit A.

6.                  Binding Effect.  This Agreement and all of the agreements and obligations contained herein shall be binding upon and shall inure to the benefit of the successors and assigns of each of the parties.

7.                  Incorporation by Reference.  All exhibits, amendments and addenda attached to this Agreement are incorporated into this Agreement and made a part of it.

8.                  Entire Understanding.  This Agreement sets forth the entire understanding of the parties with respect to all matters referred to herein, and may not be changed or modified except by an instrument in writing signed by all of the Contracting Parties.

9.                  Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall be but one and the same document.

10.              Governing Law.  This Agreement shall governed by the laws of the State of Ohio.

11.              Severability.  If any provision in this agreement is held to be invalid, illegal or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement, but shall be limited in its operation to the provision directly involved in the controversy, and in all other respects the Lease shall continue in full force and effect.

12.              Notices.  All notices or other communications required or desired to be given hereunder shall be in writing and delivered either personally; by nationally recognized overnight courier; or by first class United States mail, postage prepaid, addressed to the party at the following addresses or to such other address as notice thereof may have been given:

U.T. Foundation Real Estate Corp.

                                                                                                                                                                                   

 

 

Board of Commissioners of the Metropolitan Park District of the Toledo Area

                                                                                                                                                                                   

 

 

Toledo Metropolitan Area Council of Governments

                                                                                                                                                                                   

 

 

Board of Commissioners of the Wood County Park District

                                                                                                                                                                                   

 

All notices shall be deemed to be given on the day personally delivered or, if sent by overnight courier or U.S. mail, on the day after depositing such notice in an approved receptacle for the overnight courier or United States mail, as the case may be.

13.              Force Majeure.  If any Contracting Party is delayed in or prevented from performing any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, riots, insurrection or war, then performance of such acts shall be excused for the period of the delay and the period for the performance of any such acts shall be extended for a period equivalent to the period of such delay. 

14.              Assignment.  No Contracting Party may assign, transfer or otherwise alienate any rights or obligations under this Agreement without the prior written approval of each of the other Contracting Parties; provided, however, that (i) the Foundation may assign its rights hereunder to the University of Toledo or to another non-profit entity controlled by the University of Toledo or the Foundation; (ii) the Metroparks District may assign its rights hereunder to another non-profit entity controlled by Metroparks District; (iii) MCO may assign its rights hereunder to another non-profit entity controlled by MCO; and (iv) the Wood Park District may assign its rights hereunder to another non-profit entity controlled by the Wood Park District.

15.              Board Approvals.

(a)                The obligations of Foundation hereunder are subject to approval of this Agreement by the Board of Trustees of the Foundation and Board of Trustees of the University of Toledo Foundation.

(b)               The obligations of the Metroparks District hereunder are subject to approval of this Agreement by the Board of Commissioners of the Metroparks District.

(c)                The obligations of TMACOG hereunder are subject to approval of this Agreement by the Board of Trustees of TMACOG.

(d)               The obligations of the Wood Park District hereunder are subject to approval of this Agreement by the Board of Commissioners of the Wood Park District.

(e)                The obligations of MCO hereunder are subject to approval of this Agreement by the Board of Trustees of the MCO.

(f)                 If any Contracting Party is not able to secure its Board’s approval of this Agreement within 60 days after the date of this Agreement, then each Contracting Party shall have the right to terminate this Agreement by notice given no later than 10 days after any Board of a Contracting Party declines to approve this Agreement.

 

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                        IN WITNESS WHEREOF, this Agreement is executed as of the date set forth above. 

 

TOLEDO METROPOLITAN AREA COUNCIL OF GOVERNMENTS

 

By:                                                                  

Print Name:                                                     

Title:                                                                

 

THE METROPOLITAN PARK DISTRICT OF THE TOLEDO AREA

 

By:                                                                   

Print Name:                                                      

Title:                                                                 

 

 

 

WOOD COUNTY PARK DISTRICT

 

 

By:                                                                  

Print Name:                                                     

Title:                                                                

 

U.T. FOUNDATION REAL ESTATE CORP.

 

By:                                                                   

Print Name:                                                      

Title:                                                                 

 

 

 

The Medical College of Ohio

 

By:                                                                   

Print Name:                                                      

Title:                                                                 

 

 

 

 

 

 


Agreement #2:                        DECLARATION OF COVENANTS,

CONDITIONS, EASEMENT AND RESTRICTIONS

 

                        This Declaration of Covenants, Conditions, Easement and Restrictions (the “Declaration”) is made and adopted as of the _____ day of _____________, 2004 by the Toledo Metropolitan Area Counsel of Governments (“TMACOG”), an association of local governments duly organized and existing under Ohio Revised Code Chapter 167.

