Monument Preservation

[RICH FULTZ JR]

I am curious as to how many agencies have implemented new processes to ensure compliance with SB 1467.
Specifically in response to the following:
Section 16: Section 8771(d) of the Business and Professions Code (Land Surveyor’s Act):
(d) The governmental agency performing or permitting construction
or maintenance work is responsible for ensuring that either the
governmental agency or landowner performing the construction or
maintenance work provides for monument perpetuation required by this
section.

The City of Turlock has modified the Encroachment and Grading permit process to ensure that
there is an individual in responsible charge of the Land Surveying activities within the bounds of
the permitted construction. The individual shall be a Licensed Land Surveyor or a Professional Engineer authorized to perform Land Surveying in the State of California. It shall be at the sole discretion of the City Land Surveyor to determine if the permitted construction activity warrants the need to fulfill this requirement.

• Minor construction activity where there is no potential for jeopardizing monuments would be a situation where the City of Turlock would not require the permittee to designate an individual in responsible charge of the Land Surveying activities within the bounds of the permitted construction.

• All other permitted construction activity will require an acknowledgement signed by an individual in responsible charge of the Land Surveying activities within the bounds of the permitted construction prior to issuance of the permit. Prior to final acceptance of the construction activity, the City of Turlock will require another acknowledgement signed by the designated individual in responsible charge of the Land Surveying activities, stating that all monuments within the bounds of the permitted construction have been preserved.




Acknowledgement of Monument Responsibility
Monument Preservation prior to construction activity




I, ____________________________, a duly Licensed Land Surveyor or a Professional Engineer
(Please print)

authorized to perform Land Surveying in the State of California, Registration No. _____________,

hereby acknowledge and accept all responsibility for the monument preservation as required per

Section 8771(a-f) of the Business and Professions Code within the bounds of the construction

activity permitted by the City of Turlock Permit No. _______________.

I further acknowledge that I am hereby responsible for the Acknowledgement of Monument

Preservation prior to final acceptance of the construction activity permitted by the City of Turlock

Permit No. _______________.



______________________________ Seal
Signature


______________________________
Date






Acknowledgement of Monument Preservation
Monument Preservation prior to final acceptance of construction activity




I, ____________________________, a duly Licensed Land Surveyor or a Professional Engineer
(Please print)

authorized to perform Land Surveying in the State of California, Registration No. _____________,

hereby acknowledge and accept all responsibility for the monument preservation as required per

Section 8771(a-f) of the Business and Professions Code within the bounds of the construction

activity permitted by the City of Turlock Permit No. _______________.

I hereby state that all monuments within the bounds of the construction activity permitted by the

City of Turlock Permit No. _______________ are in the original location or have been reset in

accordance with Section 8771(a-f) of the Business and Professions Code.



______________________________ Seal
Signature


______________________________
Date

Our new process has been accepted very well for the most part. We have experienced resistance from a couple Utility Companies. Their initial response is that they are regulated by the PUC, therefore exempt. One other comment we frequently hear is; "The City of Turlock is the only Agency in the State with this requirement". I know other agencies are addressing this issue in some form or fashion. I would like to hear from other Agency Land Surveyors. Are you the individual listed on the Notice of Department Designation for the Board? If so, how are you ensuring compliance with monument preservation within your jurisdiction? Have you assumed all responsibility or have you implemented something similar to Turlock?
Rich Fultz, PLS
City Land Surveyor
City of Turlock

[Tom Herrin]

We are currently working on this issue for the County of San Bernardino, specifically with the permitting process through Public Works. In the past we have had language in all of our permits noting the responsibilities of the permittee to comply with 8771, but it has been a passive approach to the issue. We are working on changing to a more active involvement in the permit review process by the CS office to ensure compliance due to the recent modifications to 8771.

I am very interested in hearing further feedback on the City of Turlock's approach as well - this would appear to be an expedient way to get the professional community involved, and also ensure compliance with the law. For our process, we were looking at the requirement of CR's being filed prior to permit issuance, but this would be a way to ensure the CR's do get filed, while speeding up the release of the permit for the applicant. Seems like a good idea.

