ACEC Oregon, AIA Oregon and PLSO are collecting information on the impacts of Duty to Defend clauses in many Oregon public contracts for design professionals. 

In order to move forward with legislation during the 2023 session, we were asked to provide more information on harm caused by the contract requirements.

As a reminder, PLSO has been supporting the intent on ending the inclusion of duty to defend clauses in public and private agreements. This duty to defend clause is onerous as it requires the design professional be responsible to defend an owner or other party against claims asserted by a third-party even if the design professional is not negligent. 

We need your help! If your firm has an example of dealing with Duty to Defend please click on the Submit Case Study button below and complete the electronic form by Thursday, June 2.

SUBMIT CASE STUDY

NSPS held a virtual town hall on Tuesday, May 10th regarding the proposed changes to the Davis-Bacon Act. These changes would include surveying to be considered “labor” and thus subject to prevailing wage requirements. John Palatiello and JB Byrd, NSPS Legislative Representatives, were on hand to discuss the proposed changes and answer questions. The webinar was moderated by Timothy Burch, NSPS Executive Director.

NSPS and PLSO members are urged to file comments with the U.S. Department of Labor in opposition to classifying members of survey crews as “laborers and mechanics” under a 90-year old law known as the Davis-Bacon Act.

For additional information and background, click here.  This includes a recent Town Hall hosted by NSPS, a PowerPoint, and a podcast.

For instructions on filing comments, and tips on what to put in your comments, click here.

Comments are due by close of business this coming Tuesday, May 17.  The voice of the surveying profession must be heard.  Comments may be brief, but please, submit a comment.

For more information, please visit the website:

https://www.nsps.us.com/page/DavisBacon

Just wanted to let people know that we had some survey equipment (including a Trimble R10 GPS receiver, metal detector, hedge trimmer) stolen out of a work van today, while it was parked in a client's driveway in a respectable, residential neighborhood in West Linn.  A two-person survey crew was staking line within 100 ft of the van when it happened. That same work vehicle had equipment stolen out of it one night toward the end of last year, when it was parked overnight (near a streetlight) beside our office building in Tigard.  (We do not leave it there overnight anymore.) We also had someone try to walk away with a Trimble total station and tripod last September near SE 82nd Ave.  A crew member chased them down and confronted them before they "soft-dropped" it on the ground, doing minimal damage, thankfully. The criminals are certainly getting more brazen all the time.  Take heed! Tony Ryan Weddle Surveying

Legislative Update from Dave Williams:

I am pleased to report that PLSO had a very successful 2021 Legislative session.  Both Bills we sponsored were signed by the Governor and become effective on January 01, 2022.  HB2312 – Amends ORS 92.017 regarding Judicial Property Line changes. Provides that lawful units of land whose property lines are relocated by certain judgments remain lawful units. Prohibits requiring additional validating procedures or denying permits because of judicial boundary changes.  HB2884 – Amends ORS 92.176 extending the time for recording partition plat incorporating city or county’s permit validating a unit of land from 90 days to 365 days. 

We supported legislation, HB 3082 - that eliminates the inconsistency between minimum thresholds that require a competitive bid process in ORS 279B (goods and services) and ORS279C (public improvements/construction services).  It amends ORS 279C.335 raising the contract price at which public improvement contract solicitations are exempt from competitive bidding requirement from $5,000 to $10,000.  Additionally, we supported HB213 – which voids certain provisions in construction agreement requiring design professional to defend or indemnify against certain claims except to extent design professional’s negligence caused indemnitee’s damages. Provides that design professional may not be held liable for attorney fees incurred to defend claims against indemnitee before design professional’s fault is determined.  We will be looking to future Sessions to advance this legislation.

I cannot overstate how important the efforts of our Lobbyist, Darrell Fuller, were to the success of this legislative session.  Without him, navigating the legislative process, especially during COVID, would be immeasurably more difficult.

At last weeks Board Meeting we looked into an issue reported to me by Ryan Erickson regarding certain property line adjustments in Lane County.  The substance of the email is as follows:

The PLA in question was done in 2003 and at the time Lane County did not regulate property line adjustments so they would just tell folks to comply with ORS 92.  The PLA in question involved 3 maybe 4 property lines and the adjustment was done in one PLA deed.  Apparently, there have been recent LUBA decisions that say adjusting multiple lines in one deed is incorrect. This causes Lane County to issue the determination that all these properties are not legal lots.  Basically there is no remedy other than possibly trying to unwind everything back 20 years and start over again with multiple land use applications and multiple owners working together to “fix” this.

The Board directed the Legislative Committee to look into this problem, find out if this is an issue in other areas of the State and determine if a legislative fix is the best course of action.  I will be contacting the committee members and requesting that they bring this to the attention of their chapters for discussion.

