§ 90 — Commission to prepare plan

§ 90. Commission to prepare plan. a. The commission after making the\nnecessary studies and investigations shall prepare a plan for the relief\nof the emergency which is hereby declared to exist, and for the\nimprovement of transit in any such city. Such plan shall contain\nprovisions which in the judgment of the commission, will accomplish as\nnearly as may be the following purposes:\n 1. The acquisition and unification, under public ownership or control,\nof railroads by purchase and direct conveyance or transfer, or by lease,\nrecapture, assignment of lease, modification or extinguishment of\nexisting contract or by contracts for equipment, maintenance and\noperation or maintenance and operation, by or under supervision of a\nboard of transportation, or partly by one of such methods and partly by\none or more of the others, so that service thereon may be increased,\nextended and improved to the fullest extent possible,\n 2. The receipt as soon as practicable by the city of net revenues from\nthe operation of the railroads which will be applicable to the payment\nof interest and amortization charges on corporate stock or bonds of the\ncity after deduction of all expenses of maintenance and operation,\nreserves for depreciation and otherwise, interest and amortization\ncharges and other deductions as may be provided in a plan or in any\ncontract or lease made in pursuance of its provisions, and\n 3. The assuring to the people of the city the continued operation of\nthe railroads at the present or lowest possible fares consistent with\ntheir safe and economical operation and the performance by the board of\nits obligations under any plan and under any lease or contract made in\npursuance of its provisions.\nIn case a plan or any amendment thereof or supplement thereto or\nseparate plan adopted with the approval of the board of estimate of the\ncity as provided in this article, shall include any street surface\nrailroads, it may also include any stage coach or omnibus lines,\ntogether with the plant, property and equipment thereof, owned or\noperated in conjunction with, or as a part of the same system as, such\nstreet surface railroads.\n b. The commission shall include in the plan appropriate provision for\nthe protection of tort creditors; and shall provide for the continuance\nin original or modified form of any existing plan or provision of\nrailroad companies for employees' pension and sick benefit relief, but\nsuch continuance shall in no manner or form impair the actuarial status\nor benefits of employees who are members of the New York city employees'\nretirement system. Without limiting the authority and discretion of the\ncommission, it may consider the incorporation in the plan of provisions\nwhereby the title to such railroads as are not already owned by the city\nand whose ownership thereby is deemed by the commission to be desirable\nmay be vested in the city and whereby rights under existing contracts\nfor the construction, equipment and operation of rapid transit railroads\nalready owned by the city may be acquired by the city. Such title and/or\nsuch rights may be vested in the city directly or may first pass through\nan intervening corporation and then to the city, either free and clear\nof liens and encumbrances or subject to specified liens and\nencumbrances, in return for a lease or leases by the city of such\nrailroads and of any other railroads owned by it and such other or\nadditional considerations as the commission may determine with the\napproval of the board of estimate. In the event of the incorporation of\nsuch provisions in the plan the commission shall outline an arrangement\nwhereby outstanding securities of the railroad companies may be retired\nby application of the amounts paid by the city for the railroads\nacquired and whereby such securities may be amortized or otherwise paid.\nAny railroad company included in the plan, with the consent of the\nholders of record of at least two-thirds of its outstanding shares of\nstock entitled to vote thereon, given as provided in section one hundred\nforty-eight of the railroad law, may transfer and convey its property,\nappurtenances and franchises, or any part thereof, to the city and/or\nsuch intervening corporation as provided in the plan, subject, however,\nto the rights of appraisal of the shares of any dissenting stockholder\nas provided in section one hundred sixty-one of the railroad law. Any\nrailroad company included in a plan whose entire outstanding capital\nstock or whose railroad facilities are acquired by the city as provided\ntherein may be dissolved without judicial proceeding in the same manner\nas provided in and subject to the same provisions as contained in\nsection one hundred five of the stock corporation law with respect to\nthe dissolution of stock corporations, and upon filing the certificate\nof dissolution in the office of the secretary of state, titles to and\nownership of the railroad, franchises, properties and assets of such\nrailroad company shall pass to and vest in the city. The certificate of\ndissolution of any such railroad company shall bear endorsed thereon, in\naddition to the consent of the state tax commission, the approval and\nconsent of the commission to the filing of such certificate.\n c. In connection with the preparation of any plan the commission shall\ncause a valuation to be made of the railroads, properties and interests\ntherein, including leases and leasehold interests and outstanding\ncontracts the assignment to or cancellation of which by the city may be\ndeemed advisable but excluding franchises and going value, of the\nrailroad company or railroad companies it proposes to include therein.\nAny such valuation including the value of contracts acquired may be in\nsuch detail and include such elements of cost or value and be made in\nsuch manner as the commission from time to time may determine and\nprescribe, with due regard to the past, present and estimated\nprospective earnings of such railroads, properties and interests at the\nrate of fare that the railroad company prior to April twenty-seventh,\nnineteen hundred twenty-one was entitled to charge under the provisions\nof the contracts or franchises under which such properties are operated\nor held or of any lawful order then in force fixing or regulating rates\nof fare, or under existing law, and in view of the competition of other\nlines and with due regard to all other pertinent facts and conditions;\nbut such valuation shall not in any case exceed the fair reproduction\ncost of such properties less depreciation, and, in the case of leasehold\ninterests and contracts to be assigned, acquired or cancelled, the fair\nvalue of any such leaseholds and contracts. Any such valuation as\nfinally determined by the commission may be the basis for the inclusion\nof such railroads, properties, contracts and interests in the plan and\nfor fixing the allowances and returns on account thereof under the plan\nand under any leases or contracts made in pursuance of its provisions.\n d. In connection with the preparation of the plan the commission may\ninclude in the plan provision for railroads operating between a point\nwithin the city and a point without the city and connecting railroads\nwhose lines stop at or near the city line. The plan may also include, in\naddition to and in conjunction with the railroad of a railroad company\nincluded therein, a railroad owned by the city and/or a railroad leased\nor to be leased by the city from the owner or lessee of such railroad.\n