02/18/1924 Board of Public Works Special Meeting Minutes

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127 In the event that said Board, elects to have said subway constructed, it reserves.the right to determine the width and height thereof and the grades of the street approaches; but the plan shall riot require an � .elevation above the present rade of s iid railway without the eons&nt of the party of. the first part. Each party Agrd� s to pay �ifty per oent-of the cost of the construction of -said subway inel jjZNG necessary'drainage and paving. The party dFf the, first part shall pay to the party of --the second part,-( in case a subway is constructed), the fair cash market value of the fee simple title of that part of Carroll Street situated between said lots numbered three hundred twenty-four (324 and three hundred forty-three (343) above described. Said value shall by determined by an appraiser appointed -by each of the parties, and if they fail to agree, then the St. Joseph Xireuit Court upon application of either party shall appoint a third appraiser, the three appraisers thus elected shall -be majority vote determine the same, and the determination of any such board ofappraisers shall be final. If any person, firm or corporation is faund to be entitled to any damages under the laws of the State of Indiana for the changing of the grade of said. Carrlll Street by the construction of a subway as aforesaid, the said party of the second part agrees to pay such damages and it hereby indemnifies the said party of the first part against the payment of the same or any part thereof. J14) The party of the second part further agrees that in consideration of the removal and elevation of the tracks of the party of the first part as aforesaid, it will contribute_ and pay that part; of the" expense of such elevation required"to be paid by the City ruder .6he provisions of chapter 36 of the Acts of 1923 aforesaid and on monthly esti (mates in:the manner therein provided; and in addition thereto the said City will pay to said ,party of the first part, when said new right of.way is purchased and work of construction of 'kits new line is commenced, the sum of $130,390.67, and when said elevation is completed. and (said part of DIVlsion Street is abandoned the further sum of $260,767.34, under the<author- jity granted by Chapter Nine of the Acts ofthe General Assembly of the State of Indiana for 'the year 1921 as amended by -Chapter 175 of the Acts of said legislature for 1923. .(15) That the City of South Bend, by and thraugh it's Board of Public Works, may, before any work is done in the elevation of the tracks of the party of the first part in said new location, require the tracks of -the New York Central Railroad Company to be elevated aenoss and over the streets at which the grades are to be separated as aforesaid, and on a portion of its right Of way which is parallel and nearly contiguous to said new right of way of the party of the first part; it.is therefore agreed that, at the time of the elevation of said tracks of the New York Central Railroad Company, the party of the second part may cause street grades and improvements to be made.at any such crossings where the grades are to be separated as aferesaid, so that the same will not only aceomodate the Alevation of tihe New York Central RAILROAD Company, but will likewise provide for the future elevation of the tracks of the party of the first part according to the plans hereto at- tached; and said party of the first part agrees to pay to the party of the seenud part the same proportion of cost fee making said improvements for its benefit as it would be required to pay under the statutes of the STate of Indiana aforesaid if said grades and improvements .should be made at the same time its tracks were being elevated. It is further agreed that should the first party hereto build -its proposed new elevated line. of railroad prior to the elevation of the tracks of the New York Central Railroad Company on that part of its right of way which will parallel first party's relocated said right of way, then the second party hereto will assume all responsibility for temporary obstruction to or interference with the grades of streets pending elevation by said New York Central Railroad Company. (16) That in no event shall the party of the first part be required, or be called upon, to pay or to furnish the proportion of the cost of separating the grades at any of said -streets -that under the laws of the State of Indiana should be borne by the Chicago, South Bend and Northern Indiana Railway Company, its successors or assigns, which owns and operates street and interurban street car lines on Mishawaka Avenue, Lincoln Way East, Michigan Street and Chapin Street; and that said traction company shall be required to pay its proportion of the cost of said grade separation as provided by thelaws of said state, and in the event of its failure todo so, the same.will be paid by the party of the second part. (17) That in part ennsideration of the covenants herein contained, the party of the second part does hereby release to the first party any and all claims for damages which might otherwise arise for any interference with or obstruction to the flow of the St. Joseph River resulting from the construction of bridge piers and abutments in the line of said relocated right of way, anal said first party agrees to construct the piers Of.its new bridge as neatly as practicable parallel to the flow of said s-Lream. . - (16) That the terms and provisions of CHApter numbered 36 of the Acts of the general Assembly of the State of Indiana for the year 1923 (see Acts 1923 pp. 110 to 124 inclusive), and the teams and provisions of chapter numbered 9 of the Acts of the Gen- eral ASSEMBLY OF THE State of Indiana for the year 1921 (see acts 1921 pp. 19 to 25 in - elusive) as amended by Chapter numbered 178 of the Acts of the General Assembly of the State of Indiana for the year 1923 (see Acts 1923 pp. 528 and 529), shall be binding upon the parties hereto and shall govern the parties and procedure in the performance of this agree- ment, and saidActs are each hereby incorporated into and made a part of this agreement by reference.