Chapter 14 - FRANCHISES, REVOCABLE CONSENTS AND CONCESSIONS

Section 362.

Section 362.

  § 362. Definitions.  For the purposes of this charter:
  a.  "Concession"  shall mean a grant made by an agency for the private
use of city-owned property for  which  the  city  receives  compensation
other  than  in  the form of a fee to cover administrative costs, except
that concessions shall not include franchises,  revocable  consents  and
leases.
  b. "Franchise" shall mean a grant by an agency of a right to occupy or
use the inalienable property of the city to provide a public service.
  c.  "Responsible  Agency"  shall mean (1) with respect to a franchise,
the agency designated by the mayor pursuant  to  section  three  hundred
sixty-three  or three hundred seventy-eight as the agency having primary
expertise and responsibility for the type  of  franchise  involved,  (2)
with  respect  to  a revocable consent, the agency authorized to grant a
revocable consent of the type involved pursuant to section three hundred
sixty-four, or (3) with respect to a concession, the agency  granting  a
concession.
  d.  "Revocable  Consent"  shall  mean  a grant by the city of a right,
revocable at will, (1) to any person to construct and  use  for  private
use  pipes,  conduits  and  tunnels  under,  railroad  tracks  upon, and
connecting bridges over inalienable property, (2) to an  owner  of  real
property or, with the consent of the owner, to a tenant of real property
to  use  adjacent  inalienable  property  for  such  purposes  as may be
permitted by rules of the department of transportation or the department
of information technology and telecommunications  or  (3)  to  a  public
service  corporation  for  facilities  ancillary  to,  but not within, a
franchise granted prior to the effective date of this section.

Section 363.

Section 363.

  § 363. Franchises.  a.  Franchises shall be awarded only in accordance
with  the provisions of an authorizing resolution adopted by the council
pursuant to the provisions of this section.
  b.   An  initial  determination  of  the  need  for  franchises  of  a
particular  type  shall  be made by the head of the agency designated by
the mayor as having the primary  expertise  and  responsibility  in  the
policy  area  covered  by  that  type of franchise.   Upon making such a
determination, such agency, with the advice of the  corporation  counsel
and  such  other  agencies as the mayor shall determine, shall prepare a
proposed authorizing resolution for that type  of  franchise  and  shall
submit  such  proposed  authorizing  resolution  to  the mayor.   Such a
proposed authorizing resolution  shall  set  forth  the  nature  of  the
franchise  or  franchises  to  be  granted,  the  public  service  to be
provided, the terms and  conditions  of  the  franchise  or  franchises,
including  any  subsidies that will be given to a franchisee, the method
by which proposals will be solicited for the franchise or franchises and
the criteria to  be  used  in  evaluating  the  proposals  submitted  in
response to such a solicitation.
  c.  The mayor may submit such a proposed authorizing resolution to the
council.   Promptly upon submission to the council, the text of any such
authorizing resolution shall be published in the City  Record.    Within
ninety  days  of receiving such a proposed resolution, the  council or a
committee of the council shall hold a public hearing on such resolution.
The council may approve, approve with modifications or  disapprove  such
resolution  by  majority  vote.    Any action of the council approving a
modification to a proposed  authorizing  resolution  or  disapproving  a
proposed  authorizing  resolution shall be subject to the disapproval of
the mayor in the same manner as a local  law  which  is  passed  by  the
council,  and  any such disapproval shall be subject to reconsideration,
repassing and adoption, notwithstanding the objections of the mayor,  in
the  same  manner  as a local law which is disapproved by the mayor. The
council may on its own initiative amend an authorizing resolution.   The
procedure  for  council review and approval of such a proposed amendment
shall be the same as for an authorizing resolution.
  d.   No authorizing resolution or other  action  of  the  council  may
provide  for any involvement by the council or any member of the council
in the selection of a franchisee pursuant to such resolution.
  e. Pursuant to an authorizing resolution adopted by the  council,  the
responsible agency may issue one or more requests for proposals or other
solicitations  of  proposals,  provided that (1) the corporation counsel
shall have determined that the request for proposals is consistent  with
the  provisions of the authorizing resolution and (2) no such request or
solicitation shall be  issued  unless  either  the  department  of  city
planning  has determined that the proposed franchise would not have land
use impacts or implications or such request  or  solicitation  has  been
reviewed and approved pursuant to section one hundred ninety-seven-c and
section  one  hundred  ninety-seven-d.    A  community board may waive a
public hearing and the preparation  of  a  written  recommendation  with
respect  to  any such request for proposals or solicitation which in its
judgment does not involve a substantial land use  interest.    Any  such
request  for  proposals  or  solicitation issued in accordance with this
subdivision shall set forth the criteria and procedures to  be  utilized
in  evaluating  the  proposals  submitted in response to such request or
solicitation.
  f.  The selection of a franchisee shall  be  in  accordance  with  the
provisions of the authorizing resolution covering franchises of the type
involved.    Each  such  selection and each franchise agreement shall be
subject to the review and  approval  of  the  franchise  and  concession

