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Ord 1300 3/11/1940 ORDINANCE NO. 1300 AN, ORDINANCE PROVIDING FOR THE INSTALLATION, CONSTRUCTION, EXISTENCE, USE AND MAINTENANCE OF AN UNDERPASS PROJECT AT THE INTERSECTION OF LINCOLN STREET WITH THE PROPERTIES AND TRACKS OF THE, FORT WORTH AND DENVER CITY RAILWAY COMPANY IN THE CITY OF WICHITA FALLS, TEXAS, AND AUTHORIZING THE MAY OF THE CITY TO EXECUTE AND THE CITY SECRETARY TO AFFIX THE CORPORATE' SEAL AND ATTEST TTIE SAME, A CERTAIN CONTRACT BETV,1EN THE CITY, TEE STATE OF TEXAS AND THE RAILROAD COMPANY PROVIDING FOR T[-1E INSTALLATION, CONSTRUCTTON, EXISTENCE, USE AND MAINTENANCE OF SAID UNDERPASS PROJECT; FOR THE GRANTING OF LICENSE AND PERMISSION BY THE RAIL- ROAD COMPANY FOR SAID PROJECT; FOR THE PAYMENT, BY THE STATE OF TEXAS, OF THE CONSTRUCTION COSTS OF SAID PROJECT; FOR THE ASSUMPTION, BY THE CITY, OF ALL DAMAGES THEREOF; FOR THE PROTECTION OF THE STATE OF TEXAS AND THE RAILROAD COMPANY AGAINST ALL SUCH DAMAGES AND EXPENSES IN CONNECTION WITH ANY CLAIM OR SUIT THEREFOR; FOR THE MAINTENANCE OF THE UNDERPASS PROTECT; AND DECLARING AN EMERGENCY AND PROVIDING THAlL' THIS ORDINANCE SHALL BE EFFECTIVE FROM AND AFTER ITS PASSAGE. WHEREAS, the public convenience, safety and necessity of the City and the people of the City require that the grades of Lincoln Street and the tracks of the Fort Worth and Denver City Railway Company be separ6tdd by the construction of an underpass project, since the existing grade crossing at such street or road over the tracks of said Railway Company constitutes a danger and serious inconvenience to the public which is urgently required to be remedied and that the only practical remedy is that of constructing an underpass as here;%n provided, and VEEREAS, the City has requested the State of Texas to contribute financial aid in the con- struction of the underpass project, and WHEREAS, the State of Texas has made it known to the City that it will assist the City in the construction of said underpass project by furnishing the necessary funds for the actual construction; by preparing plans and specifications; by awarding of construction contracts; and by supervising constructiont ,providing the City approves the plans, grades and align- ment for said project, and after completion of construction of said underpass project, maintains said underpass project as its sole cost and expense, except that portion to be main- tained by the Railroad Company as provided in the agreemtn between the City, the State of Texas and the Railroad Company, and RHEREAS, the Railroad Company has made it known that it will grant a license and permission for said underpass project to be constructed across its property and under its tracks at the locstion herein stated, and WHEREAS, the City, in consideration of the providing of said underpass project, agrees to protect the State of Texas and the Railroad'Company from any and all liability and any and all damages to adjoining and abutting property or other propetty or business or to any tenants occupying such property, caused by the installation, the construction, the existence, the use and the maintenance of the portion for which the City herein accepts responsibility of said underpass project or the passage and enforcement of this ordinance; and WHEREAS, the Railroad company is to maintain and to be responsible for the maintenance of the underpass superstructure and its supporting substructure, tracks, and other railroad facilities located upon the Railroad Company's property and without expense to the City or State. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL: Se�otion 1, That since the public convenience, safety and necessity of the City and the people of the City require it, an underpass be constructed and provided at the intersection of Lincoln Street with the properties and tracks of the Fort worth and Denver City Railvay Company in the City. I Section 2. That the State of Texas be and is hereby authorized to construct said underpass project at the approximate location and in the general manner shown on the plan, attached hereto and marked "Exhibit All and made a part hereof in all respects. Detailed plans, show- ing location, grades, etc. , are to be later prepared covering the construction of the pro- ject and when said plans governing the construction of said project has been prepared and approved by the City,they are to be attached hereto, marked "Exhibit B" and made a part of this ordinance in all respects. Section 3. That nothing in this ordinance shall be construed as to require said Railroad Company or the State of Texas to assume or pay any direct, incidental or consequential damages to adjoining, abutting or other property or business or to any tenants occupying