7 ^ GIF': . ^ APR 94 'Sie ^oc^ STP No. 64. Board of Estimate and Apportionment OFFICE OF CHI£F CNGINCCR n Report by the DIVISION OF FRANCHISES ■"upon the application -ef-tire MERCHANTS' REFRIGERATING COMPANY for a franchise to construct, maintain and operate conduits for refrigeration purposes in certain districts in the Borough of Manhattan, with suggestions as to the proposed form of contract. JUNE 25, 1910 Rir 1947 MARTIN f\. r\R(WN •IEW'v\TOR» 1 Board of Estimate and Apportionment Division of Franchises, June 25, 1910, Mr. Nelson P. Lewis, Chief Engineer: Sir— Under date of December 23, 1909, the Merchants' Refrigerating Company, with offices at Nos. 161 and 163 Chambers street, in the Borough of Manhattan, ad- dressed a communication to the Board to the effect that the Company had just been apprised of the fact that a final public hearing was pending on the application of the Harrison Street Cold Storage Company for a franchise to construct, maintain and operate conduits for the purpose of distributing refrigeration to consumers. The communication staled tb.it as the Merchants' Company was and had for several years been operating a similar bu.sincss within several of the streets included within the districts covered by the proposed grant to the Harrison Street Company, it, the Merchants' Company, submitted that if the franchise applied for be granted to the Harrison Street Company that it be granted without prejudice to the rights of the Merchants' Company, and that it intended to make application forthwith for a franchise to authorize the continued maintenance of the pipes which it bad already constructed. This communication was presented to the Board at its meeting of January 21, 1910, and with it a report of this Division calling attention to the fact that that the Merchants' Company had no rights whatever to use the streets for the purpose of main- taining pipes, and further, that the City was not precluded by the franchise of the Harrison Street Company (which had meanwhile been granted) from making furtlu-r grants of a similar nature within the districts covered by that franchise. It was recommended that the Board adopt a resolution directing the Merchants' Company to present a petition requesting a franchise on or before January 31. This resolution was adopted as recommended, and the Company, under date of January 27, presented its petition for a franchise in the following streets in the Borough of Man- hattan : Warren street, between West Broadway and Greenwich street; Chambers street, between Hudson street and Greenwich street; Readc street, between Hudson and Greenwich streets; Grtenwich street, between Reade and Jay streets; Duane street, between Greenwich and Washington streets; Washington street, between Duane street and Jay street; Jay street, between Greenwich and West streets; North Moore street, between Varick anil lliuNon streets, and in such further territory as might be agreed upon. This petition was presented to tlic linard at its meeting of February 4, 1910. on which tlate the matter was referred to the Chief Engineer for investigation and report Under date of July 10, 1905, this Company had made a previous application for a franchise to construct and maintain a conduit for refrigeration purposes in Green- wich and Warren streets from its premises at No. 291 Greenwich street to No. 104 VV'arren street and No. 271 Washington street. This apphcation was presented to the Board at its meeting of July 14, 1905, and the preliminary hearing set for September 29. 1905, on wliich date tlie matter was referred to the Comptroller for investigation and report, and also to the President of the Borougli of Manhattan. Subsequently the matter was taken up by the Bureau of Franchises of the Comp- troller's oflFice. and the Company was requested to furnish certain information for the purpose of making a report. This information was never received from the Com- pany, and negotiations were discontinued. No report was ever made either by the Comptroller or the President of the Borough of Manhattan. On February 4, 1910, the present Board adopted a resolution withdrawing nil petitions which had been referred to Select Committees by the former Board, nnd rc ferring the same to the Division of Franchises for reconsideration and report ; among them was the petition of the Merchants' Company, last above named, and on February IS, this Division presented a report to the Board recommending in view of the later action of the Merchants' Company in presenting the petition of January 27, 1910, that the application presented July 14, 1905, be denied, thus clearing the record and allowing of the matter being considered as a whole under the later petition. A resolution to this effect was adopted. History of the Company. The Merchants' Refrigerating Company was incorporated under the Business Cor- porations Law by articles filed May 21, 1894, for the purpose of "Manufacture of ice, the cooling of air by mechanical apparatus and mechanical process and the pre- servation and care of perishable and other merchandise as well as all business inci- dental thereto or connected therewith." Its capital stock was fixed at $300,000. and the term of existence fifty years. The Company has two plants, one at Nos. 142}^ and 144 Reade street and the other at Nos, 35 and il North Moore street, and besides distributing refrigeration also maintains several storage warehouses in the vicinity of its plants. It maintains