A
G R E E M E N T WHEREAS, the Board of Park Commissioners of the Erie Metro-Parks, a duly organized park district under the laws of the State of Ohio, ("the Board") has previously determined that it is necessary to acquire certain real property interests in Erie County by purchase or condemnation proceedings in order to conserve the natural resources of the Erie Metro-Parks and Erie County by the creation of parks, parkways and other reservations of lands for the use and benefit and enjoyment of the public: and WHEREAS, the Wheeling & Lake Erie Railway Company ("Wheeling") for many years has conducted railroad operations in Erie County and acquired various ownership interests and rights of usage in the real property on which it has conducted those operations; and WHEREAS, the Board desires to acquire a right of usage respecting certain of Wheeling’s property in Erie County, Ohio; NOW THEREFORE, in consideration of the mutual promises and covenants each to the other made, and other good and valuable consideration, the Board and Wheeling do hereby promise, covenant and agree as follows: SECTION 1 GRANT OF RIGHT OF USAGE
SECTION 2 IRREVOCABLE LICENSE The right of usage granted to the Board by this Agreement shall be deemed to be the grant of a license coupled with an interest and shall be irrevocable until mutually terminated by the parties, or by abandonment by the Board. SECTION 3 NO REPRESENTATIONS CONCERNING MARKETABILITY OF TITLE OR INTEREST Wheeling makes no representation concerning the quality of its title to the Property or the rights of usage Wheeling possesses to the whole or any part of the Property. The Board acknowledges that it, its agents and attorneys have had full and complete opportunity to examine and consider the issue of title and rights of usage and are fully informed concerning the same. The Board is acquiring a right of usage in the Property without covenants or warranties of any nature, and except as provided in the last paragraph of Section 1f, subject to any all all existing tenancies, encumbrances, easements, rights, licenses, privileges, agreements, covenants, conditions, restriction, rights of reentry, possibilities of reverter, exisiting laws and ordinances, and orders of regulatory agencies. The Board’s right of usage shall commence upon Closing "as is" and, without limiting the generality of the foregoing, subject to any state of facts which an accurate survey or prudent inspection of the Property would disclose. The existence of any facts, conditions, legal limitations or other matters to which the grant of right of usage is subject shall not be asserted by the Board as a breach of contract or, after Closing, as a basis for seeking compensation or other redress from Wheeling. The Board acknowledges that it may be necessary to acquire by purchase or condemnation the interest of other parties in parts of the Property in order to put the Property to its intended use. SECTION 4 PURCHASE PRICE The Board shall pay Wheeling as the purchase price for its right of usage Two Hundred Fourteen Thousand Six Hundred and 00/100 Dollars ($214,600.00) as follows:
In the event the Board fails to make payment of the purchase price when due, the amount overdue shall bear interest at the rate of 10% per annum. In the event the Board fails to make a payment for more than thirty (30) days Wheeling may seek specific performance of this Agreement, rescission of this Agreement, damages or any other relief at law or equity. In such event, the Board shall be responsible for all of Wheeling’s costs and expenses, including attorneys fees, incurred and made necessary as a result of the Board’s failure to make timely payment of the purchase price. SECTION 5 CLOSING Closing shall be held at Wheeling’s office in Brewster, Ohio or at such other place as the parties may mutually agree. Closing shall occur on a mutually agreeable date that is no more than thirty (30) days following the approval and execution of this Agreement by all parties. Similarly, the parties shall schedule all other Closings necessary as a result of this Agreement at a mutually convenient place and time. SECTION 6 NOTICES All notices, requests, consents, demands, or other communications relating to this Agreement, or required by this Agreement to be given or submitted by one party to the other, shall be sent by United States express or certified mail, or by a private courier service, addressed as set forth below (or to such other address as either of the parties hereto may designate by written notice to the other party). A return receipt shall be conclusive evidence of the fact, date, and time of receipt. If to Wheeling:
If to the Board:
SECTION 7 ENTIRE AGREEMENT This Agreement sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby and may not be amended except by written instrument executed by the parties. Any previous agreements or understandings between the parties regarding the subject matter hereof are merged into and superseded by this Agreement. SECTION 8 SURVIVAL OF TERMS All terms, conditions, stipulations, obligations and provisions of this Agreement shall survive Closing and be binding upon and inured to the benefit of, and be enforceable by, the parties. SECTION 9 ASSIGNMENT Excepts as otherwise provided herein, neither Wheeling nor the Board shall assign, pledge, encumber, or transfer this Agreement, or any interest herein, without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. SECTION 10 GOVERNING LAW This Agreement and the rights and obligations accruing hereunder shall be construed and enforced in accordance with the laws of the State of Ohio and relevant federal law. SECTION 11 EXHIBITS Exhibit A attached to this Agreement is intended to be, and is, specifically made a part of this Agreement. SECTION 12 WAIVER No waiver by either party of any failure of, or refusal by, the other party to comply with any obligations under this Agreement shall be deemed a waiver of any other or subsequent or continuing failure or refusal to so comply. SECTION 13 TIME, TENDER Time shall be of the essence of this Agreement. Formal tender of deed and purchase money is hereby waived. SECTION 14 BROKER The Board and Wheeling each represent to the other that it has not dealt with any broker in connection with the transaction contemplated by this Agreement. Each party shall assume any obligation arising from or in connection with any action by any broker or other party with whom such party may have dealt for a commission or compensation. SECTION 15 OBLIGATIONS OF SUCCESSORS This Agreement and the rights and obligations accruing hereunder shall accrue to and be binding upon any successor of the parties. SECTION 16 INSPECTION OF PROPERTY It is understood between the parties hereto that the Property has been inspected by the Board or its agents, that the right of usage is being purchased solely in reliance upon such inspection and that there have not been and are no representations or warranties, expressed or implied, with respect to the physical condition of the Property. SECTION 17 EFFECTIVE DATE This Agreement shall be effective on the date it is executed by the last party. SECTION 18 PENDING LITIGATION The parties shall cooperate with one another to bring to an appropriate conclusion the pending litigation between the parties (Board of Park Commissioners of the Erie Metroparks v. Wheeling & Lake Erie Railway, et al., Case No. 95-CV-099) at the Board’s cost and in a manner that effectuates the purposes of this Agreement. In consideration whereof the parties have executed this Agreement by their duly authorized agents on the dates set forth below. The original signed document may be viewed at the Erie County Recorders office volume 398, pages 51-53 Situated in Erie County, State of Ohio, more particularly described as:
Excepting therefrom that portion of the said railway line which is situated on property now owned by Howard P. Leber and Sandra J. Leber, more particularly descripbed as follows:
PRIOR TITLE references for the above-described property recorded on LR2, page 26. SUBJECT to all laws, ordinances, roads and highways, restrictions, conditions,easements, covenants, agreements, leases, reservations, encroachments, and rights of the public and title defects, whether or not of record, and taxes and assessments after the date hereof. AND FURTHER SUBJECT to the perpetual easements and other rights and licenses of Norfolk and Western Railway Company, its successors and assigns, to maintain, repair, rebuild, replace and use a bridge or bridges and embankments, tracks and appurtenances of its Buffalo-Chicago line at Norfolk and Western Railway Milepost B-233.57 and subject further to an easement reserved by said Norforlk and Western Railway Company for fiber optic purposes. AND FURTHER SUBJECT to the reservation of the right of Wheeling to run and maintain a line of railway over said property as described in Section 1( c ) of the Agreement Between The Board of Park Commissioners of Erie County and The Wheeling & Lake Erie Railway Company, which Section 1( c ) is fully incorporated herein by reference. |