review  committee  pursuant to sections three hundred seventy-one, three
hundred seventy-two and three hundred seventy-three.
  g.    Nothing  in  this  section  shall  preclude any agency, prior to
proposing an authorizing resolution, from issuing one or  more  requests
for  information  or  other  solicitations  of information regarding the
availability of potential franchisees  with  expertise  in  the  subject
matter  of  a  proposed  type  of  franchise,  suggestions regarding the
appropriate terms  and  conditions  which  should  be  contained  in  an
authorizing   resolution  for  that  type  of  franchise  or  any  other
information which would assist the agency in determining how to  proceed
with regard to the public service involved.
  h.      All   franchises   shall  be  consistent  with  the  following
requirements:
  (1) Every grant of a franchise or  modification  thereof  must  be  by
written  agreement  approved  by  the  franchise  and  concession review
committee and executed by the responsible agency under the authority  of
an  authorizing resolution adopted by the council in accordance with the
provisions of this chapter.
  (2)  No such agreement shall be for a longer period  than  twenty-five
years  except  that  in  the  case  of a tunnel railroad it may be for a
period not exceeding fifty years.
  (3) The agreement may, at the option of the city, provide  for  giving
to  the  grantee  the  right  of renewals not exceeding in the aggregate
twenty-five years on a fair redetermination of the compensation  to  the
city to be made upon standards and methods as therein specified.
  (4)    At the termination of such agreement all the rights or property
of the grantee in the inalienable property of  the  city  to  which  the
franchise relates shall cease without compensation.
  (5)    Any  such  agreement  may provide that upon its termination the
property, plant and equipment  of  the  grantee  shall,  to  the  extent
therein  specified,  thereupon  be  and become the property of the city,
either without compensation to the grantee or on payment to the  grantee
of  the  fair value thereof as property, to be determined as provided in
the contract, but excluding any value derived from the franchise.    The
city shall have the option either to take and operate on its own account
the property, plant and equipment when so acquired, or to lease the same
for a term not exceeding twenty years or to require that the property of
the  city  be  restored  to  its  condition prior to the granting of the
franchise.
  (6) Every agreement granting a franchise for the  performance  of  any
public  service  shall  contain an agreement by the grantee to recognize
the  right  of   its   employees   to   bargain   collectively   through
representatives of their own choosing, and at all times to recognize and
deal  with  the  representatives  duly  designated  or  selected  by the
majority of its employees for the purpose of  collective  bargaining  in
respect  to rates of pay, wages, hours of employment or other conditions
of employment and not to dominate, interfere with or participate in  the
management  or  control  of  or  give  financial support to any union or
association of its employees.   This subdivision shall not  apply  to  a
contract  providing  for  a modification or amendment of or extension of
service under a franchise not containing a similar  provision,  provided
that the term of such franchise is not extended thereby.

Section 364.

Section 364.

  §  364.    Revocable consents.   a.   A revocable consent shall not be
granted for a use that would  interfere  with  the  use  of  inalienable
property  of the city for public purposes, nor shall a revocable consent
be granted for a purpose for which a franchise may be granted.
  b.   All revocable consents shall be revocable  at  any  time  by  the
responsible agency, shall be granted for a fixed term, and shall provide
for adequate compensation to be annually provided to the city during the
continuance of the consent.
  c. Revocable consents, other than for telecommunications purposes, may
be  granted by the department of transportation with respect to property
under its jurisdiction or by such other agency as may be  authorized  by
law   to   grant   revocable   consents.      Revocable   consents   for
telecommunications  purposes  may  be  granted  by  the  department   of
information  technology  and  telecommunications. All revocable consents
shall require the approval of the department of transportation.
  d.  Every petition for the grant of a revocable consent shall be filed
with the department of transportation.   Each petition shall  state  the
location of the proposed revocable consent and shall be in such form and
contain  such  other information as the department of transportation and
other responsible agencies, if any, shall require by rule. Petitions for
each type of revocable consent shall be distributed to and  reviewed  by
the  agencies  required  to do so by local law or executive order of the
mayor.   If, in the judgment of  the  department  of  city  planning,  a
proposed  revocable  consent  has  land use impacts or implications, the
petition for the proposed revocable consent shall be subject  to  review
and  approval pursuant to section one hundred ninety-seven-c and section
one hundred ninety-seven-d.
  e.     Notwithstanding  any  provision  of   this   charter   or   the
administrative   code,  revocable  consents  to  construct  and  operate
sidewalk cafes shall be reviewed pursuant to subchapter six  of  chapter
two of title twenty of the administrative code.