at present about nine hundred feet of conduit in the streets of a diameter varying from six to twelve inches enclosing pipes of a diameter varying from two to six inches. These pipes were constructed by boring or driving underground during the period be- tween 1892 and 1909. The conduits are of wrought iron, as are also the pipes therein contained, and the latter are capable of a maximum pressure of two hundred and fifty to three hundred pounds per square inch, while the actual pressure to which they arc subjected while in use is only about sixty pounds per square inch. These pipes are 5 used for the purpose of distributing cooled brine which is circulated in coils located in the refrigerating boxes of the various concerns needing such accessories in their business, such as produce, butter and egg merchants, etc. The rate charged by the company for such service varies according to the size of the box and the season of the year. The operations of the company at present are principally in the vicinity of its two plants. Several conferences have been held with representatives of the company, and it has been stated that it is the desire of the latter to obtain a franchise in the two districts surrounding the plants as follows: District Xo. 1. Bounded on the north by the centre line of Beach street, on the west by the centre line of Hudson street, on the south by the centre line of Franklin street and on the east by the centre line of Varick street. District No. 2. Bounded on the north by the centre line of Harrison street, between Greenwich and Washington streets; on the west by an irregular line formed by the centre lines of Washington street and Jay street, the westerly line of West street, the centre lines of Duanc street, Washington street, Warren street and Green- wich street; on the south by the centre lin^.- of Murray street, b::tween Greenwich street and West Broadway, and on the east by an irregular line formed by the centre line of West Broadway, the centre line of Hudson street, the centre line of Duane street prolonged in a straight line to Hudson street and the centre line of Greenwich street, with the further privilege of extending either of the aforesaid districts within the limits of a larger district bounded as follows : District No. 3. Bounded on the north by the centre line of Hubert street, on the west by the westerly line of West street, on the south by the centre line of Murray street, on the cast by an irregular line formed by the centre lines of West Broadway, Varick street.* Beach street and Hudson street. A similar provision allowing for extensions was included in thi. grant to the Harrison Street Company, and seems to be desirable in grants of this kind, by reason of the clause in the contract requiring the companies to ■furnish service to all appli- cants located within the district for which the franchise is granted. It would be physically impossible for the companies to do this in the larger district, on account of the limitations of their plants, and the additional privilege allowing for extensions from time to time permits the companies to follow the trend of the produce district, the location of which is changing, and, while it cannot be definitely fixed, will probably be within the lines of the larger district The companies are thus relieved of the necessity of applying for further fran- chises when desiring to add to their districts and arc saved the attending expense of advertising, which is considerable. Conditions of the Prol>oscd Griini. Previous grants of a similar nature to the one now proposed have been made to the Seaboard Refrigeration Company, the Kings County Refrigerating Company and the Harrison Street Cold Storage Company, and the provisions of the present grant follow closely those of the former grants. These conditions, briefly stated, are as fol'cws: The company to be granted the rij;ht to construct and maintain its conduits within the two smaller districts described in the contract as No. 1 and No. 2, with the right to e.xtcnd either district within the lines of the larger district known as district No. 3 upon written .application tc tlic I'.oard. The duration of the contract not to exceed iVftien years, with the privilege of a renewal for a further term of ten years on a revaluation. The rights granted to be subject to all right, title and interest which the abuttin;^ property owners may have in the streets. The grant not to be exclusive. All work of construction to be under the supervision of the President of the Borough of Manhattan and the Commissioner of Water Supply, Gas and Electricity and to be done in such a manner as these officials niay prescribe. The company to bear the cost of construction, as well as any expense incurred by the City in altering any of its subsurface structures on account of the company's conduits in the streets. The cdiuluits arc not lo interfere with the prosecution of any public work, and if found to do so shall be relocated at the company's expense. The pipes within the conduits to be tested before or after Ix'ins l.iid, under the direction of the Commissioner of Water Supply, Gas and Kleetricity. If the test be made at the foundry the maximum pressure lo which they shall be subjected is three hundred pounds per square inch; if in the field ready for use, the maximum pressure to be two hundred pounds per square incli. These maximums were sug- gested by the Commissioner of Water Supply, Gas and