NY Rapid Trans L § 46 (2021)
2021 New York Laws RAT - Rapid Transit Article 5 - Private Construction, Equipment, Maintenance or Operation of Railroads 46 - Franchise for Private Construction, Maintenance and Operation.

§  46.  Franchise for private construction, maintenance and operation.   a. If or when the necessary consents have been obtained and the detailed   plans  and  specifications  have  been  prepared   by   the   board   of   transportation  for  a  railroad,  such  board, with the approval of the   board of estimate and the mayor, may grant  a  franchise  to  construct,   maintain  and operate such a railroad. The board of transportation shall   have power to prescribe all such terms and conditions of such grant  and   to  require  such  security  to  be  given and filed for the keeping and   performance of such terms and conditions as it may deem to  be  for  the   interest  of  the  public  and  of  the  city  and  may  provide that in   connection with the construction of such railroad by the grantee at  its   own  expense  any  galleries,  ways,  subways or tunnels for sub-surface   structures which may be  included  in  any  such  plans  shall  be  also   constructed  by  the grantee at the public expense, and in such case the   sum to be paid therefor  shall  be  separately  stated  and  the  amount   appropriated  and  paid  out  of  the  funds  hereafter authorized to be   provided in case of  such  construction,  and  such  board  may  provide   separately  for the maintenance, supervision, care and operation thereof   as authorized by the provisions of section forty of this chapter.b. The grant shall provide that such railroad shall be constructed  by   and at the expense of the grantee under the direction and supervision of   the  board  of transportation and in accordance with such detailed plans   and specifications; that the construction shall be begun within  a  time   to   be  specified  and  shall  be  finished  within  a  specified  time   thereafter; and that operation of such railroad shall be begun within  a   specified  time,  and  may  fix  the  time within which portions of such   railroad shall be begun and finished  and  put  in  operation,  and  may   provide  that such board may extend the time of beginning, of completion   and of operation of such railroad or portion thereof, and  that  if  the   grantee  shall  fail to begin or to finish the construction or begin the   operation of such road or portion thereof  at  or  within  any  time  so   fixed,  or  shall  fail to comply with any of the terms or conditions of   such grant, a penalty specified,  or  the  grant  and  any  construction   pursuant thereto, may be forfeited to the city.c. Such grant shall contain a reservation to the city of the privilege   upon  giving  a  specified  notice  to  terminate  such franchise and to   purchase and take the plant and property of the grantee suitable to  and   used  for  the purpose of such railroad at any time after the expiration   of ten years from the date when operation of any part of  such  railroad   shall  begin  upon  paying  an  amount  for  such  plant and property as   property, excluding any value for the franchise, which amount shall  not   exceed  actual  cost of such plant and property, plus fifteen per centum   thereof, and shall  decrease  under  provisions  of  the  grant  as  the   franchise  continues so that at the end of the full term of the grant no   amount shall be paid except for equipment as hereinafter  provided.  The   grant  shall  provide a method of ascertaining the amount to be paid for   such plant and property upon termination by the city of  such  franchise   and  for  the  equipment of such railroad at the end of the full term of   the grant.  The grant may provide for determining from time to time,  in   default  of  agreement,  by  arbitration or by the court, a valuation of   such plant and property, or any part or portion thereof, for any purpose   under such grant. The grant shall make adequate provision for lien  upon   plant  and property and by way of penalty or forfeiture of the grant and   any construction pursuant thereto or otherwise to secure compliance with   the terms of such grant, efficiency of service at reasonable  rates  and   the  maintenance  of  the property in good condition throughout the full   term of the grant. d. The grant shall provide  that  any  and  all  income  and  increase   derived  by  the grantee or his assignee or any successive holder of the   grant or on his or their behalf in any manner from or in connection with   the enterprise of constructing, equipping and operating  such  railroad,   after  deducting  operating  expenses,  taxes,  payments  to reserve and   amortization funds as provided for in such grant, and not exceeding  six   per  centum interest per annum