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TRANSCRIPT
Witness Corner
FROM ORANGE
COUNTY TO THE
NATION’S CAPITOL
SURVEY NEWS
Orange County is a place where we welcome opinions - we're interested in what you say, not how you say it.
The Orange County
Witness Corner
OFFICERS 2014
President David Woolley, PLS [email protected]
Vice-President Joe Padilla, PLS [email protected]
Treasurer Rich Maher, PLS [email protected]
Secretary Jacob Sharp, PLS [email protected]
Imm. Past President Greg Sebourn, PLS [email protected]
Chapter Directors Joe Padilla, PLS Richard Maher, PLS Greg Sebourn, PLS David Woolley, PLS Glen Lake, PLS
Alt. Chapter Directors Peter Fitzpatrick, PLS Jerry Uselton, PLS Jacob Sharp, PLS
COMMITTEE CHAIRS Membership John Pavlik, PLS
Education Lisa Gaston, PLS
J.P.P.C. Roger Frank, PLS
Newsletter Editors Richard Lopez [email protected]
Micah Paulk Legislative David Woolley, PLS
February 2014February 2014
2014 Issue 2
Table Of Contents
California Land Surveyors Association - Orange County
Calendar Events Page 2
Your Other Left Comic Page 2
President’s Message Page 3
High Speed Rail Ranking System Exposes Potential Bias Page 7
Professional Announcements Page 9
Founder and CEO of American Title Services Commits Suicide Page 10
National Surveyors Week Announcement Page 10
Legal Corner—Insurance Risks When Using Subcontractors Page 11
High Speed Rail News Page 12
Practice Reminders Page 12
Other Survey News—Our Friends at the Port of Long Beach Page 13
Job Opportunities Page 13
NSPS Updates Page 14
Testimonials Page 14
CLSA State President Elect Undergoing Surgery Page 15
BPELSG - Rule Making Process Analyzed Page 15
New Legislation—Assembly Bill 1551 Page 17
BPELSG Analysis of AB 1551 Page 18
Prevailing Wage and QBS Must Co-Exist Page 20
Death Watch! - State CLSA Forum Page 23
State CLSA Board of Directors Meeting Report Page 24
Expulsion or Suspension of a Member or Director from CLSA Page 27
Caltrans, JPPC-OC, OC-CLSA Meeting Minutes/Reports Pages 29-34
Cal Poly Pomona—OC-CLSA Conference Page 35
THE WITNESS CORNER Is published by the California Land Surveyors Association (CLSA) Orange County Chapter. Views
and opinions expressed are solely those of the authors and do not represent the California Land Surveyors
Association (CLSA).Letters, emails, suggestions for articles, and all feedback my be sent to:
2/25 Tue Chapter Meeting JT Tustin (4PM) 3/11 Tue Board Meeting DWA (5PM) 3/20 Thurs CLSA/NALS Reg. Ends http://bit.ly/1fzuzkD 3/25 Tue Chapter Meeting JT Anaheim (11:30) 3/26 Wed ACEC Meeting Doubletree Santa Ana (11:30)
Calendar Events
Your Other Left!
Page 2 Witness Corner
February 2014 Sun Mon Tue Wed Thu Fri Sat
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OC-CLSA Events
Other Events
Your Other Left is a comic developed by Wendell T. Harness, a Professional Land Surveyor of over 26 years. Wendell attempts to make light of what may be otherwise serious occurrences experienced by surveyors on a daily basis. He publishes new comics in his copious free time.
http://yourotherleftcomic.com/
March 2014 Sun Mo Tue We Thu Fri Sat
1
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30 31
JT Schmid’s—Tustin
2415 Park Avenue
Tustin, Ca 92782
714-258-0333
MAP:
http://bit.ly/1jLx0b5
JT Schmid’s—Anaheim
2610 E Katella Avenue
Anaheim, Ca 92806
714-634-9200
MAP:
http://bit.ly/1bFRNKv
D. Woolley & Associates
2832 Walnut Avenue, Suite A
Tustin, Ca 92780
714-734-8462
MAP:
http://bit.ly/1kOs2dG
By David Woolley
Most land surveyors I have
known have a penchant for
history. History plays an
important role in practicing
as a land surveyor,
particularly a boundary
surveyor. I begin this
President's message by
recalling a part of American
history I find interesting.
In the old days, folks that
didn't subscribe to the local
dogma were tarred,
feathered and "ridden out of
town on rail." Being ridden
out town on a rail, quite
literally, meant being tied to
a rail or a plank and paraded
before the community. This
was an extrajudicial form of
mob punishment intended to
publically humiliate a
community member, denying
him due process. Undeniably,
these actions by the
leadership would also serve
to silence other likewise
minded individuals not
conforming to the desired
agenda and actions in that
same community.
Abraham Lincoln told a story:
". . . about the man as he was
ridden out of town on a rail,
tarred and feathered,
somebody asked him how he
liked it, and his reply was if it
was not for the honor of the
thing, he would much rather
walk."
Although individuals are no
longer tarred, feathered, and
ridden out of town on a rail,
in our professional
community (CLSA), it appears
to me as though there is an
expectation for members to
"go along to get along" and
to "kiss the ring" or face
banishment. Two past
Presidents, Jim Herrick and
Aaron Smith, attempted to
have me thrown me out of
the Association and/or off the
Board of Directors (again) at
the February 1st Board of
Director's meeting.
Although the Executive
Committee may have
plausible deniability in that
they were not conspiring
outside of their official
meetings. Nevertheless, I do
believe that the haphazard
and shaken manner in which
the motion was brought forth
and the collaborative actions
of the Executive Committee
members tell the truth in the
tale. Especially in that the
President allowed an off
agenda item, the motion, to
go forward to a vote, actually
two votes, presents a
cornucopia of other protocol
issues. In hindsight, my
having asked to attend the
Executive Committee
meetings, being denied to
attend not once, but twice,
may have been viewed as
being insubordinate, impious
and possibly a little big for my
britches for having dared to
ask?
Reflecting back on the
meeting it is interesting to
note that upon being elected,
the Secretary and Treasurer
immediately delegate (or
cede?) their entire position to
the Executive Director and
her management company
by proxy. The Orange
County Directors need to
hear from the members if the
Secretary needs to assume
some of the formal duties of
the position i.e. keeping of
the minutes.
Maybe there is another
reason for their attempt to
President’s Message
2014 Issue 2 Page 3
ouster me? The last time I did
attend one of their Executive
Committee meetings, November
2nd, I was there to question why
CLSA has an annual liability for
$175,000(ish) for the
administrative services with no
formal contract in place (only a
2-3 paragraph resolution
covering this expenditure).
Orange County brought forth a
motion to change this 30 year
standing situation-which passed.
At the most recent meeting, the
Directors were presented with a
contract that was:
"...RECOMMENDED that the Board approve this contract for
2015-2016
at our February 2015 meeting".
Not my caps, not my red print.
One of the two attorneys I hired
to review the contract (with my
own funds) responded with 3-4
pages of comments attached to
an email stating "It would be
better to have no contract at all
if you are not going to specify
material terms..."
Note: For the record, I take the "fiduciary duty" aspects of being a Director seriously. By “seriously,” I do not mean in the way the
Board’s Guide reiterates a few convenient phrases, but more in the sense of The Law of Fiduciary Duties by Rafael Chodos.
So certain my Executive Committee attendance wouldn't be denied a second time, I booked a flight and took the day off to
attend this meeting. In seeking permission to attend, my request clearly stated that I had no intention of speaking during the
meeting. In hindsight, I was ignorant for not clearly understanding and acknowledging the exclusiveness of an Executive
Committee meeting.
As I write, I must ponder my fate at the next Director's meeting, I am sure to be in some sort of trouble for daring to whisper of
the meetings in Oakland.
For Joe Padilla's full report, see the Director's Report on Page 24 and my personal perspective here.
1. The Quarter Corner-First Edition:
As Orange County continues our practice based Chapter activities, this month's Newsletter is packed full of industry news and
views. Our Newsletter, the Witness Corner, is the in-between Association periodical. Next month we will publish our first
edition of the Quarter Corner, distributed to members only. The first Quarter Corner will include the sample contract and guide
for licensees signing work product for a firm. The contract will address access to company records, insurance coverage after
departure and financial responsibility in completion of projects after the licensee’s employment engagement has ended.
2. QBS Selection and Prevailing Wage:
Since our last publication, I had a conversation with Mark Christian, the Director of Legislative Affairs for the American Institute
of Architects, California Council (AIACC). I called him to discuss the fate of SB 1424 last year. As readers may recall, SB 1424 was
a bill that allowed the licensing boards, BPELSG in our case, to discipline a licensee for not following the Qualification Based
Selection ("QBS" or Mini-Brooks Act) process. This bill was a much needed addition to the existing Mini-Brooks Act. Fortunately,
the licensing board hasn't waited for additional legal authority to act. The existing Mini-Brooks Act outlines the QBS process, but
falls short of providing ramifications to the agencies that do not follow the QBS process. A solution may be to tie the Mini-
Brooks Act to the Davis-Bacon statutes.