Electricity, to whom the matter was submitted. The company shall be required to extend its system to the premises of any applicants located within citlier of the smaller districts and furnish refrigeration thereto. If either of the.se districts be extended, the same obligation to attach to the additional territory. On account of the impracticability of pumping the brine above the first floor of buildings located at a distance from the company's plants, this com- pulsory service has been restricted to the first or ground floor. The schediilc of rales which the company may charge for service is as follows: Consumers making mnnlbly contracts, four cents per month per cubic foot for I)Oxes of not over 500 cubic feci : two cents per month piT cubic foot for boxes of 500 to 1,500 cubic feet, and one cent per month per cubic fnot for boxes of 1,500 cubic feet and over. Consumers making yearly contracts, fifteen cents per year per cubic foot of box. Coiitpensation. It is suggested that the compensation for the proposed grant be fixed as follows: Initial payment, $2,000. Annual payments : During the first five years, two per cent, of the gross receipts, which shall not be less than $800. During the second five year.^, three per cent, of the gross receipts, which shall not be less than $1,200. During the third five years, '.hrcc per cent, of the gross receipts, which shall not be less than $1,500. Twenty-five cents per linear foot of conduit and two dollars for each manhole constructed within the limits of the streets. The payment, within thirty days from the date on which this contract is signed l)y the Mayor, of the sum of $2,500. which is due the City by reason of the past use and occupation of the streets. This compensation is such as tlie company, through its representatives, has declared •tself willing to pay. A proposed form of contract, containing a'.I the aforesaid terms and conditions, was, on June 10, submitted to the company. Under date of June 13 a communication was received from the latter, containing its approval thereof. .\ copy of the contract wa? also submitted to the Corporation Counsel, and, under date of June IS, a communication was received from him approving the same as to form. The proposed form of contract is attached hereto. .Should the Board desire to grant the franchise. I would recommend that it tenta- 'ively approve the form of contract, direct that the same be .spread upon the minutes for thirty days, and fix Friday. September 16, 191(1, as a date for the final hearing. anil ro(|uest the Mayor to designate two daily papers in which the contract and notice of the hearing shall be published. Respectfully, HARRY r. N'ICIIOLS, Engineer in Charge. Synopsis of Provisions of Contract. ivttiuii I. Grant of franchise; boundaries of districts. Sec. 2. First — Term of grant with customary provisions for renewal. Second — Compensation to City. N'ot to he ccnsidcreJ in the nature of a tax. Third — .-\nnua'. charges to be maintained throughout term of contract or renewal. Fourth — Rights not exclusive. Fiftli — Rights not to be assigned without consent of City. Sixth — When rights cease, all construction in streets .to become properly of City, or City may order Company to remove same. Seventh — Grant subject to rights of abutting property owners. Eighth — Construction to be done under terms and conditions to be imposed by President of Borough of ^fanhattan and Commissioner of Water Supply, Gas and Electricity. Ninth — Expense of alterations to sewerage or drainage system to be borne by the Company. Tenth — Construction and operation not to interfere with anv public work. Eleventh — Company to keep pavement in repair for one year after replacement. Twelfth — Expense of construction and inspection to be borne by Company. Thirteenth — Company to make a' test of pipes when required. Fourteenth — Schedule of rates to be cliarged consumers. Fifteenth — Company to furnish refrigeration to applicants. Sixteenth — Company to furnish to the Board, annually, a map showing con- struction. Seventeenth — Conduits to be used only by the Company i-.nd for refrigeration purposes. Eighteenth — Conipapy to submit annual report to Roard. Nineteenth — Company to keep accurate books of account and submit annual report to Comptroller. Twentieth — City may sue for forfeiture of contract. Twenty-first — Penalty for inefficient public service. Twenty-second — Company to assume all liability for damages. Twenty-third — Security deposit. Penalty for non-compliance with terms of con- tract. Procedure for collection of penalties. Twenty-fourth — Definition of words "notice" and "direction." Twenty-fifth — Definition of words "streets" and "avenues." Twenty-sixth — If powers of Board or other authorities named in contract are transferred to other Board or authorities, then the latter to act for City. Sec. 3. Covenant on part of Company to comply with contract lO MERCHANTS' REFRIGERATING COMPANY. PROPOSED FORM OF CONTRACT. This contract, made this day of , 19 , l)y and between The City of New York (hereinafter called the City), party of the first part, by the Mayor of said City, acting for and in the name of said City, under and in pursuance of the authority of the Board of Estimate and Apportionment of said City (.hereinafter called the Board), and the Merchants' Refrigerating Conlpany (hereinafter called the Com- pany), party of the second part, witnesseth : In consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby 