N.Y. Rapid Transit Law § 44: Modification of and changes in contracts

§ 44. Modification of and changes in contracts. a. The board of

transportation for and on behalf of the city, from time to time with the

consent, in writing, of the bondsmen or sureties of a person, who has

contracted with such board or its predecessors to construct, equip,

maintain or operate any road, may agree with such contractor upon

changes in and modifications of such contract, or of the plans and

specifications upon which such road is to be constructed, but no change

or modifications in the plans and specifications consented to and

authorized pursuant to section twenty-one of this chapter shall be made

without the further consent and authorization provided for in such

section.

b. The board of transportation, from time to time, but only with the

approval of the board of estimate and the mayor, may agree with railroad

companies upon changes in and modifications of the terms and conditions

of any contract under or pursuant to which any railroad, or any part

thereof, has been or is to be constructed, equipped, maintained or

operated, and with like approval such contract may be cancelled and

replaced by a new contract to include the railroads embraced in such

existing contract. The board of transportation may include therein

provision for the acquisition by the city of the railroads or any of

them or portions of any of them and is authorized and empowered on

behalf of the city to accept title thereto or control thereof and to

provide for the payment thereof through amortization or otherwise as the

board of transportation may determine.

c. Any other provision of this chapter to the contrary

notwithstanding, the board of transportation shall not make any new

contract or modify any contract for the construction, equipment,

maintenance or operation of any railroad without the approval or consent

of the board of estimate and the mayor.

d. If any contract for construction or equipment of a railroad or

section thereof has been awarded and a part of the work therein required

to be performed by the contractor has been done or is in process of

being done as to a portion of the route of such road and if another

route for a railroad has been or shall be established by the board of

transportation under section twenty of this chapter and consented to as

provided in section twenty-one of this chapter, which, or a portion of

which, in the opinion of such board should in the public interest be

substituted in place of a portion of the road to be constructed or

equipped under such contract, then the board with the consent of the

board of estimate and the mayor, as soon as the detailed plans therefor

have been prepared as prescribed in section twenty-two of this chapter,

without advertising for proposals, may agree as provided in this

subdivision with such contractor upon changes in and modifications of

his contract for the purpose of making such substitution. Such agreement

in such case may provide, in consideration, among other things, of a

surrender by the contractor of his right to construct or equip a

designated portion of the road or section or road described in his

contract, that such contractor shall complete the construction or

equipment of the remainder of the road or section described in such

contract and shall in place of the portion surrendered construct or

equip a railroad or section of a railroad upon such substituted route

and in accordance with the plans and specifications adopted therefor for

such sum of money as may be provided in such modifying agreement. As

part of the consideration of such modifying agreement, the agreement may

also provide that such contractor shall guarantee to the city, with

proper and sufficient sureties, that in the event that the city shall

enter into such modifying agreement providing for construction of such

substituted route or section thereof by the contractor, the cost to the

city of providing for the construction of any additional section of such

railroad upon such substituted route in continuation of that portion

thereof which is to be constructed by the contractor under such

modifying agreement, shall not be in excess of an amount specified in

such modifying agreement or that if the contract for construction of any

such additional section is to be awarded after advertisement for

proposals under section seventeen of this chapter, that a responsible

bidder for the construction thereof acceptable to the city shall be

obtained at a price not exceeding a specified amount.

e. If any contract for equipment, maintenance and operation of a

railroad has been made and part of the work of construction thereof has

been done or is in process of being done, and if another route for a

railroad has been or shall be established by the board of transportation

under section twenty of this chapter and consented to as provided in

section twenty-one of this chapter, which, or a portion of which, in the

opinion of the board in the public interest, should be substituted in

place of a portion of the road to be equipped and operated under such

contract, for use and operation in connection with or as part of the

route, a portion of which has been in part already constructed or is in

process of construction, then the board with the consent of the board of

estimate and the mayor may agree as provided in this subdivision with

the person having the contract for equipment, maintenance and operation

of such railroad, upon changes and modifications of such contract. Such

agreement in such case may provide, in consideration, among other

things, of the surrender by the contractor of his right to equip,

maintain and operate a designated portion of the railroad described in

his contract, that in place of the portion surrendered, he shall equip,

maintain and operate a railroad or portion of a railroad upon such

substituted route. The rental to be received by the city under such

contract, as changed and modified, representing compensation to the city

for the use of such substituted part of such railroad operated

thereunder necessarily need not be a portion of the income, earnings or

profits from the operation of the railroads combined as provided in

subdivision d or subdivision g of section forty of this chapter equal

annually, if earned, to the interest and one per centum for sinking fund

upon the amount of city bonds issued for the investment of the city in

the construction thereof but may be either a specified sum of money or a

specified part or proportion of income, earnings or profits of such

substituted road, or both a sum of money and a part or proportion of

such income, earnings or profits, or may be such portion of the income,

earnings and profits of the railroads so combined as may be provided in

such modified contract as rental for such substituted railroad and for

the other railroads of the city to be equipped, maintained and operated

under such contract as so modified.