3. Fresno State Conference:
Our own Roger Frank presented a Least Squares session at this year's conference. Although I didn't see the program, I heard
nothing but good words about his presentation. Therefore, we have asked Roger to do a variation of the presentation at our
February meeting.
Two other programs I heard about later were the QBS panel discussion (Mike Hartley and former Orange County Surveyor, Ray
Mathe) and the presentation by Dane Ince entitled The Evidentiary Content of Maps. I requested and received the slide show
presented by Mr. Ince. I followed up with him and he has committed to speaking at the CalPoly Pomona Conference in
September.
Representing the Orange County Chapter of CLSA, I spoke at the Fresno State conference on reclassification of land surveyors to
"laborers" and "mechanics". Earl Cross, PLS 3242, among others, expressed their outrage.
4. MAPPS:
MAPPS held their winter conference in La Jolla the week of February 9th. The MAPPS Executive Director, John Palatiello, and I
did a presentation on the Davis Bacon laws and the recent developments at the Department of Labor, Wage and Hour Division. I
recommend our members learn more about MAPPS at www.MAPPS.org. They appear to be a progressive group with a keen
President’s Message
2014 Issue 2 Page 4
focus on federal laws and business advocacy. They had intended on introducing me as "President of D. Woolley & Associates"
and I asked that they mention OC CLSA. They did both. I explained to the group of nearly 100 people, from around the country,
that OC CLSA has taken up the issue of being classified as "laborers and mechanics" and Davis Bacon education.
5. The CalPoly Pomona Conference:
Last month, we finalized the dates of the CalPoly Conference which the Orange County Chapter of CLSA is co-sponsoring. We
have already secured the calendar dates for several marquee speakers. The details will continue to be made available as we
develop the program.
6. Career Day at Concordia University:
The Constitutional Rights Foundation, Orange County sponsors a workshop to discuss Constitutional Amendments culminating
with a Mock Supreme Court Oral Argument Hearing at which arguments are presented by two accomplished attorneys and a
verdict is rendered by sitting judges and selected students. In addition to the Mock Trial, there is a Career Forum with links
nearly 1,000 students with local business professionals. I was contacted by an attorney, familiar with my work, to speak about a
career in land surveying. I will be parlaying my place on a panel discussion into representing the Orange County Chapter of CLSA.
I believe we, the land surveyors, have a prominent role is in the legal community. As a professional association, we need to
continue to interject ourselves into the broader community. This event at Concordia University is another step in that direction.
7. Green Book Meetings:
In the last 18 months I have attended several Green Book meetings. In Southern California, in the absence of any other
standard, the Green Book is the standard for engineering and construction specifications (http://www.greenbookspecs.org). The
meetings have approximately 15-20 engineering and construction representatives in attendance. Interestingly, the Chairman of
this group said I was the first surveyor to attend one of their meetings. I would like an Orange County member to attend these
meetings, one Thursday per month, with the purpose of working with the group to rewrite the land surveying contracting
specifications for establishing a QBS process for contracting and for further modification of the monument preservation section-
which has been recently modified by the San Diego group.
8. In Closing:
Prospectively, I anxiously await the fate of my membership and/or Director's seat in 2015. Presumably, these shenanigans at the
state meetings have become an annual event. I do not wish to tempt fate by asking the question:
Which produces more chagrin?
The fact that a small select group of folks organize to throw me out of a volunteer organization!
or
The fact this group cannot get it done after two attempts!
Since the rumors of my possible dismissal have spread and been announced twice at a recent LCSO, I have received support from
the professional community, both inside and outside of Orange County. I have been contacted by two Chapter's members. One
Chapter has already taken an internal affirmative vote, proclaiming to be a likewise minded Chapter to Orange County and to
share the fate of Orange County, whatever that fate may be. The support of other Chapters and their respective membership is
greatly appreciated. Apparently, some members do not believe their Directors represent their Chapter's views when they cast
their votes. Who knows? Might there be changes in the seating chart? The members and other Chapters’ support serves to
President’s Message
2014 Issue 2 Page 5
strengthen my personal resolve, the Orange County Chapter's resolve by proxy, to benefit the practicing professional members
and certainly, to have CLSA viewed as more than a plaque factory for the popular kids.
If any Orange County members have questions, comments or input about any of the topics in this newsletter or any other topic
of interest, it is all welcome. Any member or prospective member is welcome to attend any meeting, anytime (see the calendar
herein). We are an inclusive group and welcome any volunteers that are willing to contribute. We are a volunteer organization
that acknowledges your time and contribution to the profession is valuable. We further acknowledge that dissenting opinions
are part of progress, part of learning and part of growing as professionals. It does our Chapter no good to push away those that
have a contrary opinion, regardless of individual methods and means. I choose to believe we will always welcome change
agents.
From my perspective, if someone decides to quit the state CLSA or their own Chapter, they have surrendered their voice.
Therefore, do not look for me to quit anytime soon. Based on February's meeting in Oakland, some Chapters’ Directors can
readily determine that which is "unprofessional" even if “that” appears to be unrelated to the performance of their duties or
practice of land surveying or the fiduciary duties of and to our members. These same Directors readily profess their rich
(although detail deficient) understanding of "professionalism" in a public meeting. Apparently, based on their actions, it is
"professional" to attempt to publicly humiliate another Director, before a group of peers, by introducing an off agenda item that
forgoes the prescribed procedures for such actions. The last time this came about I had cautioned the group that careless
actions can lead to antitrust problems for the association. As is readily apparent, nobody took the time to look it up. In the spirit
of education I have provided a short version of the proper procedures and liability incurred, see page 27. This abridged version
is condensed from the twelve page article to be published in the OC Quarter Corner. I believe things are about to get interesting.
Home is where the heart is-my heart is in Orange County,
David Woolley
PS. It was not made clear to me, but part of Jim Herrick's reasoning for my removal included last month's Orange County
newsletter. Interestingly, it was published at 1:30 p.m. on the day before the meeting in Oakland. Less than 24 hours
later, the Northern Counties Chapter Director had taken exception to the newsletter, although exception to precisely
“what” was not noted. If Herrick and his co-conspirators are successful in their efforts to remove me in the future, the
newsletter will revert back to the old format and Jim Herrick will have to find something else to stay up late reading and
writing into an accusation. Coincidently, I’m pleased to see the newsletter is so wide-read. Incidentally, Mr. Herrick did
not express any concerns about the professional land surveyors being reclassified as "laborers" and "mechanics",
pending legislation that will effect every members practice or coordinating with other professional associations to
protect the practice. Am I to presume his concerns for the profession and his keen sense of that which is "professional"
rest with his-yet to be presented- agenda consisting of.....?
President’s Message
2014 Issue 2 Page 6
High Speed Rail Ranking System Exposes Potential Bias
2014 Issue 2 Page 7
By David Woolley
Recently proposals were submitted to the High-Speed Rail Authority for review. There were some anomalies with the rankings in one particular reviewer’s case.
In the scoring of proposals submitted for HSR 13-07, one person reviewing (name redacted but shown as second from the left and identified hereafter as "Reviewer 2") stands out from the others. Reviewer 2’s scoring indicates a subjective bias or lack of consistency with the scoring requirements/criteria provided.
The inconsistent and large variation in Reviewer 2's scoring resulted in differences that are not logical or objective. Reviewer 2’s scoring presents two problems:
1. Reviewer 2’s scoring varied from a 99 to a 31. This is a substantially larger range than any other Reviewer. From left to right, ranges were as follows:
2. Reviewer 2’s score of 31 for this firm is far lower than the score given by any other Reviewer, presumably using the same grading criteria. See below:
Reviewer 2 has scored this firm far lower than any other Reviewer. The closest score is 46 points away. Reviewer 2 gave this firm 31 points while the point average for all other contractors was an 80.8. This is a 50 point difference between Reviewer 2 and the average taken from the other four (4) Reviewers.
Reviewer
Highest Score Lowest Score Differential
1 97 51 46
2 99 31 68
3 94 68 26
4 95 80 15
5 98 60 38
Reviewer Score for Firm
1 83
2 31
3 77
4 80
5 83
High Speed Rail Ranking System Exposes Potential Bias
2014 Issue 2 Page 8
Reviewer 2 has too large of a variance in ranking scores (differing greatly from the four (4) other Reviewers) to be considered objective. This differential could indicate Reviewer 2 has a bias in favor of one particular firm or more particularly, against other firms as shown in the following chart:
*The firms shown above were named a 88+ scored was interview cutoff— we chose to rename the firms 1-4
In the event that Reviewer 2's rankings were removed from consideration, another firm would have placed second (2nd) rather than fifth (5th) - problematic when 4 contracts were awarded. Yet another firm, placing 12th when Reviewer 2’s scores were included, would have ranked 16th without Reviewer 2’s scores. When one Reviewer, on a panel of five (5) (or 20% of the ranking body), can affect the ranking of firms by as much as a four (4) positions, there is a problem.
