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HomeMy WebLinkAbout04435 ORD - 12/28/1955a f AC:12/28/57 AN ORDINANCE PROVIDING FOR THE INSTALLATION, CONSTRUCTION, EXISTENCE, USE AND P4AINTENANCE OF A HIGH -LEVEL BRIDGE PROJECT ON U. S. HIGH- WAY 181 EXTENDING FROM A POINT NEAR FITZGERALD STREET TO A w POINT NEAR ELP4 STREET AND CROSSING OVER CERTAIN PROPERTY AND TRACKS OF THE TEXAS AND NEW ORLEANS RAILROAD COMPANY IN THE CITY OF CORPUS CHRISTI, TEXAS, AND AUTHORIZING THE CITY MANAGER OF THE CITY TO EXECUTE AND THE CITY SECRETARY TO AFFIX THE COR- PORATE SEAL AND ATTEST THE SAME, A CERTAIN CONTRACT BETWEEN THE CITY, THE STATE OF TEXAS AND THE RAILROAD COMIPANY PROVIDING FOR THE INSTALLATION, CONSTRUCTION, EXISTENCE, USE AND MAINTENANCE OF SAID HIGH LEVEL BRIDGE PROJECT; FOR THE GRANTING OF LICENSE AND PEa4I6SION BY THE RAILROAD COMPANY FOR SAID PROJECT; FOR THE PAYMENT, BY THE STATE OF TEAS, OF THE CONSTRUCTION COSTS OF SAID PROJECT; FOR THE ASSUP,'IPTION, BY THE CITY, OF ALL DAMAGES TO ADJOINING, ABUTTING AND OTHER PROPERTY AND BUSINESS AND TO TENANT OR OCCUPANT THEREOF; FOR THE PROTECTION OF THE STATE OF TE;CAS AND THE RAILROAD COMPANY AGAINST ALL SUCH DAMAGES AND EX- PENSES IN CONNECTION WITH ANY CLAIM OR SUIT THEREFOR;SAI:D CON- TRACT HEREIN AUTHORIZED BEING IN LIEU OF A CONTRACT BETWEEN THE PARTIES AUTHORIZED BY ORDINANCE N0. 4390t PASSED AND APPROVED ON THE 17TH DAY OF NOVEMBER, 555; PROVIDING THAT THIS ORDINANCE SHALL BE EFFECTIVE FROM AND AFTER ITS PASSAGE; AND DECLARING AN EMERGENCY. WHEREAS, THE PUBLIC CONVENIENCE, SAFETY AIJD NECESSITY OF THE CITY, AND THE PEOPLE OF THE CITY REQUIRE THAT A HIGH LEVEL BRIDGE DE CONSTRUCTED AT.Jk055 THE COit PUS CHRISTI SHIP CHANNEL AND THE TRACKS OF TH` TEXAS AND NEW ORLEANS RAIL — WOAD I,OMPAHY SINCE THE EXISTING DRAW BRIDGE ACROSS THE CHANNEL 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 A HIGH LEVEL BRIDGE AS HEREIN PROVIDED; AND (,WHEREAS, THE CITY HAS REQUESTED THE STATE OF TEXAS TO CONTRIBUTE FINANCIAL AID IN THE COIISTRUCTION OF THE HIGH LEVEL URIDGE PROJECT; AND ;WHEREAS, THE CITY HAS REQUESTED THE R ;,ILNOAD COMPANY TO GRANT A LICENSE AND PERMISSION FOR THE CONSTRUCTION OF SAID HIGH LEVEL BRIDGE PROJECT ACROSS ITS PROPERTY AND OVE7t ITS TRACKS; AND WHEREAS, THE STATE OF TEXAS HAS MADE IT KNOWN TO THE CITY THAT LT WILL ASSIST THE CITY IN THE CONSTRUCTION OFSAID BRIDGE PROJECT BY FURNISHING THE NECESSARY FUNDS FOR THE ACTUAL CONSTRUCTION; DY PREPANING PLANS AND SPECIFICATIONS; BY AWARDING OF CONSTRUCTION CONTRACTS; BY SUPEL"VISING CONSTRUCTION; AND DY ASSISTING IN THE MAINTENANCE OF SAID PROJECT, PI "OVIDING THE CITY APPROVES THE PLANS, GRADES AND ALIGNMENT FOR SAID PROJECT, AND AFTER COMPLETION OF CON5;TRUCTION WILL MAINTAIN CEHTAIH FEATURES OF SAID DIIDGE PROJECT; AND IUHEREAS, THE RAI LttOAD CUAPANY HAS F, %DF IT KNOWN THAT IT WILL Gi'ANT A LICENSE AI4D PERMISSION 1`019 SAID BRIDGE P7:DJECT TO DE CONSTRUCTED ACROSS ITS PROPENTY AND OVER ITS TRACKS AT THE LOCATION HEREIN STATED; AND - 4435 WHEREAS, THE CITY, IN CONSIDERATION OF THE PROVIDING OF SAID BRIDGE 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 PROPERTY ON BUSINESS OR TO ANY TENANTS OCCUPYING SUCH PROPERTY, CAUSED BY THE IkSTALLATIChI, THE CONSTRUCTION, THE EXISTENCE, THE USE AND THE MAINTENANCE OF SAID BRIDGE PROJECT OR THE PASSAGE AND ENFORCEMENT OF THIS ORDINANCE; AND WHEREAS, THE CITY WILL ASSIST IN THE MAINTENANCE AND BE RESPONSIBLE FOR THEIR, PORTION OF THE MAINTENANCE OF THE ORIDGE PROJECT. N94, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. THAT SINCE THE PUBLIC CONVENIENCE, SAFETY AND NECESSITY OF THE CITY AND THE PEOPLE OF THE CITY REQUIRE IT, A HIGH. LEVEL BRIDGE