A. 
Right-of-way use authorization. Except as otherwise provided in this chapter, no non-PSC regulated entity shall own, construct, operate and/or maintain facilities in any right-of-way of the City to provide or to enable others to provide services to persons or areas in the City or outside the City without a right-of-way use authorization. Public utilities regulated by the PSC shall not be subject to this section, and shall comply with Article I above.
B. 
Permit required. Pursuant to this chapter, all non-PSC regulated entities that own, construct and/or maintain facilities in any public right-of-way shall obtain a right-of-way use permit from the City Engineer. If any such entity is subject to a cable franchise agreement, the permittee shall not be required to remit both a cable franchise fee and an annual right-of-way maintenance fee to the City. Such permittee shall pay the higher amount of the two fees to the City.
A. 
Permit required; term and scope of permit. No non-PSC regulated entity, other than a franchisee, may own, construct, operate and/or maintain facilities that occupy the right-of-way without first obtaining a ROW use permit. Any ROW use permit shall be subject to such conditions as the City may from time to time establish and shall otherwise conform to the requirements of this chapter and applicable law. A ROW use permit shall be for a term of five years. A ROW use permit and the rights, benefits and permissions conferred thereby shall apply to the geographic area of the City necessary for to operate and maintain the facilities.
B. 
Approval by City. A ROW use permit shall be authorized only by the City and shall not become effective unless, or until, it is so authorized. In addition to the other requirements contained herein, the applicant shall demonstrate:
(1) 
That it has a history of compliance with applicable laws and regulations relating to the management, construction and maintenance of facilities in streets and rights-of-way, wherever located; and
(2) 
That it possesses all licenses, permits, authorizations, and other permissions required by the Federal Communications Commission, the State of New York and the City as a condition of its using the right-of-way and furnishing the services and operating the facilities proposed by the applicant;
C. 
Insurance. Each permittee shall, at all times during the entire term of the right-of-way use permit, maintain and require its contractors and subcontractors to maintain insurance, with a reputable insurance company authorized to do business in the State of New York and which has an A.M. Best rating (or equivalent) no less than "A" 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, installation, operation, maintenance or removal of permittee's system or facilities in the rights-of-way. 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 required by this section. Permittee shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this section. Permittee shall provide the City with at least 30 days' advance written notice of any material changes or cancellation of any required insurance policy.
D. 
Indemnification. Each permittee shall, at its sole cost and expense, indemnify, defend and hold harmless the City, its elected and appointed officials, employees and agents, at all times against any and all claims for personal injury, including death, and property damage arising in whole or in part from, caused by or connected with any act or omission of the permittee, its officers, agents, employees or contractors arising out of, but not limited to, the construction, installation, operation, maintenance or removal of permittee's system or facilities in the rights-of-way. Each permittee shall defend any actions or proceedings against the City in which it is claimed that personal injury, including death, or property damage was caused by the permit holder's construction, installation, operation, maintenance or removal of permittee's system or facilities in the rights-of-way. The obligation to indemnify, hold harmless and defend shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, reasonable attorneys' fees, reasonable expert fees, court costs and all other costs of indemnification.
E. 
Application for right-of-way use permit. Application for a ROW use permit shall be in such form and shall include such information as the City determines by regulation. Within a reasonable period of time not to exceed 60 days after receiving a complete application hereunder, the City shall make a determination approving or denying the application. Determinations to grant or deny an application shall be made on a nondiscriminatory and competitively neutral basis. If the application is denied, the determination shall include the reasons for denial. The application fee, which shall be paid at the time of the filing of the application, shall be as fixed from time to time by resolution of City Council. The application fee shall be sufficient to reimburse the City for the actual costs of City staff time and other resources that are required and may be adjusted by resolution of City Council.
F. 
Renewal of right-of-way use permit. A person desiring to renew a ROW use permit prior to the expiration of the permit shall file an application with the City for renewal of its authorization, which shall include the information and documents required for an initial application and other material information required by the City by regulation. The City shall make a determination accepting or denying the renewal application. If the renewal application is denied, the determination shall include the reasons for nonrenewal. Determinations to grant or deny a renewal application shall be made on a nondiscriminatory and competitively neutral basis. The City shall not unreasonably delay or deny the issuance of a renewal permit.
G. 
