§ 46 — Franchise for private construction, maintenance and operation

§ 46. Franchise for private construction, maintenance and operation.\na. If or when the necessary consents have been obtained and the detailed\nplans and specifications have been prepared by the board of\ntransportation for a railroad, such board, with the approval of the\nboard of estimate and the mayor, may grant a franchise to construct,\nmaintain and operate such a railroad. The board of transportation shall\nhave power to prescribe all such terms and conditions of such grant and\nto require such security to be given and filed for the keeping and\nperformance of such terms and conditions as it may deem to be for the\ninterest of the public and of the city and may provide that in\nconnection with the construction of such railroad by the grantee at its\nown expense any galleries, ways, subways or tunnels for sub-surface\nstructures which may be included in any such plans shall be also\nconstructed by the grantee at the public expense, and in such case the\nsum to be paid therefor shall be separately stated and the amount\nappropriated and paid out of the funds hereafter authorized to be\nprovided in case of such construction, and such board may provide\nseparately for the maintenance, supervision, care and operation thereof\nas authorized by the provisions of section forty of this chapter.\n b. The grant shall provide that such railroad shall be constructed by\nand at the expense of the grantee under the direction and supervision of\nthe board of transportation and in accordance with such detailed plans\nand specifications; that the construction shall be begun within a time\nto be specified and shall be finished within a specified time\nthereafter; and that operation of such railroad shall be begun within a\nspecified time, and may fix the time within which portions of such\nrailroad shall be begun and finished and put in operation, and may\nprovide that such board may extend the time of beginning, of completion\nand of operation of such railroad or portion thereof, and that if the\ngrantee shall fail to begin or to finish the construction or begin the\noperation of such road or portion thereof at or within any time so\nfixed, or shall fail to comply with any of the terms or conditions of\nsuch grant, a penalty specified, or the grant and any construction\npursuant thereto, may be forfeited to the city.\n c. Such grant shall contain a reservation to the city of the privilege\nupon giving a specified notice to terminate such franchise and to\npurchase and take the plant and property of the grantee suitable to and\nused for the purpose of such railroad at any time after the expiration\nof ten years from the date when operation of any part of such railroad\nshall begin upon paying an amount for such plant and property as\nproperty, excluding any value for the franchise, which amount shall not\nexceed actual cost of such plant and property, plus fifteen per centum\nthereof, and shall decrease under provisions of the grant as the\nfranchise continues so that at the end of the full term of the grant no\namount shall be paid except for equipment as hereinafter provided. The\ngrant shall provide a method of ascertaining the amount to be paid for\nsuch plant and property upon termination by the city of such franchise\nand for the equipment of such railroad at the end of the full term of\nthe grant. The grant may provide for determining from time to time, in\ndefault of agreement, by arbitration or by the court, a valuation of\nsuch plant and property, or any part or portion thereof, for any purpose\nunder such grant. The grant shall make adequate provision for lien upon\nplant and property and by way of penalty or forfeiture of the grant and\nany construction pursuant thereto or otherwise to secure compliance with\nthe terms of such grant, efficiency of service at reasonable rates and\nthe maintenance of the property in good condition throughout the full\nterm of the grant.\n d. The grant shall provide that any and all income and increase\nderived by the grantee or his assignee or any successive holder of the\ngrant or on his or their behalf in any manner from or in connection with\nthe enterprise of constructing, equipping and operating such railroad,\nafter deducting operating expenses, taxes, payments to reserve and\namortization funds as provided for in such grant, and not exceeding six\nper centum interest per annum payable quarterly upon the actual cost of\nconstruction and equipment of such road, shall be divided share and\nshare alike between the grantee and the city, and that upon the\nexpiration of the period specified in the grant the franchise shall end\nand the plant and property suitable to and used for the purposes of such\nrailroad, except equipment as defined in the grant, shall become the\nproperty of the city without compensation to the grantee, and that such\nequipment shall also become the property of the city upon payment to the\ngrantee of an amount to be ascertained as provided in the grant. The\ngrant may also provide for assuring that in case a new grant of a\nfranchise to maintain and operate such railroad is made after any such\ndetermination of such franchise and purchase and taking of such plant\nand property pursuant to such notice or after the expiration of the full\nterm of the grant, that the title to and possession of the plant and\nproperty so taken and of the equipment at the end of such full term may\nbe transferred directly to the new grantee upon his paying the amount\nrequired as aforesaid. At any time within one year prior to the date\nwhen the franchise shall be terminated or forfeited by the city or shall\ncome to an end by the expiration of its full term or at any time\nthereafter, the board of transportation with the approval of the board\nof estimate and the mayor, may grant a new franchise under the\nprovisions of this section for the construction wholly or in part of\nsuch railroad and for the maintenance and operation thereof from and\nafter the date of such termination, forfeiture or end of such grant, or\nthe board of transportation, with like approval, may enter into\ncontracts for the equipment, maintenance or operation of such railroad,\nor may itself operate such road, after such termination, forfeiture or\nend of such grant as provided in sections thirty-two, forty, forty-one,\nforty-two and forty-three of this chapter in respect of railroads\nconstructed at the public expense.