Proviso as to temporary rental Depreciation How organized 66 including such part or parts of the extensions and additional tracks "authorized by said certificates as may have been completed and may "be ready for operation. The earnings of such part or parts shall be "combined with those of the Existing Railroads and the revenue shall 'be distributed as provided in Articles XLIX, L, and LI, except that "the deductions provided for in paragraphs 7 and 9 of Article XLIX "shall be computed on the basis of the cost of construction and the "cost of equipment of such part or parts of the Railroad and such "part or parts of the plant and property of the extensions and ad"ditional tracks authorized by said certificates and such part or parts "of the Reconstruction of the Existing Railroads for Initial Opera"tion as are placed in operation and except further that any deficit "in the payments required to be made to the City instead of being "cumulative shall be added to the cost of construction of the Rail"road. "Provided, however, that if the term of the Lease shall not begin on the first day of January, 1917, as provided in Article XLVIII the "Lessee shall have the right upon giving thirty (30) days' notice in writing to the Commission to terminate the arrangement herein"before in this article provided in respect of temporary rental. In case of such notice being given the arrangement hereinbefore in this "article provided for in respect of temporary rental shall on the "expiration of such thirty (30) days cease and the City shall there"after receive as compensation for the use of such part or parts of “the Railroad and such part or parts of the said extensions and ad"ditional tracks as shall have been declared completed and ready for operation under the provisions of this article either a specified sum of money or a specified part or proportion of income, earnings or "profits of such part or parts of the Railroad and such part or parts "of the said extensions and additional tracks or both a sum of money "and a part or proportion of the income, earnings or profits of said "part or parts of the Railroad and such part or parts of the said "extensions and aditional tracks as shall be agreed upon by the Com"mission (with the approval of the Board of Estimate) and the "Lessee or if the Commission (with such approval) and the Lessee are unable to agree thereon within thirty (30) days after such "notice takes effect as hereinbefore provided such compensation shall "be determined by arbitration or by the court. "ARTICLE LIII. The funds provided for in paragraphs 5 and 11 "of Article XLIX and the depreciation funds provided for in para'graph 1 of Article LXX shall be in the charge of and under the con"trol and direction of a Board to be known as the Depreciation Fund "Board and to be organized and constituted as follows: Before the 'beginning of operation of any part of the Railroad the Commission "and the Lessee shall each name an individual to be a member of such "board. Within thirty (30) days thereafter the Commission and the "Lessee shall agree upon the third member of such board or in the "event of their failure to so agree within such time, the third member "upon the application either of the Commission or of the Lessee 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 "either the Commission or the Lessee to make such nomination, the "said Chief Judge shall decline or fail to make a nomination, then "the third member shall be nominated upon the request of the Com"mission or the Lessee and within a period of fifteen (15) days by "any Associate Judge of said Court of Appeals in the order of seniority. In the event of a vacancy in the office of any of the members of 66 66 the board the successor shall be chosen in the same manner as above Board "provided in case of the original nomination. Such Depreciation Duties of Fund Board shall administer the funds provided for in the para"graphs of Articles XLIX and LXX referred to and the members "thereof shall receive as compensation for their services such amount "and shall be appointed for such period as may from time to time be "agreed upon by the Commission and the Lessee and such amount "shall be included as part of the operating expenses referred to in "paragraph 3 of Article XLIX. The Lessee shall also pay and include "as part of such operating expenses the actual and necessary expenses "of such Depreciation Fund Board including clerical and office expenses. "ARTICLE LVII. In case of the termination of this contract sepa"rately as to any of the Lines of the Railroad (or of Extensions "which become part of the Railroad for purposes of rental as pro"vided in Article LXXII) and in case such terminations do not in"volve a readjustment of the rental as provided in Article LXXIX, "the deductions from revenue provided in Article XLIX shall continue "to be made as to the Line or Lines (or as to such Extensions) and "the Additions thereto, remaining after such termination, but the "deductions provided for in paragraphs 7, 8, 9, 10 and 11 of Article "XLIX shall then be made upon the basis of the cost of construction "and the cost of equipment remaining after apportioning such cost of "construction and cost of equipment between the several Lines of the "Railroad as provided in Article LXXV. Compensa tion and expenses In case terminations involve readjustments when to be made All payments to be made to the City under the provisions of this certifi- Paymentscate shall be made on or before the thirtieth days of January, April, July and October in each year during the term of the grant. Receipts and interest and accruals shall be pro-rated and if necessary adjusted in the payments for the quarter succeeding the quarter in which they are actually paid. Any other readjustment of payments or deductions that is necessary shall be made (for the whole of the year preceding) as of the end of the fiscal year. The amount payable to the City shall be paid to the Comptroller at the time specified in the last preceding paragraph and the Subway Company shall, if the compensation to be paid for the Railroads shall be a portion or percentage of income earnings or profits, deliver to the Commission and to the Comptroller at the time of each payment a statement in the form and with details to be prescribed by the Commission showing the receipts and disbursements of the Subway Company for the preceding quarter. To be made to Right of verification Readjustment of rentals Readjustments at intervals of 20 years How determined Such statement shall be verified under oath by the officer of the Subway Company having charge of the books and accounts of the Subway Company, or, in case of his absence or inability, then by its President or other chief officer or manager. The Comptroller and the Commission shall have the right to verify any of the said statements by an examination of the Subway Company's and any of the subcontractor's books, records and memoranda and the examination under oath of any of its officers or servants; and the Subway Company hereby covenants that it will require its officers and