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 certain conduits with the necessary branches and extensions therefrom, lead- ing directly into private property, for the sole purpose of supplying refrigeration to consumers, provided that no conduit be of a greater outside diameter than twelve (12) inches, including insulation or other covering ; the same to be constructed and operated only beneath the surface of such of the streets, avenues and highways situate within the Borough of Manhattan, City of New York, as are included within the districts bounded and described as follows: District Number 1. Bounded on the north by the centre line of Beach street ; on the west by the centre line of Hudson street; on the south by the centre line of Franklin street, and on the east by the centre line of Varick street. District Number 2. Bounded on the north by the centre line of Harrison street, between Greenwich and Washington streets; on the west by an irregular line formed by the centre lines of Washington street and Jay street, the westerly line of West street and the centre lines of Duane street, Washington street, Warren street and (Jreenwich street ; on the south by the centre line of Murray street, between Greenwich street and West Broad- way, and on the east by an irregular line formed by the centre line of West Broad- way, the centre line of Hudson street, the centre line of Duane street, prolonged in a straight line to the centre line of Hudson street, and the centre line of Greenwich street. II Provided, however, that upon written application to the Board by the Company, the Board may, by resolution, extend the lines of either of the districts hereinabove de- scribed to all or any part of a district bounded and described as follows: District Number 3. Bounded on the north by the centre line of Hubert street ; on the west by the westerly line of West street ; on the south by the centre line of Murray street ; on the east by an irregular line formed by the centre lines of West Broadway, Franklin street, Varick street. Beach street and Hudson street. All of which districts being more particularly shown— Districts Numbers 1 and 2 by full red lines, and District Number 3 by dashed red lines — on a map entitled "Map showing districts applied for by the Merchants' Refrigerating Com- pany to accompany petition dated January 27, 1910, to the Board of Estimate and Apportionment, City of New York." — signed by Frank A. Home, Secretary, a copy of which is hereto annexed and made a part of this contract. Should either of the districts known as District Number 1 and District Number 2 be extended, as hereinbefore provided, then the terms and conditiotis of this contract shall apply to such extended districts. Sec. 2. The grant of this privilege is subject to the following conditions, which shall be complied with by the Company: First— The ,said right to construct, maintain and operate said conduits shall be held and enjoyed by the Company for the term of fifteen (IS) years from the date upon which this contract is signed by the Mayor, with the privilege of renewal of said contract for the further period of ten (10) years, upon a fair revaluation 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 to act for the City in place of the Board. Such application shall be made at any 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 than 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 annual rate of compensation for such succeeding ten (10) years shall be reasonable 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 com- 12 pensation at such amount as shall be reasonable, but in no case shall the annual rate so fixed be less than the sum required to be paid for the last year prior to the termina- tion 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 erf this original contract, and their report shall be filed with the Board within three (3) months after they are chosen. They 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 presence of cither party. They shall have the right to examine any of the books of the Company and its officers under oath. The valua- tion so ascertained, fixed and determined 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 this original 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. Second— The Company shall pay to the City for the privilege hereby granted the following sums of money : (a) The sum of two thousand dollars ($2,000) in cash within one (I) month after the date on which this contract is signed by the Mayor, and before anything is done in exercise of the privilege hereby granted. (b) During the first term of five years, an annual sum whicli shall in no case be less than eight hundred dollars ($800). and which shall be equal to two (2) per cent, of its gross annual receipts, if such percentage shall exceed the sum of eight hundred dollars ($800). Ehiring the second term of five years, an amiual sum which shall in no case be less than twelve hundred dollars ($1,200). and which shall be equal to three (3) per cent, of its gross annual receipts, if such percentage shall exceed the sum of twelve hundred dollars ($1,200). During the third term of five years, an annual sum which shall in no case be less than fifteen hundred dollars ($1,500), and which shall be equal to three (3) per cent. 13 of its gross annual receipts if such percentage shall exceed the sum of fifteen hundred dollars ($1,500). The gross receipts mentioned above shall be the total receipts ■from all business of furnishing refrigeration to consumers. (c) An annual paj'ment of twenty-five cents ($0.25) for each linear foot of conduit constructed within the limits of any street, avenue or highway, excepting, how- ever, such conduits as are constructed within the vault space or vault spaces of any building or buildings used or occupied exclusively by the Company •for the purpose^ of its "business. An annual payment of two dollars ^$2) for each manliole constructed within the limits of any street, avenue or highway The annual charges shall commence from ihe 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 Feb- ruary 1 of each year and shall be for the amount due to December 31 next preceding. 