Ordinance Addressing Pothole Repair

CITY OF BOSTON
IN THE YEAR TWO THOUSAND THREE
AN ORDINANCE AMENDING CBC REGARDING THE
REPAIR/RESTORATION/BACKFILLING
OF SIDEWALKS AND STREETS


According to CBC 11-6.1, the Commissioner of the Public Works Department "shall have charge of and keep clean and in good condition and repair the streets;" and

WHEREAS, According to the www.cityofboston.gov, there are over 1,500 miles of city streets in the City of Boston that are maintained by the Highway Reconstruction and Maintenance Division of the Public Works Department; and

WHEREAS, The streets of the City of Boston have endured a grueling winter which has created pothole hazards throughout the City; and

WHEREAS, The City of Boston presently maintains a hotline (617-635-7555) for the reporting of potholes in public ways; however, in order to deal with the volume of complaints that the City of Boston receives annually from constituents a web site should also be established to monitor and track complaints; and

WHEREAS, According to published reports, as of May 22, 2003, 569 claims were filed with the City Clerk under CBC 18-1.3 for injuries and/or damages resulting from defects in roads and sidewalks and from accidents with vehicles owned by the City of Boston; therefore, at present the City of Boston is not effectively protecting itself from claims of liability; furthermore the City of Boston should take great efforts to improve and protect the public safety of its constituents and visitors; and

WHEREAS, Utility companies and private contractors contribute to the uneven surfaces of City roads through their excavation of city streets to create access to many of their pipes, conduits, valves, tunnels, and other facilities; and

WHEREAS, The quality of the repair of the utilities' and public contractors' excavations is notably irregular, and

WHEREAS, The City of Boston routinely hires private contractors to temporarily patch trenches; in return, the City of Boston is responsible for providing a permanent repair to city trenches; however, these temporary patches are often in place much longer than intended, indicating that, at present, the City of Boston has not been repairing public ways in a timely fashion; and

WHEREAS, The City of Boston should make efforts to adapt to newly developed technologies and methods for repairing public ways, for at present the City of Boston's efforts to improve its existing program are behind those of other municipalities.

NOW THEREFORE,

WHEREAS, Be it ordained by the City Council of Boston, as follows:

Section 1.
CBC Chapter XI, Section 11-6.9 is hereby amended by striking the entire section and replacing it as follows:
Permits for Street Work; Conditions Thereof. CBC 11-6.9


a. Application for a Permit:
The Commissioner of Public Works (hereinafter referred to as "Commissioner" for the purposes of CBC 11-6.9) may issue permits to persons having authority in the premises to open, occupy, obstruct, and/or use portions of the streets and/or sidewalks in the City of Boston (hereinafter referred to as "Applicant" for the purposes of CBC 11-6.9) for the limited purpose of performing maintenance and only upon written application to the Commissioner in which the Applicant shall (1) detail the date, time, place, and specific purpose for the opening, occupation, obstruction and/or use of the street and/or sidewalk, (2) detail the minimum and maximum period of time required for the opening, occupation, obstruction, and/or use of the street and/or sidewalk, (3) specify the minimum and maximum dimensions of the opening, hole, or entry through the street and/or sidewalk, and (4) specify an estimate of the cost of the specific task of repairing/restoring/backfilling the affected area of the street and/or sidewalk in a first-rate or first-class manner and in accordance with the minimum standards of CBC 11-6.9 to a condition equivalent to or better than the condition existing at the time of application hereinafter referred to as "Restoration" for the purposes ofCBC 11-6.9).


b. Issuance of a Permit.
Permits may be issued only (1) upon the Applicant's acknowledgment and acceptance of the conditions delineated in CBC 5-5.30, (2) upon the Commissioner's satisfactory review of the Applicant pursuant to CBC 11-6.17, (3) upon the Applicant's remittance of a deposit of monies (hereinafter referred to as "Restoration Deposit" for the purposes of CBC 11-6.9) in the amount of two hundred percent (200%) of the estimate of the Commissioner for the Restoration of the paving or other surface of the area affected by the Applicant's opening, occupation, obstruction, and/or use, and Restoration shall be completed in a first-rate or first-class manner and in accordance with the minimum standards of CBC 11-6.9 to a condition equivalent to or better than the condition existing at the time of application, and (4) upon the Applicant's remittance to the Commissioner of an application fee in the amount of one hundred fifty dollars and no cents ($150.00).