\n e. A certificate shall be prepared by the board of transportation\nattested by its seal and the signature of its presiding officer, setting\nforth in detail the action taken and grant made by such board with\nrespect to such railroad, and the terms and conditions aforesaid which\nshall be delivered to such grantee upon the receipt by such board of a\nwritten acceptance of the terms, conditions and requirements of the\ngrant duly executed by such grantee so as to entitle it to be recorded.\nSuch certificate shall be filed in the office of the secretary of state\nand a duly certified copy thereof shall be filed in the office of the\nclerk of the county in which such railroad or some part thereof is\nsituated. Upon the fulfillment by such grantee of such terms, conditions\nand requirements enumerated in such certificate as such board may\nrequire to be fulfilled as a condition precedent to commencing such\nwork, the grantee shall in such cases possess in addition to its\nexisting powers, all the powers conferred by this chapter upon\ncorporations receiving a grant of a franchise thereunder with respect to\nthe railroad so authorized to be constructed and when such certificate\nshall have been duly filed, such grantee may construct such railroad\nwith all the rights provided in such certificate but in every case\nsubject to all the provisions and conditions of such certificate. Such\ncertificate, when delivered to and accepted by such grantee, shall be\ndeemed to constitute a contract between the city and such grantee\naccording to the terms of such certificate. Such contract shall be\nenforceable by the board of transportation acting in the name of and in\nbehalf of the city, or by the grantee according to the terms thereof,\nbut subject to the provisions of this chapter. The terms of such\ncontract, from time to time with like approval and with the consent of\nthe grantee, may be modified by such board.\n f. Any existing railroad corporation owning or actually operating a\nrailroad wholly or in part within the limits of the city and approved by\nsuch board shall be competent and is hereby authorized to bid for and\nreceive any grant pursuant to the provisions of this section. If the\nsuccessful bidder or bidders be not a corporation, then a corporation\nmay be organized under the railroad law by him or them for the purpose\nof receiving such grant and of constructing, equipping, maintaining and\noperating a railroad pursuant to the terms of any such certificate and a\ncorporation so organized shall not be required to procure the\ncertificate or approval of the public service commission as provided for\nin section nine of the railroad law or section fifty-three of the public\nservice law.\n g. After the proposed certificate shall have been prepared and\napproved as to the form thereof by the board of estimate, the board of\ntransportation, prior to the granting of any such franchise, shall\nadvertise for proposals or bids for such franchise under such\ncertificate by a notice to be printed once a week for two successive\nweeks in not less than two daily newspapers published in such city, and\nin such newspapers published elsewhere than in such city as such board\nshall determine, and may require security from bidders for the execution\nof their bids if accepted. Such notice shall set forth the points within\nsuch city between which such railroad is proposed to be operated, the\nroute in general terms to be followed, and such other details and\nspecifications as the board shall deem proper, and shall refer to such\nproposed certificate and such route, detailed plans and specifications\non file in its office for further details. Such notice shall state the\ntime and place at which proposals will be received and opened. All such\nproposals shall refer to such proposed certificate and shall offer the\nterms upon which any such proposer or bidder shall undertake to\nconstruct, maintain, equip and operate such railroad in so far as to set\nforth all or any of the following matters as may be required by the\nboard of transportation:\n 1. The annual interest desired upon the cost of construction and\nequipment prior to payment of any part of income or increase to the\ncity;\n 2. The period at the end of which the plant and equipment except\nequipment as aforesaid shall become the property of the city without\ncompensation;\n 3. The amount of money for which galleries for subsurface structures\nto be paid for with public money in connection with the construction of\nsuch railroad will be constructed;\n 4. Such transfer conveniences with other roads, specifications as to\nthe cost of construction and other provisions as such board may think\nproper to require.\n The board of transportation shall attend at the time and place\nspecified and shall publicly open all proposals that shall have been\nreceived, but such board shall not be bound to accept any proposals so\nreceived, but may reject all such proposals and readvertise for\nproposals in the manner hereinbefore provided, or may accept any of such\nproposals as will, in the judgment of such board, best promote the\npublic interest, and grant a franchise and execute such certificate\naccordingly, subject to the approval of the board of estimate and of the\nmayor.\n h. Every such corporation shall have power:\n 1. To take and hold such voluntary grants of property as shall be made\nto it, to aid in the construction, maintenance and accommodation of its\nrailroad, but the real estate received by voluntary grant shall be held\nand used for the purposes of such grant only.