Terms used in this chapter shall have the following meanings,
whether or not the terms are capitalized. Unless otherwise expressly
stated, terms not defined in this chapter shall be construed consistent
with Title 47 of the United States Code, and, if not defined therein,
with their common and ordinary meaning.
Poles, wires, cables, equipment, and other facilities located
above the surface of the ground, including their underground supports
and foundations. Such term does not include private driveways, newspaper
vending machines, street banners, canopies or other minor obstructions
located in the rights-of-way.
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992
and the Telecommunications Act of 1996, and as hereafter amended (47
U.S.C. §§ 521 et seq., as hereafter amended).
Right-of-way use agreement required pursuant to the Cable
Act and the City Code for any cable franchise issued by the City.
A fee paid by a cable operator pursuant to a cable franchise
agreement for the cable operator's use of the City's rights-of-way.
The fee is calculated as a percentage of the cable operator's
gross revenues from the operation of the cable system to provide cable
services in the City.
Right-of-way use authorization pursuant to this chapter authorizing
a person to own, construct, operate and maintain a cable system to
provide cable service or an OVS system to provide OVS service within
the City.
A person providing or offering to provide cable service over
a cable system within the City as that term is defined in the Cable
Act.
The transmission to subscribers of video programming or other
programming service and subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming
service.
Facilities consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the City; but
such term does not include (i) a facility that serves only to retransmit
the television signals of one or more television broadcast stations:
(ii) a facility that serves subscribers without using any right-of-way;
(iii) a facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than for purposes of 47 U.S.C. § 541(c)]
to the extent such facility is used in the transmission of video programming
directly to subscribers; (iv) an open video system that complies with
47 U.S.C. § 573; or (v) any facilities of any electric utility
used solely for operating its electric utility system. A reference
to a cable system refers to any part thereof. This definition of "cable
system" shall in no way be deemed to circumscribe or limit the valid
authority of the City to regulate or authorize the facilities and/or
services of any other telecommunications provider or other person
that owns, constructs, operates, or maintains facilities in the right-of-way.
A certificate of public convenience issued by the New York
Public Service Commission to a public utility.
The City of Yonkers, New York.
The Code of the City of Yonkers, New York.
The City Engineer of the City of Yonkers. Except for the
preparation and promulgation of Policies and Procedures, which is
solely the function of the City Engineer, such term shall include
the employees, agents and assignees of the City Engineer.
All real property now or hereafter owned by the City whether
in fee ownership or other interest.
All construction work performed by the City or any of its
departments, either with its own personnel or under contract, including
repair, alteration, replacement, or maintenance of facilities owned,
operated, maintained, or controlled by the City or for which the City
is responsible.
The Communications Act of 1934, 47 U.S.C. §§ 151
et seq., as amended and as hereafter amended.
The Corporation Counsel of the City of Yonkers.
The Department of Engineering of the City of Yonkers.
A condition that (1) constitutes a clear and immediate danger
to the health, welfare, or safety of the public, or (2) has caused
or is likely to cause facilities in the rights-of-way to be unusable
and result in loss of the services provided.
Conduit, pipes, cables, wires, lines, towers, optic fiber,
antennae, poles, associated equipment and appurtenances, and any other
facilities located in the right-of-way and designed, constructed,
and/or used, by telecommunications providers, public utilities, or
other persons for transmitting, transporting, or distributing communications,
telecommunications, electricity, natural gas or manufactured gas,
oil, gasoline, steam, or any other form of energy, signal or substance.
A right-of-way use authorization pursuant to this chapter
that authorizes a person to own, construct, operate and maintain a
cable system to provide cable service or an OVS system to provide
OVS service within the City.
A cable franchise agreement or OVS agreement.
A person that is issued a franchise by the City.
The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications (whether over a cable system, telecommunications
system, open video system, or any other type of facilities), and includes
electronic publishing, but does not include any use of any such capability
for the management, control, or operation of a telecommunications
system or the management of a telecommunications service.
Any corporation, company, association, joint stock company,
firm, partnership, limited liability company, or other entity; municipal,
industrial development, housing, redevelopment, and other authority
or corporation established pursuant to statutes of the State of New
York; and any individual not regulated as a public utility by the
Public Service Commission.
Facilities consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that
is designed to provide video programming services. Cable service,
and/or services similar to cable service to multiple subscribers within
the City and which the Federal Communications Commission or its successor
has certified as compliant with Part 76 of its rules, 47 CFR Part
76.1500 et seq., as amended from time to time; provided that an open
video system is not a system of telecommunications facilities and
does not provide telecommunications service to the extent that it
provides only video services; and provided further that an open video
system means only those facilities that are operated by a person authorized
to provide video services pursuant to Section 653 of the Communications
Act of 1934, as amended, 47 U.S.C. § 573, where such person
is properly certificated to provide such services pursuant to applicable
Federal Communications Commission regulations.
Video programming services that are provided over an open
video system.
The recipient of a right-of-way use permit or cable franchise that is issued by the City pursuant to this chapter, and persons holding existing franchises, special ordinances, or other authorizations that are subject to the transitional provisions set forth in § 105-9, including the City, its departments, agencies, and authorities.