[Johnston]

Rich:
You mention resistance from some utilities. Aren't the utilities subject to Streets & Highways Code (see Streets & Highways Code 661)? If so, aren't they then subject to S&H Code 732, 732.5, 1450, 1492.5, and 1810.5, all of which make them responsible for compliance with 8771? I concluded the existence of those S&H code sections was why 8771(d) was revised, removing the reference to "others" and instead "targeting" landowners; all those "others" were already subject to 8771.

[Warren Smith]

We have had compliance recently from one of the major power and gas utility companies performing rehab work, which has resulted in scores of corner records, pre- and post-construction within entire neighborhoods. Do not have any complaints about the sudden surge.

[Jim Frame]

My concern with the City of Turlock's approach is that is puts responsibility for comprehensive monument preservation on the licensee but doesn't provide any apparent mechanism for the licensee to control the contractor's schedule or enforce payment by the contractor outside of the lien and court processes. So a contractor gets a road project, enters a contract with an LS to sign the Acknowledgement of Monument Responsibility, then goes out and cluelessly destroys all the monuments within the work area. Now the corner locations are lost, and the LS is on the hook for re-establishing them, which can be a major undertaking. He sends a big bill to the contractor, who says "No way, that's more than the whole job is worth. I ain't payin' that!" and we're off the rodeo.

I think it'd be much better to make monument preservation a direct contract deliverable with pre-construction identification of the monuments to be preserved, pre-construction review of the Corner Record tie-outs, and post-construction inspection of the replaced monuments and review of final CRs. That way the agency controls the process and ensures that the right steps happen at the right time, instead of trying to pawn the responsibility off on the private sector. I've seen how the latter process works, and it doesn't work very well.

[RICH FULTZ JR]

Johnston
I agree, there are many other codes that regulate monument preservation and I do not agree that utility companies are exempt.

Warren
I understand the increase in Corner Record submittals. I know I am on pace to submit 60-80 Corner Records this year. Part of that is due to accessible upgrades(ramps at returns) with our street overlay projects.

Jim
Perhaps I should explain more detail of how we operate in Turlock. We have a full service Surveying staff for all of our Capital projects. Therefore, all street reconstruction, pipelines and various infrastructure staking projects are completed with City forces. We identify all monuments in potential jeopardy well in advance of awarding a contract for construction. I also have the benefit of having all of the Public Works Inspectors under my supervision. They have become very aware of monument preservation and are very good watch dogs. I also work very closely with our Capitol Engineering staff on the projects. The Engineers are very good about absorbing the cost of monument preservation into the project budget. The focus of our monument preservation process was not focused at Capitol projects, because I am completely responsible for those efforts. The real focus was the private development and utility company construction permits. I knew that I did not have the resources or staff to preserve all monuments for this construction activity within Turlock. I believe by making the monument certificate a requirement prior to permit issuance, made the contractor contact the Land Surveyor in advance. I know from my experience in the private sector, that the contractor is looking for the lowest bid for staking. This often results in an apples to oranges comparison of the staking proposals. Our process is intended to allow the Land Surveyor to prepare a proposal and contract for all the necessary work in advance. The Land Surveyor does not have to sign the first certificate until they are satisfied with their contract and they have completed their monument ties. The second certificate is intended to release them of the responsibility beyond the time line of the project. I do not believe I am transferring all responsibility to another Land Surveyor with this process. It is still my responsibility to ensure they perform the task as identified in the certificate. If they neglect to perform these tasks, I will be in contact with them directly. So far, I am getting the sense that the private Land Surveyors appreciate the process. As far as the Corner Records, they are submitted to the County Surveyor who has the authority for filing. Most Land Surveyors provide me a courtesy copy when they submit to the County.
I hopes this gives you a better understanding of our process.