Finally, I would like to begin the search for the next Legislative Chair.  I accepted this position while still actively running the company I cofounded in the late 1980’s.  Five years into retirement I find myself increasingly distant from the issues that once were in the forefront of my day-to-day life.  I believe the organization would benefit from someone younger and more engaged in the everyday details of the surveying profession.  I encourage anyone interested in this position to contact me and I will outline the duties and time commitments and benefits related to being the chair.

The National Society of Professional Surveyors ("NSPS") has updated the ALTA/NSPS standards for an ALTA ("American Land Title Association") Survey, effective February 23, 2021.  Revisions and clarifications were made to both the Minimum Standard Detail Requirements ("Standards") and Table A Optional Requirements ("Table A"). 

Of particular note, pursuant to the NSPS website, the U.S. Supreme Court in the 1995 case of Gutierrez de Martinez v. Lamagno, 515 U.S. 417, through its interpretation of a portion of the Federal Rules of Civil Procedure, found that the word "shall" is used frequently as a synonym for the word "may", neither of which is indicative of the word "must".  A Joint Committee, comprised of members from both the NSPS and ALTA, reviewed each use of the words "must" and "shall" and used the one that was most appropriate in each case, with "must" indicating an imperative.  Throughout the Standards, the term "property" is now referred to as the "property to be surveyed" or the "surveyed property".

In additional to many minor revisions to the Standards, the Joint Committee added a provision to require that evidence of utility poles on or within ten feet of the surveyed property be marked on a plat or map without expressing a legal opinion as to ownership or nature of any potential encroachment of the utility pole or its crossmembers or overhangs.  Utility locate markings are also to now be included on a plat or map, including the source of the markings with a note if unknown.  In addition to all easements identified in title evidence provided, if a surveyor finds a recorded easement that is not otherwise included, the surveyor must advise the insurer, show or otherwise explain it on the face of the plat or map and make a note that the insurer has been advised.

Fewer revisions were made to Table A; however, there are three that are substantive.  First, item 6(a), which relates to zoning of the surveyed property, adds to the first sentence, "(a) If the current zoning classification, setback requirements, the height and floor space area restrictions, and parking requirements specific to the surveyed property are...".  These items are to be added to the plat or map.  Second and third, item 10(b) which relates to party walls being plumb was deleted, as well as item 18 pertaining to wetlands.

NSPS Please consider assisting a young student who has reached out to NSPS seeking input for a project he is working on. He says, For my project I would need to get at least a few responses, I have created google forms to collect some simple data and will add the link below. It is a very short survey and does not require any personal information, nor to be logged in. The application I proposed to research is about finding benchmarks (the reference points) and making it easier and more efficient for Surveyors. If there are any Surveyors that could potentially help out that would be greatly appreciated. The link is: https://docs.google.com/forms/d/e/1FAIpQLSed9RQYZzxQnR1hwqc9hUvncs8p7ycCmrgBNXXuE7RLyMYEVA/viewform?usp=sf_link Thanks to all who can participate!

The Board is asking members to review the Steering Committee’s proposed PLSO Vision Statement before adoption. The purpose of this review is to inform those members that have been left out of the process due to the Pandemic and refine it grammatically. Once the results are collected, it will be sent to the Board of Directors for final review before the next Board meeting. Please take a moment to respond to a short survey that will be emailed out to each member. For those that need a refresher or have been left out of the process, here is a summary of the process with links:

PLSO’s Strategic Plan was adopted in 2019 with goals to:

1) Increase Membership

2) Promote the Profession

3) Improve Leadership.

The “Plan” is based on general topics that allow for flexibility over a three year review period. During the review, it became increasingly apparent that the goals need a unifying direction toward a vision.

A Steering Committee was formed in January 2020 to develop a Vision Statement and to report to the Board its recommendations. The Board reviewed two proposals during the October 2020 meeting, which was sent to the Chapters for discussion. At the December meeting, the Board chose the best statement version, then sent it back to the Steering Committee with a few minor edits. The changes were made and brought back to the January 2021 Board meeting.

The Vision Statement is based on our Mission Statement and gives direction to the Strategic Plan. The direction is based on the general idea of a good Surveyor (Increase membership with good Surveyors), excellence in our profession (Promote the Profession through excellence), and our duty to society and our organization (Improve Leadership through education).

If you have questions regarding the process, please feel free to contact me.

