Monument preservation condition language

[dedkad]

As a public agency trying to enforce the monument preservation requirements of Sec. 8771, I have come across a problem that I'd like to resolve. Sec. 8771 addresses monuments disturbed during construction. Twice I've had to deal with finger-pointing from contractors, owners or surveyors when it comes time to occupy a new building saying that the monuments weren't there to begin with or that the previous owner/developer/contractor disturbed the monuments not them, so they aren't required to reset them because they weren't the ones who disturbed them. I'd like to include a condition in the project approvals to resolve this issue. Below is some draft language I am considering which would put the requirement to have property corners in place prior to occupancy on whomever owns the property at the time they want occupancy. Have any of you seen anything similar from other agencies? Does CLSA have some suggested language that addresses this issue? Any comments on my draft language?

"Prior to occupancy the existence of any monuments of record that define or control the property boundary or adjacent street right-of-way shall be verified in the field, and if said monuments are missing, then the monuments shall be reset and a record of survey or corner record shall be filed accordingly, unless otherwise waived by the Public Works Director."

[Ric7308]

dedkad,

Go check out what City of Turlock did at:
https://www.google.com/url?sa=t&rct=j& ... 7mg2yqX6sK

What they did works very well.

The licensed civil engineer listed on the Notice of Department Designation form required to be submitted to BPELSG is responsible for ensuring that monument preservation pursuant to 8771(b) and (c) is adhered to. The requirement to file pre-construction and post-construction documents and the choice to do a Corner Record or Record of Survey is solely the responsibility of the person establishing the reference ties and resetting the monuments and requires a person authorized to practice land surveying. The Director of Public Works has absolutely no discretion in the matter.

If anyone at your City has questions or comments on this, please feel free to reach out to Dallas Sweeney at 916-263-2271 or dallas.sweeney@dca.ca.gov. At the request of Turlock, we reviewed their proposed format and language and happy to assist your city as well.

[E_Page]

It is the designated agency licensee who is ultimately in the hot-seat for these, but realistically, it is the agency employees on the ground or the private surveyors hired to do the work on the project who are in the position to monitor which monuments exist prior to construction, and to replace or rehabilitate monuments destroyed or disturbed during construction.

That places the agency in the position of ensuring that both the required pre-construction, and post-construction survey work relative to monuments gets done when and how it's supposed to. I've heard nothing but good things about the effectiveness of Turlock's program. If you are now in the position of having to look backward at existing projects in the final stages, I suggest that if there was no pre-construction RS or CR for the project at hand, the agency take the stand that all monuments were absent or present and in the condition stated in the most recent filed record showing a monument or an unsuccessful search for a monument in each position affected by the construction. Absent having had a licensed surveyor search and file a more recent record showing otherwise, the argument that no monument existed where previous records show they did is pretty weak.

If it boils down to existing contract provisions, and the current contracts do not address financial responsibility, the agency may be on the hook for the responsibility from both a licensing and a financial responsibility. Either way, even though realistically only in a contract enforcement position, the agency, or specifically, that designated licensee ultimately is responsible to ensure the work gets done properly. 8771 is written that way to give an effective incentive to the designated agency in responsible charge (often the Director of DPW or a senior management staff) to ensure the work gets done, either by agency staff or with appropriate contract provisions and/or ordinances. With a particular licensee on the hook rather than the agency, the matter is less likely to be overlooked because no one feels a personal responsibility for it.

[Edward M Reading]

dedkad,
Maybe I'm missing something, but if there is a pre-construction RS or CR how is there any question as to the existence of the monuments prior to construction? Also, I have to agree with Ric that the Public Works Director has no authority in the matter.
Ed

[T. S. Higgins]

It is the designated agency licensee who is ultimately in the hot-seat for these, but realistically, it is the agency employees on the ground or the private surveyors hired to do the work on the project who are in the position to monitor which monuments exist prior to construction, and to replace or rehabilitate monuments destroyed or disturbed during construction.

That places the agency in the position of ensuring that both the required pre-construction, and post-construction survey work relative to monuments gets done when and how it's supposed to. I've heard nothing but good things about the effectiveness of Turlock's program. If you are now in the position of having to look backward at existing projects in the final stages, I suggest that if there was no pre-construction RS or CR for the project at hand, the agency take the stand that all monuments were absent or present and in the condition stated in the most recent filed record showing a monument or an unsuccessful search for a monument in each position affected by the construction. Absent having had a licensed surveyor search and file a more recent record showing otherwise, the argument that no monument existed where previous records show they did is pretty weak.

