^ GIFT APR '^A 1916 r-^f^J No. 110. Board o! ^p ^Estimate and Apportionment CITY OF NEW YORK REPORT BY THE ^u.i BUREAU OF FRANCHISES Ss) UPON THE APPLICATION '0F ^ rou-cni^y The Nassau Electric Railroad Company for a franchise to construct, maintain and operate a street surface railway extension upon and along Atlantic avenue from Fifth avenue to Shepherd avenue, Borough of Brooklyn, with sug- gestions as to the proposed form of contract STP NOVEMBER 30, J9J2 U. B. BROWN PRINTING 8t BINDING CO.. 49 57 Pakk Place. New Youk. The City of New York, ] Board of Estimate and Apportionment, Bureau of Franchises, }■ Room 801, 277 Broadway, November 30, 1912. J Hon. William J. Gaynor, Mayor, Chairman of the Board of Estimate and Appor- tionment: Sir — Under date of January 29, 1912, the Nassau Electric Railroad Company, by its Vice-President and Treasurer, petitioned the Board for a franchise to construct, maintain and operate a double track street surface railway in the Borough of Brook- lyn, beginning at or near the intersection of Atlantic avenue with 5th avenue; thence upon the surface of Atlantic avenue to its intersection with Shepherd avenue. The Long Island Railroad Company, by its President, joined with the Nassau Electric Railroad Company in making such petition, and therein consents, as lessee, under the lease between it and the Atlantic Avenue Railroad Company, dated March 26, 1877, to the acceptance by the Nassau Electric Railroad Company of the franchise applied for during its term and all renev/als thereof. The petition was presented to the Board at the meeting of February 1, 1912, and referred to the Bureau of Franchises. On February 15, 1912, the Board of Estimate and Apportionment adopted a reso- lution fixing March 28, 1912, at the date for the preliminary public hearing, and notice of same was published in the "Globe" and "Brooklyn Times." On that date the hearing was duly held. One communication was received opposing the grant of the franchise, which was the only opposition presented at the hearing. A communication was re- ceived in opposition to the maintenance of curbing in the centre of the roadway and the operation of freight or passenger trains upon the proposed railroad. Several rep- resentatives of organizations whose centre of activity is in the vicinity of Atlantic avenue appeared in favor of the grant, but some objected to the maintenance of curbing in the centre of the roadway. The attorney for the Coney Island and Brooklyn Railroad Company appeared and stated that his Company had an applica- tion pending for a franchise over a portion applied for by the Nassau Company, and asked that the Board take cognizance of such application when passing upon the franchise of the Nassau Company. Subsequently a petition was filed with the Board, signed by business men and residents on Atlantic avenue in the immediate vicinity, requesting that the franchise provide that the central curbs be removed ; that the space be paved ; that no freight cars or trains be operated ; that a non-exclusive fran- chise only be granted, and that tracks now existing on the southerly side of Atlantic avenue, between 5th avenue and Washington avenue, be removed. Brief History of Atlantic Avenue. It is necessary at this time to give, briefly, a history of the tracks in Atlantic ave- nue, and relations between the various companies which either own or have operated the same. .■ The first railway to obtain rights in Atlantic avenue was the Brooklyn and Jamaica Railroad Company, which company, by chapter 256 of the Laws of 1832, was authorized to build a railroad from any point in Brooklyn to the Village of Jamaica, and construct a street surface railroad upon a private right-of-way, portions of which are included within the limits of Atlantic avenue as it now exists. In 1834 the Long Island Railroad Company was incorporated for the purpose of constructing a railroad easterly from Brooklyn through Long Island, and the Brooklyn and Jamaica Railroad Company was authorized by chapter 94 of the Laws of 1836 to lease its road to the Long Island Railroad Company. This lease was made on December 1, 1836. By means of this lease the Long Island Railroad Company maintained its main terminal in the Borough of Brooklyn. In 1860 the Long Island Railroad Company obtained the right to construct a railroad from Jamaica to Hunters Point, and subsequent to that time Hunters Point was the main terminal on the East River of the Long Island Railroad Company. An agreement bearing date of April 26, 1860, was made between the Long Island Railroad Company and the Brooklyn and Jamaica Railroad Company, which lease was entered into pursuant to chapter 100 of the Laws of 1860. and provided for the discontinuance of the use of the tunnel in .^tlantic avenue, west of Flatbush avenue, and also the discontinuance of the use of steam upon the remainder of Atlantic avenue. In 1872 the Brooklyn and Jamaica Railroad Company was sold under foreclosure proceedings to the Atlantic Avenue Railroad Company, and on March 26, 1877, the Atlantic Avenue Railroad Company was leased to the Long Island Railroad Com- pany. This lease involved all the easterly portion of the hne from the Village of Jamaica to Matbush avenue, in the Borough of Brooklyn. On January 2b, 1899, the Atlantic .Vvenue Railroad and the Nassau Electric Rail- road Company were merged into the Nassau Electric Railroad Company, which company is the applicant for the franchise under discussion. In 1853, permission was given by the Legislature to relocate the tracks in At- lantic avenue. This permission was given, however, upon the condition that the Brooklyn and Jamaica Railroad Company should cede to the City certain lands for a public street, which are now included within the limits of Atlantic avenue, thus straightening and widening the avenue. Pursuant to this act of 1853 a tripartite agreement, dated .April 10. 1855, was entered into between the Brooklyn and Jamaica Railroad Company, the Long Island Railroad Company and the City of Brooklyn, wherein the lands above referreS to were ceded by the Brooklyn and Jamaic:i Railroad Company, and the Company was granted the right to operate in the strip thirty feet in width in the centre of Atlantic avenue. This agreement was confirmed by chapter 475 of the Laws of 1855. and is mentioned because of the fact that it was an important document in subsequent litigation with reference to tracks now upon the surface of .\tlantic avenue, the ownership of which is claimed by the Long Island Railroad Company, and are to be used by the Nassau Electric Railroad Company if it obtains a franchise from the City. Atlantic avenue was later widened to 120 feet, which is its present width. In 1876 the Long Island Railroad Company was permitted by an act of the Leg- islature to renew the operations of its trains by steam power, and the Common Council permitted the erection of fences on each side of the thirty-foot strip, exxept at street intersections. Steam continued to be the motive power in Atlantic avenue to operate trains on the surface until the completion of the .\tlantic .\venue Improve- ment, pursuant to chapter 394 of the Laws of 18%. This law provided for the removal of the tracks from the surface of Atlantic avenue, under the supervision of the .'\tlantic .Avenue Commission, and the restora- tion of the street surface, and resulted in the removal of the tracks from the sur- face of Atlantic avenue by placing them either in a tunnel or upon an elevated structure, from the Long Island Railroad station at Flatbush avenue to Atkins avenue. The sections in tunnel are: Feet. \. Fifth avenue to Bedford avenue, about 5,800 2. Dewey place to Eastern parkway, about 2,500 The sections upon elevated structure are : 1. Nostrand avenue to Ralph avenue, about 7,100 2. .Alabama avenue to Atkins avenue, about 4,800 Upon the completion of this work a double track street surface railway was laid underneath the elevated sections and over the tunnel sections in approximately the centre of Atlantic avenue, the same being within the thirty-foot strip upon which the Brooklyn and Jamaica Railroad Company, by the tripartite agreement above re- ferred to, was permitted to operate. No pavement was laid within this thirty-foot strip. In many cases curbs were constructed separating the strip from the roadways on either side and the roadways of intersecting streets The railway so constructed was incomplete because of the fact that the turnouts at the points where the change of the Long Island Railroad was made from tunnel to elevated or from elevated to tunnel were unconstructed. These turnouts must be placed outside of the original thirtv-foot strip. Three such turnouts are necessary: 1. Between the westerly side of Bedford avenue, about 150 feet east of the easterly line of Nostrand avenue. 2. Between the easterly side of Columbia place and the easterly side of Lewis place. 3. Between the Eastern parkway extension and Alabama avenue. Former Application of the Company. Under date of July 6, 1906. the Lone Island Railroad and the Nassau Electric Railroad Company jointly petitioned the Board for the right to construct the turn- outs above mentioned. The Company claimed that the right to operate a railway on the surface of Atlantic avenue had not been lost by any previous acts of the Legis- lature or by the removal of the tracks from the surface to the position either above or below the surface of Atlantic avenue, pursuant to the Atlantic Avenue Improve- ment Act, it ])cing claimed that the Company owned the strip thirty feet in width in the centre of Atlantic avenue. If that contention had been upheld by the courts, and the franchise applied for in 1906 granted by the City, the Company would then have the right to operate a continuous street surface railway upon the surface of Atlantic avenue over the entire portion covered by the route named in the appli- cation now under discussion. The petition of 1906 was referred to the Bureau of Franchises, and an investi- gation was made as to the rights of the Company upon the surface of Atlantic ave- nue, with the result that reports were subsequently made recommending that the ap- plication be denied for the reason that it appeared that the Company had no right whatever in the centre of Atlantic avenue after having accepted the Atlantic Avenue Improvement Act, and the work of removal of the tracks from the surface of At- lantic avenue under said act had been completed. This application was subsequently denied by the Board on December 6, 1907. Representatives of the applicant company state that it has now entered into an agreement with the Long Island Railroad Company providing for the purchase