Corporations, companies, associations, joint stock companies,
firms, partnerships, limited liability companies, and other entities;
municipal, industrial development, housing, redevelopment, and other
authorities and corporations established pursuant to statutes of the
State of New York; and individuals.
The written regulations, standards, operations and/or courses
of action established by the City to implement the provisions of this
chapter. The preparation and promulgation of Policies and Procedures
are solely the function of the City and not the employees, agents
or assignees of the City.
Any entity which is operating as a public utility as defined
under the New York Public Service Code, and is subject to regulation
by the NYPSC, regardless of whether or not the entity has been issued
a certificate of public convenience by the New York Public Service
Commission.
The state administrative agency, or lawful successor thereto,
authorized to regulate and oversee public utilities and telecommunications
providers and telecommunications services in the State of New York,
to the extent provided by law.
Shall be defined as that term is defined in the New York
Public Service Code as of the effective date of this chapter, and
as hereafter amended.
A license, right-of-way use permit, cable franchise, or OVS
franchise issued pursuant to this chapter.
A right-of-way use permit issued pursuant to this chapter.
The surface of and space above and below any real property
in the City in which the City has a regulatory interest, or interest
as a trustee for the public, as such interests now or hereafter exist,
including, but not limited to, all streets, highways, avenues, roads,
alleys, sidewalks, tunnels, viaducts, bridges, skyways, or any other
public place, area or property under the control of the City, and
any unrestricted public or utility easements established, dedicated,
platted, improved or devoted for utility purposes but excluding lands
other than streets that are owned by the City. The phrase "in the
right(s)-of-way" and means "in, on, over, along, above and/or under
the right(s)-of-way."
Any telecommunications service, cable service, OVS service,
video programming service, information service, utility service (including,
but not limited to, electric, gas, water, or steam service), or other
form of service provided by means of facilities located in the right-of-way.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the (a) street(s)" means "in, on,
over, along, above and/or under the (a) street(s)."
A permit for excavation of a street for the construction
or installation of facilities in any right-of-way in the City.
Any cable system, OVS system, telecommunications system,
or integral part thereof.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in
the form or content of the information as sent and received.
The plant, equipment and property within the City used to
transmit, receive, distribute, provide or offer telecommunications
service.
A person who provides telecommunications service over telecommunications
facilities.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
A system that offers telecommunications service.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for aerial facilities.
All public utilities regulated by the Public Service Commission
owning or operating facilities in the City's rights-of-way shall
comply with the requirements set forth herein.
All public utilities shall be deemed to have a license from
the City under this chapter to occupy the rights-of-way.
On or before March 1 of every even-numbered year, each public
utility shall submit to the Department two paper copies and one electronic
copy of as-built map or maps and engineering specifications as set
forth in the Policies and Procedures depicting and certifying the
location of all its existing facilities within the right-of-way. Such
electronic and paper maps and engineering specifications shall be
submitted in a format and include the information required by the
City in the Policies and Procedures. If the maps are not provided
in the required format, then the utility shall reimburse the City
for the cost of converting paper maps into electronic form or the
cost of converting electronic maps in another format into the required
format. Such maps are, and shall remain, confidential documents and
are exempt from public disclosure under New York's Freedom of
Information Law, New York Public Officers Law § 87. After
submission of the as-built maps required under this section, each
public utility having facilities in the City rights-of-way shall update
such maps as required under this chapter.
The City may conduct inspections of the City rights-of-way in order to ensure that utility facilities located within such rights-of-way do not constitute a public safety hazard, and remain in compliance with the standards set forth by the Public Service Commission. Such inspections shall be limited to establishing whether such facilities meet relevant PSC standards, and comply with such City construction standards as they relate to the opening and closing of City streets, curbs, and sidewalks, as provided under Chapter 103, Article IV, of the City Code. In the event that the City determines that any Ffacilities of a utility are not in compliance with such standards, then the City may bring a complaint against such utility before the Public Service Commission, in accordance with established PSC procedures. The City may also elect, in its discretion, to notify the utility of the existence of any non-compliant facilities, in order to abate such violations without the need for the filing of a formal PSC complaint. If the City decides, in its discretion, that it must perform a second inspection of any facilities either being constructed or already installed by such utility, then such utility shall pay the cost of such second inspection.
A.
Street opening permits. Except in the case of an emergency, no utility shall perform any street excavation in the rights-of-way without first obtaining a street opening permit and paying a permit fee pursuant to Chapter 103, Article IV, of the City Code. No utility shall perform curb and sidewalk construction replacement or repair without first obtaining a curb and sidewalk permit and paying a permit fee pursuant to Chapter 103, Article IV, of the City Code.
B.
Construction standards. Construction standards shall include those determined by the Public Service Commission for the installation of facilities in City rights-of-way, as well as such City construction standards as they relate to the opening and closing of City streets, curbs, and sidewalks, as provided under Chapter 103, Article IV, of the City Code. Compliance with construction requirements pursuant to PSC related standards shall remain within the sole and exclusive jurisdiction of the PSC. Compliance with construction requirements pursuant to City standards shall remain within the jurisdiction of the City. The City shall retain the right to file formal complaints pursuant to PSC related construction as set forth under Article III.