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 December 31 following shall bear to the whole of one year. Whenever the percentage required to be paid shall exeee 1 the minimum amount as above, then such sum over and above such mii'inunn shall lie paid on or before February 1 in each year for the year ending December 31 next preceding. (d) Before any rights hereby conferred are exercised by the Company and within one (1) month from the date on which this contract is signed by the Mayor, the Company shall pay to the City the sum of two thousand five hundred dollars ($2,500) ; said amount being due the City by reason of the unauthorized occupation of the streets by the Company or its predecessors. Any 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 payments shall be made in addition to any and all taxes of whatsoever kind or description, now or hereafter required to be paid by any ordinance of the City, or resolution of the Board, or any law of the State of New York. Third — ^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 company providing for payments for re- frigerating rights or franchises at a different rate, and no assigrunent, lease or sub- lease of the rights or privileges hereby granted (whether original or renewal), or of any part thereof, or of any of the streets and avenues mentioned herein, or of any part thereof, shall be valid or effectual for any purpose unless the said assign- ment, lease or sublease shall contain a covenant on the part of the assignee or lessee that the same is subject to all conditions of this contract; and that the assignee or 14 lessee assumes and will be bound by all of said conditions, and especially said con- ditions 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. Fourth — Nothing in this contract shall be deemed to affect in any way the right of the City to grant to any individual, firm or other corporation a similar right or privi- lege upon the same or other terms and conditions, over ihc same streets and avenues, or within the districts hereinbefore described. Fifth — The rights and privileges herc^by granted shall not be assigned, either in whole or in part, or leased or sublet in any manner, nur 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 anywise notwithstanding, and the granting, giving or waiving of any one or more of such con- sents shall not render unnecessary any subsequent consent or consents. Sixth— Upon the termination of this original contract, or if the same be renewed, 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 conduits and appurtenances 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 pur- pose 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, remove any and all of its conduits and appurtenances constructed pursuant to thii contract and the said streets and avenues shall be restored to their original condition at the sole cost and expense of the Company. Seventh— The grant of this privilege is subject to whatever right, title or in- terest the owners of abutting property or others may have in and to the streets and avenues in which the Company is hereby authorized to operate. Eighth— All construction which shall be made under this grant shall be done in a manner solely upon the terms and conditions hereafter to be imposed by the Presi- dent of the Borough of Manhattan and the Commissioner of Water Supply, Gas and Ellectricity, or their respective successors in authority. The said Company shall submit a working plan of construction to the said President and to the said Com- missioner, which shall include and show in detail the method of construction of said conduit line, connections, manholes and other appurtenances, and the mode of pro- IS tection of all subsurfaces construction under the streets and avenues in which the Company is hereby authorized to operate. Ninth — Any alteration to the sewerage or drainage system, or to any other sub- surface or to any surface structures in the streets, required on account of the con- struction or operation of the conduits of the Company, shall be made at the sole cost of the Company, and in such manner as the proper City officials may prescribe. Tenth— It is agreed that the right hereby granted shall not be in preference or in hindrance to public work of the City, and should the said conduits in any way interfere with the construction of public 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 conduits and appurtenances in the manner directed by the City officials having jurisdiction over such public work. Eleventh — The Company shall bear the expense of keeping in repair for one year after it has been replaced, all pavement which may at any time be removed by said Company, either for the purpose of construction