payable quarterly upon the actual cost of   construction and equipment of such road,  shall  be  divided  share  and   share  alike  between  the  grantee  and  the  city,  and  that upon the   expiration of the period specified in the grant the franchise shall  end   and the plant and property suitable to and used for the purposes of such   railroad,  except  equipment  as  defined in the grant, shall become the   property of the city without compensation to the grantee, and that  such   equipment shall also become the property of the city upon payment to the   grantee  of  an  amount  to be ascertained as provided in the grant. The   grant may also provide for assuring that  in  case  a  new  grant  of  a   franchise  to  maintain and operate such railroad is made after any such   determination of such franchise and purchase and taking  of  such  plant   and property pursuant to such notice or after the expiration of the full   term  of  the  grant,  that the title to and possession of the plant and   property so taken and of the equipment at the end of such full term  may   be  transferred  directly  to the new grantee upon his paying the amount   required as aforesaid. At any time within one year  prior  to  the  date   when the franchise shall be terminated or forfeited by the city or shall   come  to  an  end  by  the  expiration  of  its full term or at any time   thereafter, the board of transportation with the approval of  the  board   of  estimate  and  the  mayor,  may  grant  a  new  franchise  under the   provisions of this section for the construction wholly  or  in  part  of   such  railroad  and  for  the maintenance and operation thereof from and   after the date of such termination, forfeiture or end of such grant,  or   the  board  of  transportation,  with  like  approval,  may  enter  into   contracts for the equipment, maintenance or operation of such  railroad,   or  may  itself operate such road, after such termination, forfeiture or   end of such grant as provided in sections thirty-two, forty,  forty-one,   forty-two  and  forty-three  of  this  chapter  in  respect of railroads   constructed at the public expense.e. A certificate shall be prepared  by  the  board  of  transportation   attested by its seal and the signature of its presiding officer, setting   forth  in  detail  the  action  taken  and grant made by such board with   respect to such railroad, and the terms and conditions  aforesaid  which   shall  be  delivered to such grantee upon the receipt by such board of a   written acceptance of the terms,  conditions  and  requirements  of  the   grant  duly executed by such grantee so as to entitle it to be recorded.   Such certificate shall be filed in the office of the secretary of  state   and  a  duly  certified copy thereof shall be filed in the office of the   clerk of the county in which such  railroad  or  some  part  thereof  is   situated. Upon the fulfillment by such grantee of such terms, conditions   and  requirements  enumerated  in  such  certificate  as  such board may   require to be fulfilled as a  condition  precedent  to  commencing  such   work,  the  grantee  shall  in  such  cases  possess  in addition to its   existing  powers,  all  the  powers  conferred  by  this  chapter   upon   corporations receiving a grant of a franchise thereunder with respect to   the  railroad  so authorized to be constructed and when such certificate   shall have been duly filed, such grantee  may  construct  such  railroad   with  all  the  rights  provided  in  such certificate but in every case   subject to all the provisions and conditions of such  certificate.  Such   certificate,  when  delivered  to and accepted by such grantee, shall be   deemed to constitute a  contract  between  the  city  and  such  grantee    according  to  the  terms  of  such  certificate. Such contract shall be   enforceable by the board of transportation acting in the name of and  in   behalf  of  the  city, or by the grantee according to the terms thereof,   but  subject  to  the  provisions  of  this  chapter.  The terms of such   contract, from time to time with like approval and with the  consent  of   the grantee, may be modified by such board.f.  