Section 365.

Section 365.

  §   365.   Terms   of  agreements;  enforcement.  a.  Every  agreement
memorializing the terms and conditions of a franchise, revocable consent
or concession shall contain adequate provisions by way of forfeiture  or
otherwise  (1)  to  secure  efficiency  of  public service at reasonable
rates, if a public  service  is  to  be  provided,  (2)  to  assure  the
maintenance of the property of the city in good condition throughout the
term  of  the agreement, and (3) to provide for adequate compensation to
the city.
  b. Every  agreement  memorializing  the  terms  and  conditions  of  a
franchise, revocable consent or concession shall contain an agreement by
the  grantee  that  it  will  (1) permit the placement or display of the
public health messages required by section 17-707 of the  code,  on  any
property  subject to such franchise, revocable consent or concession, or
any facility, plant, equipment or other property used in connection with
such franchise, revocable consent or concession; and (2) bear any  costs
associated with the posting of such public health messages and any costs
in  terms of foregone advertising revenues associated with the placement
or display of such public health messages.
  c. The responsible agency shall also monitor the  performance  of  the
grantee and enforce the terms and conditions of any franchise, revocable
consent or concession under its jurisdiction.

Section 371.

Section 371.

  §  371.  Public  hearing on proposed agreement; publication of notice.
The  franchise  and  concession  review  committee  in  the  case  of  a
franchise, or the responsible agency in the case of a revocable consent,
shall  hold a public hearing on the proposed agreement memorializing the
terms and conditions of each proposed  franchise  or  revocable  consent
before  final  approval  of  the proposed franchise or consent. Any such
public  hearing  conducted  by  the  franchise  and  concession   review
committee  shall  be  held  within  thirty  days  of the filing with the
committee by the responsible agency of a proposed  agreement  containing
the  terms and conditions of the proposed franchise.  No hearing held by
the franchise and concession review  committee  or  by  the  responsible
agency  shall  be  held  until after notice thereof and a summary of the
terms and conditions of the proposed agreement shall have been published
for  at  least  fifteen  days,  except  Sundays  and   legal   holidays,
immediately prior thereto in the City Record, nor until a notice of such
hearing, indicating the place where copies of the proposed agreement may
be  obtained  by all those interested therein, shall have been published
at least twice at the  expense  of  the  proposed  grantee  in  a  daily
newspaper  designated by the mayor which is published in the city of New
York and having a circulation in the borough or boroughs  in  which  the
affected  property  of  the  city  is  located and a weekly newspaper or
newspapers designated by the mayor which are published in  the  city  of
New  York  and have a circulation in the community district or districts
in which the affected property of the city is located.  In the  event  a
franchise  or  revocable consent relates to property of the city located
in more than one borough, notice of hearing in a weekly newspaper  shall
not  be required; however, in that event, notice of hearing in two daily
newspapers, and mailing by the  grantee,  no  later  than  fifteen  days
immediately  prior  to the date of the public hearing, of such notice to
the borough presidents and community boards and council members in whose
districts the affected  property  of  the  city  is  located,  shall  be
required.  In  the case of a franchise for a bus route which crosses one
or more borough boundaries, notice of  hearing  in  a  weekly  newspaper
shall  not be required; however, in that event, notice of hearing in two
daily newspapers, and mailing by the grantee, no later than fifteen days
immediately prior to the date of the public hearing, of such  notice  to
the borough presidents and community boards and council members in whose
districts  the  bus  route is located, and posting of such notice in the
buses operating upon such route, shall be required.

Section 372.

Section 372.

  § 372. Powers of the mayor. a. The separate and additional approval of
the  mayor  shall  be  necessary  to  the  validity  of  every franchise
agreement and revocable consent agreement.
  b. Every such agreement shall before it  takes  effect  be  presented,
duly  certified,  to the mayor for approval. Such agreement shall not be
effective unless approved by the mayor within sixty  days  after  it  is
presented to the mayor.

Section 373.

Section 373.