As-built maps. As the City controls and maintains the rights-of-way for the benefit of its citizens, it is the responsibility of the City to ensure that such rights-of-way meet the highest possible public safety standards. As such, the City needs to be informed regarding the placement of all facilities within the rights-of-way, including those positioned aerially and underground. Each person applying for a ROW use permit 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 by in the Policies and Procedures, and shall be submitted with the application. If the maps are not provided in the required format, then the person 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 permittee having facilities in the City rights-of-way shall update such maps as required under this chapter.
H. 
Right to inspect. The Department shall have the right to inspect all of the facilities of the permittee, including aerial facilities and underground facilities, to ensure health and safety with respect to such facilities, other facilities, the rights-of-way and any other public or private property, and to determine compliance with the terms of this chapter and other applicable laws and regulations. Permittees are required to cooperate with all such inspections and to provide information requested by the City as part of the inspection.
I. 
Use authorized. No ROW use permit shall confer any exclusive right or privilege to occupy or use the right-of-way for any purpose; or explicitly or impliedly preclude or affect the City's right to authorize use of the right-of-way by other persons to own, construct, operate, maintain, and/or provide the same or different facilities or services, or for any other purposes as the City determines appropriate; or affect the City's right to construct, operate or maintain any type of facilities itself or offer any type of services in the right-of-way; or authorize, or excuse any person from securing such further easements, leases, permits or other approvals as may be required by applicable law or regulation to occupy and use the right-of-way; or convey any right, title or interest in any right-of-way greater or other than an agreement only to use and occupy the right-of-way for the limited purposes and terms provided in the ROW use permit; or be construed as any warranty of title.
J. 
Owner's consent. No ROW use permit expressly or impliedly authorizes a permittee to provide any services to, or install any facilities on, any private property without the owner's consent, or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners thereof for such use.
K. 
Substantially similar terms. ROW use permits and renewals entered into after the effective date of this chapter shall contain substantially similar terms which, taken as a whole upon consideration of all of its material terms and upon consideration of the nature of the services to be authorized and other relevant characteristics of applicants, do not provide substantially more or less favorable terms and conditions than those required of other permittees.
A. 
Persons already authorized to use the right-of-way. Any non-PSC regulated entity holding a permit or other authorization from the City to own, construct, operate, and/or maintain facilities in the right-of-way to provide services may continue to conduct those activities expressly authorized until the earlier of the following: (i) the conclusion of the present term of its existing authorization or (ii) 180 days after the effective date of this chapter; provided that in the case of a cable franchise, such authorization shall continue until the expiration of the current term of the cable franchise. Notwithstanding the foregoing, such persons (with the exception of cable franchisees) shall apply for a superseding ROW use permit pursuant to this chapter within 90 days after the effective date of the chapter and shall be subject to the terms and conditions of this chapter.
B. 
Pending applications. Applications for an authorization to occupy or use the rights-of-way that are pending on the effective date of this chapter shall be subject to this chapter. A person with a pending application shall submit additional information to comply with the requirements of this chapter and applicable regulations of the City governing applications within 30 days from the effective date of this chapter.
C. 
Operating without right-of-way use authorization. Any non-PSC regulated entity that owns or operates any facilities currently located in the right-of-way, the construction, operation, or maintenance of which is not currently authorized, but is required to be authorized under this chapter, shall have 90 days from the effective date of this chapter to file one or more applications for a ROW use authorization. Any entity timely filing such an application shall not be subject to penalties for failure to hold such a ROW use authorization, provided said application remains pending. Nothing herein shall relieve any person of any liability for its failure to obtain any permit or other authorization required under other provisions of this chapter, or City ordinances or regulations, and nothing herein shall prevent the City from requiring removal of any facilities installed in violation of this chapter or City ordinances or regulations.
A. 
Franchise required.
(1) 
No person may own, construct, operate or maintain a cable system or open video system within the City, provide cable service over a cable system, or provide OVS service over an OVS without a cable franchise or OVS franchise, whichever is applicable, issued by the City.
(2) 
To the extent permitted by law, facilities used to provide telecommunications service, information service or any form of services similar to cable service or OVS service that are also used to provide cable service or OVS service shall be subject to this chapter and shall also require a right-of-way use permit pursuant to this chapter.
B. 
Effect of authorization.
(1) 
A cable franchise or an OVS franchise shall not confer any authority to provide any form or type of telecommunications service or information service in addition to the cable service or OVS service authorized by the franchise. To the extent permitted by law, a separate right-of-way use permit pursuant to this chapter, in addition to the cable franchise or OVS franchise, shall be required before any franchisee is permitted to use facilities in the right-of-way to furnish any form or type of telecommunications service or information service.
