SURVEY MONUMENT PROTECTION RECOMMENDED SPECIAL PROVISION (SP)

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1 SPECIAL PROVISION (SP) SURVEY MONUMENT PROTECTION THE PROTECTION OF SURVEY MONUMENTATION IN ALL CONTRACTS TO BE LET Clause to be included in each contract: "Before any site construction and/or movement of soil or rock by any natural person or entity near a highway as defined under Section 26 of the Municipal Act, a pre-construction inventory of all the cadastral survey monumentation, any site control survey monumentation, and all control survey monumentation of record in the Ministry of Natural Resource's digital data base COSINE, must be made by a licensed Ontario Land Surveyor to such a point that a post construction inventory of all the said monumentation can be made. The essential components of survey monument protection refers to survey monuments as defined by ONTARIO REGULATION 525/91 under the Surveyors Act and site control survey monumentation and control survey monumentation of record in the Ministry of Natural Resource's digital data base COSINE. The protection protocol refers to the: Review of the work site to determine which survey monuments are in place and which survey monuments will or may be lost due to planned new construction work; Agreement between a Licensed Professional Surveyor (OLS), the organization holding the title fee of the highway or control thereof and the Contractor regarding cost to evaluate and reset survey monuments Survey Monuments under protection are broken down in three categories during Pre and Post Construction Inventory and Restitution of lost monuments: A) Survey monuments required for the project and not in place at first review ~ cost to be borne by the government organization or utility installing physical plant B) Survey monuments that are required at end of project s completion and may or will inevitably be destroyed by construction ~ cost to be borne by the government organization or utility installing physical plant C) Survey monuments that can be protected from work and are identified by OLS during preconstruction inventory and are moved from original inventoried position ~ cost to be borne by contractor 1 P a g e

2 SPECIAL PROVISION BACKGROUND THESE ARE SPECIAL PROVISIONS, DESIGNED TO REINFORCE THE IMPORTANCE OF THE PROTECTION OF SURVEY MONUMENTATION AND THE VARIOUS LEGALITIES INVOLVED IF THE INTEGRITY OF SURVEY MONUMENTS IS COMPROMISED. SPECIAL PROVISIONS HEREIN ARE APPLICABLE TO ALL FEDERAL, PROVINCIAL, MUNICIPAL AND PRIVATE ENTITIES AND ORGANIZATIONS AND PERSONS WHO ARE DIRECTLY/INDIRECTLY RESPONSIBLE FOR INTERACTING WITH SURVEY MONUMENTS. 1. GENERAL OVERVIEW This Special Provision (SP) is intended to be used within or added to the contractual documents of various natures (i.e. construction, environmental assessments, site visits, etc.) at the discretion of the member municipality, where the aim of the document is to alert all entities and the contractor of their respective obligations in relation to the protection of survey monuments that may be encountered directly or indirectly by the Ontario Land Survey (OLS), the contractor and/or those working with/for the OLS and/or the contractor. The OLS is to be employed by the organization holding the title fee of highway or control thereof and must be a party to all agreements regarding construction within or adjacent to the highway. This document places duties on the organization s OLS to develop Pre- and Post- Construction Condition Assessment reports for records, and also outlines the legal implications that may follow in the event that survey monument(s) is/are adversely impacted either intentionally or unintentionally, within or adjacent to the work area, by the contractor. Finally, this document also lists the contact information of agencies that are able to provide further support with more information or in case of emergency. 2. PURPOSE OF SURVEY MONUMENTS Survey monuments are, globally speaking, an integral part of land ownership. Countless monuments have been placed (with an intention to leave them in place permanently) all over Ontario and the rest of Canada in order to provide for quiet ownership thus avoiding boundary disputes and to provide for a reference framework for highway and road infrastructure, above and below ground. According to the Ontario Regulation 525/91, Section 2.1: A surveyor shall define each point in a survey that requires monumentation under this Regulation with a monument that is, (a) a concrete pin; (b) a cut cross; (c) an iron bar; (c.1) a plastic bar; (d) a rock bar; (e) a rock plug; (f) a rock post; (g) a short standard iron bar; or (h) a standard iron bar. 2 P a g e