or for the repairing of the conduit line and its appurtenances. Twelfth — The Company shall bear the expense of inspection which may be re- quired by the President of the Borough of Manhattan and the Commissioner of Water Supply, Gas and Electricity, and of all work of construction. Thirteenth — The Company shall cause a test to be made of the pipes to be con- tained within the conduits hereby authorized whenever required by and under the supervision of the Commissioner of Water Supply, Gas and Electricity. The condi- tions of such test shall be as follows : (a) If the test be made in the foundry where the pipes are manufactured, such pipes shall be subjected to a pressure of three hundred (300) pounds per square inch. (lb) If the test be made in the field, of pipes in use or ready for use, such pipes shall be subjected to a pressure of two hundred (200) pounds per square inch. A certificate showing that such a test has been made without injury to the pipes shall be executed by an officer of the Company, and indorsed by the Commissioner of Water Supply, Gas and Electricity, and filed with the Board. Fourteenth — 'The Company shall not charge consumers more than the following rates : (a) Consumers making monthly contracts: Four (4) cents per month per cubic foot for boxes of not over 500 cubic feet; Two (2) cents per month per cubic foot for boxes of over 500 cubic feet, but less than 1,5(X) cubic feet ; One (1) cent per month per cubic foot for boxes of 1,500 cubic feet and over. i6 (b) Consumers making yearly contracts: Fifteen (IS) cents per year per cubic foot of box. These rates to apply to boxes located not above the first floor of any building. During the term of this contract the Board shall have absolute power to regulate the maximum rates, provided that such rates shall be reasonable and fair. Fifteenth— The Company, upon the application for refrigeration of any person, firm or corporation whose premises are located within Districts Numbers 1 and 2, or if such districts be extended as hereinbefore provided, then within such extended dis- tricts, shall extend its conduits to such premises and furnish to said applicant re- frigeration at the rates herein prescribed or at such rates as may be hereafter fixed by the Board as herein provided. The Company shall not be required, however, to furnish refrigeration to applicants whose premises are located above the first floor of any building. Sixteenth — A correct map shall be furnished to the Board by the Company on the first day of February, 1911, showing the exact location of all conduit lines and man- holes constructed, with reference to the street lines, the curb lines and the street sur- face, together with a statement of the total length of such conduit. On the same date of each succeeding year, during the term of this contract, a supplementary map shall be furnished the Board showing all conduits laid during the preceding year. Seventeenth — The conduit lines hereby authorized shall be used only by the Mer- chants Refrigerating Company, and for no other purpose than supplying refrigeration. Eighteenth — The Company shall submit a report to the Board not later than February 1, in each year, for the year ending December 31 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 hy 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. Number of feet of conduit now laid. 12. The total amount expended for same. 13. Amount, kind and capacity of machinery now in use and required for operation. 14. The total amount expended for same. 17 15. Quantity of refrigeration procliiced during the year and the average price re- ceived for same. 16. Quantity used in Company's own warehouses. 17. Quantity furnished to outside consumers. 18. Number and location of wareliouses occupied by the Company, exclusively oi in part, and the extent of such occupation by the Company. 19. Xumber of outside consumers supplied. 20. Amounts paid by Company for damages to persons or property on accuunc of construction and operation. 21. Total expenses of operation, including salaries. — and such other information in regard to the business of the Company as may be required by the Board. Nineteenth — The Company shall at all times keep accurate books of account of the gross earnings from the privileges granted under this contract, and on or before February 1 in each year shall make a verified report to the Comptroller of The City of NewT York of the business done by the Company for the year ending Deccrriber 31 next preceding, as he may prescribe. Such report shall contain the number of feet pf conduit laid and the number of manholes constructed during the year, and also a statement of the gross receipts from all business of furnishing refrigeration to con- sumers, together with such other information and in such detail as the Comptroller may require. The Comptroller shall have access to all books of the Company for the pur- pose of ascertaining the correctness of its report, and may examine its officers under oath. Twentieth — 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 days to the Company, or at the option of the Board by resolution of said Board, which said resolution may con- tain a provision to the effect that the conduits constructed and in use by virtue of this contract shall thereupon become the property of the City without proceedings at law or in equitj-. Provided, however, 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-first— If the