  § 373.  Franchise and concession review committee.  a. A franchise and
concession  review committee is hereby established.  The committee shall
consist of the following officials or their designees:   the mayor,  who
shall  serve  as  chair;  the  director  of the office of management and
budget; the corporation counsel; the  comptroller;  and  one  additional
appointee  of  the  mayor.    Whenever  the committee reviews a proposed
franchise or concession or the  procedures  for  granting  a  particular
concession, the borough president of the borough in which such franchise
or  concession  is  located or his or her designee shall also serve as a
member of the committee.  If such a franchise, concession  or  procedure
relates  to    more  than  one borough, the borough presidents   of such
boroughs shall designate one  of  such  borough  presidents  or  another
individual  to  serve  as  a  member of the committee for the purpose of
considering such matter.
  b. The mayor shall designate a public officer or employee  to  act  as
the  clerk of the committee who shall be responsible for maintaining the
records and minutes of the committee and performing such other duties as
may be required.
  c. The committee shall act by the affirmative vote of  at  least  four
members  except that the affirmative vote of at least five members shall
be required to approve a franchise agreement.
  d. The committee shall:
  (1) adopt  rules  establishing  procedures  for  granting  concessions
through   public  bidding  or  by  other  means  designed  to  ensure  a
competitive and fair process;
  (2) review and approve the granting of concessions that  are  proposed
to  be  granted  pursuant  to procedures that differ from the procedures
established by the rules of the committee; provided, however,  that  the
committee  need not review awards of concessions that are not subject to
renewal and have a term of less than thirty days;
  (3) determine whether each franchise  agreement  proposed  by  a  city
agency is consistent with the request for proposal or other solicitation
pursuant  to which such agreement was negotiated and require appropriate
modifications  to  any  such  agreements  to  correct  any   significant
inconsistencies; and
  (4)  review  and  approve  the  selection  of  franchisees pursuant to
subdivision f of section three hundred sixty-three.

Section 374.

Section 374.

  §  374.  Concessions.    a.  No  city  agency shall grant a concession
without  either  complying  with  the  procedures  established  by   the
franchise  and  concession review committee or obtaining the approval of
the committee prior to granting the concession.
  b. The city planning commission shall adopt  rules  that  either  list
major  concessions  or  establish  a procedure for determining whether a
concession is a major concession.   A "major concession"  shall  mean  a
concession  that  has  significant land use impacts and implications, as
determined by the  commission,  or  for  which  the  preparation  of  an
environmental   impact   statement  is  required  by  law.    All  major
concessions shall be subject to review and approval pursuant to  section
one hundred ninety-seven-c and section one hundred ninety-seven-d.

Section 375.

Section 375.

  §   375.   Registration   with   the  comptroller.     All  agreements
memorializing the terms of franchises, revocable consents or concessions
shall be agreements subject to the applicable registration  requirements
and  other  provisions of section three hundred twenty-eight except that
the terms "vendor" and "contractor" as used  in  section  three  hundred
twenty-eight  shall  be  deemed  to  apply to the holders of franchises,
revocable consents and concessions.

Section 376.

Section 376.

  §  376.  Central file.   Copies of all franchise and revocable consent
agreements shall be filed with the department of  transportation.    The
department of transportation shall compile and keep up to date a listing
of  all  current  franchises  and  revocable  consents  which  shall  be
available to the public and shall include the date, terms, names of  the
parties, description of the permitted use and location of each franchise
and revocable consent.  Such listing shall be arranged and indexed so as
to  enable  a  member of the public to determine what current franchises
and revocable  consents  involving  use  or  occupancy  of  streets  and
sidewalks  have  been  granted  for  any  location  in  the city and the
identity of the holder of each such franchise or revocable consent.

Section 377.

Section 377.

  §  377.    Bureau  of  Franchises.   The bureau of franchises shall be
discontinued as of the first day of July, nineteen hundred ninety.   The
records  and  staff  of the bureau of franchises shall be transferred to
the department of transportation, except that the records and  staff  of
the   bureau   relating   to   telecommunications  franchises  shall  be
transferred to the department  of  telecommunications  and  the  records
relating  to  energy  shall  be  transferred to such agency as the mayor
shall designate.

Section 378.

Section 378.

  §   378.   Transition.  a.  All  franchises,  revocable  consents  and
concessions granted prior to the effective date of  this  section  shall
remain in full force and effect for the terms which they were granted.
  b. Not later than the first day of March, nineteen hundred ninety, the
mayor shall designate a single agency as the responsible agency for each
type  of  franchise  currently  granted  by  the city. If such an agency
intends to continue granting any such  type  of  franchise,  the  agency
shall  submit  to the council a proposed authorizing resolution for such
type of franchise at least two years, or such shorter period as  may  be
approved  by the franchise and concession review committee, prior to the
earliest expiration  date  of  any  existing  franchise  of  that  type;
provided,  however,  that  the  department  of  transportation, with the
approval of the franchise and concession review  committee,  may  extend
the  expiration  date  of  the  operating  authority  of any private bus
company that does not receive a subsidy from the  city  to  a  date  not
later  than  the  thirtieth  day  of  June,  two  thousand  and  eleven.
Notwithstanding the provisions of section three hundred seventy-one, the
public notice and hearing requirements of the franchise  and  concession
review  committee  with  respect  to  an approval of an extension of the
operating authority of a private bus company shall be fully satisfied by
a public hearing held after notice  of  such  hearing  shall  have  been
published at least one day prior thereto in the City Record.