Any  existing  railroad corporation owning or actually operating a   railroad wholly or in part within the limits of the city and approved by   such board shall be competent and is hereby authorized to  bid  for  and   receive  any  grant  pursuant  to the provisions of this section. If the   successful bidder or bidders be not a corporation,  then  a  corporation   may  be  organized under the railroad law by him or them for the purpose   of receiving such grant and of constructing, equipping, maintaining  and   operating a railroad pursuant to the terms of any such certificate and a   corporation   so   organized  shall  not  be  required  to  procure  the   certificate or approval of the public service commission as provided for   in section nine of the railroad law or section fifty-three of the public   service law.g. After  the  proposed  certificate  shall  have  been  prepared  and   approved  as  to the form thereof by the board of estimate, the board of   transportation, prior to the  granting  of  any  such  franchise,  shall   advertise   for   proposals  or  bids  for  such  franchise  under  such   certificate by a notice to be printed once a  week  for  two  successive   weeks  in not less than two daily newspapers published in such city, and   in such newspapers published elsewhere than in such city as  such  board   shall determine, and may require security from bidders for the execution   of their bids if accepted. Such notice shall set forth the points within   such  city  between  which such railroad is proposed to be operated, the   route in general terms to  be  followed,  and  such  other  details  and   specifications  as  the board shall deem proper, and shall refer to such   proposed certificate and such route, detailed plans  and  specifications   on  file  in its office for further details. Such notice shall state the   time and place at which proposals will be received and opened. All  such   proposals  shall  refer to such proposed certificate and shall offer the   terms upon  which  any  such  proposer  or  bidder  shall  undertake  to   construct, maintain, equip and operate such railroad in so far as to set   forth  all  or  any  of  the following matters as may be required by the   board of transportation:1. The annual interest desired  upon  the  cost  of  construction  and   equipment  prior  to  payment  of  any part of income or increase to the   city;2. The period at the end of  which  the  plant  and  equipment  except   equipment  as  aforesaid  shall  become the property of the city without   compensation;3. The amount of money for which galleries for  subsurface  structures   to  be paid for with public money in connection with the construction of   such railroad will be constructed;4. Such transfer conveniences with other roads, specifications  as  to   the  cost  of  construction and other provisions as such board may think   proper to require.The board of  transportation  shall  attend  at  the  time  and  place   specified  and  shall  publicly  open all proposals that shall have been   received, but such board shall not be bound to accept any  proposals  so   received,  but  may  reject  all  such  proposals  and  readvertise  for   proposals in the manner hereinbefore provided, or may accept any of such   proposals as will, in the judgment  of  such  board,  best  promote  the   public  interest,  and  grant  a  franchise and execute such certificate    accordingly, subject to the approval of the board of estimate and of the   mayor.h. Every such corporation shall have power:1. To take and hold such voluntary grants of property as shall be made   to  it, to aid in the construction, maintenance and accommodation of its   railroad, but the real estate received by voluntary grant shall be  held   and used for the purposes of such grant only.2.  To  purchase,  lease,  hold  and  use  all such property as may be   necessary for the construction  and  maintenance  of  its  railroad  and   necessary devices and appurtenances.3.  To  cross,  intersect,  join and unite its railroad with any other   railroad at any point on its route and upon the grounds  of  such  other   railroad company, with the necessary devices and appurtenances.4.  To  take  and  convey  persons and property on its railroad by the   power or force of electricity or compressed air so used as to involve no   combustion or impurity of air in tunnels or cars or any other  power  of   like description approved by the board of transportation, and to receive   compensation therefor.5.  To enter upon and underneath the several streets designated by the   board of transportation and enter into and upon  the  soil  thereof;  to   construct,  maintain,  operate  and  use,  in  accordance  with the plan   adopted by such board, a railroad upon  the  route  and  to  the  points   decided  upon,  and  to  secure  the necessary foundations and erect the   structures which may be required to secure safety and stability  in  the   construction  and maintenance of the railroads constructed upon the plan   adopted by such board, and which may  be  necessary  for  the  operation   thereof,  except  that  nothing  in  this  chapter  shall  authorize the   construction of a railroad crossing the track of any steam  railroad  in   actual  operation  at the grade thereof. It shall be lawful to make such   excavations and openings along the route  through  which  such  railroad   shall  be  constructed  as  shall be necessary from time to time. In all   cases  the  surface  of  such  streets  around  such  foundations,   and   structures  shall be restored to the condition in which they were before   such excavations were made, as near as may be, and under  the  direction   of  the  proper local authorities.   