Selection of trator by agreement By Chief Court of Judge of third arbi Appeals By Associate Judge By Presi dent of Chamber of Time for determination named by the party giving the first notice shall be the sole arbitrator. Upon the appointment of the second arbitrator the Commission and the Interborough Company shall thereupon select a third arbitrator; but if they fail to agree upon such third arbitrator within thirty (30) days after the date of the nomination of the second arbitrator nominated, the third arbitrator shall be nominated by the Chief Judge of the Court of Appeals of the State of New York; or if within fifteen (15) days after being requested by the Commission or the Interborough Company to make such nomination, the said Chief Judge shall decline or fail to make a nomination, then an arbitrator shall be named upon the request of the Commission or the Interborough Company within a period of fifteen (15) days by any Associate Judge of said Court of Appeals in the order of seniority; or, if within said period said judges shall decline or fail to make a nomination, then the third arbitrator shall be nominated by the President or Acting President for the time being of the Chamber of Commerce of the State of New York. The arbitrators shall hear the parties and their counsel or any statements or evidence which the parties or either of them desire to submit. Either party may upon two (2) days' notice to the other bring on the subject in dispute for hearing before the arbitrators. Within thirty days after such hearing commences, unless such time shall be extended for good cause by written order of the arbitrators or a majority of them, the arbitrators shall make their determination in writing in duplicate, one to be delivered to the Commission and the other to the Interborough Company. In case any vacancy shall at any time occur by reason of the death, In case of resignation or inability to serve of any arbitrator, his successor shall be nominated in the same manner and within the same times (during which times the other periods of time prescribed for in the course of the arbitration shall be suspended) as above provided for in the case of the original nomination of such arbitrator, and in case the successor arbitrator shall not be nominated within such times the remaining arbitrator or arbitrators shall be the sole arbitrator or arbitrators. Any determination by a majority of the arbitrators shall be final and conclusive. Every such Majority arbitrator shall be deemed to be employed both by the City and the Interborough Company. The fees and expenses of the arbitrators (including Fees and necessary expenses for stenographic and clerical services) and the expenses of the parties shall be assessed as the arbitrators consider equitable and as they direct in their award, but no assessments so made shall be charged to the actual cost of equipment, the actual cost of plant and structure or to operating expenses. Every such arbitrator shall, before proceeding to consider the matter, be sworn as near as may be in the same manner as referees in actions at law are required to be sworn. Provided, however, that if in any case, or for any reason an arbitration cannot validly be had as aforesaid, then the City or the Interborough Company, if in no way responsible for the failure of the arbitration, may bring such action, suit or proceeding as either of them may be advised for the purpose of determining any of the matters for which an arbitration is herein provided. XVII vacancy decides expenses In case arbitration cannot be had assign The authorizations or licenses hereby granted may be enjoyed, as well Conveyance, by the Interborough Company itself, as by any lessee, grantee, assignee, ment, etc. VOL. IV-5 Approval by Commission Consolidation or merger Approval by Commission Effect of change of ownership Proviso as to Certificate granting to Manhattan Railway Company right to construct additional tracks Operating contract Condition transferee or successor thereof; and the Interborough Company shall have the right to grant, convey, assign, transfer or mortgage the authorizations or licenses hereby granted, provided, however, that every grantee, assignee, or transferee thereof, not including, however, a mortgagee or mere lienor, but including any purchaser upon foreclosure of, or under or by virtue of any provision of any mortgage or lien, shall be a corporation subject to the laws of the State of New York, and shall, upon accepting the grant, transfer lease or assignment and before such grant, transfer lease or assignment shall be valid, assume and agree to perform all of the obligations which by the provisions hereof are assumed by the Interborough Company, and no such grant, conveyance, transfer lease or assignment and no mortgage hereafter made covering the authorizations or licenses hereby granted shall relieve the Interborough Company of its obligations hereunder or be valid unless the same shall have been approved by the Commission. And provided further that, in case the Interborough Company or any successor or future owner of any of the authorizations or licenses shall be consolidated with or merged into any other corporation the obligations of the Interborough Company or