My review of the documents provided leads me to ask the following questions:
1. What basis/criteria and instructions were provided by the HSR Authority to the Reviewers before the scoring/ranking process began?
2. What controls did the HSR Authority put in place to prevent unfair bias resulting in an impeachable selection process?
3. Why did the HSR allow Reviewer 2's scores to be entered into the final rankings?
4. Who was responsible for implementing the rating group controls?
5. In a qualification based selection process, precisely what background and experience does each Reviewer have to fairly and knowledgeably rate a land surveying consultant?
From my analysis, it appears that the HSR Authority has a problem with the scoring/ranking ability of Reviewer 2 and, equally as important, a problem identifying a failed control. If Reviewer 2 is involved with scoring/ranking the newest set of proposals, it will be important to see if they remain an outlier. Either way, it is a problem for the HSR Authority. Reviewer 2 is clearly an outlier whose scores should be disregarded in their entirety or risk impeachment of the ranking and solicitation process.
In conclusion it is my belief that the entire process is worth being called into question if I am to be convinced that one reviewer would be so completely divergent with the rankings of the firms involved with this process. I believe that the Authority has a responsibility to tax payers to be vigilant in choosing the people in charge of reviewing, rating and ranking the firms bidding on public works projects. These wild ratings given by one member of the selection team reflects that this process is not objective in its determinations and that there may be other unknown factors related to the ranking of one firm so far outside the range of the other reviewers. The Authority has a public duty to be unbiased and do what is in the best interest of the people it is in service to and I believe that to this end the Authority has failed to do so by enlisting rating members that are, in my opinion, biased.
Name of Bidder Reviewer 2’s Score Average of the Other Four (4)
Reviewers’ Scores
Firm 1 31 80.75
Firm 2 44 81.50
Firm 3 56 72.25
Firm 4 58 85.50
Professional Announcements
2014 Issue 2 Page 9
Pasquale “Benny” Benenati, founder of Aero Tech Surveys, passed away February 8, 2014. Guida Surveying welcomes Gina Ciampaglia, PLS, as a Project Manager.
San Diego Surveyor, Michael Pallamary, will be featured on a Discovery Channel show based on an article he wrote for Point of Beginnings magazine. Check your local listings for details.
Prominent Land Planner Greg Haws Joins Psomas. Congratulations to Joe, Steve, Bill and the team at Truxaw & Associates for ranking #1 on the recent contract for
surveying services for the City of Santa Ana. John Canas is donating a new HP32 w/ manuals to a student, any student interested email the editor:
SUSTAINING MEMBERS ADVERTISEMENTS
2014 Issue 2 Page 10
Founder and CEO of American Title Services Commits Suicide
The founder and CEO of American Title
Services, Richard Talley, age 56, was
under investigation by the Colorado
Division of Insurance - part of the
Department of Regulatory Agencies
("DORA"). Although the Denver Post
received confirmation there was an
investigation, the Post was not able to get
additional details from DORA.
Mr. Tally died as a result of seven or eight
self inflicted wounds with a nail gun. The
Denver Post article could not determine
whether or not Tally's suicide was related
to the investigation.
http://bit.ly/1njC97o
Why is this article relevant to the land
surveying industry?
The land surveying industry and the title
insurance industry have a symbiotic
relationship. The title insurance industry
is currently being challenged by the New
York Department of Finance. Subpoenas
went out in December 2013 and,
apparently, DORA was investigating
American Title Services.
If Mr. Tally’s decision to take his life was
a result of an investigation, hopefully we
can find out what kind of investigation
would lead to a title company CEO to the
sad, unfortunate choice of suicide by nail
gun? A shake up in the title industry
could result in a shake up in the land
surveying industry as well.
Hypothetically, imagine if a title
insurance company was to learn it had
underwritten several million dollars, in
fact hundreds of millions of dollars of
extended policy coverage on commercial
real estate, only to find out that the
ALTA land title surveys (used as a
basis for the underwriting) were
based on boundaries incorrectly
determined by only two monuments
and that the state laws requiring
filing a public record were ignored.
Colorado has similar requirement to
California.
Now suppose that surveyors did not
examine the relationship between
and establishment of junior and
senior rights and the associated
liability for a title insurance
company.
Could this lead an executive to an
untimely end by nail gun? No
matter the cause, it is simply
horrible.
National Surveyors Week!
The much anticipated National
Surveyors Week kit is now
available. The kit is a joint effort
between NSPS and NCEES.
In addition to the kit, NSPS is
using National Surveyors Week
to kick off its efforts to assist the
National Geodetic Survey (NGS)
with its plan to replace the North
American Vertical Datum of 1988
(NAVD88). Read the recent News
& Views article about this.
NSPS Area 2 Director Frank
Lenik has been engaged in
initiating National Surveyors
Week activities, and has
prepared a paper on the topic.
NSPS hopes all surveyors will
utilized the kit to promote
National Surveyors Week, and
will participate in the NGS
activities.
National Geodetic Survey - 2014
GPS on Benchmarks Campaign
The site includes all of the
information you need for
participating in the program in
one place, including a link to NGS
Advisors and a sample data
sheet.
NGS encourages anyone with
survey-grade Global Positioning
System (GPS) receivers to join
the 2014 GPS on Bench Marks
Campaign, a National Surveyors
Week event to raise awareness
about professional surveying
while improving the National
Spatial Reference System
(NSRS).
GPS Day attracts geocachers
and surveyors alike to
participate in one of the
largest, simultaneous
collections of GPS data at sites
throughout the United
States. GPS Day will be held
on Saturday, March 22, 2014.
SUSTAINING MEMBERS ADVERTISEMENTS
2014 Issue 2 Page 11
Legal Corner — Insurance Risks When Using Subcontractors
By James A. Anton
How many people actually read the terms and conditions of a general liability insurance policy before purchasing the insurance policy? An answer to this question is not needed because it will probably be the same answer to the next question: How many people read the long form deed of trust before obtaining a home loan? General liability insurance policies contain a very small clause stating what it covers and then it contains pages of exclusions taking away what is really covered. The focus of this article is the provision applicable to utilizing subcontractors.
Rarely does one really pay attention to the terms and conditions of an insurance policy until it is too late – after a claim arose or a lawsuit was served. Then you pull out the liability insurance policy and notify the broker of a claim. Weeks later, you receive a letter from the insurance company, almost as
long as the policy, painstakingly stating why the claim is not covered and that you must defend the claim on your own, even though you spent thousands of dollars each year to purchase the policy. Most general liability insurance policies contain exclusions applicable to contractors who hire subcontractors. One example reads as follows:
“Contractors: As a condition precedent to coverage for any claim for injury or damage based, in whole or in part, upon work performed by independent contractors, the insured must have, prior to the start of work and the date of the ‘occurrence’ giving rise to the claim or ‘suit:’ (1) received a written indemnity agreement from the independent contractor holding the insured harmless for all liabilities, including costs of defense…; (2) obtained certificates of insurance from the independent contractor indicating that the insured is named as an additional insured and that coverage is maintained with minimum limits of $ per occurrence; (3) obtained proof that the independent contractor has workers compensation insurance …; (4) obtained proof that all licenses … are up to date.”
The purpose of the above language is to allow the insurance company to pass the risk of loss for the claim to the party who either caused or contributed to the claim, namely the
subcontractor. The indemnity agreement with the subcontractor and the additional insured endorsement will enable that goal to be accomplished.
If a claim arose as a result of a subcontractor’s actions or inactions for which the contractor is sued, the insurance carrier may deny coverage if the contractor did not provide proof of compliance with items 1 – 4 above. Beware of this risk. To avoid this risk, simply make sure that whenever a subcontractor is utilized for a task, to enter into a short form agreement meeting requirements 1 – 4 above and obtain written proof of items 1 – 4. Legal counsel with experience in drafting short form agreements should be consulted to comply with the above requirements to avoid risk of denial of a claim that would normally be covered by insurance by failing to comply with items 1 - 4. For those of you who do not have legal counsel experienced in this area of the law, contact the author of this article,
James A. Anton of Law Office of James A. Anton, 7700 Irvine Center Drive, Suite 800, Irvine, CA 92618; 949-753-2818; [email protected]
to obtain the necessary agreement to meet the requirements of the insurance policy.
Authority staff, designated by the Chief
Executive Officer (CEO), negotiated the
terms of the contracts with the five top
ranked proposers. Below are the staff
recommendations for Board approval. If
approved by the Board, the CEO or his
authorized designee, on behalf of the
Authority, would execute contracts with
the following five proposers:
O’Dell Engineering
Chaudhary & Associates, Inc.