of the existing tracks on the surface of Atlantic avenue; said agreement being upon the condition that a franchise be obtained with terms satisfactory both to the Nassau Company and the Long Island Railroad Company. It is questionable whether these existing tracks belong to the Long Island Railroad Company, the Court of Appeals having held that the Company has no right to occupy the surface of the street. There is probably little doubt but that the City could sustain a claim to the ownership of that property or, in any event, now has the right to remove the tracks from the street. Litigation Determining the Company's Right in Atlantic A\tnue. In 1908 the President of the Borough of Brooklyn took steps to remove these tracks from the surface of Atlantic avenue. An injunction was obtained and appeals were taken from the decision of the lower court to the Court of Appeals. At least two other actions resulted from the application of the Company to the Appellate Division for the appointment of Commissioners to determine whether the turnouts above specified should be constructed, the owners of at least half in value of the abut- ting property having refused to give their consent. Appeals were taken in these cases resulting, as did the first case referred to. in a decision of the Court of Appeals holding that the Company had no further rights in the centre of Atlantic avenue, having ac- cepted the Atlantic .Avenue Improvement Act. and removed the tracks from the sur- face of Aalantic avenue, pursuant to the same. (Reference to decisions of the Court of Appeals are. Matter of Long Island Railroad Companv vs. Citv of Xew York, 199 N. Y., 288: Matter of Long Island Railroad Company, 189 N. Y." 428. and Leflfmann vs. Long Island Railroad Company, 197 N. Y.. 513.) Proposed Route. Atlantic avenue has a width of one hundred and twenty feet throughout the entire lengrth covered by the franchise applied for. It was anticipated when Atlantic avenue was widened that because of the position and extent of this thoroughfare, it would become one of the main arteries from the East River and the central portion of Brooklyn to the outlying districts on Long Island to the east. The presence of the railway operated by steam power in the centre and upon the surface resulted in defeating to a large extent that purpose of the thoroughfare. The removal of the steam railroad tracks from the surface and the subsequent paving and clearing up of the street has resulted in an increased use of Atlantic avenue for through traffic. The district within the vicinity of its intersection with Flatbush ave- nue is fast becoming a business centre, and since the removal of the tracks from the surface, passenger business of the Long Island Railroad terminating at its station at Flatbush and .-Xtlantic avenues has largely increased. It is believed by many that Atlantic avenue will ultimately become a thoroughfare as important as that for which it was designed at the time the widening took place. The franchise applied for is nearly five miles in length and it intersects ten lines of street railwavs, as follows: Four owned by the applicant Company: two owned by the Brooklyn City Railroad Company; three by the Brooklyn. Queens County and Suburban Railroad Company, and one by the Coney Island and Brooklyn Railroad Company. All of these companies, with the exception of the Coney Island and Brooklyn Railroad Company, are controlled by the same interests which control the Nassau Company; that is, the Brookhm Rapid Transit Company. The Coney Island and Brooklyn Railroad Company, so far as the records show, is operated and controlled independently of any of the other lines intersected. It is proposed to run cars over the proposed railway westerly from th-j westerly terminus of the route ap- plied for for a distance of at least one block; that is. to Flatbush avenue, on which thoroughfare several lines of cars are operated by the companies controlled by the Brooklyn Rapid Transit Company, some of which belong to the applicant. Transfers between the proposed line and all existing lines of cars of the applicant intersecting the proposed route must be exchanged without extra charge to the passengers, as pro- vided by law. With reference to the exchange of transfers with other lines of the Brooklyn Rapid Transit Company more will be said under the subject of rate of fare. As already pointed out, Atlantic avenue is occupied for a considerable portion of its length by an elevated structure upon which is operated the Long Island Rail- road. This elevated structure is supported by rows of columns on each side of the strip in the centre of the street, approximately thirty-two feet in width, and the space thereunder is well adapted to the purpose of a street surface railway, and its opera- tion would not seriously interfere with other street use. Roadways 24 feet in width exist on each side of these columns. This elevated structure to a large extent limits the width in that portion of .\tlantic avenue of the space for vehicular traffic. The operation of a street surface railway upon the route would, no doubt, open up the line of traftic which would be a great convenience to a large number of people, being a direct artery to the business section of the Borough, and probably carry a large number of passengers, resulting in a profitable line for the Company. In fact, it is one of the few main thoroughfares in Brooklyn not new occupieil by street railways. THE PROPOSED CONTRACT. Transmitted herewith is a proposed form of contract for the franchise. There are a number of conditions to which special attention should be directed, and others to which the Company does not wholly agree. In order, therefore, that the Board may have before it the information with respect to these various conditions, a dis- cussion of the same follows : The Existing Street Surface Railway between Silt Avenue and Washington Avenue. There already exists a street surface railway in this portion of Atlantic avenue, the tracks are in the southerly roadway of the avenue, and are owned and the line is operated by the applicant Company. In a letter by the Company, presented with the petition, it is stated that "In order that there may not be any unnecessary tracks in any portion of the street, and in order that vehicle traffic on the south roadway may not be un- necessarily impeded by the presence of superfluous tracks, we are willing to take up the double track railroad on the south side of the avenue, from Washington avenue to Fifth avenue, with the understanding that it may be replaced at the ex- piration nf the new franchise now sought or at the end of any renewal period. In view of the fact that the existing franchise is unlimited, we would have no right in justice to our stock and bond holders to remove the tracks covered by that franchise, except upon the understanding that they may be replaced when we cease to have the new privileges applied for." The records show that this franchise was granted bv a resolution of the Com- mon Council of the City of Brooklyn on December 20. 1880. The resolution contained no conditions as to the term of the grant, and restricted the operation to the south- erly side of Atlantic avenue. Whatever arrangement is made it is certain that under no circumstances should more than two tracks be permitted in Atlantic avenue, and the contract herewith submitted requires the Company to discontinue the use of the existing tracks and remove the same within thirty davs after the portion of the rail- way, between Fort Greene place (Fifth avenue') and Washington avenue, constructed under this franchise, shall be put in operation in the central portion of the avenue. Central Curbs and Change of Position of Sidewalk Curbs. In the letter accompanying the petition the Company asks that it be allowed to maintain curbs which now separate the central portion of Atlantic avenue from the roadways on either side. It has already been stated that this central portion of At- lantic avenue is unpaved, and the large portion of it is separated by the curbs afore- mentioned. The retention of these curbs and the treatment of this separate portion in such manner that vehicular traffic would be excluded therefrorn would, undoubt- edly, result in an opportunity of the Company to give a quicker service because of less interference of operation by vehicular traffic; there would also be less danger of ac- cidents, which would be of benefit to the public as well as to the Company. It is believed also that such central space would be the natural regulator of traffic; that if it introduced at the present time considerable expense for paving and maintenance thereof would be saved, and that the vehicular traffic on Atlantic avenue is not suffi- ciently heavy at tlie present time to require the use of the entire width of the road- way. Proper treatment of the surface of this central portion would give a more pleas- ing appearance than would pavement throughout the entire width of the roadway. This view of the situation was set forth in a letter from this office dated .\pril 1, 1912, to the President of the Borough of Brooklyn, with the request that he have the matter txamined and state whether curbs should be introduced in the central portion of At- lantic avenue, and on July 8, 1912, he replied that he concurred therem. Subsequently the Borough President submitted a draft of three clauses containing conditions which he believed should be imposed in the franchise governing the extent, use, maintenance and possible ultimate removal of the curbs and restricted space. The contract sub- mitted herewith contains the conditions recommended by the President of the Bor- ough of Brooklyn, but a redraft has been made of the various clauses submitted by him, the changes being largely in the phraseology of the same. At the statutory hearing before the Board upon this application several appeared in favor of granting the franchise, but advocated the paving of the entire width of the roadway so that it might be entirely thrown open to vehicular traffic. A petition has also been presented by residents and property owners advocating a like treat- ment. • 1 u- Interviews have been had with some of the protestants against central curbing, but none have stated, what seems to me. to be a valid reason why such central space should not be introduced and maintained until the vehicular traffic on Atlantic avenue becomes of such volume as to require the paving of the entire roadway. I believe that that treatment is the best for both the public and the railway company at the present time. The roadways on each side of the Long Island Railroad structures at three places where the change is made from subway to elevated and elevated to subway are too narrow at present for vehicular traffic and the railway. The curbs must, therfore, be so changed as to throw a portion of the sidwalk into the roadway on each side, if the franchise is granted, and the Company should bear the expense thereof. In order that the Board may understand the provisions with respect to this central portion of Atlantic avenue, and the removal of curbs, the following analysis aiiy agrees that the Board tiiay revoke the right to maintain sueh raised curbs or aiiv forlion of the same at any time during, the existence of the con- tract, and ufon the' adoption of such resolution the company shall discontinue the main- tenance of such curbs, remove the same and pave the space formerly enclosed thereby. 