Respectfully Submitted,

Jeremy A. Sherer

Professional Practices Committee Chair

State Chair Elect/Past Chair

NSPS will host a “Virtual Day on the Hill” on April 20 and 21 to match surveyors with their state’s Congressional delegation for a series of web-conference meetings. In these meetings, NSPS members will educate Congressmen, Senators, and their staff of the role surveying and geospatial activities play in major legislation likely to be considered in Congress this year. There is no fee to participate. For information and registration, click here. NSPS will host a training webinar on April 7, 2021 at 2:00 pm EDT to prepare all participants for their Congressional meetings.

Visit the Virtual day on the Hill website.

By Dana Goward

Senate poised to join House this week and override Trump’s veto

The U. S. Congress, especially the Armed Services Committees, have long been concerned about GPS and positioning, navigation, and timing (PNT) issues. Over the last two decades Congressional hearings, demands for reports, and investigations have dealt with acquisition, contingency plans for when space is not available, deliberate interference, and a host of other issues.

While these all evidenced Congress’ interest and concern, they were relatively passive measures.

The NDAA for 2021 seems to finalize Congress’ transition from an interested observer, mostly on the sidelines, to an active player in national PNT issues and policy.

This began to change in 2018 with passage of the National Timing Resilience and Security Act. It requires the Department of Transportation to establish a terrestrial timing system to backup GPS signals.

Then in 2019, Congress appropriated money for a GPS Backup Technology Demonstration. And the National Defense Authorization Act (NDAA) for 2020 required the Air Force to develop a prototype multi-GNSS receiver as part of its resiliency efforts.

The NDAA for 2021 seems to finalize Congress’ transition from an interested observer, mostly on the sidelines, to an active player in national PNT issues and policy.

Capitol Hill observers say this is the result of several things that have come to a head over the last year. Taken together, they have convinced many legislators that GPS is under threat and PNT issues are not being taken seriously enough by the executive branch. These include increased jamming and spoofing (especially by China and Russia), full implementation of China’s BeiDou system and its marketing to other nations as a superior alternative to GPS, the Federal Communications Commission’s (FCC) decision on Ligado Networks, and the Pentagon’s failure to respond to combatant commanders’ Joint Urgent Operational Needs Statements for non-GPS PNT.

Here are some of the provisions of the 2021 NDAA of interest to the PNT community.

Military Multi-GNSS Receiver Prototype

The 2018 NDAA required the Defense Department to incorporate Europe’s Galileo and Japan’s QZSS satellite navigation signals into military user equipment. The idea was to make it more resilient to disruption. Also required was an investigation into using non-allied signals.

Apparently not satisfied with progress on this project, Congress mandated a project to develop a prototype multi-GNSS receiver as part of the 2020 NDAA.

The 2021 NDAA seems to indicate the Congress is still not happy. It withholds 20% of the funding for the Office of the Secretary of the Air Force until such time as the department certifies the prototype project is underway and provides briefings to the Senate and House Armed Services Committees.

Resilient Survivable PNT

Language in the 2021 NDAA also seems to show Congress is impatient with the Pentagon’s lack of responsiveness to combatant commanders’ requests for non-GPS PNT systems.

Section 1611 of the Act is entitled “Resilient and Survivable Positioning, Navigation, and Timing Capabilities.” It requires development, integration, and deployment of these capabilities for combatant commanders within two years. This, it says, is “… consistent with the timescale applicable to joint urgent operational needs statements…”

The act says the new PNT capabilities shall “generate resilient and survivable alternative positioning, navigation, and timing signals” and “process resilient survivable data provided by signals of opportunity and on-board sensor systems.”

The act also reverses the Defense Department’s 2018 PNT Strategy’s plan for future systems to be classified and for military use only. It directs the department to work with the National Security Council, Departments of Transportation, Homeland Security and others “to enable civilian and commercial adoption of technologies and capabilities for resilient and survivable alternative positioning, navigation, and timing capabilities to complement the global positioning system.”

To help ensure prompt action on this, the act requires a report to Congress within six months and authorizes the department to reprogram funds from other areas to finance the effort.

Responding to FCC’s Decision on Ligado Networks

By far the most PNT-related text in the 2021 NDAA includes a host of measures responding to FCC Order 20-48 approving an application by Ligado Networks. An order which the executive branch is on record as strongly opposing saying it will degrade GPS service for many.

Senator Jim Inhofe, chair of the Senate Armed Services Committee, has regularly expressed outrage at the FCC’s decision and has called for its reversal.

Among its provisions the act:

• Requires the Department of Defense to estimate and report to Congress the cost of damage to department systems as a result of the FCC order.
• Prohibits using department funds to upgrade or modify military equipment to make it resilient to interference caused by broadcasts in the spectrum allocated (the FCC order requires this to be funded by Ligado)
• Prohibits contracting with any entity using the frequency bands allocated to Ligado unless the Secretary of Defense certifies the use will not interfere with GPS services
• Requires the Secretary of Defense to contract with the National Academies of Sciences, Engineering, and Medicine for an independent technical review of the FCC order.