3 At times, due to physical constraints, monuments do not necessarily mark the actual physical boundary and are called witness monuments. Effectively, what one may see as a monument may not necessarily mark a boundary; instead, it may be an offset from the true and unalterable boundary or real property limit. Only an OLS can legally determine its position relative to a boundary. Nevertheless, whether the monument is witness class or marking a true and unalterable boundary corner, it serves as an integral position reference of the Canadian landscape and should be protected by those working around them. 3. METHODOLOGY OF PROTECTION OF SURVEY MONUMENTS The simplest way to protect a monument likely to be in any construction pathway during construction periods is to place T fence posts in a triangle around the monument (if physically possible, having due regard to any nearby underground utility/plant), no closer to the monument than 0.3m or 1 ft., adding red surveyor s tape to the T posts. The surveyor should be directed to do so initially, with constant vigilance employed by the contractor. 4. VERIFICATION PROGRAM AND CONDITIONAL ASSESSMENT 4.1. DEFINITION All monumentation must be inventoried and protected before construction begins. The verification program herein is designed to guide the OLS and the contractor in taking proactive steps in order to ensure protection of survey monuments. This program places important milestones throughout the lifespan of a given construction project, reinforcing the importance of monument protection at each major phase PRE-WORK CONDITIONAL ASSESSMENT The Pre-Work Condition Assessment is a critical step, specifically designed to provide an opportunity to the project owner (via an OLS) to review the existing ground conditions and also the physical conditions of the survey monuments. Without such an assessment, the project owner and the contractor may be open to liabilities at the end of contract, possibly irrespective of whether the issues (later to be found) existed even before any construction began SITE MEETING & REPORT The OLS, hired by the owner, must be on site prior to any construction activity to identify points of evidence and existing monuments as she/he is the only party permitted by law to evaluate their monumentation and survey boundaries. Prior to initiating any construction works in an area (recommendation: at least three weeks in advance) the OLS shall review the locations of existing survey monuments using survey drawings and verifying them through a field survey. 3 P a g e

4 Detailed notes will have been taken by the OLS for each monument. Photos of each monument may be taken by the OLS. The OLS should prepare a clear identification of the monuments that are expected to be adversely impacted due to construction and take such measures during the initial inventory to be able to replace the monuments if adversely impacted, as required in law. Please Note: The following content in relation to photography is highly recommended and is at the discretion of both the OLS and the contractor. Finally, it is highly recommended to take minimum of three photos of the monument, ensuring that: a) Pictures are taken of the monument itself, b) Multiple pictures of the monument are taken such that the surrounding area/buildings/etc. are captured Please Note: When taking pictures of monument with the surrounding, it is best to take multiple photos from different angles and covering some special item (building corner or other established ground features) in multiple photos. This practice can serve as an additional protection plan for contractor/surveyor/engineer by creating the ability to accurately recreate the location of existing survey monument by simply using multiple photos and digitally triangulating. Once the site condition assessment for each of the survey monuments has been completed, as mentioned above, the findings shall be formulated in a Pre-Construction Condition Assessment Report and submitted to the project owner for review and records. The contractor and OLS shall decide on the required layout of the report, but at minimum should list: Project/Site construction limits XYZ coordinates of each of the monuments; Type of each of the monuments; Any important/legal markings on each of the monuments; The solutions for protection of the monuments that may be impacted by construction; Project/construction timelines; Precautions for the contractor s immediate and indirect staff-members in relation to the survey monuments; And any other information that the OLS may deem as important. Optionally provide photographs as discussed above A copy of the above-mentioned report shall also be kept on the project premises such that it is immediately available for review by the owner, OLS, contractor, government officials or other members authorized by the client/ols. 4 P a g e