5 The company is required at its own expense to remove the sidewalk curbs and widen the roadwavs at the points where the Long Island Railroad changes from tunnel to elevated and elevated to tunnel ; such work to be done in accordance with specifica- 8 tiuns of the President of the Borough, and the curbs be placed to conform to the resolution of the Board. 6. The company is required to pave and keep in repair between its tracks and two tcct outside of its tracks, all pavement where the railway is operated upon a roadway, to maintain a suitable surface within all curbed areas and maintain all curbs surround- ing such areas, as may be prescribed by the Borough President. Non-exclush-e Clause. In accordance with the principle which has been adopted by the Board in granting street surface railway franchises in recent years, the contract contains a clause which will permit the use of the tracks which are to be constructed by the applicant com- pany, should it obtain a franchise, by other street surface railways which may here- after obtain a franchise to operate upon a portion or all of the route now applied for. The clause as herewith recommended is of the same form which has been used and recommended in franchises recently granted or pending. The company, through its representative, has stated that it would not accept a contract with the non-exclusive feature because of the rights which are still claimed by the Nassau Electric Railroad Company in Atlantic avenue. This claim is made, notwithstanding the Court decisions, and is based on the terms of the tripartite agreement to which reference has already been made. It is stated that the City, because of this agreement, has the right only to grant a franchise to the companies authorized to operate within the thirty- foot strip in the centre of .Atlantic avenue prior to the removal of the tracks now operated by the Long Island Railroad Company. In view of this attitude taken by the company, the Corporation Counsel, under date of July 15, 1912, was requested to advise: First — Whether the tripartite agreement before mentioned would prohibit the Board from granting any street surface railroad company, other than the applicant or the Long Island Railroad, as lessee of the applicant, a franchise to operate a street surface railway on Atlantic avenue; and. Second — Whether the Board has the right co impose a condition in the franchise to the applicant company whereby the applicant will agree to permit any other compan) to which the F.oarr! may hereafter grant a franrhisc. to use the tracks of the Nassau Electric Railroad Coirpany upon terms to Vc agreed upon and whether the applicant company by acceptini? such a clause in the cont'act would waive any of the rights which =1 now has pursuant to the tripailite agreement of April 10, 188S. Un jer date of August 2, 1912, the Corporation Counsel replied thereto, and after reviewing briefly the facts, states : "This company, therefore, comes to yoiir Board like any other applicant, and you are free to grant or refuse its application, and in the event of tnaking a grant, to insert therein any and all conditions you may please, and in my opinion a condition whereby the company would permit the use of its tracks to any company receiving a franchise to operate thereon would be a proper exercise of the powers vested in you. By accepting a franchise with this condition the company would undoubtedly waive its claim to exclusive operation." With regard to the first question, the Corporation Counsel was under the impres- sion that no application has been made by any other company for the right to operate on Atlantic avenue, and states that he prefers to answer that question only after he has before him the facts with respect to the application of the second company. From this it is clearly within the powers of the Board to require this comnanv to accept the non-exclusiva feature of the franchise if the franchise is granted. This has been the universal practice in the granting of franchises to street surface railways in recent years and in franchises of all other types the special provision has been inserted requiring the company to waive its right to any exclusive grant in the street or territory affected by the franchise. The Corporation Counsel, however, was mistaken in his assurnption that no other application for a franchise had been made for the use of Atlantic avenue. Such an application was filed bv the Coney Island and Brooklyn Railroad Company under date of Alay 2. 1912. That company reauested the right to operate on Atlantic avenue from 4th avenue to Franklin avenue, all of which route is also covered in the applica- tion by the Nassau Company, with the exception of the one block between 4th and 5th avenues. It is particularly desirable to leave this thorouehfare onen for use by other comnanies. should the occasion for such use arise. The probable coming importance of this thorouehfare has already been pointed out. It is nractically an approach to the centre of the business section of the Borouch and to Flatbush avenue, which in turn is an approach to the Manhattan Bridge. Nevertheless, the company has stated that if this clause is inserted in the contract in its present form it will decline to accept the franchise. / am of the opinion the Board would be fully justified in deny- ing the franchise if the company declines to accept such a provision. Rate of Fare. The contract as now drawn provides that the maximum rate of fare shall be five cents, except where a fare in excess of five cents may be lawfully charged. The general Railroad Law provides for a maximum fare of five cents upon street surface railways within the limits of cities of the first class. The applicant company, how- ever, operates some of its lines over railways which were built by companies incor- porated as steam railroads, and they have been permitted by the ourts to charge a fare in excess of live cents upon lines operating over such railroads. As has already been stated, the proposed line will intersect some of the existing lines of the applicant company and also other lines controlled and operated by the same interests which control the applicant. The contract herewith and the statute both require the exchange of transfers between intersecting lines of the applicant company upon payment of a fare of five cents. In addition to the railways which are owned by the Nassau Company, there are lines of cars of the applicant operated upon intersecting railways owned by other companies. Transfers must be issued to passengers riding on these lines as well. The various lines to which transfer must be issued are: Rockaway avenue. Ralph avenue, Nostrand avenue, Vanderbilt avenue. Fifth avenue. Georgia avenue and Flatbush avenue. The president of the company has slated that it is the intention of the company to also e.vchange transfers between the proposed Atlantic afenue tine and the follow- ing lines not operated by the applicant company, but is unwilling to accept a franchise containing a provision requiring such interchange of transfers. These lines are: Utica and Troy avenues, operated by the Brooklyn, Queens County and Suburban Railroad Company; Kingston avenue. Nostrand avenue, Vanderbilt avenue and Flat- bush avenue, all operated by the Brooklyn Heights Railroad Company. Should the Board desire the Company to obligate itself to exchange transfers with the lines last mentioned, it will be necessary to amend the rate of fare clause as sub- mitted in the contract hereivith. Term of Grant. The term of grant proposed is from the date on which the contract is signed by the Mayor until July 29, 1927. with the privilege of a renewal of twenty-five years, the latter date being fixed as the date of the termination of the renewal term of the franchise formerly granted to the applicant Company on Livingston street, in the Bor- ough of Brooklyn. It has been the custom to fix the term of grant to expire on the same date as other franchises granted to the same company, in order that the question of renewal of all the rights, which are limited as to term, granted to the sam.e Company may be considered by the City at the same time. It is believed that such policy should be maintained, and is a more equitable arrangement, with respect to the renewals for both the City and the Company, than if each renewal be considered bv itself at different times in the future. The Company, however, objects to accepting the franchise unless the term is fixed at the maximum provided in the Charter, that is, twentv-five years, with a twenty-five-year renewal. That question has been left for the Board to de- termine. Motive Power. It is provided that the Company may operate by the overhead electric system sim- ilar to that used in other portions of the Borough of Brooklyn, and that all feeder wires, except trolley wires, shall be removed upon six months' notice to the Company. The Company asks that this latter provision be drawn so as not to appiv to cables which may be suspended from the elevated structure of the Long Island Railroad. I have consulted with the Department of Water Supplv in regard to this proposed change. It is the opinion of the Engineer in charge of the electrical conductors that such an exception has no place in a franchise, but that when the time comes for the order to be given for the removal of overhead wires, an exception could be made of those strung under the elevated structure should the conditions then sn warrant. With this opinion I entirely agree, and would therefore recommend that no change be made. Compensation and Security Fund. In the contract herewith, the percentages of gross rereipts required to be paid for the franchise are the minimum fixed by tli^ Railroad Law. that is. three per cent. for the first five years and five per cent, thereafter. The minimum annual payments as first computed were somewhat larger than