BE CONSTRUCTED AND PROVIDED ON U. S. HIGHWAY 181 EXTENDING FROM A POINT NEAR FITZGEilALD STREET TO A POINT NEAP. ELM STREET AND CROSSING OVER CERTAIN PROPERTY AND TRACKS OF THE TEXAS AND NEW ORLEANS RAILiOAD COMPANY IN THE CITY. SECTION 2. THAT THE STATE OF TEXAS BE AND IS HEREBY AUTHORIZED TO CONSTRUCT SAID BRIDGE PROJECT AT THE APPROXIMATE LOCATION AND IN THE GENERAL MANNER SHOWN ON THE PLANp ATTACHED HERETO AND MARKED "EXHIBIT A" AND Id ADE A PART HEREOF IN ALL RESPECTS. DETAILED PLANS, SHOWIIJG LOCATION, GRADES, ETC., ARE TO BE LATER PRE- PARED COVERING THE CONSTRUCTION OF THE PROJECT AND WHEN SAID PLANS GOVERNING THE CONSTRUCTION OF SAID PROJECT HAVE BEEN PREPARED AND APPROVED DY.THE CITY, THEY ARE TO BE ATTACHED HEf',ETO, MARKED "EXHIBIT L" AND MADE A PART OF THIS ORDINANCE IN ALL RESPECTS. SECTION j. THAT NOTHING IN THIS ORDINANCE SHALL BE CONSTRUED AS TO RE- QUIRE SAID RAIL,10AD COMPANY OR THE STATE OF TEXAS TO ASSUME OR PAY ANY DIRECT, INCI- DENTAL OR CONSEQUENTIAL DAMAGES TO ADJOINING, ABUTTING OR OTHER PROPERTY OR BUSINESS OR TO ANY TENANTS OCCUPYING ADJOINING, ABUTTING OR OTHER PROPERTY CAUSED BY, MCI — DENTAL TO, Oi' IN ANY WAY CONNECTED WITH THE PASSAGE ARID ENFORCEMENT OF THIS ORDI— TIANCE OR BY THE INSTALLATION, THE CONSTRUCTION, THE EXISTENCE, THE USE OR THE MAINTE- NANCE OF THE PROJECT AUTHDRIZED 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 FOR THE RECOVERY OF ANY SUCH DAMAGES. SECTION 4. FOR AND IN CONSIDERATION OF THE MUTUAL COVENA14TS HEREIN CON- TAINED, THE CITY DOES HEREBY AGREE THAT ALL DAMAGES AND CLAIMS FOR DAMAGES FOR WHICH THERE 15 A LEGAL LIABILITY TO ADJOINING, ABUTTING OR OTHER PROPERTY, IF ANY THERE —2— BE, ARISING OUT OF, INCIDENT TO, OR CAUSED BY THE INSTALLATION, THE CONSTRUCTION, THE USE, THE EXISTENCE OR THE MAINTENANCE OF SAID PROJECT, SHALL BE ADJUSTED AND PAID SOLELY BY THE CITY SO THAT THE CITY SHALL AND DOES HEREBY AGREE TO HOLD HAi°,M- LESS SAID RAILROAD COMPANY AND THE STATE OF TEXAS AGAINST ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF ACTION FOR RECOVERY OF ANY AND ALL SUCH DAMAGES ARISING OUT OF THE INSTALLATION, THE CONSTRUCTION, THE USE AND /OR THE EXISTENCE AND /OR THE MAINTENANCE OF SAID PROJECT, AND AGREES TO ASSUME THE DEFENSE OF ANY AND ALL SUITS BROUGI-IT 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 WHITING BY THE RAILROAD COMPANY OR THE STATE OF TEXAS SO TO DO, WHOLLY RELIEVE SAID RAILROAD COMPANY AND THE STATE OF TEXAS FROM DEFENDING THE SAME, UNLESS SOME ACT OF NEGLIGENCE OF THE RAILROAD COMPANY IS INVOLVED IN SAID CLAIM, OR SOME ACTION ARISES BY REASON OF THE ACT OF THE CONTRACTOR OF THE STATE OF TEXAS WHILE SAID PROJECT IS UNDER CONSTRUCTION, ALL OF WHICH IS MORE SPECIFICALLY PROVIDED IN THE AGREEMENT HEREINAFTER AUTHORIZED TO BE EXECUTED BY THE CITY MANAGER IN SECTION 6 HEREOF. SECTION 5. THAT NOTHING CONTAINED HEREIN SHALL EVER BE CONSTRUED TO PLACE UPON THE RAILROAD C0I4PANY AND/OR THE STATE OF TEXAS ANY MANNER OF LIA- DILITY FOR INJUr °Y TO, OR DEATH OF PERSONS, OR FOR DAMAGE TO, OR LOSS OF PROPERTY ARISING FROM OR IN ANY MANNER CONNECTED WITH THE MAINTENANCE OR USE OF THE BRIDGE PROJECT LOCATED EITHER ON OR OFF OF THE RAILROAD COMPANY'S RIGHT -OF -WAY AND THE CITY WILL SAVE THE RAILROAD COMPANY AND THE STATE OF TEXAS HARMLESS FROM DAMAGES ARISING FROM SAID MAINTENANCE AND /Olt THE USE OF SAID PROJECT, AS SET OUT IN "EXHIBIT C ". SECTION 6. THAT THE CITY MANAGER BE AND IS HEREBY AUTHORIZED TO EXE- CUTE FOR AND ON BEHALF OF THE CITY Ail 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 AND 111ARKED "EXHIBIT C ". THE CITY SECRETARY IS HEREBY DIRECTED TO ATTEST THE AGREEMENT AND CONTRACT AND TO AFFIX THE PROPER SEAL