If it boils down to existing contract provisions, and the current contracts do not address financial responsibility, the agency may be on the hook for the responsibility from both a licensing and a financial responsibility. Either way, even though realistically only in a contract enforcement position, the agency, or specifically, that designated licensee ultimately is responsible to ensure the work gets done properly. 8771 is written that way to give an effective incentive to the designated agency in responsible charge (often the Director of DPW or a senior management staff) to ensure the work gets done, either by agency staff or with appropriate contract provisions and/or ordinances. With a particular licensee on the hook rather than the agency, the matter is less likely to be overlooked because no one feels a personal responsibility for it.

This is the approach I'd take as well. Regardless of the ultimate financial responsibility or contract disputes, the public has been potentially damaged. Without a clear acceptance of responsibility by another licensee associated with the project, it falls to the agency to reset all monuments that may have been disturbed, barring any available evidence to the contrary.

One thing that will definitely get upper management to move forward on approving a monument preservation program is when their survey staff starts racking up significant labor costs resetting every monument within the construction area and filing the necessary documents.

[Ric7308]

The fact of the matter is this. When a local agency has issues pertaining to this topic and dealing with who was responsible (for past projects) or is responsible (for current and future projects), only the Board has jurisdiction to determine who is ultimately responsible for compliance with this section of law, what will be done to correct the issue, what procedures/policies will be put in place to help prevent this from happening again, and which licensee(s), if any, will be held responsible for non-compliance.

If dedkad's agency is experiencing this, the ONLY responsible action besides correcting it themselves, is to contact the Board for assistance. This is a MUCH better course of action than having to respond to an investigation by the Board. Anything else is still non-compliance and a waste of time. No other individual or entity has the legal authority to negotiate compliance on this issue or can ensure a satisfactory resolution.

[E_Page]

Put your hackles down Ric. I didn't mean to imply anything about license responsibility enforcement, and in fact did clarify that the license responsibility is stuck with the designated agency licensee in responsible charge.

Also didn't even come close to suggesting that the agency pawn off the ultimate responsibility for ensuring the job gets done to a contractor or consultant (a legal impossibility).

The fact remains that beyond the responsibility of ensuring that the monumentation gets done by some qualified individual, it is up to the agency's designated licensee to determine how to best ensure compliance. Many agencies continue to include provisions in consultant contracts with regard to protecting and replacing or rehabilitating monumentation as necessary for public works projects, including those agencies which are now educated as to the responsibilities associated with their designated licensee in responsible charge.

While the designated licensee within the agency has the responsibility to ensure the work gets done, the agency is free to pawn off the financial responsibility in any legal manner that financial responsibility can be assigned for any other matter by contract and/or ordinance. The fact also remains that the designated licensee's responsibility does not change according to any agreement for financial responsibility or failure of the contractor or consultant to meet that responsibility in the form of doing the work or paying for it to be done.

When done correctly, between agency and consultant, it would be a contracting issue before it ever needs to come to the attention of BPELSG staff. A properly constructed contract is the agency's enforcement tool to ensure that the required work gets done correctly. If enforcement by contract fails to ensure that the monumentation work is completed in a timely manner, the agency still has the responsibility to ensure the work is completed by other means, leaving the only part of the contract issue being financial recovery for that work as a civil matter between the agency and the consultant.

While BPELSG has done good work in efforts to educate agencies as to the agency licensees' responsibilities in these matters, and may be quite helpful in suggesting ways that a local agency could ensure that the monumentation get completed, either by a duly licensed private consultant or by agency staff directly, it has no authority to direct an agency how it must ensure that the work gets completed beyond the requirement that it be done by or under the direction of a person authorized to practice surveying in CA.

Now, other than answering the question of jurisdiction as to ultimate responsibility, which I don't believe was asked in this thread, and I had assumed was generally acknowledged by the thread's contributors, do you have helpful general advice, or take issue with the general advice previously given by me or others?