appear in the contract, being based upon 10 the present earnings per mile of the existing system of the apphcant. Objection was made by the Company to these sums as being too large, and they have been reduced lo amounts which are acceptable to the Company; that is, for the tirst five years, $6,000 per annum, and during the remaining term, expiring July 29, 1927, $7,500. The Com- pany, however, as already stated, objects to anything less than the maximum term provided by the Charter, and offers minimum sums as follows : $7,500 for the second term of five years and for the remaining term of the twenty-five-year grant $10,000 per annum. The contract provides for an initial payment of $5,000, and for security de- posit to insure the faithful performance of the terms and conditions of the contract a sum of $10,000, both of which are acceptable to the Company. The Company asks that the Tax Clause be eliminated. The Board is so familiar with the efTect of the elimination of this clause that no discussion in relation to the same need appear here. If it is eliminated, it makes little difference what percentages of the gross receipts or minimum annual payments are fixed by the contract, for the reason that they will all he deducted from the Special Franchise Tax so long as Section 48 of the Tax Law remains in force. Forfeiture Clause. This clause as has been used in all franchises for a number of years provides for a forfeiture of the franchise upon failure to comply with the provisions thereof. Such forfeiture to take place either upon suit brought by the Corporation Counsel or by resolution of the Board. It was provided that if forfeiture took place by resolu- tion of the Board, the property in the streets should become the City's property with- out cost as a penalty. The Company asks that this be amended by providing instead of the property becoming the property of the City that the Company may remove the tracks within sixty days and upon failure to so remove, the property should become the City's. In all probability the expense of removing the tracks and replacing the street pavement would equal or exceed the value of the material removed and the tearing up of the street would result in an inconvenience to the public, and there would, therefore, appear to be little gained by the Company by the amendment pro- posed by it. In view of the fact that this clause is the same as has heretofore been used in all franchises for street railways granted by the Board in recent years, it is submitted that sufficient reasons are not given to warrant any change. From the foregoing, it will be seen that this Bureau has been unable to arrive at any agreement with the Company on several clauses of the proposed grant. Confer- ences were held with representatives of the Company with a view to reaching such an agreement, and some concessions were made for that purpose. It now appears, from the statements made by Mr. Henry A. Bullock, representing the Company, that no franchise will be accepted unless the same is an exclusive grant or should the grant contain a clause which requires the Company to waive the provisions of Section 48 of the Tax Law. In consequence, some of the amendments which I offered to recommend, with a view to having an accceptance of the complete grant, and which amendments were in the nature of a compromise, I am unwilling to recommend now, and will leave the same for the Franchise Committee of the Board to consider. i?riefly summarized, the objections of the Company to the franchise as now drawn are as follows : Section 2. Second — Company asks for full term of twenty-five years, with renewal, instead of until January 29, 1927, with renewal. Section 2. Third — The Company wants fax clause eliminated and asks that com- pensation be fixed for a full twenty-five years. Section 2, Fifth — Non-exclusive clause. Company wants eliminated. Section 2, Twelfth — Company asks amendment so that it will not he required to put the feeder wires underground which may be attached to the elevated structure of the Long Island Railroad. Section 2. Twenty-eighth — The Company asks that this clause be amended so that in case of forfeiture of right bv the Board it mav remove its tracks within sixty days, and upon failing to so remove the tracks, they shall become the property of the City. The proposed form of contract attached has been drawn to show both what is proposed by this Bureau and the amendments proposed by the Company. In other words, the Bureau's proposition is shown by plain faced type, and the amendments proposed by the Company are shown in italics. Since the preliminary statutory hearing has been held upon this application and an agreement as to all the clauses has not been reached, I recommend that the matter be referred to the Franchise Committee for a determination of the points in dispute. Respectfully. H.-\RRY P. XICHOLS. Engineer. Chief of Bureau. 11 Synopsis of Pkovisio.ss of Contract. Section 1. Grant. Section Z. Conditions of grant. First — Consent of property owners. Second — Term of grant. Third — Compensation to City; compensation not to be considered a tax. Kourth — Annual charges to be maintained throughout term of grant. l'"ifth — Right not exclusive. Sixth — Rights not to be assigned. Seventh — When rights cease property in streets to become City's. Eighth — Commencement and completion of construction. Ninth — Railway to be constructed and operated in latest approved manner. Tenth — Construction and operation to be under the control of City authorities; permission to construct to be obtained. Eleventh — Motive power. Twelfth — Wires to be placed underground upon six months' notice; company to furnish two ducts for use of City. Thirteenth — Rate of fare. Fourteenth — No freight cars to be operated. Fifteenth — Fenders or wheelguards to be provided. Sixteenth — Cars to be heated. Seventeenth — Cars to be lighted. Eighteenth— Headway of cars. Nineteenth — Snow and ice to be removed. Twentieth — Company may elect to maintain central curbs and conditions aflfecting same. Twenty-first — Company to widen the roadway at turnouts around the structures nf the Long Island Railroad Company to conform with resolution of the Board. Twenty-second — Company to pave and keep in repair the street for two feet outside of track and maintain curbs and surface surrounded by same in centre of .Atlantic avenue, as directed by President, Borough of Brooklyn. Twenty-third— Expense of alteration to sewers or drainage systems to be borne by company. Twenty-fourth — Construction and operation not to interfere with any public work. Twenty-fifth — Company to change railway if lines or grades of streets are changed. Twenty-sixth — .Annual report to the Board. Twenty-seventh — Company to keep accurate books of account and report to Comptroller. Twcntj'-eighth — City may sue for forfeiture. Twenty-ninth — Fine for ineflficicnt public service. Thirtieth — Companv to assume all liability of damages. Thirty-first — Security deposit. Thirty-second — Definition of words "notice" and "direction." Thirty-third — Definition of words "streets" and "avenues." Thirty-fourth — If authority of Board or other officer is transferred, then such other board or officer shall act for City. Section 3. Companv agrees to discontinue the use of existing tracks between Fort Greene place (Fifth avenue) and Washington avenue. Section 4. Contract not to be construed as limiting jurisdiction of Public Service Commission. Section 5. Provisions of Railroad Law to be complied with. Section fi. Company agrees tn abide by all terms and conditions. 12 Nassau Electric Kailroaii Company. Proposed Form of Contract. Note — Italics indicate substitutes requested by Company. I'rackcls nuiicatc portion Company ri-qutsls to bavc eliminated. '1 his contract, made this day of , 1912, by and be- tween Tlie City of New York (hereinafter called the City), party of the tirst part, by the Mayor of said City, acting for and in the name of said City, under and in pur- suance of the authority of the Board of Estimate and Apportionment of said City (hereinafter called the Hoard), and The Nassau Electric Railroad Company (herein- after called the Company), party of the second part, witnesseih : In consideration of the mutual covenants and agreements herein contained, the parties hereto do herehy covenant and agree as follows : Section 1. The City hereby grants to the Company, subject to the conditions and provisions hereinafter set forth, the right and privilege to construct, maintain and operate a double-track street surface railway as an extension to its existing system with the necessary wires and equipment, for the purpose of conveying persons and property in the Borough of Brooklyn, in 'I he City of Ne\y York, upon the following route, to wit ; Beginning at and connecting with the existing tracks of the Company in Atlantic avenue at or near Sth avenue ; thence in and upon Atlantic avenue to a point at or near Shepherd avenue. And to cross such other streets and avenues, named and unnamed, as may be encountered in said route. The said route with turnouts, switches and crossovers hereby authorized is sliown upon a map entitled : "Nassau Electric R. R. Co. Map showing proposed extension in the route of the Nassau Electric R. R. Co. on Atlantic Ave. in the Borough of Brooklyn, City of New York, to accompany the petition to the Board of Estimate and Appor- tionment. Dated January 29, 1912," — and approved by N. F. Brady, President, and C. L. Crabbs, Engineer Way and Structure, a copy of which is attached hereto, is to be deemed a part of this contract, is to be construed with the text thereof, and is to be substantially followed, provided that deviations therefrom and additional turnouts, switches and crossovers which are consistent with the foregoing description, and the other provisions of this contract may be permitted by resolution of the Board. Section 2. The grant of this privilege is subject to the following conditions, which shall be complied with by the Company: F'irst — The consent in writing of the owners of half in value of the properly bounded on said streets and avenues to the construction and operation of said railway shall be obtained by the Company within six (6) months from the signing of this contract by the Mayor, and a copy of such consents shall be filed with the Hoard within such time, or in the event that such consents cannot be obtained within such time, the Company shall within said six (6) months or within one (1) month thereafter, make application to the Appellate Division of the Supreme Court for the appointment of Commissioners in the manner provided by the Railroad Law to determine if said rail- way ought