OF THE CITY THEI:ETO. SECTION 7. THAT THE STATE BE AND IS HEREBY AUTHORIZED, AS AGENT OF THE CITY, TO CONSTRUCT SAID BRIDGE PROJECT AT THE LOCATION, TO THE GRADE AND IN THE MANNER AS SHOWN ON "EXHIBIT A" AND TO BE SHOWN ON "EXHIBIT O ". SECTIM O. THIS ORDINANCE IS PASSED IN LIEU OF ORDINANCE NO. 4 3' 0, PASSED AND APPROVED ON THE 16TH DAY OF NOVEMBER, 19551 WHICH AUTHORIZED THE EXECUTION ON BEHALF OF THE CITY OF AN AGREEMENT BETWEEN THE SAME'PARTIES. SECTION 5. THE FACT THAT SAID PROJECT IS AT A POINT WHERE IT IS -3- NECESSARY FOR THE CITY, THE STATE AND THE RAILROAD TO AGREE UPON THE MATTERS CON- TAINED IN SAID AGREEMENT TO PREVENT ANY DELAY IN SAID PROJECT CREATES A PUBLIC EMERGENCY AND AN IMPERATIVE PUBLIC NECESSITY, REQUIRING THE SUSPENSION OF THE CHARTER RULE THAT NO ORDINANCE OR RESOLUTION SHALL BE PASSED FINALLY Ofi THE DATE OF ITS INTRODUCTION, AND THAT SAID DP.DINANCE SHALL BE READ AT THREE SEVERAL MEETINGS OF THE CITY COUNCIL, AND THE MAYOR HAVING DECLARED THAT SUCH EMERGENCY AND IMPErZATIVE PUBLIC NECESSITY EXISTS, AND HAVING REQUESTED SAID CHARTER RULE BE SUSPENDED, AND THAT THIS ORDINANCE BE PASSED FINALLY ON THE DATE OF ITS INTItQ- RUCTION AND TAKE EFFECT AND SE IN FULL FORCE AND EFFECT FROM AND AFTER ITS PASSAGE, IT IS ACCORDINGLY SO ORDAIP:ED. PASSED AND APPROVE), THIS THE /10 oAY OF DECEMBER, 1955. HAYOR THE CITY OF CM PUS CHRISTI, TEXAS ATTEST; A ALL - CIrY SEC! Er.i r APP20VED AS TO LEGAL FO'W )ECEMB' , 2U, 1 yj1- t 'I- , Nueces County Control 101 -6 -21, 22, 23 & 24 F 204 (6), (7), (8) & (9) U. S. Highway 181 STATE OF TEXAS # COUNTY OF TRAVIS THIS AGREEMENT, made this day 19_ by and between the State of Texas hereinafter called the "Stat" Party of the First Part, and the texas and New Orleans Railroad , Company, a corporation hereinafter, whether one or more, called the "Railroad Company ", Party of the Second Part, acting by and through its under and by virtue of authority shown in Exhibit "D" attached here- to and made a part thereof; and the City of Corpus Christi, Texas, acting by and through its duly authorized officers under an Ordin- ance passed the 16th day of November , 19, hereinafter called the "City", Party of the Third Party W I T N E S S E T H WHEREAS, the City has authorized the construction of a high level bridge project by Ordinance passed on the 19th day of October , 19_22, on U. S. Highway 181 in the City, over, on, and across the rails and property of the Railroad Company; and WHEREAS, the City has requested the State to contribute financial aid in the construction of said bridge project; and WHEREAS, the State has made it known to the City that it will assist the City in the construction of said bridge project by furnishing the necessary funds for the actual construction of said bridge project and by preparing plans, awarding of construction contract, supervising construction, and by assisting in the main- tenance of said project, providing the City approves the plans, specifications, grades and alignment of same, and after construc- tion will maintain certain features of said bridge project, and provided further that the City assumes responsibility for all damages to adjoining, abutting, and other property occasioned by or resulting from the installation, construction, existence, use and maintenance of said bridge project and the passage and enforce - nent of the Ordinance hereinabove referred to. A G R E E M E N T NOW, therefore, in consideration of the premises and of the mutual covenants and agreements of the parties hereto to be by :hem respectively kept and performed, as hereinafter set forth, it is agreed as follows: Indemnification (high level bridge) - 1 - 