C.
Security. Each utility opening, closing, or excavating City streets, curbs, and sidewalks as provided under Chapter 103, Article IV, of the City Code in conjunction with the utility's construction or maintenance activities in the ROW shall furnish to the City, at the utility's expense, a letter of credit or other form of financial security, in the amount as required by the City Engineer in a form acceptable to the Corporation Counsel consistent with the Policies and Procedures and regulations of the City to guarantee the proper closing and restoration of the City's streets, sidewalks, or ROW. The security shall be a continuing obligation until the completion of the construction or maintenance as confirmed in writing by the City.
D.
Insurance. The applicant shall maintain insurance, with a reputable insurance company authorized to do business in the State of New York, indemnifying the City from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction requiring the opening or closing of City streets, sidewalks, or ROW in accordance with Chapter 103, Article IV, of the City Code. The amounts of such coverage shall be as determined by the City's Corporation Counsel. The City shall be designated as an additional insured under each of the insurance policies. The utility shall not cancel any required insurance policy without first obtaining alternative insurance in conformance with this section. Utilities undertaking work in the City rights-of-way shall provide the City with at least 30 days' advance written notice of any material changes or cancellation of any required insurance policy.
E.
Recently constructed streets. No street opening permit shall be issued to cut any City street that was constructed, reconstructed or resurfaced fewer than three years prior to application for a street opening permit, unless the applicant agrees in writing to overlay or pave the surface of the street, from curb to curb and intersection to intersection, in accordance with applicable City standards. The City may grant an exception to this section in the case of an emergency. The applicant shall pay all resurfacing costs and comply with all related requirements as prescribed in Chapter 103, Article VI, of the City Code.
F.
Relocation or removal of facilities.
(1)
Within 60 days following written notice from the City, or such longer
period as the City determines is reasonably necessary or such shorter
period in the case of an emergency, a utility shall temporarily or
permanently remove, relocate, change or alter the position of any
facilities within the right-of-way, whenever the City, consistent
with applicable PSC regulations, shall have determined that such removal,
relocation, change or alteration is reasonably necessary under the
following circumstances:
(a)
The construction, repair, maintenance, or installation of any
City or other public improvement in the right-of-way;
(b)
The operations of the City or other governmental entity in the
right-of-way;
(c)
The vacation of a street or the release of a utility easement;
or an emergency as determined by the City.
(d)
The abandonment of utility facilities.
(2)
Utilities must relocate and remove facilities consistent with the
regulations and standards of the PSC.
G.
Coordination of construction activities. By March 1 of each year,
or at such other time as the City and utilities may agree, each public
utility shall provide the Department with a schedule (including plans
and projected start and finish dates for each project) of its planned
construction activities for the following year which may affect the
rights-of-way. The schedule shall depict all planned construction
activities the utility is planning to perform within the year.
H.
Damage to facilities or property. A utility, including any contractor
working for a utility, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property are damaged by the utility, including any contractor working
for the utility, the utility shall promptly repair and restore such
property within 10 business days. The utility shall utilize the New
York One Call System prior to any disturbance of the rights-of-way
and shall adhere to all other requirements of 16 NYCRR Part 753.
I.
Facilities maps. Each utility issued a street opening permit shall
submit to the City, not later than 30 days after completion of the
permitted construction (or any part thereof, if required by the City),
two paper copies and one electronic copy of updated as-built map or
maps and engineering specifications as set forth in the Policies and
Procedures depicting and certifying the location of the new facilities
constructed or updated. Such documents shall be submitted in a format
and include the information required by the City in the Policies and
Procedures. If the maps are not provided in the required format, then
the utility shall reimburse the City for the cost of converting paper
maps into electronic form or the cost of converting electronic maps
in another format into the required format. Such maps are exempt from
public disclosure under New York's Freedom of Information Law,
New York Public Officers Law § 87.
J.
Field marking. Each utility shall field mark the locations of its
underground facilities upon request by other utilities or the City,
consistent with the requirements of 16 NYCRR Part 753 and at no cost
to the City.
A.
Compensation for right-of-way use. Occupancy of City rights-of-way
by any utility is subject to the City's right to fix annually
a fair and reasonable compensation, which shall be directly related
to the City's actual right-of-way maintenance costs.
B.
Annual right-of-way maintenance fee. Each utility with facilities
in the City's rights-of-way shall pay an annual fee to compensate
the City for its costs incurred in connection with the ongoing use
and occupancy of City rights-of-way. The annual right-of-way maintenance
fee shall be determined by the City and authorized by resolution of
City Council and shall be based on the City's actual ROW maintenance
costs. The annual right-of-way maintenance fee shall be fixed on a
per-linear foot basis for underground facilities and on a per-linear
foot basis for aerial facilities. If subject to a cable franchise
agreement, the utility shall not be required to remit both a cable
franchise fee amount and an annual right-of-way maintenance fee to
the City; such utility shall pay the higher of the two fees to the
City.