to be constructed; otherwise this grant shall cease and determine. Second — The said right to construct, maintain and operate said railway shall be held and enjoyed by the Company from the date upon which this contract is signed by the Mayor until July 29, 1927, with the privilege of renewal of said contract for tiie further period of twenty-five (25) years, upon a fair revaluation of such right and privilege. Second — The said right to construct, inainlaiii and operate said railway shall be held and enjoyed by the Conifany from the date upon uhich the contract is signed by the Mayor until July 29, l937, ti'i//i the prifiletjc of renctcal of said contract for the further period of tuenty-fiic (25) years, upon a fair valuation of such right and privilege. If the Company shall determine to exercise its privilege of renewal it shall make application to the Board, or any authority which shall be authorized by law lo act for the City in place of the Board. Such application shall be made at anv time not earlier than two (2) years and not later than one (1) year before the expiration of the original term of this contract. The determination of the revaluation shall be sufficient if agreed to in writing by the Company and the Board, but in no case shall the annual rate of compensation to the City be fixed at a less amount ihnn the sum required to be paid during the last year prior to the termination of the original term of this contract. If the Company and the Board shall not reach such agreement on or before the day one (1) year before the expiration of the original term of this contract, then the 13 annual rate of compensation for such succeeding twenty-five (25) years shall be rea- sonable, and either the City (by the Board) or the Company shall be bound upon request of the other to enter into a written agreement with each other fixing the rate of such compensation at such amount as shall be reasonable, but in no case shall the annual rate so tixed be less than the sum required to be paid for the last year prior to the termination of the original term of this contract, and if the parties shall not forthwith agree upon what is reasonable, then the parties shall enter into a written agreement fixing such annual rate and at such amount as shall be determined by three disinterested freeholders selected in the following manner : One disinterested freeholder shall be chosen by the Board; one disinterested free- holder shall be chosen by the Company ; these two shall choose a third disinterested freeholder, and the three so chosen shall act as appraisers and shall make the revalua- tion aforesaid. Such appraisers shall be chosen at least six (6) months prior to the expiration of this original contract, and their report shall be filed with the Board within three (3) months after they are chosen. 'Ihcy shall act as appraisers and not as arbitrators. They may base their judgment upon their own experience and upon such information as they may obtain by inquiries and investigations, without the pres- ence of either party. They shall have the right to examine any of the books of the Company and its officers under oath. The valuations so ascertained, fixed and deter- mined shall be conclusive upon both parties, but no annual sum shall, in any event, be less than the sum required to be paid for the last year of the original term of this contract. If in any case the annual rate shall not be fixed prior to the termination of the original term of this contract, then the Company shall pay the annual rate theretofore prevailing until the new rate shall be determined, and shall then make up to the City the amount of any excess of the annual rate then determined over the previous annual rate. The compensation and expenses of the said appraisers shall be borne jointly by the City and the Company, each paying one-half thereof. Third— The Company shall pay to the City for the privilege hereby granted the following sums of money: (a) The sum of five thousand dollars ($5,000) in cash within three (3) months after the date on which this contract is signed by the Mayor, and before anything is done in exercise of the privilege granted. (b) During the first term of five (5) years an annual sum which shall in no case be less than six thousand dollars ($6,000) and which shall be equal to three (3) per cent, of its gross annual receipts if such percentage shall exceed the sum of six thousand dollars ($6,000). During the remainder of the term expiring July 29, 1927, an annual sum which shall in no case be less than seven thousand five hundred dollars ($7,500) and which shall be equal to five (5) per cent, of its gross annual receipts, if such percentage shall exceed the sum of seven thousand five hundred dollars ($7,500). During the second term, exfiring July 29. 1937. an annual sum -u-liich shall in no case be less than sez'en thousand fire hundred dolla>s ($7,500) and ivhicli shall be equal to five (5) I'er cent, of its gross annual receipts if such ('ercenlayc shall exceed the sum of seven thousand five hundred dollars ($7,500). During the remaining term of fifteen years an annual sum uhich shall in no case be less than ten thousand dollars ($10,000) and which shall be equal to five (5) per cent, of its gross annual receipts if such percentage shall exceed the sum of ten thou- sand dollars ($10,000). The gross annual receipts mentioned above shall be that portion of the gross receipts of the Company as shall bear the same proportion to its whole gross receipts as the length of the extension hereby authorized shall bear to the entire length of the railway of the Company in operation within the limits of the City. The annual charges shall commence from the date upon which this contract is signed by the Mayor. All annual charges as above shall be paid into the treasury of the City on No- vember 1 of each year and shall be for the amount due to September 30 next pre- ceding. Provided that the first annual payment shall be only for that proportion of the first annual charge as the time between the date upon which this contract is signed by the Mayor and September 30 following shall bear to the whole of one year. Whenever the percentage required to be paid shall exceed the minimum amount as above, then such sum over and above such minimum shall be paid on or before November 1 in each year for the year ending September 30 next preceding. The annual charges herein provided are intended to include the percentages of gross receipts now required to be paid by railway companies to the City pursuant to the Railroad Law as amended. fAny and all payments to be made by the terms of this contract to the City by the Company shall not be considered in any manner in the nature of a tax. but such 14 payments shall be made in addition to anj and all taxes of whatsoever kind or de- scription, now or hereafter required to be paid by any ordinance of the City, or resolu- tion of the Hoard, or any law of the State of New Viirk.3 Fourth — The annual charges or payments shall continue throughout the whole term of this contract (whether original or renewal), notwithstanding any clause in any statute or in the charter of any other railway or railroad company providing for payment for railway or railroad rights or franchises at a different rate, and no assignment, lease or sublease of the rights or privileges hereby granted (whether original or renewal), or of any part thereof, or of any of the routes mentioned herein, or of any part thereof, shall be valid or effectual lor any purpose unless the said assignment, lease or sublease shall contain a covenant on the part of the assignee or lessee that the same is subject to all the conditions of this contract, and that the assignee or lessee assumes and will be bound by all of said conditions, and especially said conditions as to payments, anything in any statute or in the charter of such assignee or lessee to the contrary notwithstanding, and that the said assignee or lessee waives any more favorable conditions created by such statute or its charter, and that it will not claim by reason thereof or otherwise exemption from liability to perform each and all of the conditions of this contract. Cl'ifth — N'othini; in this contract shall lie tkcnicd to affect in any way the right of the City to grant to any other corporation or to any individual a similar right or privilege upon the same or other terms and conditions over the route hereinbefore described, and the Company shall not at any time oppose, but shall consent to the construction and operation of any street surface railway by any such other corpora- tion or individual which may receive a franchise therefor from the City, and which may necessitate the use of any portion of the railway which shall be constructed or operated by the Company pursuant to this contract. Should the City at any time during the term of this contract, grant to any other corporation or to any individual the right or privilege to operate a railway upon the tracks of the Company on the route herein described or any portion thereof, then the City shall, within thirty (30) days thereafter, give notice to the Company that such right has been granted and of the name of the corporation or individual to which such right has been granted. , At the expiration of ninety (90) days after the giving of such notice, such indi- vidual or corporation shall have the right to begin the operation of cars upon the tracks of the Company upon the route or any portion thereof over which such cor- poration or individual may receive a right or privilege, and to use therefor the tracks, equipment, power and all other property of the Company which shall be necessary in the operation of the cars of such individual or corporation upon the tracks of the Company, and shall have the right to continue such operation and use of such prop- erty during the term of this contract. Such corporation or individual shall pay to the Company for the right to use such tracks, equipment, power and other property above described, such sum or sums as may be agreed upon in writing by such cor- poration or individual and the Company within said ninety (90) days, or in the event that such agreement cannot be reached within said ninety (90) days, such sum or sums as shall be determined in the manner hereinafter provided for. If the Company and such corporation or individual cannot, prior to the expira- tion of said ninety (90) days agree upon the compensation for the use of such tracks, then such compensation shall be lixed by three arbitrators selected in the following manner ; One fit and impartial person shall be chosen by the Company ; one fit and impartial person shall be chosen by such