[mpallamary]

I think this is a great idea and I applaud your efforts. Set a high standard and stick to it. I view the contractual arrangements as just that. This is all about entering into a contract, just like every other job we do. I have been in the private sector my entire life and I think this is a great idea.

[dedkad]

Thus far, our City has focused on just improving our preservation of monuments along the street ROW. For capital projects, we are discussing having a separate contract between the City and a land surveyor for each project to do all of the work during design, pre-construction, and post-construction with regards to monuments. For private development projects, we have just pointing out to the engineer of record that there is a potential monument in the location of their work and they need to show it on the plans and add notes regarding preserving or replacing it. It is our intent that our inspectors will verify that the street ROW monuments are there once project is complete. We haven't even begun to think about how to handle non-street ROW monuments. Typically no one inspects those to see if they were there or not to begin with and if they are still there when project is done. The City of Turlock's idea is a good one for those situations. I am interested in hearing feedback from surveyors on what, if any, concerns they would have about signing those acknowledgments. Jim's comments are duly noted, but I think his concerns could be satisfactorily addressed in his contract with the contractor.

[E_Page]

I don't think that you would be able to effectively just transfer your statutory responsibility as the statement devised in the OP attempts to do. Just as the indemnity clauses that many agencies were using in their contracts with private consultants were ruled unenforceable a few years back, I don't believe this statement would stand up either.

I would never sign it as a private consultant for the reasons Jim mentions specifically, and generally because the surveyor has no control over the actions of others or the circumstances of a project when he is not on site, and very little control while he is on site.

Often, the surveyor isn't called to the site until some preliminary construction work has already begun. Unless the agency has ensured that no such work, including mobilizing equipment to the site occurs before the surveyor has had the opportunity to search for and locate monuments before the contractor arrives, he can't assure himself or anyone else that all of the monument positions existing prior to construction activities have been correctly located. There's a high likelihood that some had already been destroyed or disturbed before he ever had the opportunity to find them.

If the surveyor concludes his contract, and then the contractor is called back to correct or add to some of the previous construction work, either as a punch list item or as an afterthought extra, it's a safe bet that no one will have thought to contact the surveyor to check and replace monuments disturbed or destroyed by that work.

A certification that the surveyor made a diligent search of all monuments of record within a described area between specific dates, and then verified the continued existence or rehabilitated monument positions within that same described area as necessary between a second set of specified dates would be a better model.

The surveyor can only certify or attest to what he was hired and empowered to do. The ultimate responsibility to ensure that proper steps to facilitate monument preservation throughout the full duration of the project still rests with the party or parties identified in the statute.

[Steve Martin]

dedkad

For capital projects, we are discussing having a separate contract between the City and a land surveyor for each project to do all of the work during design, pre-construction, and post-construction with regards to monuments.

That sounds like the proper way to go.

As I understand it, including language in a construction contract indicating that the contractor is to hire a licensed land surveyor to reference and replace monuments sets the contractor up for a violation of the Land Surveyors Act, procuring land surveying services on behalf of another.

[RICH FULTZ JR]

I do realize that I am not transferring all my responsibility to the Land Surveyor signing the certificate. I still have the responsibility to "ensure" that monument preservation occurs with all construction activity within Turlock. This process is way to make the responsibility possible. Another problem we frequently see in Turlock is contractors performing there own construction staking. We do not allow them to stake improvements in the public right-of-way, however the private property staking is the issue. In Turlock, we have an Encroachment Permit for work within the public right-of-way and a Grading Permit for all Civil improvements on private property (excluding structures). The requirement of the Monument Certificates has helped with this issue of contractor staking. We will not issue either of the two permits until the Land Surveyor signs the first certificate. This is forcing the contractor to realize, that "they do need a Land Surveyor involved with the project". The private sector Land Surveyors seem to appreciate this in our area.

The other recent legislation that took effect in July 2015 is the Clean Storm Water Regulations (MS4). The MS4 does not allow any excavation until the contractor has fulfilled the requirements(E.g. Erosion Sediment Control Plan). This may not prevent mobilizing equipment, but there is not much else they could do beyond that. I know there is certainly non-permitted work occurring out there and therefore the requirements are not being met. I am certainly not a proponent of adding regulations and making the permit difficult to obtain, but both the Monument Preservation and MS4 processes are an effort to comply with State of California legislation.