Quad Knopf, Inc.
Mark Thomas and Company, Inc.
Hernandez, Kroone & Associates Inc.
High Speed Rail News: HSR13-63 Proposers Selected
2014 Issue 2 Page 12
Practice Reminders
By Rich Maher
Take a moment to look yourself up on
our board’s website: http://
www.bpelsg.ca.gov/
Select the LICENSEES tab, then License
Lookup in the list of links, and follow
the process to look yourself up to check
if your address is current. Board Rule
§412 states you have only 30 days to
notify the board of changing addresses.
In the same list of links (Licensee
Information) you’ll find an Address
Change Form that allows you to update
your address online.
While you are thinking about updating
your information, is the Organization
Record for your firm current? You can
request a current copy from the board
and/or update yours with the Business
& Organization Record Form
Information in the same (Licensee
Information) list. You must list “… the
types of professional services provided
through the business; the names of all
of the owners, partners, or officers
(both licensed and unlicensed); and the
names of all of the Professional
Engineers and/or Professional Land
Surveyors who are in responsible
charge of the professional services
provided.”
“…if you leave a business where you
were in responsible charge of the
professional services, then you must file
a Disassociation Record form.”
While I have your attention on business
officers and responsible charge, have
you reviewed your surveying contracts
recently? There are 5 key elements that
must appear, with few exceptions, on
your contracts. The PLS Act has listed
these five elements since 2001 in §8759.
Violations continue to appear as causes
of actions in board enforcement against
surveyors in 2014. Review the
requirements in the Contract Law
Article. Be careful about who signs your
contracts. If you are the surveyor in
responsible charge, you could be found
to be aiding and abetting unlicensed
practice if unlicensed office staff or
business owners are the sole signature
to a contract offering to provide
professional services. To protect
yourself, be sure to have the licensed
professional in responsible charge, also
listed on your Organization Record, sign
all contracts, alongside any other
required persons/officers according to
corporate structure.
If you are a member in good standing
with the State CLSA organization, avail
yourself to a free sample contract that
not only complies with §8759 but
provides you a lot of additional
protection with contract language you
may not have considered. Look for it in
the member’s section of the state
website https://
www.californiasurveyors.org under
Member Resources / Downloads. You’ll
also find a short-form contract and
plenty of useful resources like right-of-
entry pamphlets and a monument
conservation brochure.
Follow these few simple tips above and
save yourself the headache of a board
citation on your record, over
“paperwork”.
2014 Issue 2 Page 13
Port of Long Beach Surveyors gets first page publicity in the Long Beach Press-Telegram including a section on survey work. An interesting read for any surveyor.
http://www.presstelegram.com/business/20140202/a-wealth-of-jobs-at-the-port-of-long-beach
In Other Survey News—Our Friends at the Port of Long Beach!
Job Opportunities
Hung Dinh, left, survey technician, and Scott McDermid, senior survey
technician, working at the Port of Long Beach on a newly paved lot that will
store cargo containers. (Brittany Murray — Press Telegram Staff photographer)
Surveyor Gary Newkirk works for the city of Long Beach at
the Port. Long Beach, January 29, 2014. (Photo by Brittany
Murray / Press Telegram)
Robert Seidel, chief surveyor for the Port of Long Beach at the Port with one of the
departmens boats for surveying the ocean floor. (Brittany Murray — Press Telegram Staff
photographer)
Calvada Surveying, Inc. is looking for candidates for the following positions:
A Project Surveyor proficient in AutoCAD.
A Construction Manager proficient in AutoCAD and with field experience.
Please contact Armando D. Dupont, L.S. for inquiries
Testimonials
2014 Issue 2 Page 14
NSPS Updates
Senate passes bill to delay flood
insurance reform
NSPS
The U.S. Senate on January 30 passed a
bill to delay new rates for flood
insurance by a vote of 67-32. The bill, S.
1926, delays the effective date of key
finance provisions of the Biggert-Waters
Flood Insurance Reform Act of 2012. The
bill faces an uncertain future in the
House due to opposition from
conservative groups opposed to the cost
of the bill and shift of financial
responsibilities from individual
homeowners to taxpayers generally and
by environmentalists who oppose
subsidized construction in coastal and
flood prone areas, as outlined in an
editorial by the Washington Post. The bill
also calls on FEMA to develop a flood
mapping approach that "results in
technically credible flood hazard data in
all areas where Flood Insurance Rate
Maps are prepared or updated."
FGDC publishes annual report for 2013
NSPS
The Federal Geographic Data Committee
(FGDC), the federal government's inter-
agency coordinating committee on
geospatial activities, has published its
2013 annual report. The report describes
the actions taken by the FGDC over the
past year to facilitate coordinated
creation and sharing of geospatial data
and processes, five new geospatial
standards, and the updated strategic
plan for the National Spatial Data
Infrastructure, in which NSPS provided
input.
FIG Young Surveyors
NSPS
After the successful 1st FIG Young
Surveyors (YS) European Meeting held
this past October in Lisbon, Portugal, in
which 150 young surveyors from 32
countries attended, the FIG Young
Surveyors Network is organizing the 1st
FIG Young Surveyors North American
Meeting.
The meeting will be held in
conjunction with the 2014 California/
Nevada Surveyors Conference and the
annual NSPS Student Competition at
the Town & Country Hotel in San
Diego. The YS meeting will be held
April 14-15. Stay tuned for more
information.
Thank You OC-CLSA I came to USA in 2012. I won the Green Card Lottery and migrated to USA with my wife and two kids. Although I worked in Sri Lanka nearly 15 years as a surveyor I was unable to find a job as a surveyor in the USA. I came to know about the CLSA through the web and thought of joining. My first CLSA meeting was in Orange County this past September. In the chapter newsletter (Witness Corner) I found some job openings for
Surveyors in the advertisements section. The following week I just walked into the business and submitted a resume for one of the job openings I found in the Witness Corner ... and by my good luck, they interviewed me on the same day and hired me after two days! The name of the Company is KHR Associate (Consulting Engineers, Surveyors and Planners) located in Newport Beach. I have been working there for the last four months and want to say "Many thanks to the Orange County Chapter of CLSA!" If not for the CLSA I believe I would be still hunting for a job in California.
Best regards, B. Rohan R. P. Jayasuriya [email protected]
"Home is where the heart is and home is also the best place to start change. Exposing and addressing critical issues and getting them out for the profession to see is a daunting task but paramount. Compared to other newsletters and publications, I actually read every topic in this one. " - Surveyor from Inland Empire
Jay Seymour will be undergoing surgery Tuesday, February 18, 2014. It is anticipated that he will be down for 3-6 days following surgery, and unable to speak, for at least two days. Thoughts, prayers, and good wishes are always welcomed, by both Jay and his family!
Testimonials
CLSA State President-Elect Undergoing Surgery
2014 Issue 2 Page 15
"I want to personally congratulate the chapter on an outstanding
website and publications, and wish you continued success in the future! All the best to Orange County in 2014!"
-Jay Seymour
CLSA State President Elect
The Board of Professional Engineers, Land Surveyors and Geologist ("BPELSG") had their meeting in San Diego this month,
February 12-13. The first day the meeting was for Board business and the second day's meeting was for a hearing on the
petition for reinstatement of the revoked license of Levi Rodriguez.
While I was browsing the agenda, under the heading "Consideration of Rule Making Proposals", I noted a proposed amendment
to California Code of Regulations ("Regulations"), Title 16, Division 5 § 416 (Board Rules §416 and §3060).
The Regulations are adopted by BPELSG to make specific and implement the laws passed
by the Legislature. The Regulation include the definition of terms, administration of
disciplinary orders, Code of Professional Conduct and other administrative procedures.
The adding or modification of Regulations follows a "Rule Making Process" which is defined
in the Administrative Procedures Act ("APA"). Part of the rule making process includes
public notice (minimum of 45 days), more importantly, in this instance, a statement of
reasons i.e. purpose, necessity, benefits etc. Infographic detailing the rulemaking process.
I will reserve my comments and evaluation until the initial statement of reasons is
released.
From page 89 of the from February 12th, 2014 meeting agenda: CLICK HERE FOR ENTIRE AGENDA
416. Substantial Relationship Criteria.
For the purpose of denial, suspension, or revocation of the license of a professional engineer or a land surveyor pursuant to
Division 1.5 (commencing with Section 475) of the Business and Professions Code, a crime or act shall be considered
substantially related to the qualifications, functions, and duties of a professional engineer or land surveyor if, to a substantial
degree, it evidences present or potential unfitness of a professional engineer or land surveyor to perform the functions
authorized by his or her license in a manner consistent with the public health, safety, or welfare. Such crimes or acts shall
include, but not be limited to, those involving the following:
(a) For professional engineers, any violations of the provisions of the Professional Engineers Act or aiding and abetting any
person in such a violation;
(b) For land surveyors, any violations of the provisions of the Professional Land Surveyors' Act or aiding and abetting any person
in such a violation;
BPELSG—Rule Making Process Analyzed
BPELSG—Rule Making Process Analyzed
2014 Issue 2 Page 16
(c) A conviction of a crime Crime or acts arising from or in connection with the practice of professional engineering or land
surveying;
(d) Crime or acts involving dishonesty, fraud, deceit, or theft with the intent to substantially benefit oneself or another or to
substantially harm another;
(e) Crimes or acts involving physical violence against persons;
(f) Crimes or acts that indicate a substantial or repeated disregard for the health, safety, or welfare of the public.
