27-8 8. The said contract shall further provide that in case of the failure or neglect on the part of said contracting person, firm or corporation, after such notice as the contract may prescribe, faithfully to observe, keep and fulfill the conditions, obligations and requirements of said contract, the said city, by the public service commission, may either terminate the contract or take possession of said road and the equipment thereof, and as the agent of said contracting person, firm or corporation, either maintain and operate said road, or enter into a contract with some other person, firm or corporation for the maintenance and operation thereof, and the said contract shall contain such terms, conditions and provisions in relation thereto as the said commission shall deem necessary or desirable for adequately safeguarding and protecting the rights and interests of said city; and the said contract shall contain appropriate terms, conditions and provisions for accomplishing such termination or taking possession. 9. Any existing railroad corporation owning or actually operating a railroad wholly or in part within the limits of the city in and for which said commission has power to act, and approved by the commission, shall be competent and is hereby authorized to enter into any contract for the equipment, maintenance and operation of any railroad pursuant to the provisions of this chapter, or, after such a contract shall have been made, shall be competent and is hereby authorized, with the approval of the commission, to contract with the original contractor or his assignee or assignees for the maintenance and operation (including the equipment or any part thereof of any railroad constructed or in process of construction or to be constructed pursuant to the provisions of this chapter, and shall have all the powers necessary to the due performance of such contract. A corporation may be organized under the railroad law of this state, for the purpose of constructing, equipping, maintaining and operating a railroad pursuant to the provisions of this act or for the purpose of maintaining and operating a railroad (including the equipment or any part thereof) already constructed, in process of construction or to be constructed pursuant to the provisions of this act; and any corporation so organized, upon the approval in writing of the commission, shall, in addition to the powers conferred by the general act under which such corporation is organized, be empowered, and is hereby authorized to enter into any contract permitted by law for the maintenance and operation when constructed, including the equipment or any part thereof if desired, as the case may be, of any such railroad owned or to owned by the city, constructed or to be constructed at the expense of the city or of such corporation or both as in this act provided. The certificate of such approval shall be filed in the office of the secretary of state, and a copy thereof certified to be a true copy by the secretary of state or his deputy, shall be evidence of the fact therein stated. A corporation so organized shall not be required to procure the consent of the public service commission as provided for in section nine of the railroad law. 10. Where in this section or in section twenty-six of this act the consents referred to in section five of this act are mentioned, they shall be construed to include any consent given by the commissioners appointed by the general term or appellate division of the supreme court, and confirmed by the said general term or appellate division in lieu of the consent of property owners as hereinbefore provided. (Former section 34a, added by L. 1906, ch. 472, § 6, as amended by L. 1909, ch. 498, § 10; L. 1910, ch. 504 and L. 1912, ch. 226, §§ 6-14.) § 28. Contract for maintenance and operation. If in the opinion of the board of estimate and apportionment, or other analogous local authority of such city, a contract for the equipment, maintenance and operation as provided for in the preceding section shall be inexpedient, impracticable or prejudicial to the public interest, the public service commission may, with the approval of the board of estimate and apportionment, or such other analogous authority, equip the said road or roads in whole or in part, or purchase power 27-9 28 for operation thereof, for and at the public expense, by contract or contracts therefor subject to the provisions of section thirty-six of this act, and enter into a contract with any person, firm or corporation, who or which in the opinion of said commission shall be best qualified to fulfill and carry out said contract, for the maintenance and operation of such road or roads for a term of years to be specified in said contract, and not to exceed ten years. The provisions of the foregoing sections in respect of a contract or contracts for the equipment, maintenance and operation of such road or roads shall apply to such contract for maintenance and operation so far as such provisions are pertinent and applicable thereto except that the renewal or renewals of said contract provided for therein shall not exceed in the aggregate ten years. (Former section 34b, added by L. 1906, ch. 472, § 6, as amended by L. 1909, ch. 498, § 11 and L. 1910, ch. 205, § 3.) § 29. Terms of contract for construction or operation. 