1. For and in consideration of the mutunT covenant's here- in contained, the City does hereby agree that all damages and claims for damages, for which there is a legal liability on the part of the City, the State and /or the Railroad to adjoining, abutting or other property, if any there be, arising out of, incident to, or caused by the installation, the construction, the use, or the existence or the maintenance of said project shall be adjusted and paid solely uy the City so that the City shall and does hereby agree to hold harmless said Railroad Company and the State of Texas against any and all claims, demands and causes of action for recovery of any and all such damages arising out of the installation, the construction, the use, or the existence or the maintenance of said project, 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 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, attorneys' fees and all ex- penses in connection with such suits, and hereby assumes and agrees to pay all such judgments recovered against said Railroad Company and /or the State of Texas by reason of the construction, the installa tion, the use and /or the existence and /or the maintenance of said project. By the term "adjoining, abutting or other property" is meant real estate including the improvements thereon and the use made thereof. Provided the City does not hereby indemnify or agree to indemnify the Railroad Company against any claims, demands or causes of action which arise from negligent act or omission of the Railroad Company, its agents, employees or contractors or its passengers or its shippers of freight. If a claim or demand is asserted against the Railroad Company against which it is in its opinion fully or partially indem- nified by the City under any of the provisions of this instrument, or a claim or demand is asserted against the City which it is in its opinion partially indemnified by the Railroad Company, the party against whom such claim or demand is asserted shall notify the other party thereof with reasonable promptness (but in any event, at least 5 days before the party against whom the claim is asserted is re- quired to answer to any suit brought against it by the party assert- ing such claim or demand). Either party shall have the right to intervene in any such suit brought against the other party; and either party against whom suit is brought shall have the right to implead the other party into such suit and cause their respective liability as between each other to be therein determined. Indemnification (high level bridge) Revised 12/20/55 - 2 - Neither failure of either the Railroad Company or'the City when cued upon any such claim or demand, to implead the other in such suit, nor failure of either to voluntarily intervene in any suit against the other upon any such claim or demand shall affect the ul- timate liability of either to the other under any of the foregoing agreements of indemnity, except that in the event either should fail - upon notice of the pendency thereof - to intervene in a suit brought against the other upon any such claim or demand, the party so failing shall thereafter, in determining its final and ultimate liability to the other, be bound by the judgment rendered in such cause as fixing the amount of the initial liability and loss of the partv sued; but in the event of assertion of or suit upon any such cl &im or demand against either of them, nothing herein contained shall prevent the Railroad Company and the City from entering into such agreements as they deem proper touching upon the defense of the suit and the extent to which participation or non - participation by either of them in euch suit or in its defense shall prejudice or shall not prejudice their respective rights against each other as hereinabove provided. It is expressly agreed between the Railroad Company and the City that none of the foregoing agreements between them are for the use or benefit of any one except themselves, and are not for the benefit of and shall not Five rise to a cause of action on behalf of any third party. 