Note: Authority cited: Sections 481, 6716 and 8710, Business and Professions Code. Reference: Sections 480, 481, 490, 493,
6706.3, 6710, 6732, 6775, 6779, 8780 and 8783, Business and Professions Code.
I believe the statement of reasons should answer the following questions:
The words "crimes or acts" is reoccurring language, with the conviction requirement removed, who would determine what an "act of dishonesty" encompasses in § 416 (d)?
Referring to § 416 (e) an "...acts involving physical violence against another;" Two surveyors willingly engage in fisticuffs-no
charges are filed. According to the proposed Regulations their license can be revoked? Referring to § 416 (f) "...acts... of repeated disregard for health, safety or welfare of the public." Arguably, speeding is a
disregard for the public safety-does this mean a handful of speeding tickets will cost a surveyor her livelihood? Why is the word "conviction" being struck from the§ 416 (c)? Conviction is defined in Bus. & Prof. § 8783-what purpose
would this serve? Would this mean being charged with a crime would be sufficient to revoke a license?
I am wondering precisely who determines which "acts" rise to the level of bringing forth a citation and/or accusation which
could result in the revocation of a license by the Board.
Orange County members are asked to weigh in on this proposed Regulation. Information will be published as it becomes
available, namely the statement of reasons.
Orange County is a place where we welcome opinions -
we're interested in what you say, not how you say it.
Letters, emails, suggestions for articles, and all feedback may be sent to:
2014 Issue 2
An act to add Sections 6735.7 and 8761.3 to the Business and Professions Code, relating to professional engineers and land
surveyors.
AB 1551, as introduced, Holden. Professional engineers and land surveyors: documents.
Existing law provides for the licensing and regulation of professional engineers and land surveyors by the Board for Professional
Engineers and Land Surveyors in the Department of Consumer Affairs. Existing law requires engineering documents, defined to
include plans, calculations, specifications, and reports, to be prepared by, or under the responsible charge of, a licensed engineer
and to include his or her name and license number. Existing law requires all land surveying documents to be prepared by, or
under the responsible charge of, a licensed land surveyor or civil engineer authorized to practice land surveying and to include his
or her name and license number.
Existing law makes a violation of those provisions a misdemeanor.
This bill would prohibit a person from using a licensed engineer’s documents, without the written consent of the licensed
engineer, as specified. The bill would also prohibit a person from using a licensed land surveyor’s maps, plats, reports,
descriptions, or other documentary evidence without the written consent of the licensed land surveyor, as specified. The bill
would prohibit a licensed engineer or land surveyor from unreasonably withholding consent to use these documents. The bill
would make legislative findings and declarations that the bill’s provisions are declaratory of existing law.
Because this bill would expand the scope of an existing crime, the bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
BILL TEXT
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
Section 6735.7 is added to the Business and Professions Code, to read:
6735.7.
(a) No person shall use a licensed engineer’s documents, as defined in Sections 6735, 6735.3, and 6735.4, without the consent of
the licensed engineer in a written contract, written agreement, or written license specifically authorizing that use.
(b) A licensed engineer shall not unreasonably withhold consent to use his or her documents from a person for whom the
professional engineer provided the services. A licensed engineer may reasonably withhold consent to use the documents for
cause, including, but not limited to, lack of full payment for services provided or failure of the requesting person to fulfill his or
her obligations under a written contract pertaining to the services.
(c) The Legislature finds and declares that the provisions of this section are declaratory of existing law and shall not be construed
to limit or eliminate any right otherwise granted by law.
SEC. 2.
Section 8761.3 is added to the Business and Professions Code, to read:
8761.3.
(a) No person shall use a licensed land surveyor’s maps, plats, reports, descriptions, or other documentary evidence authorized
by Section 8761 without the consent of the licensed land surveyor in a written contract, written agreement, or written license
specifically authorizing that use.
(b) A licensed land surveyor shall not unreasonably withhold consent to use his or her maps, plats, reports, descriptions, or other
documentary evidence from a person for whom the professional land surveyor provided the services. A licensed land surveyor
may reasonably withhold consent to use the maps, plats, reports, descriptions, or other documentary evidence for cause,
New Legislation—Assembly Bill 1551
2014 Issue 2 Page 17
including, but not limited to, lack of full payment for services provided or failure of the requesting person to fulfill his or her
obligations under a written contract pertaining to the services.
(c) The Legislature finds and declares that the provisions of this section are declaratory of existing law and shall not be
construed to limit or eliminate any right otherwise granted by law.
SEC. 3.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only
costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California
Constitution.
Dave Woolley is the Legislative Chairman for OC-CLSA if you have any questions or comments regarding this bill or any other
legislation please email him at: [email protected]
New Legislation Continued
2014 Issue 2 Page 18
New Legislation—Assembly Bill 1551—BPELSG Analysis
Board for Professional Engineers and Land Surveyors
Bill Analysis
2014 Legislative Session
BILL: AB 1551 AUTHOR: Holden
TOPIC: Professional engineers and land surveyors: documents
DATE OF INTRODUCTION: 1/27/14
MOST RECENT VERSION: 1/27/14
ANALYSIS DATE: 1/29/14
BILLS LEGISLATIVE HISTORY: Introduced 1/27/14. May be heard in Assembly Committee on
Business, Professions, & Consumer Protection 2/27/14.
BOARD POSITION: Oppose
SUMMARY: Assembly Bill (AB) 1551 prohibits a person from using a licensed engineer's documents, without the written consent of the licensed engineer. The bill would also prohibit a person from using a licensed land surveyor's maps, plats, reports, descriptions, or other documentary evidence without the written consent of the licensed land surveyor. The bill would prohibit a licensed engineer or land surveyor from unreasonably withholding consent to use these documents.
HISTORY: In 2013/14, AB 630 (Chapter 453, Statutes 2013), was passed and prohibits a person from using an architect's instruments of service without a written contract authorizing that use and prohibits an architect from unreasonably withholding consent from the architect's client to use those instruments of service. According to the author's office, the "bill clarifies that a person or entity must have contractual authorization to use the work, or instruments of service, prepared by an architect. By clarifying existing law in plain English, the objective is to establish a clear law that can be used to avoid timely and costly arguments when an unauthorized user attempts to use the instruments of service prepared by an architect."
2014 Issue 2 Page 19
New Legislation—Assembly Bill 1551—BPELSG Analysis
The American Institute of Architects, California Council (AIACC) sponsored AB 630 based on numerous firms reporting that persons have attempted to use architectural instruments without consent. The AIACC argues that "architects provide a service and not a product. The service cannot be bought and sold except by the architect, with the consent of the architect, or by the client if the architect has transferred ownership of the intellectual property to the client."
The American Council of Engineering Companies (ACEC) is sponsoring AB 1551. The intent of legislation, similar to AB 630, is to provide contractual protections for engineers and land surveyors and the documents, maps, and reports that they create.
COMMENT: AB 1551, as introduced, intends to remove ambiguity as to who is authorized to use engineering documents and land surveyors maps, plats, and reports. Contractual consent must be written into a contract that specifies ownership,
Business and Professions Code (BPC) Sections (§§§§) 6735(b), 6735.3(b), 6735.4(b), and 8761.2 all provide that a professional engineer or land surveyor is not responsible for subsequent changes that are made to his or her civil, electrical, or mechanical engineering or land surveying documents that are made without his or her knowledge, authorization, or approval.
Additionally, BPC §§ 6749 and 8759 describing written contracts between the licensed professional and the client requires multiple descriptions of services that can include the protection of documents, plans, and reports or transfer of ownership of those documents, plans, and reports.
AB 1551 seeks to provide additional protections to the licensed engineer or licensed land surveyor at the consumer's expense. The licensed professional "may reasonably withhold consent to use the documents for cause, including, but not limited to, lack of full payment for services provided or failure of the requesting person to fulfill his or her obligations under a written contract pertaining to the services." The authority provided to the licensed professional regarding withholding consent is vague and offers an opportunity for unseemly professionals to restrict services to consumers and is not providing protection for consumers by its process.