Fairfax,VA – Legislation to establish a constituent-driven program in the National Oceanic and Atmospheric Administration (NOAA) to provide a digital information platform capable of efficiently integrating coastal data with decision-support tools, training, and best practices and support collection of priority coastal geospatial data to inform and improve local, State, regional, and Federal management of the coastal region became law Friday when President Trump signed S. 1069, the Digital Coast Act. “As the leading proponent of this important legislation, we’re pleased that Congress, on a bipartisan basis, and the President, came together to pass the Digital Coast Act into law,” said John M. Palatiello, partner in Miller/Wenhold Capitol Strategies, LLC, parent of John M. Palatiello & Associates, Inc. (JMP&A). The Digital Coast Partnership Advocacy Coalition, the broad alliance of organizations supporting the legislation in Congress, was managed by JMP&A. Member organizations include: American Planning Association (APA); Association of State Floodplain Managers (ASFPM); Coastal States Organization (CSO); National Association of Counties (NACo); National Estuarine Research Reserve Association (NERRA); National Flood Association (NFA); National Society of Professional Surveyors (NSPS); National States Geographic Information Council (NSGIC); The Nature Conservancy (TNC); and U.S. Geospatial Executives Organization (U.S. GEO). NSPS and U.S. GEO are JMP&A clients. Passage of the bill was a 10-year effort. The bill’s sponsor, Senator Tammy Baldwin (D-WI) said, “This legislation will strengthen the incredibly popular Digital Coast Program, which makes it possible for local leaders in our coastal communities to make decisions with clear, current, and useful information. While Digital Coast helps make management choices clear, the work behind those decision tools is incredibly complex. I am proud to support the great work of geospatial professionals and coastal management experts in the private sector and at all levels of government who make it possible for local leaders to have clear data that informs their decisions. The Digital Coast Act will strengthen this important program and support the great work they do to deliver top notch, reliable information relied on by emergency responders, coastal planners, and businesses.” “Wisconsin’s Great Lakes are a great asset for our quality of life and also for our long-term economic security,” said Senator Baldwin. “I’m proud that this bipartisan legislation has passed both chambers of Congress to strengthen our shoreline communities, which face a variety of challenges to keep their harbors open, their waters clean and their beaches ready for visitors. This bipartisan bill ensures that our Great Lakes communities have the resources and tools they need to adapt to changing environmental conditions, maintain healthy shores, and make smart planning decisions to support their local economies and way of life." Representative Dutch Ruppersberger (D-MD), sponsor of the companion bill in the U.S. House of Representatives, said, “While it is critical to coastal communities like mine in the Chesapeake Bay watershed, we all have a stake in protecting America’s shorelines. This bill is more important now than it was when I first introduced it ten years ago. We’re seeing more storms that are stronger and sea level rise is accelerating. We can’t wait any longer. Today, we’re arming local planners and managers with the tools they need to save people and property.” The primary cosponsor in the House, Rep. Don Young (R-AK), said, “No other state in the nation understands the need for coastal resilience and mapping more than Alaska. With more than 44,000 miles of coastline, much of which is not fully mapped, Alaska’s coastal communities rely heavily on our waterways and shipping channels to support all forms of social and economic prosperity: goods from the Lower 48, critical transportation needs, search and rescue operations, and the state’s largest private-sector employer – our fishing industry. The Digital Coast Act is an important step towards developing a system that supports our coastal communities, and serves our national security and economic needs. I am grateful to my colleagues in both the House and Senate for supporting its passage." The lead Senate co-sponsor is Sen. Lisa Murkowski (R-AK), chair of the Senate Committee on Energy and Natural Resources. “The enactment of this bill is a testimony to the extraordinary leadership and tenacity of John “JB” Byrd of our firm”, Palatiello said. “JB patiently and methodically coordinated efforts among the coalition partners and supported members of Congress and staff, engaged a number of geospatial firms, and kept key NOAA staff aware of progress on the legislation throughout the long, arduous process. His professionalism, knowledge of Congress, and consensus building was evident and a major reason for the success of the Digital Coast Act.” About JMP&A John M. Palatiello & Associates, Inc., (www.jmpa.us) a public affairs consulting firm based in the Washington, DC suburb of Fairfax, VA, provides government relations, public relations, association management, strategic planning, event planning, and management and marketing consulting services to private firms, associations, and government agencies with an emphasis on the architecture and engineering; geospatial, mapping and GIS; construction; transportation and infrastructure, and land use sectors. The firm is a subsidiary of Miller/Wenhold Capitol Strategies, LLC (www.mwcapitol.com).  -30-