[Added 4-10-2018 by G.O. No. 4-2018]
As used in this article, the following terms shall have the meanings indicated:
CONTRACTOR
Any person, other than a bona fide employee of the owner, who owns or operates an excavation business or who undertakes or offers to undertake or agrees to perform any excavation, whether or not such person is licensed or subject to licensing requirement of this article and whether or not such person is a prime contractor or subcontractor with respect to the owner.
DIRECTOR
The Director of the Office of Licensing.
EXCAVATION
Excavating, digging, trenching, grading, backfilling, stripping, earth moving and installation of sanitary, storm sewers and laterals relative to development work and, in addition, main water lines and copper connections for housing units, and also any and all drains, swales or any specific underground lines for site drainage of all kinds in connection with dwelling houses, garages, barns, sheds, or shelters; commercial, industrial or public buildings or structures; ornamental, wading or swimming pools; public or commercial recreational buildings, structures or areas.
EXCAVATION CONTRACT
An agreement between a contractor and an owner for the performance of excavation work, and includes all labor, services and materials to be furnished and performed thereunder.
LICENSEE
A person permitted to engage in the excavation business under the provisions of this article.
OWNER
Any person who orders, contracts for or the person entitled to the performance of the work of a contractor pursuant to an excavation contract.
PERSON
An individual, firm, partnership, association or corporation.
A. 
No person shall engage in the removal of the pavement or disturbance of the surface of any street for the purpose of making sewer connections or repairing sewers or pipes or laying down gas or water pipes, steam pipes or electric conduits, cables or ducts or introducing the same into residential, commercial or industrial buildings or placing building materials, tar kettles, compressors, sidewalk fences or sidewalk bridges or crossing the sidewalk other than usual use, or for any purpose whatever, unless such person is licensed therefor pursuant to this article. The license fee shall be waived for any holder of a home improvement license pursuant to Article XIV of this chapter.
B. 
An excavation permit must also be obtained from the City Engineer pursuant to Article IV of Chapter 103.
Except when otherwise specifically exempted by the provisions of this article, no person shall act in the capacity of an excavator unless authorized to do so by a license issued in accordance with the provisions of this article.
A. 
A license issued pursuant to this article may not be construed to authorize the licensee to perform any particular type of work or kind of business which is reserved for qualified licensees under separate provisions of state or local law or the Code of the City of Yonkers, nor shall any license or authority other than as is issued or permitted pursuant to this article authorize engaging in the excavation business.
B. 
Nothing in this article shall be construed to limit or restrict the power of the City to regulate the quality, performance or character of the work of excavator, including a system of permits and inspections which are designed to secure compliance with and aid in the enforcement of applicable state and local laws, including but not limited to the Yonkers Fire and Building Code, or to enforce other laws necessary for the protection of the public health and safety.
C. 
Nothing in this article limits the power of the City to adopt any system of permits requiring submission to and approval by the City of plans and specifications for an excavation prior to the commencement of said excavation or of inspection of work done.
A. 
If the applicant does not maintain a bona fide establishment at a definite location within the State of New York, the applicant shall designate the City Clerk of the City of Yonkers as agent for the service of process and the address to which the City Clerk shall mail all process served upon the applicant pursuant to this section of this article. The City Clerk shall promptly, upon receipt of such process, forward the same to the licensee at the address designated for that purpose. In the event that the licensee is a corporation, service shall not be made on the City Clerk, but may be made on the Secretary of State of the State of New York as otherwise provided by law. Nothing herein contained shall be construed so as to prevent service of process upon the licensee in any other manner provided by the laws of the State of New York.
B. 
An applicant for an excavation license must be the real owner and possess title to or be entitled to the possession of the establishment and will conduct, operate, engage in and transact an excavation business and must so demonstrate to the Director. The applicant must also furnish to the Director satisfactory evidence of a good moral character and financial responsibility.
C. 