This bill also includes provisions that state "the Legislature finds and declares that the provisions of this sections are declaratory of existing law and shall not be construed to limit or eliminate any right otherwise granted by law." However, it is unclear what "existing law" this purports to be declaratory of. There are no provisions in the Professional Engineers Act and Professional Land Surveyors Act that address "ownership" of engineering and land surveying documents. This proposal appears to be an attempt to move copyright infringement claims or claims of failure of the client to pay for services rendered from the civil courts to the licensing/regulatory board.
This is not a consumer protection bill. AB 1551, as written, protects the licensed professional and unfairly favors the rights of the licensed professional when providing contracted services to the detriment of the consumer, The Board staff recommends and oppose position for this bill.
Orange County is a place where we welcome opinions -
we're interested in what you say, not how you say it.
Letters, emails, suggestions for articles, and all feedback may be sent to:
2014 Issue 2 Page 20
Prevailing Wage and Qualification Based Selection Must Co-Exist
Future Legislation Must Tie These Two Laws Together For Their Mutual Success By David Woolley
Federal prevailing wage statutes known as the Davis-Bacon Act were enacted during the Great Depression to protect desperate workers from servitude to employers. In this sense, they are not unlike minimum wage laws. Prevailing wage laws pertain to minimum rates of pay for tradesman classified as "laborers" and "mechanics."1 There are, of course, legal definitions of the terms "laborer" and "mechanic." In California, these same statutes and their California counterparts specifically name "land surveying work" in some instances as laborers and mechanics entitling them to prevailing wage rates while failing to appreciate the skill and knowledge required for land surveying in the field. 1. This Classification Creates a Paradox:
The land surveyor is classified as a "professional" under Brooks Act, 40 USC 1101 et. seq. and California Gov. Code § 4525 et. seq.
Yet:
California law and federal statutes specifically includes land surveyors in prevailing wage statutes intended for "laborers" and "mechanics.”
In short, this means that a company hired for a public works construction project must pay their employees according to the tables
above. For definitions of "public works" and "construction" refer to California Labor Code § 1720 which states in part:
“(a) As used in this chapter, "public works" means:
(1) Construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds, except work done directly by any public utility company pursuant to order of the Public Utilities Commission or other public authority. For purposes of this paragraph, "construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.”
Cal. Labor Code § 1720.
1 See Witness Corner 2014-1 for additional background.
PREVAILINGPREVAILINGPREVAILING
WAGEWAGEWAGE
2014 Issue 2 Page 21
Prevailing Wage and Qualification Based Selection Must Co-Exist
As a business owner, I do not mind paying prevailing wage, although, at the same time, I am not particularly fond of being classified
as a laborer while maintaining and practicing with a professional license.
2. The Importance of Qualification Based Selection:
The key to successfully paying prevailing wage is that all hiring agencies follow the Qualification Based Selection ("QBS") process
found in the California Mini-Brooks Act, Proposition 35, circa 2000. Price based selection should not be used in combination with
prevailing wage rates.
The QBS process states that firms hired will be chosen based upon their qualifications and demonstrated competence (with scope
and fees to be negotiated as part of the contract). If a hiring agency selects the professional based on price (low bid) or even,
partially based on price (price as a weighted consideration), the firms that shirk prevailing wage requirements will almost always
be awarded contracts – they will be the lowest bidders disregarding the prevailing wage requirements.
This practice of lowest bid, rather than QBS, puts pressure on honest union and non-union firms equally. As any businessperson will
attest, the highest business expense is employee costs. A prevailing wage scofflaw will easily reduce their labor cost by 50%,
making any price based selection biased towards firms which operate outside of the law. Yes, it is against the law and it can be a
felony, but the Department of Industrial Relations is responsible for the enforcement of the Labor Code for every California
jurisdiction. True, they are allegedly staffing up to begin an expanded enforcement program, but there are many, many public
works projects to proctor and the small fry may escape the net.
The Legislature will continue to pass laws furthering the expansion of prevailing wage,
oftentimes with little or no opposition from individual Legislators. Keep in mind the
historically union friendly Democrats currently have a super majority. The opposition,
if any, will likely come from the cities and counties who are the actual hiring agencies.
3. Charter Cities and Prevailing Wage Requirements/Funding:
As a matter of background, cities can be divided into two groups, Charter Cities or a
General Law Cities. In California, roughly 25% of the approximately 480 cities are
Charter Cities. One basis for becoming a Charter City is to enact ordinances that
circumvent the prevailing wage requirements so that the Charter City gets more
service for their tax dollars. This method of enacting laws to avoid paying prevailing
wage only applies to monies which are generated locally, usually through local bond
measures and does not apply to federal or state dollars/grants.
This game of cat and mouse continues with the current Senate Bill 7 ("SB 7"). If passed into law, this bill will allow California to have a two (2) year look back at city public works projects and, if determined that the city incorrectly failed to pay prevailing wage, California can withhold future funding. This strategy is not without precedence. The federal government did the same thing with state highways funds to successfully lower the allowable blood alcohol content when determining DUI arrests/convictions and earlier, to get the states to reduce their respective speed limits to 55 miles per hour. If passed, Charter Cities, using their own bond money, will be required to mandate prevailing wage requirements.
If readers have their own particular druthers, write the sponsor Senate President Pro Tem Darrell Steinberg (D) Sacramento.
4. The Going Forward Perspective – Linking Prevailing Wage Laws to QBS:
In California, prevailing wage is here to stay even though its biggest supporters, the unions, only represent 35% of the public workforce and 6.7% of the private workforce.2 For the foreseeable future, prevailing wage laws will continue to enjoy the support of our super majority in the California Assembly.
This method of enacting
laws to avoid paying
prevailing wage only
applies to monies which
are generated locally,
usually through local bond
measures and does not
apply to federal or state
dollars/grants.
2 United States Bureau of Labor Statistics, Economic News Release, Union Member Summary (January 24, 2014). Available at: www.bls.gov/news.release/union2.nr0.htm.
2014 Issue 2 Page 22
Prevailing Wage and Qualification Based Selection Must Co-Exist
That being said, there is an inherent weakness in the current California Mini-Brooks Act. This weakness is the lack of downside risk
for hiring agencies and their administrators who do not follow the prescribed process. Unions have no bone to pick with a non-
union firm that properly pays prevailing wage.
(As a matter of fact, by design, the union has a distinct competitive business advantage over a non-union firm that properly pays
prevailing wage. This is a subject for a future article.)
The place we all fall short (union firms, non-union firms and agencies) is by not linking prevailing wage laws with the QBS process.
Conceivably, the agency hiring a land surveying firm could be paying top dollar hourly rates and benefits to an unqualified firm
willing to prepare a dishonest estimate that gets awarded the contract in a low bid process. This method of selection oftentimes
results in contract costs that far exceed the original low bid.
Agencies’ administrators wrongly believe their hands are tied and that they must select low bid land surveyors, especially when the
land surveying component is wrongly included in the construction contractor’s bid. And yes, we do have unscrupulous land
surveying firms that game the system by leaving out construction line items which they understand will be required. The logic is to
get their foot in the door by a low bid, hoping to get a non-confrontational agency project manager, and then begin to battle for
extra charges until the company realizes the cost of a properly priced surveying project. This practice is crude, yet effective, in
many instances. Its prevalence is evidence of their success. This method of conducting business makes working with land
surveyors unpleasant - daily fighting and negotiating costs. Additionally, this process is costly in time wasted and fighting for change
orders with agency folks. The honest firm (oftentimes, the most qualified by training, licensure, experience and equipment) that
prepares a complete estimate will only be the low bid firm if they make a grave error (i.e. by inadvertently mis-quantifying a
contract item).
The cost of doing business is nearly the same for most law abiding firms. Our business costs are comparable (i.e. wages,
equipment, rent, insurances, training, etc.). With the noted exception of a few, very qualified small firms, the cost of doing
business in Southern California assumes a 3.0 multiplier (the employee's salary times 3 equals the billing rate). Therefore, honest
business is inherently competitive. Conversely, if a qualified firm, providing the same services, was able to somehow reduce their
overall cost, why would they reduce their overall rates? Good business does not prohibit a reasonable profit. This is especially true
for qualified small firms. In order to grow a business and better serve clients, a firm must have access to money over a long period
of time. What better method than to charge rates that allows a firm modest growth and the ability to afford new technology?
Ultimately, the QBS process allows the agency to select the most qualified firms, negotiate fair and competitive rates based on
any number of criteria and then, focus on completing a successful project.
My personal experience, with the public clients that select our firm through a QBS process, is we enjoy long term professional
relationships. Without exception, the QBS agency folks conduct business in a fair manner and are good stewards of the public
funds. Each party, agency and contract folks alike, focus on their responsibilities to the actual project. When problems arise (as
they always do) we focus on positive project solutions before a secondary cost benefit analysis.