                        WHEREAS, the TMACOG is the owner in fee simple of the real property described on Exhibit A attached hereto and incorporated herein (the “Corridor”).

                        WHEREAS, the Foundation, Metroparks District, Wood Park District and MCO (hereinafter defined) each desire to acquire a portion of the Corridor from TMACOG, but recognize that it is in their mutual interest to implement and agree to certain restrictions, conditions and easements in order to preserve the contiguity and functionality of the Corridor for public purposes.

                        WHEREAS, the TMACOG, as the owner of the Corridor, and the Foundation, Toledo Park District and Wood Park District, as prospective owners of portions of the Corridor,  desire (i) to establish a general plan for the development, use and maintenance of the Corridor for public purposes, including, but not limited to, installation and operation of public utilities and facilities, a bike/pedestrian trail, a people mover system and other compatible uses and (ii) to establish restrictions upon the manner of use, improvement and enjoyment of the Corridor in order to make the Corridor functional and attractive for its intended purposes.

                        WHEREAS, this Declaration has been approved by TMACOG, the Foundation, Toledo Park District and Wood Park District, but must necessarily be declared, established and recorded by TMACOG as the owner of the Corridor.

                        NOW, THEREFORE, in consideration of the assurance that the Corridor can by used and enjoyed by owners of all portions thereof and in consideration of the enhancement in value of the Corridor by reason of the adoption of this Declaration, TMACOG does, for itself and its successors and assigns, declare, covenant and stipulate that the Corridor and all lands comprising the Corridor, shall be subject to and shall hereafter be conveyed by TMACOG, its successors and assigns, and their respective heirs, executors, administrators, personal and legal representatives, successors and assigns, subject to the following covenants, conditions, easements and restrictions:

ARTICLE 1:
Use of Corridor

1.1              Certain Definitions.  As used herein:

“Corridor Owner” means any Person that owns, from time to time, all or any portion of the Corridor.

“Corridor Stakeholder” means any Corridor Owner and any other Person that owns, leases or has a written easement over all or any part of the Corridor. “Corridor Stakeholder” does not include any licensees or invitees.

“Person” means any natural person, corporation, partnership, limited liability company, trust, association, governmental or quasi-governmental entity or authority, political subdivision, entity authorized by statute or any other entity or organization of any kind.

“Approved Uses” means the installation, maintenance, repair, replacement, use and operation of (i) an underground and minor or incidental aboveground public utility lines and facilities (“Utility Facilities”), including, but not limited to, underground and minor or incidental aboveground electric, water, sewer, fiber optic, cable and telephone lines and facilities; (ii) a bike/pedestrian trail (“Pedestrian Trail”); (iii) a “people mover” system (“Transport Facility”); and (iv) other uses approved by the Committee (hereinafter defined) that are compatible with the foregoing uses.

“Foundation” means U.T. Foundation Real Estate Corp., an Ohio nonprofit corporation.

“Metroparks District” means the Board of Commissioners of the Metropolitan Park District of the Toledo Area, a park district duly organized and existing under Ohio Rev. Code Chapter 1545.

“Wood Park District” means the Board of Commissioners of the Wood County Park District, a park district duly organized and existing under Ohio Rev. Code Chapter 1545.

“MCO” means The Medical College of Ohio, an Ohio non-profit corporation.

“Contracting Parties” means, collectively, the Foundation, the Metroparks District, Wood Park District and MCO.

1.2              Use Restrictions.  The Corridor shall be developed, improved, maintained and used solely for the Approved Uses. 

1.3              Contiguity.  No Corridor Stakeholder shall interfere with, compromise or destroy the contiguity of the Corridor.  For purposes of this Declaration, “Contiguity” means:

(a)                the width of the Corridor at any given point shall not be narrowed below sixty-six (66) feet without the approval of the Committee;

(b)               minimum radii in curves/turns on the Corridor shall be in compliance with Ohio Department of Transportation, and Public Utility Commission of Ohio standards; and

(c)                the continuous length of the Corridor.

1.4              Pedestrian Trail.  Notwithstanding any other provision of this Declaration, no Corridor Stakeholder shall interfere with, compromise, destroy or fail to allow development of the Pedestrian Trail on the portion of the Corridor in which it has an interest.  The Committee shall develop a plan for the Pedestrian Trail, which plan shall, among other things, address the construction, financing and use of the Pedestrian Trail and the relationship of the Pedestrian Trail to other Approved Uses.  The Pedestrian Trail shall:

(a)                be over an easement of not less than 28 feet in width and having a minimum usable surface area of 12 feet;

(b)               be contiguous;

(c)                consist of a bicycle/foot path;

(d)               not be open to hunting or motorized vehicles except authorized service and security vehicles;