5 Although hired by the owner/client, it is a professional duty of the OLS to remain unbiased when providing services for the project. Contacting the Surveyor Prior to Construction: The OLS should always be contacted prior to any engineering detail survey being undertaken for a project. As well as existing Legal Survey Monuments (LSM), there may exist Control Monuments (CM) that are hidden within the right-of-way already that would be impacted during construction. These monuments were very expensive to set originally and are even more expensive to replace. Even where NAD 83 (Original or CSRS) geographic coordinates are determined for monuments, their permanence is not ensured. Every contract should have a monetary holdback set in conjunction with the advice of the OLS who will do a pre and post construction inventory of all monumentation and certify all of the required original or widening boundary and control monuments are in situ at the finish of the construction project in order to release the holdback. Monumentation found on or near sideline boundaries on the initial inventory on unwidended limits, if found on post inventory to have been disturbed, is to be physically replaced in its original found position, but without any certification as to it making a true and unalterable boundary. A suggested holdback wording, adapted from a civil engineering contract document that may provide the base for holdback protocol is: Legal and Control Survey Monumentation Holdback The contractor shall recognise that there is legal and control survey monumentation within and adjacent to the project limits that must be protected at all times by steel fence stakes or T posts or their practical equivalent, set no closer than 0.3 metre (1 foot) to the monument with red flagging on the said steel fence stakes or T posts. This protection is to be recognized by the contractor at the specific direction of the project s OLS, who has the sole power to establish the extent of any and all legal property boundaries of the said project. The Project owner recognises that due to structural movement of materials within the project s scope there will be possibilities for the position of said legal and control monumentation to be disturbed. Site meetings will be held prior to the commencement of the construction and at such times with a given minimum of 48-hour notice during construction by the contractor to the owner s OLS of the potential necessity to alter the ground in around and near the said legal 5 P a g e

6 and control survey monumentation so effective measures by the OLS may be taken to remedy the positional disturbance of the said monumentation. The cost of the replacement of any monumentation that is altered without the specific permission of the OLS will be considered as a cost against the contractor and will be deducted from the payment owing under the Completion Certificate for Payment. Prior to the completion of the project, the contractor shall notify the OLS in writing that the contractor wishes an Inspection of Monumentation Certificate (IMC) to be issued for any or all of the project s extent. It must be recognised that the timing of monument replacement is subject to weather and therefore ample notice must be given as payment to the contractor will be made only after all monumentation is in its proper place. The monumentation replacement cost allocation is to be decided solely by the OLS DURING-WORK ADJUSTMENTS Based on the Pre-Construction Condition Assessment Report, it is likely that some of the monuments may need to be (permanently or temporarily) relocated by the OLS. This relocation process is to be discussed between the OLS and contractor and solution/timeline reasonable to both parties shall be chosen. The project owner may act as an intermediary, if requested by the Contractor/OLS. It is important for the contractor to maintain healthy communications with the OLS during construction to ensure that enough time is allotted to the OLS to complete his/her tasks. The OLS shall also respect the project timelines and perform the required duties in the timeframe reasonably requested by the contractor. All work done in regards to survey monuments shall be officially recorded and retained by both parties, to be added to the Post- Work Condition Assessment Report POST-WORK CONDITIONAL ASSESSMENT As a final step in ensuring system integrity of the survey monuments, at the completion of major project works, the OLS will be required to carry out a final assessment of the monuments in a project area, and develop a Post-Work Condition Assessment Report of findings. At this phase, if proper precautions were followed, it is assumed that the process will be straightforward. The aim of the final report will be to gain agreement, primarily between the OLS and the contractor, that the survey monuments have been preserved as were identified in the Pre-Work Condition Assessment Report, developed earlier by the OLS SITE MEETING & REPORT If a site meeting is requested by the project owner, OLS or contractor, at least a 48-hour notice of the request must be made to all parties with reason(s) outlined in writing if applicable to any party. 6 P a g e