[dedkad]

dedkad,
Maybe I'm missing something, but if there is a pre-construction RS or CR how is there any question as to the existence of the monuments prior to construction? Also, I have to agree with Ric that the Public Works Director has no authority in the matter.
Ed

There's no question in my mind that the monuments existed when construction started. We do our best to do a pre-construction and post-construction walk-through to ensure monumentation is in place. The problem is what happens in the meantime. Our agency has no control over change of ownership and contractors (and even surveyors) during the construction process. When we get to the post-construction walk-through and monuments are missing, we tell the current landowner they need to reset them before they can get occupancy. They then start arguing that they weren't the ones who disturbed them. It must have been the previous landowner/contractor. They argue that when they bought the property, the monuments were no longer in place and therefore they aren't the ones responsible for monument perpetuation because there were no monuments to perpetuate. I think that Sec. 8771 doesn't have enough teeth for us to go after the current landowner. That's why I'm proposing the condition that the current landowner is responsible regardless of what happened in the meantime. I find the Turlock agreements intriguing but why would a surveyor want to take on that responsibility when they have no assurance that they will be the surveyor of record when the project is completed? The person they have contracted with could sell the property and now the surveyor is on the hook with the local agency and the person who was supposed to pay their bill is long gone.

[Ric7308]

Put your hackles down Ric. I didn't mean to imply anything about license responsibility enforcement, and in fact did clarify that the license responsibility is stuck with the designated agency licensee in responsible charge.

Also didn't even come close to suggesting that the agency pawn off the ultimate responsibility for ensuring the job gets done to a contractor or consultant (a legal impossibility).

The fact remains that beyond the responsibility of ensuring that the monumentation gets done by some qualified individual, it is up to the agency's designated licensee to determine how to best ensure compliance. Many agencies continue to include provisions in consultant contracts with regard to protecting and replacing or rehabilitating monumentation as necessary for public works projects, including those agencies which are now educated as to the responsibilities associated with their designated licensee in responsible charge.

While the designated licensee within the agency has the responsibility to ensure the work gets done, the agency is free to pawn off the financial responsibility in any legal manner that financial responsibility can be assigned for any other matter by contract and/or ordinance. The fact also remains that the designated licensee's responsibility does not change according to any agreement for financial responsibility or failure of the contractor or consultant to meet that responsibility in the form of doing the work or paying for it to be done.

When done correctly, between agency and consultant, it would be a contracting issue before it ever needs to come to the attention of BPELSG staff. A properly constructed contract is the agency's enforcement tool to ensure that the required work gets done correctly. If enforcement by contract fails to ensure that the monumentation work is completed in a timely manner, the agency still has the responsibility to ensure the work is completed by other means, leaving the only part of the contract issue being financial recovery for that work as a civil matter between the agency and the consultant.

While BPELSG has done good work in efforts to educate agencies as to the agency licensees' responsibilities in these matters, and may be quite helpful in suggesting ways that a local agency could ensure that the monumentation get completed, either by a duly licensed private consultant or by agency staff directly, it has no authority to direct an agency how it must ensure that the work gets completed beyond the requirement that it be done by or under the direction of a person authorized to practice surveying in CA.

Now, other than answering the question of jurisdiction as to ultimate responsibility, which I don't believe was asked in this thread, and I had assumed was generally acknowledged by the thread's contributors, do you have helpful general advice, or take issue with the general advice previously given by me or others?

Hey Evan, the OP didn't bring up contracts or issues with those but somehow that topic seemed to crop up! I did provide helpful advice...to the OP who is employed (last I knew) at the public agency and that is where the advice was directed towards. Whether dedkad chooses to make use of that advice or not is certainly up to him, but I'm fairly certain he will not receive any advice on this topic that is more helpful or pertinent to his inquiry.

With all due respect to the perspective of land surveyors, because I truly understand the innate protection mechanism that all land surveyors possess with regards to monuments, the topic of monument preservation as it relates to Section 8771 is less about the practice of land surveying and more about how an agency properly implements their responsibilities and compliance with the laws.

The majority of the time spent by the Board on outreach and issues related to 8771 is with individuals other than land surveyors. Matter of fact, I just spent time in dedkad's general area (if he is still in the San Jose area) Friday before last meeting with 20-25 people on how to properly implement policies and procedures for monument preservation and contracting by the public agency for surveying services. Only one person was a land surveyor. The rest were the decision-makers at the agencies and the ones who now very clearly understand their responsibilities.