The applicant shall furnish a certificate from an insurance company licensed to do business in the State of New York, evidencing that the applicant and any motor vehicles are covered by a general liability and personal injury in the minimum amount of $100,000 for any person and the minimum amount of $300,000 for any one accident and property damage insurance in the minimum amount of $25,000 and also provide evidence that the employees of the applicant are covered by worker's compensation or by an exemption certificate meeting the requirements of the State of New York and containing a ten-day notice of cancellation clause directed to the Director, before any license hereunder shall be issued.
A. 
All licenses, except temporary licenses, shall be for a period of two years from the date of issuance and shall expire on the last day of the 24th month following issuance.
B. 
No license shall be assignable or transferable except as hereinafter provided. A license to conduct an excavation business issued to an individual may be assigned or transferred for the remainder of the license period to a partnership or corporation, if such individual is a member of such partnership or a stockholder of such corporation owning not less than 25% of the outstanding stock at the time of such assignment or transfer. A license issued to a partnership may be assigned or transferred for the remainder of the license period to any member of such partnership, provided that the transferee obtains the consent of all other members of such partnership. The application for such transfer or assignment must be accompanied by proof satisfactory to the Director that the requirements herein provided have been complied with. No assignment or transfer shall become effective unless and until the endorsement of the transfer or assignment has been made on the face of the license by the Director and such license, so endorsed, has been returned to the assignee or transferee. All such endorsements shall be made upon payment of a fee of $10.
C. 
Each license issued pursuant to this article shall be posted and kept posted in some conspicuous place in the excavation business.
D. 
Any license, except a temporary license, which has not been suspended or revoked may, upon the payment of the renewal fee prescribed by this article, be renewed for an additional period of two years from its expiration, upon filing of an application for such renewal on a form to be prescribed by the Director. Failure to make application for such renewal within 15 days prior to the expiration date of the license shall subject the licensee to a penalty of $25, which shall be paid prior to the issuance of the renewal.
E. 
A duplicate license may be issued for one lost, destroyed or mutilated, upon application therefor on a form prescribed by the Director and the payment of the fee prescribed therefor by this article. Each such duplicate license shall have the word "duplicate" stamped across the face thereof and shall bear the same number as the one it replaces.
F. 
A supplementary license may be issued for each additional place of business maintained by a licensee within the City of Yonkers upon application therefor on a form prescribed by the Director and the payment of the fee prescribed therefor by this article. Each such supplementary license shall have the word "supplementary" stamped across the face thereof and shall bear the same number as the original.
G. 
Each licensee shall receive, affix and display, on the left fender of each vehicle and on the left rear fender of any trailer regularly used in the course of its business, an identification decal issued by the Office of Licensing. Three decals shall be issued for each license. Additional decals for vehicles registered to the license and used for the purposes as described under this article may be obtained from the Office of Licensing for an additional fee of $10 per decal.
All vehicles of licensees conducting business in the City of Yonkers shall display on the sides of the body of the vehicle, in permanent letters legibly printed, stamped or enameled at least eight inches in height and 1 1/2 inches in width, or on a sign attached to the sides of the vehicle or prominently displayed on an enamel sign at least two feet by three feet in size permanently attached to the vehicle the name, address and phone number of the owner.
A. 
The fee for an excavation license shall be $400, and for each renewal thereof, the fee shall be $400.
B. 
The fee for issuing each supplementary or duplicate license for one lost, destroyed or mutilated shall be $25.
C. 
The fees hereinabove set forth shall be those for licenses issued for the license period of two years.
D. 
The Director shall refund the fee paid by any applicant in the event that the application for a license is denied or the applicant for the license has predeceased its service prior to its issuance. Such refunds shall, upon approval by the Director and after audit, be paid from any moneys received pursuant to this article.
E. 
Licenses of all contractors shall expire two years from the date of issuance unless the license is renewed after the original license has expired.
A. 
When an application has been filed with the Director in proper form, the Director shall, within a period of 90 days from the date thereof, issue or refuse the appropriate excavator's license to the applicant. If an applicant for a license is refused, the Director shall send to the applicant a written statement setting forth the reason for the refusal to grant the license.
B. 
