๊2003 Statutes of Nevada, Page 1960๊
Senate Bill No. 452Committee on Government Affairs
CHAPTER 352
AN ACT relating to local governments; revising the provisions governing enterprise funds for building permit fees; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 354.59891 is hereby amended to read as follows:
354.59891 1. As used in this section:
(a) Barricade permit means the official document issued by the building officer of a local government which authorizes the placement of barricade appurtenances or structures within a public right-of-way.
(b) Building permit means the official document or certificate issued by the building officer of a local government which authorizes the construction of a structure.
[(b)] (c) Building permit basis means the combination of the rate and the valuation method used to calculate the total building permit fee.
[(c)] (d) Building permit fee means the total fees that must be paid before the issuance of a building permit, including , without limitation, all permit fees and inspection fees. The term does not include, without limitation, fees relating to water, sewer or other utilities, residential construction tax, tax for the improvement of transportation imposed pursuant to NRS 278.710, any fee imposed pursuant to NRS 244.386 or any amount expended to change the zoning of the property.
[(d)] (e) Current asset means any cash maintained in an enterprise fund and any interest or other income earned on the money in the enterprise fund that, at the end of the current fiscal year, is anticipated by a local government to be consumed or converted into cash during the next ensuing fiscal year.
[(e)] (f) Current liability means any debt incurred by a local government to provide the services associated with issuing building permits that, at the end of the current fiscal year, is determined by the local government to require payment within the next ensuing fiscal year.
[(f)] (g) Encroachment permit means the official document issued by the building officer of a local government which authorizes construction activity within a public right-of-way.
(h) Operating cost means the amount paid by a local government for supplies, services, salaries, wages and employee benefits to provide the services associated with issuing building permits.
[(g)] (i) Working capital means the excess of current assets over current liabilities, as determined by the local government at the end of the current fiscal year.
2. Except as otherwise provided in subsections 3 and 4, a local government shall not increase its building permit basis by more than an amount equal to the building permit basis on June 30, 1989, multiplied by a percentage equal to the percentage increase in the Western Urban Nonseasonally Adjusted Consumer Price Index , as published by the United States Department of Labor from January 1, 1988, to the January 1 next preceding the fiscal year for which the calculation is made.
๊2003 Statutes of Nevada, Page 1961 (Chapter 352, SB 452)๊
States Department of Labor from January 1, 1988, to the January 1 next preceding the fiscal year for which the calculation is made.
3. A local government may submit an application to increase its building permit basis by an amount greater than otherwise allowable pursuant to subsection 2 to the Nevada Tax Commission. The Nevada Tax Commission may allow the increase only if it finds that:
(a) Emergency conditions exist which impair the ability of the local government to perform the basic functions for which it was created; or
(b) The building permit basis of the local government is substantially below that of other local governments in the State and the cost of providing the services associated with the issuance of building permits in the previous fiscal year exceeded the total revenue received from building permit fees, excluding any amount of residential construction tax collected, for that fiscal year.
4. Upon application by a local government, the Nevada Tax Commission shall exempt the local government from the limitation on the increase of its building permit basis if:
(a) The local government creates an enterprise fund exclusively for building permit fees [;] , fees imposed for the issuance of barricade permits and fees imposed for encroachment permits;
(b) Any interest or other income earned on the money in the enterprise fund is credited to the fund;
(c) Except as otherwise provided in subsection 5, the local government maintains a balance of unreserved working capital in the enterprise fund that does not exceed an amount equal to 9 months operating costs for the program for the issuance of barricade permits, encroachment permits and building permits of the local government; and
(d) The local government does not use any of the money in the enterprise fund for any purpose other than the actual direct and indirect costs of the program for the issuance of barricade permits, encroachment permits and building permits, including, without limitation, the cost of checking plans, issuing permits, inspecting buildings and administering the program. The Committee on Local Government Finance shall adopt regulations governing the permissible expenditures from an enterprise fund pursuant to this paragraph.