1. Every contract for the construction or operation of such road or roads shall provide by proper stipulations and covenants on the part of the said city, that the said city shall secure and assure to the contractor, so long as the contractor shall perform the stipulations of the contract, the right to construct or to operate the road as prescribed in the contract, free of all right, claim or other interference, whether by injunction, suit for damages or otherwise, on the part of the owner, abutting owner, or other person. The person, firm or corporation bidding or contracting for the construction, equipment, maintenance or operation of the railroad or railroads included in any such contract shall make such deposit of cash or securities and shall give a bond to said city, in such amount as said public service commission shall require, and with sureties to be approved by said commission, who shall justify each in double the amount of his liability upon said bond. Said bond shall be a continuing security, and shall provide for the prompt payment by said contracting person, firm or corporation, of the amount of annual rental, if any, specified in the aforesaid contract, and also for the faithful performance by said contracting 29-1 person, firm or corporation of all the conditions, covenants and requirements specified and provided for in said contract. In lieu of said continuing bond such contracting person, firm or corporation may, upon the approval of the said commission, deposit with the comptroller or other chief financial officer of such city cash equal in amount to the entire amount of the said bond or securities which are lawful for the investment of the funds of savings banks within this state and are worth not less than the entire amount of such bond. If such bond shall have been given then after the deposit of cash and securities in lieu thereof as aforesaid, and the approval thereof by the commission, the said bond shall be surrendered by the said city to the said contracting person, firm or corporation duly canceled by the comptroller or other chief financial officer of the said city. In the event of the deposit of cash or securities as aforesaid, the contract may provide for the payment to the contractor of the income of such securities or of interest upon such moneys at a rate not higher than the highest rate received by the city upon the deposit of its funds with banks, and may also provide for withdrawal of securities so deposited upon deposit of cash or securities of the same value, provided that all such securities shall be such as are so lawful for the investment of the funds of savings banks. The commission may in or by any such contract and in its discretion require, and this act, as the same was prior to the present amendment thereof, shall be deemed to have authorized the board of rapid transit railroad commissioners to have heretofore required any other security upon any such contract. 2. No contract entered into under authority of this act shall be assigned without the written consent of the commission. The said contracting person, firm or corporation, with such written consent and upon such terms and conditions as the commission shall prescribe, may either assign the whole of such contract or separately the right or obligation to maintain and operate the said road or roads 29-2 for the remainder of the term of years specified in such contract and all rights with respect to such maintenance and operation, or included in the leasing provisions of such contract, but subject to all the terms and conditions therein stated; provided, however, that the assignee or assignees shall, in and by such assignment, assume all of the obligations of the original contractor under or with respect to such leasing provisions and all obligations which relate in any way to such operation and maintenance; and provided, further, that the commission before giving its consent shall be satisfied that the pecuniary responsibility of the assignee or assignees shall be no less than that of such original contractor; and provided, further, that all of the security or securities which the city shall have received for the performance by the original contractor of such leasing provisions and of all provisions of the contract with respect to such operation and maintenance shall continue in full force as provided in such contract or any modification thereof, as security for the performance by such assignee of all obligations of the contractor under or with respect to such leasing provisions and such maintenance or operation. 3. It shall be deemed to be part of every such contract that, in case the public service commission shall cease to exist, the legislature may provide what public officer or officers of the city shall exercise the powers and duties belonging to the commission under or by virtue of any such contract, and that in default of such provision, such powers and duties shall be deemed to be vested in the mayor of the city. Every such contract shall contain appropriate terms, conditions and provisions for safeguarding the interests of the city in the event of the failure or neglect of such contracting person, firm or corporation to construct, equip, maintain or operate the railroad according to the terms of the contract, and the public service commission may bring such action or actions in the name and in behalf of the city as may be necessary for the sufficient and just protection of the rights of the city; or may, upon such terms as to the |