corporation or individual, and the two so chosen shall choose a third fit and impartial person. The decision under oath of any two of said persons who shall be so selected shall be final and conclusive. The compensation and expenses of the persons selected as arbitrators in the deter- mination of such sum or sums shall be borne by the individual or corporation to which such right may be granted. Within thirty (30) days after an agreement shall have been reached between said parties, or in case said agreement cannot be reached before the time specified herein, then within thirty (30) days after the determination of the arbitrators, as herein pro- vided, should two of such arbitrators agree, the said parties shall file a duplicate copv of a written agreement with the Board which shall specify the sum or sums which shall have been agreed to by the said parties or determined by said arbitrators as the sum or sums which such corporations or individual shall pay to the Compaiiy for said privilege. If the Company fails to file the same with the Board within said thirty (30) days, then the right granted under this contract shall cease and deter- mine. IS If either party fails to appoint an arbitrator, as herein provided, or should the first two arbitrators fail to agree on the selection of a third arbitrator within thirty (30) days after the expiration of said ninety (90) days, or if no two of said arbi- trators so selected agree upon the sum or sums to be paid by such individual or cor- poration within sixty (60) days after they shall have been so selected, then such sum nr sums shall be fixed by the Supreme Court upon the application of either party.J Sixth — The rights and privileges hereby granted shall not be assigned, either in whole or in part, or leased or sublet in any manner, nor shall the title thereto, or right, interest or property therein, pass to or vest in any other person or corporation whatsoever, either by the act of the Company, or by operation of law, whether under the provisions of the statutes relating to the consolidation or merger of corporations or otherwise, without the consent of the City, acting by the Board, evidenced by an instrument under seal, anything herein contained to the contrary thereof in any wise notwithstanding, and the granting, giving or waiving of any one or more of such consents shall not render unnecessary any subsequent consent or consents. Seventh — Upon the termination of this original contract, or if the same be re- newed, then at the termination of the said renewal term, or upon the termination of the rights hereby granted for any cause, or upon the dissolution of the Company before such termination, the tracks and equipments of the Company constructed pur- suant to this contract within the streets and avenues shall become the property of the City without cost, and the same may be used or disposed of by the City for any purpose whatsoever, or the same may be leased to any company or individual. If, however, at the termination of this contract as above, the Board shall so order by resolution, the company shall, upon thirty (30) days' notice from the Board, re- move any and all of its tracks and other equipment constructed pursuant to this con- tract and the said streets and avenues shall be restored to their original condition at the sole cost and expense of the Company. Eighth — The Company shall commence construction of the railway herein author- ized within six (6) months from the date upon which the consents of the property owners are tiled with the Board or from the date of the order of the Appellate Di- vision of the Supreme Court made pursuant to section 174 of the Railroad Law con- .Hrming the determination of the Commissioners appointed thereunder, that such rail- way ought to be constructed and shall complete the construction and place the same in full operation within twelve (12) months from the date of filing such consents or the date of such order: otherwise this right shall cease and determine, and all sums paid, or which may be deposited with the Comptroller of the City, as hereinafter pro- vided, shall thereupon be forfeited to the City ; provided that the period for com- mencement and the period for completion and placing the railway in full operation may be e.xtended by the Board, but the total extension of time for either of such periods shall not exceed in the aggregate six (6) months ; and provided, further, that when the commencement or completion of said construction shall be prevented by legal proceedings in any court or by works of public improvement, or from other causes not within control of the Company, the time for the commencement or com- pletion of such construction may be extended for the period of such prevention, but no delay shall be allowed for unless the court proceedings shall be diligently prose- cuted by the Company, and provided, further, that in no case shall such delay be deemed to begin until the Company shall have given written notice to the Board of any such court proceedings or other occasion of delay, and deliver to the Board copies of any injunction or other orders, and the papers upon which the same shall have been granted, and unless upon the request of the Board the Company shall, in writing, con- sent that the Board ei'hcr in its own name as a party, or in the name of the City as a party, may intervene in any such proceedings. Ninth — Said railway shall be constructed and operated in the latest approved man- ner of street railway construction and operation, and it is hereby agreed that the Board m.ay .-equire the Company to improve or add to the railway equipment, including rolling stock and railway appurtenances, from time to time, as such additions and im- provements are necessary, in the opinion of the Board. Upon failure on the part of the Company to comply with the direction of the Board within a reasonable time, the rights herebv granted shall cease and determine. Tenth — Said railw.->.y shall he constructed, maintained and operated subject to the supervisir^n and control of all the authorities of the City who have jurisdiction in such matters, as provided by the Charter of the City. No construction upon said railwav shall be commenced until written permits have been obtained from the proper City officials. In any permits so issued such officials may also impose such conditions, as_ a con- flition of the granting of the same, as are necessary for the purpose of protecting any 16 structures, in the streets and avenues, over which such utTicials have jurisdiction and the Company shall c( mply with such conditions. The electrical equipment to be installed by the Company for the operation of the railway withm the limits of the City, whether the same be upon streets and avenues or upon private property, shall be constructed and maintained under the supervision and control of the Commissioner of Water Supply, Gas and Electricity. Eleventh — Said railway may be operated by overhead electric power substantially .'.imilar to the overhead electric system now in use by street surface railways in the IJorough of Brooklyn or by any other motive power, except locomotive steam power (ir horse powxr. which may be approved by the Hoard, and consented to by the abut- ting property owners, in accordance with the provisions of law, and by the Public '-ervice Commission for the First District of the State of New York. Twelfth — Upon si.x (6) months' notice by the Board to the Company, all wires for the tran.-mission of power, except trolley wires and except feeder wires attached lo the overhead structure of the railroad ouiicd by the Xassau Electric Railroad Com- pany and operated by the Long Island Railroad Company, for the o|ieralion of the rail- way, upon all or any portion of the route hereby authorized, shall be placed in conduits beneath or alongside of the railway. The Company shall provide in such conduits :wo (2) ducts not less than three (3) inches in diameter for the exclusive use of the City. Such ducts shall be used only by the Company for the operation of its railway and by the City, as above. Thirteenth — The rate of fare for any passenger upon said railway shall not exceed five (5) cents. The Company shall not charge any passenger more than five (5) cents for one continuous ride from any point on its road or on any road, line or branch operated by it or under its control to any other point thereof, or any connect- ing branch thereof within the limits of the City unless a rate of fare in excess of live (5) cents may be lawfully charged therefor. The Company shall carry free upon the railway hereby authorized during the term of this contract all members of the Police and Fire Departments of the City, when such employees are in full uniform. Fourteenth — No cars shall be operated upon the railway hereby authorized, other than passenger cars, cars for the transportation of express matter, mail matter and cars necessary for the repair or maintenance of the railway, and no freight cars shall be operated upon the tracks of said railway. Fifteenth — The Company shall attach to each car run over the said railway proper fenders or wheel guards, in conformity with such laws and ordinances as are now in force, or may hereafter, during the term of this contract, be enacted or adopted by the State or City authorities, or as may be required by resolution of the Board. Sixteenth — .Ml cars which are operated on said railway shall be heated during the cold wcnthor. in conformity with such laws and ordinances as arc now in force, or may hereafter, during the term of this contract, be enacted or adopted by the State or City authorities, or as miy be required by resolution of the Board. Seventeenth — All cars operated on said railway shall be well lighted by electricity, or by some lighting system equally efficient, or as may be required by resolution of the Board. Eighteenth — Cars on the said railway shall run at intervals of not more than thirty (30) minutes both day and night, and as much oftener as reasonable con- venience of the public may require, or as may be directed by the Board. Nineteenth — The Company shall at all times keep the streets and avenues upon which the said railway is constructed, between its tracks, the rails of its tracks and for a distance of two (2) feet beyond the rails, on either side thereof, free and clear from ice and snow ; provided, however, that the Company shall, at the option of the Commissioner of Street Cleaning, enter into an agreement for each winter season or nart thereof, to clean an equivalent amount of street surface from house-line to house-line. Twentieth— The Company, if it so elects, within thirty (30) days after this con- tract is signed by the Mayor, may. during the pleasure of the Board, occupy for the niirposc of its rnilwav herein authorized, except as hereinafter provided, portions of Atlantic avenue as follows: (a) From the easterly side of 5th avenue to the westerlv side of Bedford ave- nue, a strip appro.