5. In addition to the balance of unreserved working capital authorized pursuant to subsection 4, the local government may maintain in an enterprise fund created pursuant to this section an amount of working capital for the following purposes:
(a) An amount sufficient to pay the debt service for 1 year on any debt incurred by the local government to provide the services associated with issuing barricade permits, encroachment permits and building permits;
(b) An amount that does not exceed the total amount of expenditures for the program for the issuance of barricade permits, encroachment permits and building permits of the local government set forth in the capital improvement plan of the local government prepared pursuant to NRS 354.5945 for the current fiscal year; and
(c) An amount that does not exceed 4 percent of the annual operating costs of the program for the issuance of barricade permits, encroachment permits and building permits of the local government which must be used to pay for unanticipated capital replacement.
๊2003 Statutes of Nevada, Page 1962 (Chapter 352, SB 452)๊
6. Any amount in an enterprise fund created pursuant to this section that is designated for special use, including, without limitation, prepaid fees and any other amount subject to a contractual agreement, must be identified as a restricted asset and must not be included as a current asset in the calculation of working capital.
7. If a balance in excess of the amount authorized pursuant to subsections 4 and 5 is maintained in an enterprise fund created pursuant to this section at the close of 2 consecutive fiscal years, the local government shall reduce the [building permit] fees for barricade permits, encroachment permits and building permits it charges by an amount that is sufficient to ensure that the balance in the enterprise fund at the close of the fiscal year next following those 2 consecutive fiscal years does not exceed the amount authorized pursuant to subsections 4 and 5.
Sec. 2. This act becomes effective on July 1, 2003.
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Assembly Bill No. 394Assemblymen Goldwater and Chowning
CHAPTER 353
AN ACT relating to traffic laws; revising the provisions governing the removal by a police officer of a vehicle or part of a vehicle from a highway to a garage or other place of safekeeping; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 484.397 is hereby amended to read as follows:
484.397 1. Whenever any police officer finds a vehicle standing upon a highway in violation of any of the provisions of this chapter, the officer may move the vehicle, or require the driver or person in charge of the vehicle to move it, to a position off the paved, improved or main-traveled part of the highway.
2. Whenever any police officer finds a vehicle unattended or disabled upon any highway, bridge or causeway, or in any tunnel, where the vehicle constitutes an obstruction to traffic or interferes with the normal flow of traffic, the officer may provide for the immediate removal of the vehicle.
3. Any police officer may , subject to the requirements of subsection 4, remove any vehicle or part of a vehicle found on the highway, or cause it to be removed, to [the nearest] a garage or other place of safekeeping if:
(a) The vehicle has been involved in an accident and is so disabled that its normal operation is impossible or impractical and the person or persons in charge of the vehicle are incapacitated by reason of physical injury or other reason to such an extent as to be unable to provide for its removal or custody, or are not in the immediate vicinity of the disabled vehicle;
(b) The person driving or in actual physical control of the vehicle is arrested for any alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay; or
๊2003 Statutes of Nevada, Page 1963 (Chapter 353, AB 394)๊
take the person arrested before a proper magistrate without unnecessary delay; or
(c) The person in charge of the vehicle is unable to provide for its custody or removal within:
(1) Twenty-four hours after abandoning the vehicle on any freeway, United States highway or other primary arterial highway.
(2) Seventy-two hours after abandoning the vehicle on any other highway.
4. Unless a different course of action is necessary to preserve evidence of a criminal offense, a police officer who wishes to have a vehicle or part of a vehicle removed from a highway pursuant to subsection 3 shall, in accordance with any applicable protocol such as a rotational schedule regarding the selection and use of towing services, cause the vehicle or part of a vehicle to be removed by a tow car operator. The tow car operator shall, to the extent practicable and using the shortest and most direct route, remove the vehicle or part of a vehicle to his garage unless directed otherwise by the police officer. The tow car operator is liable for any loss of or damage to the vehicle or its contents that occurs while the vehicle is in his possession or control.