(2) 
In the event of a conflict between the provisions of this chapter and a cable franchise agreement or OVS agreement in effect on the effective date of this chapter, the provisions of the cable franchise agreement or OVS agreement shall govern.
A. 
Alteration or modification of existing facilities. The permittee must notify the City upon alteration or modification of existing facilities within the rights-of-way. The permittee must additionally provide an updated facilities map if facilities have been removed from, or added to, the rights-of-way.
B. 
Change in information. If there are any changes in information provided in the original permit application, the permit holder has an obligation to notify the City within 60 days of such changes.
A. 
Street opening permits. Except in the case of an emergency, no non-PSC regulated entity 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 VI, of the City Code. No person 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 III, of the City Code. The procurement of a street opening permit shall only be necessary when the proposed street excavation and/or construction affects City streets; it shall not apply to any construction or excavation activities on state roads.
B. 
Construction standards.
(1) 
All construction, installation, maintenance, and operation of facilities in the ROW by non-PSC regulated entities shall conform to the requirements of the following publications, as from time to time amended: the City of Yonkers Curb and Sidewalk Regulations, National Electrical Code, and the National Electrical Safety Code (collectively, the "City of Yonkers ROW Construction Standards"). In the event of conflict between the ROW Construction Standards and this section, this section shall govern as of the effective date of this chapter.
C. 
Security. Each non-PSC regulated entity performing construction in the ROW shall furnish to the City, at the person's expense, a letter of credit or other form of financial security, is such form and in the amount as required by the Corporation Counsel. The security shall be a continuing obligation until the completion of the construction is confirmed in writing by the City.
D. 
Right to inspect facilities. The City may inspect the construction or installation of the facilities of any non-PSC regulated entity, including both aerial and underground facilities, and any construction or repair activity to ensure health and safety with respect to such facilities, other facilities, the rights-of-way and any other public or private property, and determine compliance with the terms of this chapter and other applicable laws and regulations. Such entities are required to cooperate with all such inspections and to provide information requested by the City as part of the inspection. If the City decides, in its discretion, that it must perform a second inspection of any facilities being constructed or installed by such entity, then such entity shall pay the cost of such second inspection.
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, to the satisfaction of the Department. The City may grant an exception to this section in the case of an emergency. The applicant shall pay all street degradation fees and comply with all related requirements as prescribed in Chapter 103, Article IV, of the City Code.
F. 
Relocation or removal of facilities. 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 permittee shall temporarily or permanently remove, relocate, change or alter the position of any facilities within the right-of-way, whenever the Department, consistent with applicable PSC regulations, shall have determined that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:
(1) 
The construction, repair, maintenance, or installation of any City or other public improvement in the right-of-way;
(2) 
The operations of the City or other governmental entity in the right-of-way;
(3) 
The vacation of a street or the release of a utility easement, or; an emergency as determined by the City.
(4) 
The abandonment of utility facilities.
G. 
Coordination of construction activities. By March 1 of each year, or at such other time as the City and permittees may agree, each right-of-way use permittee 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 right-of-way. The schedule shall depict all planned construction activities the permittee is committed to perform within the year.
H. 
Damage to facilities or property. A permittee, including any contractor working for permittee, shall avoid damage to any facilities and/or public or private property. If any facilities and/or public or private property are damaged by permittee, including any contractor working for permittee, permittee shall promptly repair and restore such property within 10 business days. Permittee 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 non-PSC regulated entity 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 as-built map or maps and engineering specifications as set forth in the Policies and Procedures depicting and certifying the location of the facilities constructed. Such engineering specifications and electronic and paper maps 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 person 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, NY Public Officers Law § 87.
J. 
Field marking. Each permittee shall field mark the locations of its underground facilities upon request by other permittees, public 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. Every ROW use permit is subject to the City's right to fix annually fair and reasonable compensation, which compensation:
(1) 
Shall be directly related to the City's actual right-of-way maintenance costs including, but not limited to, the cost to the City of administration and performance of all inspection, permitting, enforcement, and other ROW management activities.
B. 
Annual right-of-way maintenance fee. Each permittee that is not a franchisee, including City ROW permittees, shall pay an annual fee to the City to compensate the City for its costs incurred in connection with the ongoing use and occupancy of the right-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 permittee shall not be required to remit both a cable franchise fee amount and an annual right-of-way maintenance fee to the City; such permittee shall pay the higher of the two fees to the City.