c. Other Terms and Conditions Regarding a Permit:
(1) Restoration.
Upon completion of the permitted opening, occupation, obstruction, and/or use, the Applicant shall repair/restore/backfill the paving or other surface of the area affected by the Applicant's opening, occupation, obstruction, and/or use, and the Applicant's repair/restoration/backfilling of the affected area of the street and/or sidewalk and shall be completed in a first-rate or first-class manner to a condition equivalent to or better than the condition existing at the time of application and shall be warranteed for a period of time not less than two (2) calendar years during which time the Applicant shall maintain the Restoration; the Applicant shall immediately notify in writing the Commissioner of the completion of the Restoration and present a complete list of materials, standards, and methods employed to complete the Restoration; the Applicant shall not use the fill removed from the opening as backfill but shall use only clean processed gravel or controlled density fill as backfill for the Restoration; in no event shall the Restoration be completed with a minimum compact density of the backfill of less than ninety-five percent (95%) and in no event shall the Restoration be completed with a minimum compact density of the asphalt of less than ninety-two and one-half percent (92.5%); the Applicant shall submit to the Commissioner a certification from a certified/licensed testing laboratory that the Restoration meets the minimum compact density standards of this subsection (hereinafter referred to as "Certification" for the \ purposes of CBC 11-6.9); the Commissioner shall review the list of materials, standards, and methods, shall review the Certification and not sooner than seven (7) business days (to allow time for some settling, if any, of the Restoration) and not later than fourteen (14) business days may perform a physical inspection of the Restoration; if the review and/or inspection results are satisfactory to the Commissioner then the Commissioner shall release the Restoration Deposit monies to the Applicant; if the review and/or inspection results are unsatisfactory then the Commissioner shall notify the Applicant who shall replace the unsatisfactory Restoration within five (5) business days of receipt of the Commissioner's notice and shall immediately notify in writing the Commissioner of the completion of the replacement Restoration and present a complete list of materials, standards, and methods employed to complete the replacement Restoration and the Certification issued therefore; the Commissioner shall review the list of materials, standards, and methods, shall review the Certification, and not sooner than seven (7) business days (to allow some settling, if any, of the Restoration) and not later than fourteen (14) business days may perform a physical inspection of the replacement Restoration. If the review and/or inspection results of the replacement Restoration are satisfactory to the Commissioner then the Commissioner shall release the Restoration Deposit monies to the Applicant; if the review and/or inspection results of the replacement Restoration are unsatisfactory then the Commissioner shall issue the appropriate violation(s) to and impose the appropriate fine(s) on the Applicant and shall effect a first-rate or first-class restoration and shall utilize funds from the Restoration Deposit to pay for such restoration and satisfy any and all violations and fines incurred by the Applicant relating thereto and shall refund any balance remaining thereafter to the Applicant. The Applicant shall participate in the Commissioner's programmatic resurfacing of streets which determines the Applicant's equitable share of the cost of resurfacing streets affected by the Applicant's opening, occupation, obstruction, and/or use.

(2) Worksite.
During the permitted opening, occupation, obstruction, and/or use, and Restoration, the Applicant shall (a) place and maintain, from the beginning of twilight and through the whole of every night, over or near the place so opened, occupied, obstructed, and/or used and over or near any dirt, gravel, or other material placed in or near such place, a light or lights sufficient to warn and protect travelers from injury, (b) place and maintain a safe and convenient way, subject to the Commissioner's approval, for the safe use of foot travelers and for vehicles around or over such place, (c) protect trees designated by the Parks and Recreation Department in accordance with their specifications, (d) provide suitable sanitary accommodations for the Applicant's employees, and (e) deliver the coupon attached to the permit to an officer of the Boston Police Department on or before the expiration of the time fixed in the permit for completion of the work described therein, and such coupon shall be returned to Public Works Department by the officer.

(3) Inspector.
During the permitted opening, occupation, obstruction, and/or use, and Restoration, the Commissioner may detail an inspector, at the expense of the Applicant, to supervise the opening, occupation, obstruction and/or use of the street and/or sidewalk and to ensure that the repair/restoration/backfilling of the affected area is properly and adequately completed.


(4) Enclosure.
During the permitted opening, occupation, obstruction, and/or use, and Restoration, the Applicant may be required to enclose the area of the opening, occupation, obstruction and/or use of the street and/or sidewalk with a rail, fence, or other guard as directed or specified by the Commissioner.


(5) Boston Police Department.
During the permitted opening, occupation, obstruction, and/or use, and Restoration, the Applicant shall maintain, at the expense of the Applicant, a detail of Boston Police Officers on special duty (outside of their regular tour of duty), as the Commissioner of the Boston Police Department deems necessary, in no event shall the detail be comprised of less than one (1) Boston Police Officer, to protect the safety and general welfare of the public and to preserve the free circulation of traffic. This sub-section shall not prohibit the reimbursement of the Applicant for such expense if a contract between the Applicant and the City of Boston or any other person provides for such reimbursement. The Commissioner of the Public Works Department shall ascertain compliance with this provision prior to issuance of a permit.


d. Violations, Penalties, and Enforcement.
The Commissioner of Public Works shall have the authority to enforce CBC 11-6.9 and shall have the authority to delegate enforcement to any authorized department, division, or office. Violations of CBC 11-6.9 shall include, but not be limited to, the Applicant's use of improper, inadequate, or substandard materials; the Applicant's violation of time standards; the Applicant's failure to use clean processed gravel or controlled density fill for the backfill; the Applicant's failure or refusal to complete the Restoration; the Applicant's failure or refusal to maintain the Restoration; the Applicant's failure or refusal to, during the permitted opening, occupation, obstruction, use, and/or Restoration, place and maintain a light or lights sufficient to warn and protect travelers from injury, place and maintain a safe and convenient way for the safe use of foot travelers and for vehicles around or over such place, protect trees designated by the Parks and Recreation Department, provide suitable sanitary accommodations for the Applicant's employees, and comply with the terms regarding the Boston Police Department detail; failure or refusal to abide by a rule or regulation, if any, promulgated by the Commissioner; failure or refusal to remit any monies required within sixty (60) calendar days of receipt of demand therefore. Each and every violation of CBC 11-6.9 shall be punishable by a fine of not less than two hundred fifty dollars and no cents and not more than five hundred dollars and no cents ($500.00), and each and every day that a violation occurs or remains shall constitute a separate violation.


e. Regulatory Authority.
The Commissioner of Public Works shall have the authority to promulgate rules and regulations necessary to implement and enforce these sections and shall make any promulgated regulations available upon request.


f. Severability.
If any provision of these sections shall be held to be invalid by a court of competent jurisdiction, then such provision shall be considered separately and apart from the remaining provisions, which shall remain in full force and effect.


Section 2.
CBC Chapter XI, Section 11-6.27 is hereby amended by adding the following language to the beginning of the first sentence of the section: "Unless otherwise managed pursuant to CBC Section 11-6.9,".


Section 3.
The provisions of these sections shall be effective immediately upon passage.

Maura A. Hennigan
City Councillor At-Large
June 2003

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