2. As its contribution to the building of the above men- tioned bridge project on U. S. Highway 181 in the City of Corpus Christi, the State agrees to prepare or provide plans and specifica- tions, and supervise construction thereof and to pay all of the cost of the actual construction of said above mentioned bridge project. 3. It is understood and agreed by and between the parties hereto that the City, by virtue of the provisions of its charter and the laws of the State of Texas, has exclusive control and juris- diction of all streets and public ways within the incorporated limits of said City, and that the City has requested and has consented to the construction of the bridge project hereinabove named, and the State in the construction of the above named bridge project does so at the special instance and request of the City and that the plans and specifications showing and describing among other things the grades and alignment for said project, copies of which are attached hereto and made a part hereof, are hereby approved by the City and in so constructing said bridge project, the State Highway Department of the State of Texas acts as the agent of the City in the construc- tion thereof. 4. The Railroad Company hereby grants to the City, license and permission for the installation, construction, existence, use and maintenance of the aforesaid bride project across its pro- perty and over its tracks. Indemnification (high level bridge) Revised 8 -9 -55 - 3 - IN TESTIMONY WI- ,EREOF' this parties hereto have caused these 'presents to be executed in triplicate on the day above stated. TEXAS AND NEW ORLEANS THE STATE OF TEXAS: Certified as being executed for the purpose and effect of acti- vating and /or carrying out the By: orders, established policies, or (Title) work programs heretofore approved and authorized by the State High - ATTEST: way Commission: By: Secretary for Railroad Company Administrative Engineer RECOMMENDED: RECOMMENDED FOR APPROVAL: General Manager for Railroad Company Bridge Engineer Chief Engineer for Railroad Company APPROVED AS TO FORM: APPROVED AS TO FORM: Assistant Attorney General Attorneys for Railroad Company CITY OF CORPUS CHRISTI, TEXAS Bye City Manager Secretary for City APPROVED AS TO FORM: Indemnification (high level bridge) City Attorney EKIM Corp Christi, Texas 7i: o L955 TO.TIE.MEMHERS OF THE CITY COUNCIL Corpus, Christi,._ Texas Gentlemen: For the reasons set forth in the emergency clause of the foregoing ordinabcee, a public emergency and imperative necessity exist for the suspen- s1ssN at the. Charter rule or requirement that no ordinance or resolution shall be passed finally on the date it is introduced, and that such ordinance or resolution shall be read at three meetings of the City Council; I, therefore, hereby request that you suspend said Charter rule or requirement and pass .this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, MAYOR THE CITY OF CORPUS CHRISTI, TEXAS The Charter Rule was suspended by the following vote: Farrell D. Smith Minor Culli W. J. Roberts B. E. Bigler Manuel P. Maldonado The above ordinance was passed by the following vote: Farrell D. Smith Minor Culli W, J, Roberts H, E. Bigler Manuel P. Maldonado I+q -S 5 r I