Just like the truth is always the truth, the best solution is always the best solution. Cost is secondary to the health, safety and
welfare of the project. The low bid folks and their respective firms are not wired to establish these relationships. Working
relationships take time and the low bidders are always out of money. I can only speculate, but it must be uncomfortable to sit in a
room to discuss project solutions with someone you have been nickel and diming for several months, right? On public works
projects, land surveying costs are negligible compared to overall construction costs. Skimping on land surveying is being pennywise
and pound foolish when working with professionals selected by QBS.
The Board of Directors approved the new rules for the forum. The rules were published early in the fall of 2013. Since that time, a few the regular contributors have removed their content. The traffic has slowed, the content has changed. Members are encouraged to write land surveying content on the forum, within the confines of the new rules, and hopefully, the forum will last through the night.
DEATH WATCH! - State CLSA Forum
2014 Issue 2 Page 23
Prevailing Wage and Qualification Based Selection Must Co-Exist
QBS firms are project and results focused. We seldom have disagreements over costs, procedures or work product. The agencies’
interests are protected and QBS firms enjoy good working relationships with all disciplines (i.e. project managers, engineers,
surveyors, inspectors etc.).
There is an onus on the QBS firm. It was selected because it was determined to be the most qualified. In the event that this firm
does not perform at the level of expectation, it may not be ranked among the most qualified the next time around. It is not
uncommon for agency folks to have the memory of an elephant when they establish a QBS process and place their confidence in a
QBS firm. That firm is expected to live up to the claims made in its statement of qualifications. The agency has a rightful
expectation not to deal with the shenanigans associated with low bidders.
In closing, the point is agency folks, union and non-union firms benefit from a QBS process. The prevailing wage laws are here to
stay. We can expect a handful of prevailing wage laws to pass with each Legislative session. In order to protect the public interest,
the taxpayers and the construction design process, QBS laws need to be modified to add consequences for agencies that have not
realized the benefits of Qualification Based Selection. If the stakeholders can demonstrate the positive symbiotic relationship of
QBS to prevailing wage, we can change the laws in an efficient manner better protecting the public.
Going forward, we will be contacting ACEC COPS and the CLSA Legislative Committee to look for opportunities to piggyback
legislation. As always, we are interested in everyone's thoughts and ideas.
Orange County is a place where we welcome opinions -
we're interested in what you say, not how you say it. Letters, emails, suggestions for articles, and all feedback may be sent to: [email protected]
Thank you Robert J. Lung & Associates for your support!
2014 Issue 2
Sustaining Members & Classified Advertisements
2014 Issue 2 Page 24
State CLSA February Board of Directors Meeting Report—Feb. 1, 2014 Oakland, Ca
President Mike Butcher called the meeting to order.
Introductions of all members in attendance.
After a short review, a motion to approve minutes was made.
Director Dave Woolley stated that the minutes should reflect that he and Director Keith Spencer stated at the last Board of
Directors meeting that Director Woolley would continue to report to his Chapter on how he voted at Board meetings.
President Mike Butcher introduced an email to the Board sent by Director Dave Woolley concerning two motions made by
Directors Woolley and Tony Cuomo regarding which Board Guide that CLSA is now using. In reply, Central Office reported that
a motion was voted on and approved in the minutes at the next Board Meeting. Any objections should have been made at that
time if they felt the motions were in error.
Director Jim Herrick made a motion per Section 2.08 of the CLSA Bylaws to begin Board procedures to permanently remove
Director Woolley from the Board of Directors.
* A discussion on Director Herrick’s motion followed. During this discussion, Director Joseph Padilla pointed out
that Section 2.08 only allows for the suspension or expulsion of a member from the Association. Director Herrick
clarified that his motion was only to remove Director Woolley from the Board.
* Director Padilla then stated that the CLSA Bylaws do not address this scenario and that the CLSA would basically
be telling Chapters who they can and cannot send to represent them at the state CLSA level. Director Padilla also
pointed out that Section 2.08 required a 2/3rd vote for approval of this motion.
* President Butcher admitted the Board was in new territory. He said a simple majority vote would be required to
begin procedure and a 2/3rd vote would be required for removal.
* Treasurer Ian Wilson stated that the Board does have authority to proceed with the current motion stating a
section 4.02 & 5.05 of the Bylaws that I did not hear or remember. I have requested this information from
Treasurer Wilson but I have not received a response to date.
* After a group discussion was concluded, a write-in vote was taken and the results were as follows:
21 ayes, 21 nays and 7 abstentions
At this time this motion should have failed.
* Subsequently, President Butcher called for a roll call re-vote and asked anyone who abstained from voting to
explain why they were abstaining. Interestingly, the President did not question the other voters. All Directors
asked stated that this was their first meeting as a Director and they didn’t feel they knew enough to vote
responsibly.
The re-vote results were:
2014 Issue 2 Page 25
State CLSA February Board of Directors Meeting Report—Feb. 1, 2014 Oakland, Ca
21 ayes, 24 nays and 4 abstentions
(by Orange County count but reported as 21 aye and 22 nays & 4 abstentions in the minutes)
Legislative Advocate Ralph Simone requested an increase in his budget from $42,000 to $50,000. Last year Mr. Simone
exceeded his budget by $300. A discussion ensued and the group noted that Mr. Simone’s budget had not been increased in
the last 5 years. The increase was approved pending Mr. Simone’s submittal of back-up documentation for the increase.
Central Office Report:
CLSA Conference April 12-16 at Town and Country Hotel San Diego
Cutoff date for hotel reservation at $99.00 per night and Conference Registration March 20th.
Golf Tournament on Friday April 11, 2014, registration by March 15th. Student Sponsor requested from each Chapter at
$350.00. Door prizes needed also.
Change of Officers was done installing Rolland VanDeValk as President.
Voting for Members at Large was taken installing Steve Steinhoff (L.A. Chapter) and Annette Lockhart (Sacramento Chapter).
Central Coast Director Ian McClain made a motion to delegate Forum Review and Policing to a third party to relieve Central
Office of this time consuming burden. Central Office informed the Board this was not a burden for them and Central Coast
withdrew its motion.
The Policy and Procedures Committee will meet on March 3, 2014. Jay Seymour requested that all Chapters to send written
comments for Sections 5.04 through 15.01 by February 24, 2014 for consideration in the Bylaw changes.
The Ad Hoc Committee submitted the Preparedness Plan/Contract for Central Office for review by the Board. The Board
accepted the preparedness plan and sent the contract back to the Committee for review and revision of the contract per
questions by Director Paul Lamoreaux and attorney review hired by Director Dave Woolley.
NSPS MOU as modified by CLSA to be presented to NSPS at our Conference in April.
Legislation is being introduced from outside of CLSA. The author seeking CLSA input prior to introducing the bill. The proposed
changes are as follows:
California Business & Professions Code §8726:
(e) By the use of the principles of land surveying determines the position for any monument or reference point which marks a property line, boundary, easement or corner, or sets, resets, or replaces any monument or reference point California Business & Professions Code §8762:
(b) Notwithstanding subdivision (a), after making a field survey in conformity with the practice of land surveying, the licensed land surveyor or licensed civil engineer shall file with the county surveyor in the county in which the field survey was made a record of the survey relating to land
2014 Issue 2 Page 26
State CLSA February Board of Directors Meeting Report—Feb. 1, 2014 Oakland, Ca
boundaries, property lines or easements, if the field survey discloses any of the following:
(5) The points or lines set during the performance of a field survey of any parcel described in any deed, easement or other(instrument of title)(remove) real estate instrument recorded in the county recorder's office are not shown on any subdivision map, official map, or record of survey.
Board of Directors took a watch position.
END OF BOARD OF DIRECTORS REPORT.
Respectively submitted by Joseph Padilla, PLS, Orange County Chapter Vice President, 2014 OC-CLSA Director.
Orange County is a place where we welcome opinions -
we're interested in what you say, not how you say it. Letters, emails, suggestions for articles, and all feedback may be sent to: [email protected]
2014 Issue 2 Page 27
Expulsion or Suspension of a Member or Director from CLSA
By David Woolley
Because of the events at this February’s CLSA meeting, I thought it prudent to review the CLSA Articles of Incorporation and
Bylaws and the Orange County CLSA Chapter’s Constitution and Bylaws for the correct procedures for removing either a
member or a director from our organizations. You never know when this information may become useful, particularly to me at
say, the next meeting.1
The Orange County Chapter’s CLSA Constitution and Bylaws (hereinafter “OC CLSA Bylaws”) defers to the CLSA Articles of
Incorporation (“Articles”) and CLSA Bylaws (“Bylaws”) in any areas of conflict. The OC CLSA Bylaws Article III state in relevant
part:
“The Chapter is a subsidiary organization of the California Land Surveyors Association, which has been
charter as provided in these Bylaws.”
“The chapter shall meet all requirements imposed upon the chapter by the Articles of Incorporation
and the Association Bylaws.”