adjoining, abutting or other property caused by, incidental to, or in any way connected with the passageand enforcement of this ordinance and/or by the installation, the construction, the existence, the use and/or the maintenance of the portion for which the City herein accepts responsibility of the project authorized herein, or to defend any suit or suits which may be brought against said Railroad Company or the State of Texas by any party or parties fiDr the recovery of any such damages. Section 4, For and in consideration of the mutual covenants herein contained, the City does hereby agree that all damages and claims for damages, including damages to adjoining, abutting or other property, if any there be, arising out of, incident to, or in any way connected -with the installation, the construction, the use and/or the existence of said project and/or the maintenance of the portion thereof for which the City herein accepts responsibility, shall be adjusted and paid solely by the City and the City shall and does hereby agree to hold harmless said Railroad Company and the State of Texas against any and all el:alima"'-�denianda, and causes of action for recovery of any and all such damages arising out of the installa- tion, the construction, the use and/or the existence of said project and/ar the maintenance of the portion thereof for which the City herein accepts responsibility, and agrees to assume the defense of any and all suits brought for the recovery of all such alleged damages and shall intervene and make itself a party therein in its own name, if it is not already made a party thereto, for the purpose, and shall if requested in writing by the Railroad Company or the State of Texas of Texas so to do, wholly relieve said Railroad Company and the State of Texas from defending the same, and hereby agrees to hold said Railroad Company, the State of Texas and each of them, harmless as to court costs, attorneyts fees and all expenses in connection with such suits, and hereby assumes and agrees to pay all judgements recovered against said Railro,-d Comp­ny and/or the State of Texas by reason of the con- struction, the installation, the use and/or the existence of said project and/or the main- tenance of the portion thereof for which the City herein accepts responsibility. Section 5. That the City 'will. maintain or cause to be maintained the streets, sidewalks, light system and drainage under the street and drainage system for the underpass project. The City assumes the entire responsibility of such maintenance as above described, and nothing contained herein shall ever be construed to place upon the Railroad Company and/or the State of Texas any manner of liability for injury to, or death of persons, or ror damage to, or loss of property arising from or in any manner connected with the maintenance or use of the street, sidewalks, light system and/or drainage under the street and drainage system for the underpass project located either on or off of the Railroad Company's rig t-of- y ,fi wa and the City will save the Railroad Company and the State of Texas harmless from any damages arising from said maintenance and/or the use of said project. The Railroad Company will maintain and be responsible for the maintenance of the grade separation superstructure and its substructure, tracks and other railroad facilities located upon the Railroad Company's right-of-way. Section 6. That the Mayor be and is hereby authorized to execute for and on behalf of the City an agreement and contract with the State of Texas and the said Railroad Company in accordance with and for the purpose of carrying out the terms and provisions of this ordinance, in the form attached hereto arid marked "Exhibit C". The City Secretary is hereby directed to attest the agreement and contradt and to affix the proper seal of the dity thereto. Section 7. That the State be and is hereby authorized as agent to the City, to construct said underpass project at the location, to the grade and in the manner shown on "Exhibit"A" and to be shown on "Exhibit B". Section 8. That the Mayor of the City, having requested in writing that this ordinance take effect forwith and there being in fact an emergency and impreative public necessity that the work herein provided for be begun and carried out promptly and with expedition, and that the contract aforesaid shall be immediately made, executed and delivered to the end that such work therein provided for may be begun and carried out promptly and with expedition. The reading of this ordinance on three several days is hereby dispensed with nd the same shall be in full. force and effect from and after its passage. PASSED AND APPROVED this the llth day of March, A. D. 1940. ­X Mayof�-' ATTEST: CITY CLEIRK