\imately twenty-six (26) feet in width centering in the centre of said Atlantic avenue ; (b) From the easterly side of Nostrand avenue to the westerly side of Ralph avenue, a strip aporoximafely twenty-eight (28) feet in width centering in the center of the said .Atlautic avenue: (c) From the easterly side of Dewev place to the westerlv side of Eastern nark- wav, a strip approxirwitely twenty-six f2fi) feet in width centering in the center of said .•\t1anttc avftiue; 17 (d) From the easterly side of Alabama avenue to a point at or near Shepard avenue, a stiip approximately thirty-two (32) feet in width centering in the center of said Atlantic avenue. The Company may, within the above described limits, construct raised curbs separating the adjacent roadways of said Atlantic avenue from the space thus occu- pied by the railway herein authorized, except where streets intersect or connect with said Atlantic avenue on either side thereof, at which intersections and connections openings through such curbed space shall be provided and maintained as roadway area, the extent of such roadway area to be determined by the President of the Bor- ough of Brooklyn. If the Company so elects to construct the curbs as above, then it shall also at its own expense furnish all the material and do all the work necessary to (a) Construct curbs adjacent to the said roadway areas at points where streets intersect and connect with said Atlantic avenue, thus providing raised curbs surround- ing all spaces thus occupied by the railway not used as a roadway ; (b) Remove the curbs which now exist on Atlantic avenue separating the space in the center from the roadways thereof, the position of which does not conform to the position of the curbs necessary to form the curbed areas which may be occupied by the railway as herein described. (c) Pave with such pavement as may be prescribed by the President of the Borough of Brooklyn the areas added to the existing railway by the removal of said curbs and the construction of curbs above described, all of which work shall be done within six (6) months from the date on which this contract is signed by the Mayor, provided that such period may be extended by the Board. If the Company does not so elect to construct curbs separating such areas from the roadwavs of said Atlantic avenue, as herein permitted, or fails within the time herein provided to do all the v.ork required of it in the event that it does so elect to construct said curbs, then it shall, at its own expense, furnish all the material and do all the work necessary to (a) Remove all existing curbs in the central portion of Atlantic avenue, and (b) Pave the entire portion of the roadway of Atlantic avenue not now paved, between the easterly side of Sth avenue and a point at or near Shepard avenue, under the supervision of the President of the Borough of Brooklj'n, and in such manner as he may prescribe; such work to be done within nine (9) months from the date on which this contract is signed by the Mayor. In case the Company fails to do such work within such time, said President may furnish the material and do such work, all at the expense of the Company. It is hereby agreed that the right to maintain such raised curbs, or any portion of the same, may at any time during the existence of this contract be revoked by resolution of the Board. Upon the adoption of such resolution by the Board, the Company shall discontinue the maintenance of such curbs for which the right shall have been revoked by said resolution, and shall within six (6) months thereafter re- move such curbs and pave the space theretofore surrounded by curbs in accordance with the specifications and under the supervision of the President of the Borough of Brooklyn. Thereafter the Company shall keep in permanent repair that portion of the surface of Atlantic avenue which lies between its tracks, the rails of its tracks and for a distance of two (2) feet beyond the rails on' cither side thereof, under the super- vision of the President of the'Borough of Brooklyn, and in such manner as he may prescribe and upon the provisions hereinafter provided for the repair and maintenance of pavement. . Twenty-first— The Company shall at its own expense furnish all material for and do all work necessary to change the position of the existing curb adjacent to the side- walk and widen and install additional pavement in the roadways of .\tlantic avenue, in order to conform to any resolution of the Board adopted either before or after the execution of this contract, changing the width of roadways and sidewalks from those now existing, for the purpose of providing an adequate roadway capacity in the fol- lowing portion of said avenue : . , cr r (a) From the westerly line of Bedford avenue to a point approximately titty feet easterly from the ea.sterly line of Nostrand avenue; (b) From a point approximately one hundred feet westerly from the wester y line of Ralph avenue to a point approximately fifty feet easterly from the easterly side of Dewey place; , .. . (c) From the easterly line of Eastern parkway to the westerly line of Alabama avenue, and such work shall be completed in one year from the passage of such resolution. . , „ , • i. l -c All work done or material furnished hereunder shall conform with the specitica- tions for the same provided by the President of the Borough of Brooklyn. In case 18 the Company fails to do such work within such time, said President may furnish the material and do the work, all at the expense of the Company. Twenty-second. .As long as said railway, ur any portion thereof, remains in said Atlantic avenue the Company shall (a) Pave and keep in permanent repair that portion of the surface of said Atlantic avenue which shall be used as a roadway between its tracks, the rails of its tracks and for a distance of two (2) feet beyond the rails on either side thereof; (b) Provide a suitable surface and maintain the same, whether pavement or other- wise, upon tlie entire curbed area herein permitted if such curbs are constructed, and (c) Maintain the curbs which may surround said curbed areas, all of which work shall be done in accordance with the specilications of and under the supervision of the President of the Borough of Brooklyn and whenever reipiired by him to do so, and in such manner as he may prescribe. In case of the neglect of the Company to make, maintain or repair such pavement, provide, maintain or repair the surface of such curbed areas or to maintain or repair such curbs after the expiration of twenty (20) days' notice to do so from the Presi- dent of the HorouRh of Brooklyn, said President may furnish the material and do such work, all at the expense of the Company, and the City shall have the right to change the material or character of the pavement of said Atlantic avenue or of the surface of said curbed areas of said curbs surrounding said curbed areas, or any portion of the same, and in that event the Company shall be bound to replace such pavement, such surface within such curbed area and such curbs in the manner directed by the President of the Borough of Brooklyn, at its own expense, and the provisions as to repairs herein contained shall apply to such renewed or altered pavement, sur- face or curbs. Twenty-third— Any alteration to the sewerage or drainage systems, or to any other subsurface or to any surface structures in the streets, required on account of the construction or operation of the railway, shall be made at the sole cost of the Company, and in such manner as the jiropcr City officials may prescribe. Twenty-fourth — It is agreed that the right hereby granted to operate a street surface railway shall not be in preference or in hindrance to public work of the City, and, should the said railway in any way interfere with the construction of pub- lic works in the streets and avenues, whether the same is done by the City directly or by a contractor for the City the Company shall, at its own expense, protect or move the tracks and appurtenances in the manner directed by the City officials having jurisdiction over such public work. Twenty-fifth— Should the grades or lines of the streets and avenues in which the railway is hereby authorized be changed at any time after the railway has been constructed and during the term of this contract, the Company shall, at its own expense, change its tracks and appurtenances to conform with such new grades and lines, and during the construction of any public improvement upon said streets and avenues, the Company shall take care of and protect the tracks and appurtenances at its own expense, all to be done subject to the direction of the City official having jurisdiction over the construction of such change. Twenty-sixth — The Company shall submit to the Board a report, not later than November 1 of each year, for the year ending September 30, next preceding, and at any other time, upon request of the Board, which shall state : 1. The amount of stock issued, for cash, for property. 2. The amount paid in as by last report. 3. The total amount of capital stock paid in. 4. The funded debt by last report. 5. The total amount of funded debt. 6. The floating debt as by last report. 7. The total amount of floating debt. 8. The total amount of funded and floating debt. 9. The average rate per annum of interest on funded debt. 10. Statement of dividends paid during the year. 11. The total amount expended for same. 12. The names of the directors elected at the last meeting of the corporation held for such purpose. 13. Location, value and amount paid for real estate owned by the Company as by last report. 14. Location, value and amount paid for real estate now owned by the Com- pa"y- ... 15. Number of passengers earned durmg the year. 16. Total receipts of Company for each class of business. 19 17. Amounts paid by the Company for damage to persons or property on account of construction and operation. 