servants to submit to such examination and produce such books, records and memoranda whenever and wherever they may be required by the Commission or the Comptroller. In case the City shall terminate the Subway Contract as to the Broadway-Fourth Avenue Line, as therein described, in advance of terminating it as to the entire Subway Railroads, or in advance of terminating it as to either the Railroads or the extensions authorized by certificate bearing even date herewith, the rental of the Line or Lines or, Extensions of the Subway Railroads remaining after such termination and the Railroads and such extensions shall upon demand of either the Commission or the Subway Company by written notice delivered to the other at least six months in advance of the time, when under the notice provided for, the termination shall take effect, be readjusted. The amount of such rental for the remaining Line or Lines or Extensions of the Subway Railroads and for the Railroads and extensions shall be reasonable and if not agreed upon by the Commission, with the approval of the Board of Estimate, and the Subway Company, within three months from the date of the receipt of such notice requiring readjustment, the amount of the rental for the Line or Lines or Extensions of the Subway Railroads remaining after such termination takes effect and the rental for the Railroads and said extension shall be determined by arbitration or by the court. If such rental shall not be determined prior to the time when such termination takes effect the rental for the remaining Line or Lines or Extensions of the Subway Railroads and for the Railroads and said extensions pending such determination shall be one-half (%) of the amount remaining after making the deductions provided for in this Article from the revenue of the existing railroads, the remaining Line or Lines or Extensions of the Subway Railroads and the Railroads and said extensions. After the determination of the rental such temporary payments shall be adjusted to conform thereto with interest from the date when such termination takes effect. The amounts to be paid by the Subway Company as aforesaid shall be readjusted if and when the Subway Company shall cease to operate the Railroads and the Existing Railroads and the extensions to the Existing Railroads granted by certificate bearing even date herewith in conjunction with the Subway Railroads, and shall thereafter be readjusted at intervals of twenty years. The annual amounts to be paid by the Subway Company for each and every period of twenty years after the period herein provided for shall be determined as follows, to wit: Each such determination shall be had upon the application of either the Subway Company or the Commission. Such application shall be made at any time not earlier than two years and not later than one year before the expiration of each successive upon period. If the Subway Company and the Commission shall agree upon the compensation to be paid for the ensuing period, their determination shall be expressed in writing, and when approved by the Board of Estimate shall be binding upon both parties. If the Subway Company and the Commis- If not agreed sion shall not reach an agreement, or if the Board of Estimate shall not approve such agreement, on or before a date one year prior to the expiration of any period as to the compensation to be paid for the ensuing period, then the annual rate of compensation for such succeeding twenty years' period shall be reasonable; and the Commission and the Subway Company shall be bound, upon the request of either, to submit the determination of such rate of compensation to arbitration, or to the Court, as provided of Arbitration Article XIII hereof. If in any case the annual rate for a succeeding period shall not be fixed prior to the commencement of the said period, the Subway Company shall pay the same rental as for the preceding period until such time as the new rental shall be determined; and upon the determination of the new rental the difference between the old and the new rate shall be adjusted and paid between the parties. The City shall have a lien upon the authorizations or licenses hereby Lien of City granted and upon the plant and structure erected thereunder of the Sub way Company, to secure the payment of such compensation. failure In case of any failure to make such payment as herein prescribed, the In case of lien aforesaid may be enforced by the Commission by foreclosure or other proper proceeding and by sale of such authorizations or licenses and property. The Commission may, in its own name or in the name and behalf of the City, bring action for specific performance or by mandamus or injunction or otherwise compel the performance by the Subway Company of the duties and obligations imposed upon it under the terms of this certificate. And the Commission may, in behalf or in the name of the City, bring any action or proceeding to enforce the said lien of the City, or to enforce any provision of this certificate in the manner provided by Section 9 of the Rapid Transit Act or any other proper action or proceeding. ΧΙ Commission terminate authorizations years The authorizations or licenses hereby given for the Broadway additional City may tracks, Fulton Street additional tracks and Myrtle Avenue additional tracks are separate grants, and the City, acting by the Commission or by such other board or boards as may be thereunto empowered, may terminate any such authorization or license, and may purchase and take the plant and property as hereinbefore defined of any of the Railroads for which the authorization or license is so terminated at any time after the expiration after ten of ten years from the date when operation of any part of any of the Railroads for which the authorization or license is so terminated shall actually begin but not for railroad transit operation either by the City or by any other party, and the said privilege of the City to terminate any such authorization or license and to purchase and take the plant and property as aforesaid of any of the said railroads shall be without prejudice to the rights of the said Subway Company in and to the lines of its now existing elevated railroad or railroads. In case it is determined to so terminate One year's any or all of the authorizations or licenses hereby granted as herein before notice Condition of termination City shall pay For plant and property provided, at least one year's notice thereof in writing shall be given to the Subway Company. Such right of termination shall, however, be upon condition that the City shall pay an amount for said plant and property as property excluding any value for the authorization or license hereby granted, to be determined as follows: Upon termination as hereinbefore provided, of the authorization or license of any of the Railroads the City shall pay as to the same as follows: (1) For the plant and property thereof (other than additions as hereinbefore defined) the percentage of the actual cost of the plant and property (other than additions) indicated in the following schedule: |