7 At the completion of major project works, when no further adverse impacts to the survey monuments are expected, the OLS shall develop a Post-Work Condition Assessment Report. The contractor shall review the locations of all survey monuments identified in the Pre-Construction Condition Assessment Report and ensure their integrity is still being maintained. Detailed notes are to be taken for impacted monuments, and at minimum should list: XYZ coordinates; type of monument Any markings on the monument Clearly stating the nature of impacts and any resolution steps taken by the contractor/ols to remedy each of the situation(s) Sign-off that the survey monument was protected as identified in the Pre-Construction Condition Assessment Report Sign-off by the OLS affirming that the monuments are in good working/satisfactory state Attach any During-Work adjustments paperwork (as discussed above) Any other information that the OLS feels is important to document for records. It is highly recommended to take minimum of three photos of the impacted monuments, as discussed in the Pre-Work Condition Assessment section above Once the site condition for each of the survey monuments has been completed, and findings documented, the final Post-Work Condition Assessment Report must then submitted to the project owner and the contractor for review and records. A copy of the report, along with copy of the read receipt from the owner and contractor, shall be retained by all parties for 7 years beyond project completion. 5. COMPROMISING INTEGRITY OF MONUMENTS 5.1. DEFINITION In order to evaluate whether any monument has been compromised, confirmation of the XYZ position of all monumentation as defined in the Statues of Ontario and Regulations of Ontario shall be at the sole opinion of the OLS LEGAL CONSEQUENCES As a reminder to the contractor and all staff (directly or indirectly) working for the contractor, altering or compromising the integrity of survey monuments is enforceable under the Criminal Code of Canada, outlined in sections 442 and 443 (Ref: R.S., c. C-34, s. 399.), as excerpted: 7 P a g e

8 Interfering with boundary lines SURVEY MONUMENT PROTECTION 442. Every one who wilfully pulls down, defaces, alters or removes anything planted or set up as the boundary line or part of the boundary line of land is guilty of an offence punishable on summary conviction. Interfering with international boundary marks, etc (1) Every one who wilfully pulls down, defaces, alters or removes: (a) a boundary mark lawfully placed to mark any international, provincial, county or municipal boundary, or (b) a boundary mark lawfully placed by a land surveyor to mark any limit, boundary or angle of a concession, range, lot or parcel of land, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Saving provision (2) A land surveyor does not commit an offence under subsection (1) where, in his operations as a land surveyor, (a) he takes up, when necessary, a boundary mark mentioned in paragraph (1)(b) and carefully replaces it as it was before he took it up; or (b) he takes up a boundary mark mentioned in paragraph (1)(b) in the course of surveying for a highway or other work that, when completed, will make it impossible or impracticable for that boundary mark to occupy its original position, and he establishes a permanent record of the original position sufficient to permit that position to be ascertained. Some important legal actions related to this subject matter may be considered: a) Only a licensed professional surveyor may opine on a boundary location as has been ruled by the Court of Appeal in Ontario in Association of Ontario Land Surveyors v. Van Loon, 2004 CanLII 8847 (ON CA) ( b) In British Columbia, in Henderson vs. Porter, Mr. Porter was jailed for one year for moving a surveyor s monument - Henderson v. Porter, 2001 BCSC 1601 (CanLII) ( 6. REPORTING OF ILLEGAL ACTIONS It is strongly advised that, if witnessing the crime of survey monument interference, no private citizen should take the law in his/her hands alone; instead, the proper and/or nearest force(s) of authority (e.g. Police) should be contacted. It may help the project organization and/or contractor to remember that Sections 442 and 443 of Criminal Code are applicable and should be posted in a common work site place for all persons to see, possibly next to all safety publications. 8 P a g e

9 7. IMPORTANT CONTACT INFORMATION For Immediate Circumstance Violation: Local or Provincial Police Local Municipal or Provincial Road Authority Contact the owner s licensed Professional Surveyor (OLS) or, as a last resort, the Association of Ontario Land Surveyors ( ) to obtain local professional surveyors input, since the local surveyor will know the land boundary situation the best. NOTE: Survey Monumentation as infrastructure is recognized by The Ontario Regional Common Ground Alliance (ORCGA) Website: 9 P a g e