1.5              Transport Facility.  Notwithstanding any other provision of this Declaration, no Corridor Stakeholder shall interfere with, compromise, destroy or fail to allow development of the Transport Facility on the portion of the Corridor in which it has an interest.  The Committee shall develop a plan for the Transport Facility, which plan shall, among other things, address the construction, financing and use of the Transport Facility and the relationship of the Transport Facility to other Approved Uses.  The Transport Facility shall:

(a)                be over an easement of not less than 38 feet in width and having a minimum usable surface area of 24 feet and

(b)                be contiguous

1.6              Corridor Closings.  The Corridor shall be open to the public, at minimum, from dawn to dusk daily, except that a Contracting Party may:

(i)                  close its portion of the Corridor temporarily for safety purposes; and,

(ii)                close its parcel in connection with construction, maintenance, repair or replacement of any Approved Uses, but any Contracting Party shall use its best efforts to minimize the length of closing, consult with other Corridor Stakeholders having an interest in the portion closed regarding the closing, and maintain an alternate route for existing Approved Uses, unless the Committee agrees that such alternate route need not be maintained because of the nature of the closing and the Approved Uses.

Subsections (i) and (ii) above notwithstanding, if a closing of the Corridor for any reason other than an emergency is anticipated, the Contracting Party proposing such closing shall obtain the prior approval of the Committee, which approval shall, except in unusual circumstances, include a requirement for provision of an alternate route for existing Approved Uses.

1.7              Third-Party Funding. 

(a)                Except as provided in § 1.7(b), if any Person, other than a Corridor Owner, is granted the right to use the Corridor as provided herein, then any funds received from that Person shall be paid to the Corridor Owners as follows:  one-half (1/2) to the Corridor Owner whose property is being used and one-half (1/2) to an account under the control of the Committee and maintained for the joint benefit of the Corridor Owners for the operation and maintenance of the Corridor.  If the Person, other than a Corridor Owner, is granted a right to use the Corridor and that use extends over more than one Corridor Owners’ property, then the half allocated to the Corridor Owner shall be shared proportionately among all affected Corridor Owners.

(b)               Notwithstanding anything to the contrary contained in § 1.7(a), each Corridor Stakeholder shall retain for its own use and benefit any amounts received from licensees or invitees in the nature of ticket fees, user fees, fares, permits, license fees or any similar charges paid for the use of specific facilities constructed or placed on the Corridor by that Corridor Stakeholder. 

ARTICLE 2:
Operating Procedures

2.1              Establishment of Coordinating Committee.  The Westside Corridor Coordinating Committee (“Committee”) is hereby created.  The purpose of the Committee is to facilitate and coordinate the preservation for public purposes of the Corridor, to allocate equitably among the Corridor Stakeholders the joint expenses of the Corridor and exercise the rights granted to it hereunder.

2.2              Membership.  The members of the Committee shall be the President of TMACOG; the Director of the Metroparks District; the Director of the Wood Park District; the President of the Foundation; and the President of MCO.  Each authorized member of the Committee may designate another individual to serve on the Committee in his/her place and stead.

2.3              Meetings.  Any member of the Committee may call a meeting of the Committee by giving the other members 14 days’ written notice unless waived by all members.  The notice shall include an agenda for the meeting.  A meeting of the Committee shall be held at least annually.  Meetings of the Committee shall be governed by Robert’s Rules of Order, to the extent they do not conflict with this Agreement.

2.4              Quorum.  Four members of the Committee shall be present in person in order for a quorum.

2.5              Authority.  The Committee shall have the sole and exclusive authority to (i) determine Approved Uses (other than those specifically authorized in this Declaration); (ii) resolve any conflicts or disputes among Corridor Stakeholders; (iii) interpret this Declaration; (iv) determine the terms and conditions upon which any Approved Uses may be permitted; (v) except as provided below, allocate costs equitable among the Corridor Stakeholders; (vi) exercise any rights or obligations of the Committee described in this Declaration; (vii) amend or supplement the operating procedures set forth in this Article 2 by a vote of 80% of the members; and (viii) determine which matters are to be handled as joint matters for the collective good of the Corridor.  Except as otherwise provided herein, any action of the Committee shall become binding on all Corridor Stakeholders upon the affirmative vote of a majority of the members of the Committee.  Costs that the Committee determines to be joint costs, shall be paid by the members as determined by the Committee.  Allocation of such costs pursuant to this section shall require the unanimous vote of all members present and voting in person or by written proxy.  No such allocation shall be binding upon a member unless authorized by that member’s legislative body or governing board. 

If any Contracting Party is adversely affected by an action of the Committee or if the Committee is unable to agree upon a decision (because there is a tie vote or otherwise), any Contracting Party shall have the right to submit the matter to the TMACOG Executive Committee for mediation. 