18. Total e-xpenses for operation, including salaries. — and such other information in regard to the business of the Company as may be required by the Board. Twenty-seventh — The Company shall at all times keep accurate books of account of the gross receipts from all sources within the limits of the City, and shall, on or before November 1 of each year, make a verilied report to the Comptroller of the City of the business done by the Company, for the year ending September 30, next preceding, in such form as he may prescribe. Such report shall contain a statement of such gross receipts, the total miles in operation within the limits of the City, and the miles of railway constructed and operated under this contract, and such other information as the Comptroller may require. The Comptroller shall have access to all books of the Company for the purpose of ascertaining the correctness of its report, and may examine its officers under oath. Twenty-eighth—In case of any violation or breach or failure to comply with any of the provisions herein contained, or with any orders of the Board acting under the powers herein reserved, the franchise or consent herein granted may be forfeited by a suit brought by the Corporation Counsel on notice of ten (10 J days to the Company, or at the option of the Board, by resolution of said Board, which said resolution may contain a provision to the effect that the railway constructed and in use by virtue of this contract shall be removed by and at lite expense of the Com- pany ivilhxn sixty (60) days after the adoption of such resolution, and, if the Com- pany shall fail to so remove such railivay. then such railway shall thereupon become the property of the City without proceedings at law or in equity. Provided, how- ever, that such action by the Board shall not be taken until the Board shall give notice to the Company to appear before it on a certain day, not less than ten (10) days after the date of such notice, to show cause why such resolution declaring the contract forfeited should not be adopted. In case the Company fails to appear, action may be taken by the Board forthwith. Twenty-ninth — If the Company shall fail to give efficient public service at the rates herein fixed, or fail to maintain its structures and equipment as herein pro- vided in good condition throughout the whole term of this contract, the Board may give notice to the Company, specifying any default on the part of the Company, and requiring the Company to remedy the same within a reasonable time: and, upon the failure of the Company to remedy such default within a reasonable time, the Company shall, for each day thereafter during which the default or defect re- mains, pay to the City the sum of two hundred and fifty dollars ($250). as fixed or liquidated damages, or the Board, in case such structures or equipment which may affect the surface of the streets shall not be put in good condition within a reasonable time after notice by the Board, as aforesaid, shall have the right to make all needed repairs at the expense of the Company, in which case the Com- pany shall pay to the City the amount of the cost of such repairs, with legal interest thereon, all of which sums may he deducted from the fund hereinafter provided for. Thirtieth — The Company shall assume all liabilities to persons or property by reason of the construction or operation of the railway authorized by this contract, and it is a condition of this contract that the City shall assume no liability wdiatso- ever to either persons or property on account of the same, and the Company hereby agrees to repay to the City any damage which the City shall be compelled to pay by reason of any acts or default of the Company. Thirty-first — This grant is upon the express condition that the Company, within thirty (30) days after the signing of this contract by the Mayor, and before any- thing is done in exercise of the rights conferred hereby, shall deposit with the Comp- troller of the City the sum of ten thousand dollars ($10,000), either in money or securities, to be approved by him. which fund shall be security for the performance by the Company of all of the terms and conditions of this contract and compliance with all orders of the Board, acting under the powers herein reserved, especially those which relate to the payment of the annual charges for the privilege hereby granted, the rendering of efficient public service at the rates herein fixed, the repairs of the street pavement, the removal of snow and ice. the quality of con- struction of the railway and the maintenance of the property in good condition throughout the whole term of this contract, and. in case of default in the perform- ance by the Company of such terms and conditions, or compliance with such orders or cither or any of them, the City shall have the right to cause the work to be done and the materials to be furnished for the performance thereof, after due notice, and shall collect the reasonable cost thereof from the said fund without legal proceed- 20 ings; or, after default in the payment of the annual charges, shall collect the same, with interest, from the said fund after ten ( 10) days' notice to the Company ; or, in case of failure to observe the said terms and conditions of this contract and orders of the Board, acting hereunder, relating to the headway, heating and light- ing of cars, fenders, wheelguards and watering of street pavements, the Company shall pay a penalty of lifty dollars ($50) per day for each day of violation, and the further sum ot ten dollars ($10) per day for each car that shall not be properly heated, lighted or supplied with fenders or wheelguards, in case of a violation of the provisions relating to those matters, all of which sums may be deducted from said fund. The procedure for the imposition and collection of the penalties in this con- tract shall be as follows : The Board, on complaint made, shall give notice to the Company, directing its president, or other officer, to appear before the Board on a certain day, not less than ten (10) days after the date of such notice, to show cause w'hy the Company should not be penalized in accordance with the foregoing provisions. If the Com- pany fails to make an appearance, or, after a hearing, appears in the judgment of the Board to be in fault, said Board shall forthwith impose the prescribed penalty, or, where the amount of the penalty is not prescribed herein, such amount as appears to the Board to be just, and without legal procedure, direct the Comptroller to with- draw the amount of such penalty from the security fund deposited with him. In case of any drafts made upon the security fund, the Company shall, upon ten (10) days' notice, pay to the City a sum sufficient to restore said security fund to the original amount of ten thousand dollars ($10,000), and, in default thereof, this contract shall be cancelled and annulled at the option of the Board, acting in behalf of the City. No action or proceeding or right under the provisions of this con- tract shall affect any other legal rights, remedies or causes of action belonging to the City. Thirty-second — The words "notice" or "direction," wherever used in this con- tract, shall be deemed to mean a \vritten notice or direction. Every such notice or direction to be served upon the Company shall be delivered at such office in the City as shall have been designated by the Company, or, if no such otfice shall have been designated, or, if such designation shall have for any reason become inopera- tive, shall be mailed in the City, postage prepaid, addressed to the Company at the City. iJelivery or mailing of such notice or direction as and when above provided shall be equivalent to direct personal notice or direction, and shall be deemed to have been given at the time of delivery or mailing. Thirty-third — The words "streets or avenues" and "streets and avenues" wherever used in this contract shall be deemed to mean "streets, avenut-s, highways, parkways, driveways, concourses, boulevards, bridges, viaducts, tunnels, public places or any other property to which the City has title or over which the public has an easement." encountered in the route hereinabove described, and upon or in which authority is hereby given to the Company to construct a railway. Thirty-fourth — If at any time the powers of the Board or any other of the author- ities herein mentioned or intended to be mentioned, shall be transferred by law to any other board, authority, officer or officers, then and in such case such other board, authority, officer or officers, shall h'ave all the powers, rights and duties herein re- served to or prescribed for the Board or other authorities, officer or officers. Section 3. The Company hereby agrees to discontinue the use of the existing tracks of the Company on the southerly side of Atlantic avenue, between Fort Greene place and Washington avenue, during the term of this contract, and remove the same within thirty (30) days after the portion of the railway hereby authorized be- tween said Fort Greene place and Washington avenue shall be put in operation, but nothing in this contract shall be construed as affecting in any way the franchise to operate upon the southerly side of .\tlantic avenue, between said Fort Greene place and Washington avenue, owned by the Company and granted to the .\tlantic Avenue Railroad Company of Brooklyn by a resolution of the Common Council on Decem- ber 20, 1880. Section 4. Nothing in this contract shall be construed as in any way limiting the present or future jurisdiction of the Public Service Commission under the Laws of the State of New York. Section 5. This grant is also upon the further and express condition that thfi provisions of article 5 and other provisions of the Railroad Law, pertinent hereto, shall be strictly complied with by the Company. Section 6. The Company promises, covenants and agrees on its part and behalf to conform to and abide by and perform all the terms, conditions and requirements in this contract fixed and contained. 21 In Witness Whereof the party of the first part, by its Mayor, thereunto duly authorized by the Board of Estimate and Apportionment of said City, has caused the corporate name of said City to be hereunto signet! and the corporate seal of said City to be hereunto affixed; and the party of the second part, by its officers, there- unto duly authorized, has caused its corporate name to be hereunto signed and its corporate seal to be hereunto affixed, the day and year first above written. THE CITY OF NEW YORK, By Mayor. [corporate seal.] Attest: , City Clerk. THE NASSAU ELECTRIC RAILROAD COMPANY, By , President. [seal.] Attest : , Secretary. (Here add acknowledgments.) _ _£fif»sJ^^v8joc*ij*f^?erT;te^_ Ss:s^^s:^^m^s^^^s^M^ ^"^ * r Wn*s mHnn *w iifnfs * - * f^mfffttd * Ct^Her o' Jfrtw*. LUJL |AB* wJb?fta > Art»^fJWitw^ | . /•i^/V ^7- J.J iJJJUUULllU par i. /./f /9 Co OT 3frvcft/r e. L Iff ft Cm m Anw' '-::i PHI ir7 ii/Mii]^iijuuajyuyoLMi[iiiixi^ jITt-jiMT/C iTntiiinniTTiimrm ^\ £iat»M Atrjbc* HveAti /lof^Mvte^. i. / ><*^ li^ <)iff S/ru^i^^ . HASSAU £L£CT/9fC /?./?.C«. mrc -T *** 0et*0lif»^ •»* **