The nuances associated with public agency responsibilities in this regard and past myths and misunderstandings, many of which persist even today, about those have led us to being very exact in communications which why I chose to post comments to dedkad so he had the proper perspective in which to rely upon.

[Ric7308]

dedkad,
Maybe I'm missing something, but if there is a pre-construction RS or CR how is there any question as to the existence of the monuments prior to construction? Also, I have to agree with Ric that the Public Works Director has no authority in the matter.
Ed

There's no question in my mind that the monuments existed when construction started. We do our best to do a pre-construction and post-construction walk-through to ensure monumentation is in place.

That's great! I assume you mean that you are ensuring that 8771(b) and (c) are being adhered to. By either your agency or in the event of a private permitted project, the private party.

The problem is what happens in the meantime. Our agency has no control over change of ownership and contractors (and even surveyors) during the construction process. When we get to the post-construction walk-through and monuments are missing, we tell the current landowner they need to reset them before they can get occupancy. They then start arguing that they weren't the ones who disturbed them. It must have been the previous landowner/contractor. They argue that when they bought the property, the monuments were no longer in place and therefore they aren't the ones responsible for monument perpetuation because there were no monuments to perpetuate.

You're misapplying your designated control. If this is a private, agency-permitted project, you have the control to not issue a permit until you believe 8771(b) is adhered to, and not approve that final permit until 8771(c) is adhered to. Who cares if one land surveyor takes care of the pre-construction and another takes care of the post-construction, as long as it is done properly and you as the agency can confirm that. Contractors should not be involved in the process any longer. The last revisions to 8771 took care of that.

I think that Sec. 8771 doesn't have enough teeth for us to go after the current landowner. That's why I'm proposing the condition that the current landowner is responsible regardless of what happened in the meantime.

Section 8771(d) already provides for that...as long as your agency puts into place the proper procedures for confirming compliance. The Board believes this current version of 8771 is MUCH better than previous versions and has sufficient "enough teeth" for the Board to enforce compliance. Your agency just needs to properly implement procedures, not enforce the laws. That is where the Board comes in to assist you.

I find the Turlock agreements intriguing but why would a surveyor want to take on that responsibility when they have no assurance that they will be the surveyor of record when the project is completed? The person they have contracted with could sell the property and now the surveyor is on the hook with the local agency and the person who was supposed to pay their bill is long gone.

'Surveyor of record' is a misnomer and is not relevant. As long as the landowner properly hires a person authorized to practice land surveying to complete anything related to 8771(b) in the beginning and the same or different land surveyor to complete anything related to 8771(c) after construction, and the proper documents are being filed each time, that is the limits of your agency's responsibility. Your agency just needs to properly setup the procedures...just like Turlock did.

For your information, Turlock's process and procedures were reviewed by the Board prior to implementation, have stood the test of time, AND has persisted even though some persons and entities have complained to the Legislature about having to abide by their processes. I know because I'm called when that occurs and I explain what is being accomplished.

dedkad, finally, I would advise you to contact Dallas Sweeney as I mentioned in my earlier comments and setup a time for him to meet with your agency on these topics so we can assist you in properly setting this up. We will be in Stockton tomorrow for the same purpose and others are regularly scheduled.

[land butcher]

I don't like anything that makes a private engineer or surveyor responsible for preserving and resetting monuments existing prior to construction. The form should make the owner/developer financially responsible have the mons verified before const and any destroyed during const reset.

The city of Newport Beach requires that any const project the property corners be in place prior to issuance of building permits and requires them to be reset as necessary during const (I don't like this) and are in place before issuance of occupancy permit.

[T. S. Higgins]

I don't like anything that makes a private engineer or surveyor responsible for preserving and resetting monuments existing prior to construction. The form should make the owner/developer financially responsible have the mons verified before const and any destroyed during const reset.

The city of Newport Beach requires that any const project the property corners be in place prior to issuance of building permits and requires them to be reset as necessary during const (I don't like this) and are in place before issuance of occupancy permit.

The surveyor of record for the project becomes responsible because he is the only individual involved with the expertise to perform the work. It's up to that surveyor to ensure that his contract includes monument preservation activities.

There's a hook in the process for the developer as well, since the project won't be signed off until the second form indicating that monuments have been preserved or reset is completed.

I can see the trepidation of the surveyor to be placed on the form, but the process is set up in such a way that anyone signing that form should be aware of the responsibility involved, and have entered into a contract to cover their activities.