2.6              Construction.  All plans and specifications for Approved Uses must be submitted to and approved by the Committee.

2.7              Waiver of Restrictions.  Each Corridor Owner, by acceptance of a deed to any part of the Corridor, agrees and consents for itself and for its heirs, executors, administrators, personal and legal representatives, successors and assigns, that if, in the opinion of the Committee, a strict construction or enforcement of any provision of this Declaration would work a hardship, the Committee may, in writing, grant waivers from this Declaration.

2.8              Interpretation.  If any question of interpretation hereunder, the Committee shall have the right to construe and interpret this Declaration, and its construction or interpretation, in good faith, shall be final and binding as to all Persons and property benefited or bound by this Declaration.

ARTICLE 3:
Easements; Restrictions on Transfer

3.1              Mutual Easements.  TMACOG declares and reserves for each Contracting Party and for itself, a perpetual, non-exclusive easement and right of way over the entire Corridor for the construction, use, operation, maintenance, repair replacement of Utility Facilities , Transport Facility, Pedestrian Trail and other Approved Uses as determined by the Committee.  With the approval of the Committee, TMACOG and any Contracting Party may apportion or assign its easement and right of way on a non-exclusive basis to any Person.  The easement and right of way granted hereunder shall not be merged into any other interest of a Person in and to the Corridor, even if that Person acquires fee simple ownership of all or any part of the Corridor.

3.2              TMACOG’s Rights Assignable.  The rights, privileges and powers granted herein to, and reserved by, TMACOG shall be assignable to a party approved by the Committee and shall inure to the benefit of the successors and permitted assigns of the TMACOG.

 

3.3              No Transfer Without Consent.  No Corridor Stakeholder shall sell, convey, exchange, mortgage, subdivide, or otherwise transfer all or any part of its interest in the Corridor without the prior written consent of the Committee, which consent will not be unreasonably withheld.

ARTICLE 4:
Miscellaneous

4.1              Term.  This Declaration shall run with the land and shall be binding upon TMACOG, all Persons claiming under or through the TMACOG and all other Persons who acquire title to or any interest in all or any part of the Corridor or any portion thereof, until  21 years after the date of this Declaration, at which time this Declaration shall be automatically extended for successive periods of 10 years.

4.2              Amendments.  Except as otherwise provided herein, this Declaration may be amended from time to time, but only upon and with the written approval of all Corridor Owners.  Any amendments shall become effective only upon the filing with the Office of the Lucas County Recorder and Wood County Recorder of an instrument stating the amendment and signed by all Corridor Owners with the formalities required by law.

4.3              Violations.  Any violation or attempt to violate this Declaration or any provision hereof shall be subject to civil litigation. TMACOG, the Committee or any Corridor Stakeholder may seek or obtain any right or remedy available at law or in equity against the Person violating or attempting to violate any provision of this Declaration to prevent such Person from so doing, to cause the removal of any violation and/or to recover damages for such violation or attempted violation.

4.4              Saving Clause.  The invalidation or unenforceability of any provision of this Declaration shall not affect any of the other provisions contained herein, which shall remain in full force and effect.

4.5              Notices.  Any notice required to be sent to any Corridor Stakeholder, TMACOG or to the Committee shall be deemed to have been properly sent when personally delivered or mailed, postpaid, to the last known address of the Person on the applicable public record or on the records of the Committee.

4.6              No Waiver of Violations.  No provisions hereof shall be abrogated or waived by any failure to enforce any of the same, no matter how many violations or breaches may occur and regardless of the time of the delay in enforcing any rights hereunder.

4.7              Section Headings.  The section headings contained herein have been inserted for convenience of reference only and are not to be used in the construction and/or interpretation of this Declaration.

 

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[Signature Page to Follow]


                        IN WITNESS WHEREOF, the TMACOG, acting by and through its duly authorized representatives, has caused this Declaration to be executed.

 

Toledo Metropolitan Area Counsel of Governments

 

 

 

By:                                                                       

 

            Title:                                                           

 

 

STATE OF ___________________   )

                                                            )  SS:

COUNTY OF _________________  )

 

                        The foregoing instrument was acknowledged before me this ____ day of ________________, 2004, by ________________________, the _________________________ of Toledo Metropolitan Area Counsel of Governments, an association of local governments duly organized and existing under Ohio Rev. Code Chapter 167, on behalf of the association.

 

                                                                                                                                                           

                                                                                                      Notary Public

My Commission Expires:       _________________________                                                 [SEAL]

 

 

 

 

This Instrument Prepared By:

Jeffrey H. Miller, Esq.

Shumaker, Loop & Kendrick, LLP

North Courthouse Square

1000 Jackson Street

Toledo, Ohio 43624-1573