Private projects, the contractor's goal is to get the permit in his hand to begin work. Our process forces him to contact a Land Surveyor in advance. The Land Surveyor has every opportunity to complete a contract and perform any necessary work prior to signing the certificate.

For Capital projects, I agree the City should perform the work or contract directly with the Land Surveyor. We have experienced some serious problems having the contractor hire his own Land Surveyor.

I appreciate all the comments and questions.

[E_Page]

"... hereby acknowledge and accept all responsibility for the monument preservation as required per
Section 8771(a-f) of the Business and Professions Code "

This is really the only part that I see as problematic. It sounds like your agency is doing what it needs to do when it needs to do it in terms of coordination for this task. That coordination is the key to fulfilling the responsibility under 8771. The surveyor hired as a consultant cannot perform that coordination and does not have the ability to compel cooperation by the contractor or private landowner by withholding permits as does the agency.

I suggest rewriting the certification to cover only the finding and documenting of monuments within the specified construction impact area, and the resetting or rehabilitation of any monuments disturbed or destroyed once the construction is completed, all per 8771.

Again, the surveyor consultant has no control of what might happen associated with the project at the site prior to his first opportunity to locate the monuments, nor any control on what might happen after the last visit he is asked to make. Those two aspects prevent the surveyor from being effectively able to "acknowledge and accept all responsibility...", and those few words risk making the certification unenforceable.

[Jim Frame]

and those few words risk making the certification unenforceable

And likely uninsurable, too.

[RICH FULTZ JR]

Gentlemen
I appreciate all your input on this post. I realize that our process may not be completely "Bomb Proof", however it is my effort to meet the intent of the legislation. We have had this process in place for seven months now and I have not encountered a Land Surveyor refusing to sign. When they understand the intention behind the process, they are happy to participate. I honestly can not think of any Land Surveyors in this area who do not understand the importance of monument preservation. I truly believe most of them would do whatever is necessary to save monuments regardless of a certificate of responsibility and/or compensation. I remember very early in my career (of about 30 years), I learned that if we ever found a monument to be in potential jeopardy, we would stop everything and tie it out. This was well before I understood the laws behind it. I learned very quickly that these monuments were our control for our various tasks and without them our jobs were more difficult. Today with modern technology the need for control points may not be as critical, but I do not think monument preservation is any less important. I know many of you have similar memories of your early days surveying and the critical need to have the monuments for control. The message that I am trying to send these days is; we need these monuments to survive to retrace and resolve boundaries most efficiently. A $2,000 boundary survey can turn into a $20,000 boundary survey if monuments have been destroyed in key locations. Not to mention if improvements have been constructed in the wrong location due to monuments being absent. Forgive me for getting back to the basics of Land Surveying. Educating our field crews and others involved with our projects seems to be a bigger concern in our area. I do believe we are making progress with this effort. I have even had contractors ask me if we were going to tie out particular monuments during pre-construction meetings. In summary, I know Land Surveyors all have the same end goal to preserve the monuments. We can continue to refine our processes to develop a "Bomb Proof" situation in time. As for now, this process is working very well in Turlock and I am even making progress with some resistant utility companies. They to have a right to an appropriate education on monument preservation.

[E_Page]

You don't have to convince me about the importance of monument preservation. My comments are just about a portion of the language you're using. It makes little difference to me if you take the advice Jim and I each gave you or not. It's not about having something that's "bombproof", it's about whether you will adjust your language to have a certification which is just as effective as a practical local education tool as the one you're currently using, but won't leave you uncovered if the rubber ever has to meet the road when someone fails in their responsibility at some point in the future. As written, the certification you have now will likely prove worthless if you ever have need to enforce it. The relatively minor change I've suggested would likely make all the difference in that regard.