In all cases the use of the streets   designated by such board, and the right of way  through  them,  for  the   purpose  of  a  railroad,  as  herein  authorized and provided, shall be   considered, and is hereby declared, to be a public use, consistent  with   the uses for which the streets are publicly held. Such corporation shall   not  have  the  right to acquire the use or occupancy of public parks or   squares, or the use or occupancy of any of the streets, except  such  as   may have been designated for the route of such railroad, and except such   temporary  privileges  as  the  proper  authorities  may  grant  to such   corporations to facilitate such construction.i. Every corporation which shall have taken or shall take or hold  any   franchise  or  contract  to  construct,  maintain and operate a railroad   under the provisions of this chapter shall have the right to acquire and   hold such property or property rights appurtenant  thereto,  as  may  be   necessary  to enable it to construct, maintain and operate such railroad   and such as may be necessary for devices and appurtenances.  In case any   such corporation cannot agree with the owner or owners of such  property   it shall have the right to acquire title to the same in pursuance of the   terms  and  in  the  manner  prescribed  in  the  condemnation  law. The   existence of an easement acquired or reserved by  any  such  corporation   for  any  of the purposes specified in this section, shall not be deemed   an incumbrance under any law relating to investments in  mortgages  upon   real  property  by  corporations,  trustees,  executors, administrators,   guardians or other persons holding trust funds, but the effect  of  such    an easement upon the real property which it affects, shall be taken into   consideration  in  determining  the value thereof.  When any corporation   authorized under any provision of this chapter to construct, maintain or   operate  an additional track added to any elevated railroad in existence   on the sixteenth day of June, nineteen hundred  ten,  or  to  construct,   maintain or operate an extension of such railroad or to acquire terminal   or  other  facilities for any such railroad or extension shall have duly   instituted  condemnation  proceedings,  under  the  provisions  of   the   condemnation  law, by serving a petition and notice in such proceedings,   to acquire such property or property rights appurtenant thereto, as  may   be  necessary  to  construct, maintain or operate such additional track,   extension or terminal or other facilities, the court, upon  due  hearing   had at a special term of the supreme court held in the judicial district   where the property or some portion of it is situated, and upon notice in   such  proceedings  served  upon  all the owners of the property at least   eight days prior to such  hearing,  in  the  manner  prescribed  in  the   condemnation  law for the service of the petition and notice, may, where   it appears to  its  satisfaction  that  the  public  interests  will  be   prejudiced  by  delay,  direct  that the plaintiff be permitted to enter   immediately upon the property to be taken and devote it  temporarily  to   the public use specified in the petition, upon depositing with the court   such  sum  or  giving  an undertaking in such amount and subject to such   conditions as the court may deem sufficient to secure the payment of the   award that  may  be  made,  and  the  costs  and  the  expenses  of  the   proceedings  and  for  the payment of any damages which the defendant in   such proceedings may have sustained by such entry upon and  use  of  his   property. The sum so deposited or undertaking so given shall be at least   equal  to twice the assessed valuation, if any, of any real estate to be   so taken. The court, at any time, upon like hearing and notice given  by   either  party  to  such proceedings, may give such further directions in   respect to any such deposit, undertaking or condition  as  it  may  deem   just and proper, and in every case the owner may conduct the proceedings   to  a  conclusion  if  the plaintiff delays or neglects to prosecute the   same and if  the  sum  so  deposited  or  security  so  given  shall  be   insufficient  to  pay such award and costs, expenses and damages, and if   the plaintiff shall fail to pay the amount of such deficiency,  judgment   shall  be  entered  against  the  plaintiff  for  the deficiency and the   possession of the property shall be restored to the defendant.