\n 2. To purchase, lease, hold and use all such property as may be\nnecessary for the construction and maintenance of its railroad and\nnecessary devices and appurtenances.\n 3. To cross, intersect, join and unite its railroad with any other\nrailroad at any point on its route and upon the grounds of such other\nrailroad company, with the necessary devices and appurtenances.\n 4. To take and convey persons and property on its railroad by the\npower or force of electricity or compressed air so used as to involve no\ncombustion or impurity of air in tunnels or cars or any other power of\nlike description approved by the board of transportation, and to receive\ncompensation therefor.\n 5. To enter upon and underneath the several streets designated by the\nboard of transportation and enter into and upon the soil thereof; to\nconstruct, maintain, operate and use, in accordance with the plan\nadopted by such board, a railroad upon the route and to the points\ndecided upon, and to secure the necessary foundations and erect the\nstructures which may be required to secure safety and stability in the\nconstruction and maintenance of the railroads constructed upon the plan\nadopted by such board, and which may be necessary for the operation\nthereof, except that nothing in this chapter shall authorize the\nconstruction of a railroad crossing the track of any steam railroad in\nactual operation at the grade thereof. It shall be lawful to make such\nexcavations and openings along the route through which such railroad\nshall be constructed as shall be necessary from time to time. In all\ncases the surface of such streets around such foundations, and\nstructures shall be restored to the condition in which they were before\nsuch excavations were made, as near as may be, and under the direction\nof the proper local authorities. In all cases the use of the streets\ndesignated by such board, and the right of way through them, for the\npurpose of a railroad, as herein authorized and provided, shall be\nconsidered, and is hereby declared, to be a public use, consistent with\nthe uses for which the streets are publicly held. Such corporation shall\nnot have the right to acquire the use or occupancy of public parks or\nsquares, or the use or occupancy of any of the streets, except such as\nmay have been designated for the route of such railroad, and except such\ntemporary privileges as the proper authorities may grant to such\ncorporations to facilitate such construction.\n i. Every corporation which shall have taken or shall take or hold any\nfranchise or contract to construct, maintain and operate a railroad\nunder the provisions of this chapter shall have the right to acquire and\nhold such property or property rights appurtenant thereto, as may be\nnecessary to enable it to construct, maintain and operate such railroad\nand such as may be necessary for devices and appurtenances. In case any\nsuch corporation cannot agree with the owner or owners of such property\nit shall have the right to acquire title to the same in pursuance of the\nterms and in the manner prescribed in the condemnation law. The\nexistence of an easement acquired or reserved by any such corporation\nfor any of the purposes specified in this section, shall not be deemed\nan incumbrance under any law relating to investments in mortgages upon\nreal property by corporations, trustees, executors, administrators,\nguardians or other persons holding trust funds, but the effect of such\nan easement upon the real property which it affects, shall be taken into\nconsideration in determining the value thereof. When any corporation\nauthorized under any provision of this chapter to construct, maintain or\noperate an additional track added to any elevated railroad in existence\non the sixteenth day of June, nineteen hundred ten, or to construct,\nmaintain or operate an extension of such railroad or to acquire terminal\nor other facilities for any such railroad or extension shall have duly\ninstituted condemnation proceedings, under the provisions of the\ncondemnation law, by serving a petition and notice in such proceedings,\nto acquire such property or property rights appurtenant thereto, as may\nbe necessary to construct, maintain or operate such additional track,\nextension or terminal or other facilities, the court, upon due hearing\nhad at a special term of the supreme court held in the judicial district\nwhere the property or some portion of it is situated, and upon notice in\nsuch proceedings served upon all the owners of the property at least\neight days prior to such hearing, in the manner prescribed in the\ncondemnation law for the service of the petition and notice, may, where\nit appears to its satisfaction that the public interests will be\nprejudiced by delay, direct that the plaintiff be permitted to enter\nimmediately upon the property to be taken and devote it temporarily to\nthe public use specified in the petition, upon depositing with the court\nsuch sum or giving an undertaking in such amount and subject to such\nconditions as the court may deem sufficient to secure the payment of the\naward that may be made, and the costs and the expenses of the\nproceedings and for the payment of any damages which the defendant in\nsuch proceedings may have sustained by such entry upon and use of his\nproperty. The sum so deposited or undertaking so given shall be at least\nequal to twice the assessed valuation, if any, of any real estate to be\nso taken. The court, at any time, upon like hearing and notice given by\neither party to such proceedings, may give such further directions in\nrespect to any such deposit, undertaking or condition as it may deem\njust and proper, and in every case the owner may conduct the proceedings\nto a conclusion if the plaintiff delays or neglects to prosecute the\nsame and if the sum so deposited or security so given shall be\ninsufficient to pay such award and costs, expenses and damages, and if\nthe plaintiff shall fail to pay the amount of such deficiency, judgment\nshall be entered against the plaintiff for the deficiency and the\npossession of the property shall be restored to the defendant.\n