Company shall fail to give efficient public service at the rates herein fixed, or fail to maintain its conduits and appurtenances as herein provided in good condition throughout the whole term of this contract, the Board may give notice i8 to the Company specifying any default on the part of the Company, and requiring the Company to remedy tlic same within a reasnnable time; and upon failure of the Company to remedy such default within a reasonable time, the Company shall, for each day thereafter during whicli the default or defect remains, pay to the City the sum of fifty dollars ($50) as fixed or li(|uidatcd damages, or the Board, in case such conduits or appurtenances which may affect the surface of the streets shall not be put in g(M)d condition within a reasnnable 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 Company shall pay to the City the amount of the cost of such repairs, with legal interest thereon, all of which sums may be deducted from the fund here- inafter provided for. Twenty-second — The Company shall assume all liability to persons or property by reason of the construction or operation of the conduits authorized by this contract, and it is a condition of this contract that the City shall assume no liability whatsoever 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. Twenty-third — ^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 anything is done in exercise of the rights conferred hereby, shall deposit with the Comptroller of the City the sum of three thousand dollars ($3,000), either in money or securities, to be approved by him, which fund shall be security for the performance by the Com- pany 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 and the maintenance of the property in good condition throughout the whole term of this contract, and in case of default in the performance by the Company of such terms and conditions, or compliance with such orders, or either 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 proceedings; 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 con- ditions of this contract, or its neglect or refusal tc comply with any notice or direction of the Board, or other municipal officials, given or made pursuant to the terms of the contract, or under the authority of any laws or ordinances now or hereafter in force in such case and in any of these events, the Company shall pay to the City a penalty of one hundred dollars ($100) for each violation, which sums may he deducted from said fund. '9 Tlic procedure for the imposition and collection of the penalties in lliis contract 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 tlie date of such notice, to show cause why the Company should not be penalized in accordance with the foregoing provisions. If the Company 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 withdraw 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 in writing, pay to the City a sum sufficient to restore said security fund to the original amount of three thousand dollars ($3,000), and in default thereof this contract shall be canceled and annulled at the option of the Board, acting in behalf of the City. N'o action or pro- ceeding or rights under the provisions of this contract shall affect any other legal rights, remedies or causes of action belonging to the City. Twenty-fourth — The words "notice" or "direction." wherever used in this contract, shall be deemed to mean a written notice or direction. Kvery 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 office shall have been designated, or if such designation shall have for any reason become inoperative, shall be mailed in the City, postage prepaid, addressed to the Company at the City. Delivery or mailing of such notice or direction as and when above provided shall be cqulvaletit to direct personal notice or direction, and shall be deemed to have been given at the time of delivery or mailing. Twenty-fifth — The words "streets or avenues" and "streets and avenues," wherever used in this contract, shall be deemed to mean "streets, avenues, highways, parkways, driveways, concourses, boulevards, bridges, viaducts, tunnels, public places or any other property to which the City has title or over which the publ-c has an easement." included in tlie districts hereinabove described, and under the surface of. or in which authority is hereby given to the Company to construct or maintain its conduits. Twenty-sixth— If at any time the powers of the Board or any other of the au- thorities herein mentioned or intended to be mentioned shall be transferred by law to any other Board, authority, officer or officers, then and in such cast such other Board, authority, officer or officers shall have all the powers, rights and duties herein reserved to or prescribed for the Board or other authorities, officer or officers. Sec. 3. 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. 20 In witness wlicrcof, the party of tlic first i):irl, by its Mayor, thereunto duly au- thorized by tlie Board of Estimate and Apportionment of said City, has caused the corporate name of said City to be licreunto signed and the corporate seal of said City to be hereunto affixed; and the party of tlie second part, by its officers, thereunto 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. Till-: CITY OF \KW VOKK. IcoRiKWATE SK.M..] I!y , Mayof. Attest: City Clerk. MI-:RCI1 WIS' R1I"KMr;i-,KA I l\(". rOMI'AXY. [sF..\L.] By , President. Attest : Secretary. (Here a