The Director shall prescribe and furnish such forms as are appropriate in connection with applications for licenses and the issuance, renewal or termination thereof.
C. 
An applicant for any license required by the provisions of this article shall file with the Director a written application which shall be signed and under oath.
D. 
The Director at any time may require reasonable information of an applicant or licensee, including but not limited to the applicant's true identity, personal history, history in excavation and other businesses, the names of owners, stockholders, partners, directors and officers of any applicant and the business address and trade name of the applicant.
E. 
Temporary licenses for a period not to exceed 30 days may be issued by the Director to qualified applicants who maintain an office or place of business outside the City of Yonkers and who are licensed by the state, municipality or county in which they maintain their office.
In addition to the powers and the duties elsewhere prescribed in this article, the Director shall have power to:
A. 
Examine into the qualifications and fitness of applicants for licenses under this article.
B. 
Keep records of all licenses issued, suspended or revoked.
C. 
Adopt such rules and regulations not inconsistent with the provisions of this article as may be necessary with respect to the form and content of applications for licenses, the reception thereof, the investigation and examination of applicants and their qualifications and other matters incidental or appropriate to his powers and duties as prescribed by this article and for the proper administration and enforcement of the provisions of this article, and to amend or repeal any of such rules and regulations.
License to conduct, operate, engage in and transact an excavation business may be refused, suspended or revoked by the Director for any one or more of the following causes:
A. 
Fraud, misrepresentation or bribery in securing a license.
B. 
The making of any false statement as to a material matter in any application for a license.
C. 
The person or the management personnel of the contractor are untrustworthy or not of good character.
D. 
The business transactions of the business have been marked by a practice of failure to perform its contracts or the manipulation of assets or accounts, or by fraud or bad faith.
E. 
Failure to display the license as provided in this article.
F. 
Violation of any provision of this article or of any rule or regulation adopted hereunder.
A. 
The following acts are prohibited:
(1) 
Abandonment or willful failure to perform, without justification, any excavation contract or project engaged in or undertaken by the business, or willful deviation from or disregard of plans or specifications in any material respect without the consent of the owner.
(2) 
Making any substantial misrepresentation in the procurement of an excavation contract, or making any false promise likely to influence, persuade or induce.
(3) 
Any fraud in the execution of or in the material alteration of any contract, mortgage, promissory note or other document incident to an excavation transaction.
(4) 
Preparing or accepting any mortgage, promissory note or other evidence of indebtedness upon the obligations of an excavation transaction with knowledge that it recites a greater monetary obligation than the agreed consideration for the excavation work.
(5) 
Directly or indirectly publishing any advertising relating to the excavation business which contains an assertion, representation or statement of fact which is false, deceptive or misleading, provided that any advertisement which is subject to and complies with the existing rules, regulations or guides of the Federal Trade Commission shall not be deemed false, deceptive or misleading; or advertising by any means or purporting to offer the general public any excavation work or the price of such work containing an assertion, representation or statement of fact which is false, deceptive or misleading.
(6) 
Willful or deliberate disregard and violation of the building, sanitary and health laws of this state or any political or municipal subdivision thereof.
(7) 
Willful failure to notify the Director within 10 days after any change of control in ownership, management or business name or location.
(8) 
Conducting an excavation business in any other name other than the one in which the contractor is licensed.
(9) 
Willful failure to comply with any order, demand or requirement made by the Director pursuant to provisions of this article.
B. 
As part of or in connection with the inducement to make an excavation contract, no person shall promise or offer to pay credit charges or allow to a buyer any compensation or reward for the procurement of an excavation contract with others.
C. 
No contractor shall offer or pay a loan as an inducement to enter into excavation contract.
D. 
No acts, agreements or statements of a buyer under an excavation contract shall constitute a waiver of any provision of this article intended for the benefit or protection of the buyer.
E. 
No person shall advertise or hold themselves out as being qualified to perform excavation as defined in this article in the City of Yonkers unless licensed as herein provided, and the license number shall appear in all such advertising.
F. 
Exceptions. No license shall be required of an individual who performs labor or services for a contractor for wages or salary.