such successor or future owner hereunder shall remain unaffected and the authorizations or licenses shall pass to such new corporation only if the agreement or act of consolidation or merger (which shall not be valid or of any force or effect unless the same shall have been approved by the Commission) shall effectually provide that the new consolidated or merging corporation shall assume all such obligations, or if such act or agreement shall not so provide, then if and when such new consolidated or merging corporation shall in writing expressly assume such obligations - it being the express intention of this instru ment that no change in the incorporation of the Interborough Company or of any such successor or future owner or in the ownership or control of the authorizations or licenses hereby granted, or of any of them shall diminish or affect the obligations of the holder of the same. XVIII The Commission in view of this certificate and in conjunction therewith, has awarded or may award, subject to the approval of the Board of Estimate, (1) to the Manhattan Railway Company, being the lessor of the Interborough Company, a certificate of even date herewith authorizing additional tracks on Second Avenue, Third Avenue and Ninth Avenue, mainly in the Borough of Manhattan, City of New York, and (2) to the Interborough Company a contract under or in pursuance of which a rapid transit railroad may be in part constructed, and may be maintained and operated upon lines known respectively as Seventh Avenue-Lexington Avenue Line, Eastern Parkway Line, Steinway Tunnel Line and White Plains Road Line as in said contract described. and certain consents are or may be necessary to be procured under the terms of such certificate in order that the Manhattan Railway Company may have the right to construct, maintain and operate railroads therein described; It is now agreed, therefore, that if said certificate or contract shall not take effect or if the Manhattan Railway Company shall be released from such certificate through failure to procure any such consents then this certificate hereby granted shall become null and void and the rights given hereby to the Interborough Company and all of its obligations hereunder shall cease and determine. IN WITNESS WHEREOF, this certificate has been prepared by the Public Service Commission for the First District, and is now attested by its seal and by the signature of its chairman, who is its presiding officer, and by the signature of its secretary this 19th day of March, 1913. On this 19th day of March, 1913, in the City of New York, in said county, before me personally appeared Edward E. McCall and Travis H. Whitney, each to me known and known to me to be the said Edward E. McCall, the Chairman, and the said Travis H. Whitney, the Secretary of the Public Service Commission for the First District, and the said Edward E. McCall and Travis H. Whitney, being by me duly sworn did depose and say, each for himself and not one for the other, the said Edward E. McCall, that he resides in the Borough of Manhattan, in the said City; that he is the chairman of the said Commission, and that he subscribed his name to the foregoing certificate by virtue of the authority thereof; and the said Travis H. Whitney, that he resides in the Borough of Brooklyn, in the said City; that he is the Secretary of the said Commission, and that he subscribed his name thereto by like authority; and both the said Edward E. McCall and Travis H. Whitney that they know the seal of said Commission and that the same was affixed to the foregoing certificate by the authority of the said Commission and of a resolution duly adopted by the same. HOWARD A. BUTLER [Notarial Seal] The Interborough Rapid Transit Company hereby accepts the foregoing certificate and all the terms, conditions and requirements thereof. On the 19th day of March, 1913, in the City of New York, before me personally came Theodore P. Shonts and H. M. Fisher, to me known and known to me respectively to be the said Theodore P. Shonts, the President, and the said H. M. Fisher, the Secretary, of Interborough Rapid Transit Company, and being by me duly sworn, they did depose and say, each for himself and not one for the other, the said Theodore P. Shonts, that he resided in the Borough of Manhattan, City, County and State of New York, and is the President of the Interborough Rapid Transit Company, the corporation named in and which executed the foregoing acceptance, and that he subscribed his name to the foregoing acceptance by the authority of the Board of Directors thereof; and the said H. M. Fisher, that he resided in Plainfield, in the State of New Jersey; that he is Secretary of the said Interborough Rapid Transit Company and subscribed his name to the foregoing acceptance by like authority, and both the said Theodore P. Shonts and the said H. M. Fisher, that they knew the seal of the said Interborough Rapid Transit Company; that the seal affixed to such acceptance was such seal, and that the same was affixed to the foregoing acceptance by authority of the Board of Directors of the said Interborough Rapid Transit Company and pursuant to a resolution adopted by the said Board. HOWARD A. BUTLER [Notarial Seal] New York County |