The OC CLSA Bylaws also state:
“Expulsion or suspension from the Chapter shall require a two-thirds majority of those voting at the
Chapter meeting. Thirty (30) days notice shall be given to the alleged offending member so
he/she may be present and heard, if he/she chooses, at the discussion of such action.”
This bylaw was certainly not followed. Additionally, the OC CLSA Bylaws also state:
“Nothing in this section shall be construed to prohibit a chapter from directing any Chapter
Representative from proposing and debating actions or positions at any Board of Directors
meeting.”
Section 2.08 of the CLSA Bylaws states:
“A member may be suspended or expelled from the Association for willful disregard of the
Association’s principles and purposes, or for conduct detrimental to the Association’s
welfare. Suspension or expulsion shall require a two-thirds vote of the total number of
voting members of the Board of Directors. The Secretary shall give the member at least thirty days
notice by certified mail, return receipt, so that the alleged offending member may be present and
heard at the Board action on the matter, if the member so chooses.”2
As you can plainly read from this section, a member must be given 30 days notice of any possible suspension or expulsion and
an opportunity to defend himself/herself against any allegations. Only after this opportunity, the Board of Directors (by two
thirds vote) can remove the member. Clearly this process was not followed in February.
Furthermore, even if you accept the argument that the Board had attempted to remove me as a Director and not a member,
Section 5.05 clearly states: (continued on next page)
1This article will give a preliminary overview; however, I have written a longer article for our Quarterly Newsletter including case law
analysis, director and officer liability for actions and a review of relevant treatises on this important topic. My attorney is editing this
article now. It will prove to be an important and entertaining piece of literature to be sure.
2CLSA Bylaws § 4.01 states:
“The voting members of the Board of Directors shall be the President, the elective officers of the Association, the Immediate Past
President, and the Chapter Representatives.”
“Every act or decision done or made by a majority of the directors having the right to vote present at a
meeting duly held at which a quorum is present is the act of the Board of Directors unless the Articles of
Incorporation, these Bylaws, or the laws of the State of California require a greater percentage or
different voting rules for approval of a matter by the Board.”
In this case, a Director must still be given notice and an opportunity to address the charges against him or her. The duty to comply
with the common law right to fair procedure arises if the entity in which the applicant seeks membership possesses sufficient
market power the exclusion significantly impairs the practice of the applicant’s profession or affects a substantial economic
interest. Palm Medical Group, Inc. v. State Compensation Ins. Fund (App. 1 Dist. 2008) 74 Cal. Rptr. 3d 266. The common law fair
procedure doctrine applies primarily to decisions affecting membership in private organizations that affect the public interest,
particularly when there are substantial economic ramifications from exclusions. Id. The purpose of the common law right to fair
procedure is to protect, in certain situations, against a private organization’s arbitrary decisions regarding membership in the
organization. Kurz v. Federation of Petanque U.S.A. (App. 1 2006) 146 Cal. App. 4th 136.
California courts have recognized the effect that exclusion from membership in a private organization exerts upon a person’s right
to pursue a particular profession or calling. Ezekial v. Winkley (1977) 20 Cal. 3d 267, 271. Exclusions from such groups have been
deemed “arbitrary” when it is substantively unreasonable, internally irregular, or procedurally unfair. Id. at 272. Common law
right to a fair procedure includes adequate notice of the charges and a reasonable opportunity to respond. Id. Certain private
entities possess substantial power either to thwart an individual’s pursuit of a lawful trade or profession, or to control the terms
and conditions under which it is practiced. Id.
“We have said that the right to practice a lawful trade or professional is sufficiently “fundamental” to
require substantial protection against arbitrary administrative interference, either by government or by a
private entity.”
Id.
“One may not be expelled from membership in a private association without charges, notice and hearing.
The common law protection against arbitrary expulsion, judicially declared is of broader application and
has been extended not only to labor unions [citations omitted] and professional and trade organizations
[citations omitted] but to mutual benefit societies [citations omitted] and other fraternal and social
groups. The underlying theme of these decisions, variously stated, is that membership in an association,
with its associated privileges, once attained, is a valuable interest which cannot be arbitrarily
withdrawn.”
Id. at 272-273 [emphasis added].
A private organization is legally required to refrain from arbitrary action – the action to exclude or expel must be substantively
rational and procedurally fair and applies to organizations consisting of licensed professionals. 36 Cal. Jur. 3d Healing Arts and
Institutions § 4. Fair procedure is required in cases of expulsion and also where the member’s proposed discipline also adversely
affects their substantial property, contract or other economic rights. Id. The minimum requirements of fair procedure are:
Adequate notice of charges and a reasonable opportunity to respond;
The right to a tribunal that meets the prevailing standards of impartiality;
The opportunity to confront and cross-examine one’s accusers and to examine and refute their evidence;
The opportunity to present a defense. Id.
2014 Issue 2 Page 28
Expulsion or Suspension of a Member or Director from CLSA
CALTRANS Liaison Report
2014 Issue 2 Page 29
February 2014 OC CLSA Board Meeting
General Caltrans Information
On January 9th the Governor proposed his 2014-15 budget which includes $10.9 billion in expenditures for Caltrans. The
State Transportation Improvement Plan (STIP) and the State Highway Operations and Protection Plan (SHOPP) are
adequate.
The State Smart Transportation Initiative (SSTI) is in final program review. Its recommendations should be out soon.
Watch for a new publication: “The Mile Marker- A Caltrans Performance Report” which will focus on safety, maintenance,
improving mobility, and operating efficiency.
Caltrans District 12 Professional Liaison Committee (PLC) Meetings
PLC Meeting on September 24, 2013 (see attached minutes).
PLC Meeting on January 28, 2014:
Despite a reduced budget, staffing at District 12 is level with numerous projects pending.
The Orange County Transportation Authority (OCTA) headquarters building with remain in the same place for another fifteen
years.
Caltrans and OCTA have numerous projects pending along the I-5 corridor between El Toro and Hwy. 73.
Caltrans Headquarters (Sacramento) is proposing changes to the selection process concerning Statement of Qualifications
(SOQ) for consultants and their provided references.
Focus Session: (at the end of the January 28th meeting)
“Maintaining Traffic Management System Elements During Construction” by Morteza Fahrtash
A seven minute delay in traffic accident reporting (traffic management system) results in a one mile backup.
Fines for infractions are progressive (by type and duration) ranging up to $2,000 per day.
Respectfully submitted by Don Mertens, OC CLSA Caltrans Liaison
February 10, 2014.
CALTRANS District 12—Professional Liaison Meeting Minutes
2014 Issue 2 Page 30
CALTRANS District 12—Professional Liaison Meeting Minutes
2014 Issue 2 Page 31
JPPC Minutes—Orange County (Final Draft For Approval At Next Meeting)
2014 Issue 2 Page 32
JPPC Minutes—Orange County (Final Draft For Approval At Next Meeting)
2014 Issue 2 Page 33
No minutes ready at time of print. Look for minutes in coming issues.
CLSA—Orange County Minutes
2014 Issue 2 Page 34
Next Executive Committee meeting will be held at D. Woolley & Associates, Inc.,
2832 Walnut Ave, Suite A Tustin, CA 92780
March 11, 2014 at 5:30 PM
All members are welcome to attend.
Please save the date for the
Cal Poly Pomona Conference
Co-Sponsored by:
that will be held September 26-27, 2014 at
Cal Poly Pomona
The Orange County Chapter of CLSA is interested in your thoughts!
Please list three (3) specific topics that would be of interest to you as a future seminar or workshop
presentation.
Please check the general topics that would be of interest to you for future seminar or workshop
presentation.
Please email your topics of interest to: Dave Woolley – [email protected] (OCCLSA and professional contact) Dr. Neto – [email protected] (Cal Poly Pomona contact) Steven Mendoza – [email protected] (student activities contact)
1.
2.
3.
Business/Professional Practice Technology
Business Development ALTA BIM/3D Modeling
Contracts Boundary CADD
Dispute Mediation Geodesy Cloud Computing
Ethics Legal Descriptions Geospatial Apps
Negotiations Public Lands GIS
Davis-Bacon/Prevailing Wage Right-of-Way GNSS
Qualification
Based Selection
Subdivision LiDaR
Other Title Other
Other
2014 Issue 2 Page 35
We want comments, articles, opinions, etc.
"Please do not worry about writing prose, we
have editors to make us look good."
Letters, emails, suggestions for articles, and all feedback my be sent to:
California Land Surveyors
Association - Orange County
THE WITNESS CORNER Is published by the California
Land Surveyors Association (CLSA) Orange County
Chapter. Views and opinions expressed are solely those
of the authors and do not represent the California Land
Surveyors Association (CLSA).
Letters, emails, suggestions for articles, and all feedback
my be sent to:
THE WITNESS CORNER WANTS YOU!
Visit us on the web at:
Oc-surveyors.org