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Senate Bill No. 475Committee on Taxation
CHAPTER 354
AN ACT relating to taxation; revising the manner of assessing the value of certain electric light and power companies; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 361.320 is hereby amended to read as follows:
361.320 1. At the regular session of the Nevada Tax Commission commencing on the first Monday in October of each year, the Nevada Tax Commission shall establish the valuation for assessment purposes of any property of an interstate or intercounty nature used directly in the operation of all interstate or intercounty railroad, sleeping car, private car, natural gas transmission and distribution, water, telephone, scheduled and unscheduled air transport, electric light and power companies, and the property of all railway express companies operating on any common or contract carrier in this state. This valuation must not include the value of vehicles as defined in NRS 371.020.
2. Except as otherwise provided in subsections 3 [and 6] , 4 and 7 and NRS 361.323, the Commission shall establish and fix the valuation of all physical property used directly in the operation of any such business of any such company in this state, as a collective unit. If the company is operating in more than one county, on establishing the unit valuation for the collective property, the Commission shall then determine the total aggregate mileage operated within the State and within its several counties and apportion the mileage upon a mile-unit valuation basis.
๊2003 Statutes of Nevada, Page 1964 (Chapter 354, SB 475)๊
mileage upon a mile-unit valuation basis. The number of miles apportioned to any county are subject to assessment in that county according to the mile-unit valuation established by the Commission.
3. After establishing the valuation, as a collective unit, of a public utility which generates, transmits or distributes electricity, the Commission shall segregate the value of any project in this state for the generation of electricity which is not yet put to use. This value must be assessed in the county where the project is located and must be taxed at the same rate as other property.
4. After establishing the valuation, as a collective unit, of an electric light and power company that places a facility into operation on or after July 1, 2003, in a county whose population is less than 100,000, the Commission shall segregate the value of the facility from the collective unit. This value must be assessed in the county where the facility is located and taxed at the same rate as other property.
5. The Nevada Tax Commission shall adopt formulas and incorporate them in its records, providing the method or methods pursued in fixing and establishing the taxable value of all property assessed by it. The formulas must be adopted and may be changed from time to time upon its own motion or when made necessary by judicial decisions, but the formulas must in any event show all the elements of value considered by the Commission in arriving at and fixing the value for any class of property assessed by it. These formulas must take into account, as indicators of value, the companys income and the cost of its assets, but the taxable value may not exceed the cost of replacement as appropriately depreciated.
[5.] 6. If two or more persons perform separate functions that collectively are needed to deliver electric service to the final customer and the property used in performing the functions would be centrally assessed if owned by one person, the Nevada Tax Commission shall establish its valuation and apportion the valuation among the several counties in the same manner as the valuation of other centrally assessed property. The Nevada Tax Commission shall determine the proportion of the tax levied upon the property by each county according to the valuation of the contribution of each person to the aggregate valuation of the property. This subsection does not apply to a qualifying facility, as defined in 18 C.F.R. ง 292.101, which was constructed before July 1, 1997 [.] , or to an exempt wholesale generator, as defined in 15 U.S.C. ง 79z-5a.
[6.] 7. A company engaged in a business described in subsection 1 that does not have property of an interstate or intercounty nature must be assessed as provided in subsection [8.
7.] 9.
8. As used in this section:
(a) Company means any person, company, corporation or association engaged in the business described.
(b) Commercial mobile radio service has the meaning ascribed to it in 47 C.F.R. ง 20.3 , as that section existed on January 1, 1998.
[8.] 9. All other property, including, without limitation, that of any company engaged in providing commercial mobile radio service, radio or television transmission services or cable television services, must be assessed by the county assessors, except as otherwise provided in NRS 361.321 and 362.100 and except that the valuation of land and mobile homes must be established for assessment purposes by the Nevada Tax Commission as provided in NRS 361.325.
๊2003 Statutes of Nevada, Page 1965 (Chapter 354, SB 475)๊
established for assessment purposes by the Nevada Tax Commission as provided in NRS 361.325.
[9.] 10. On or before November 1 of each year, the Department shall forward a tax statement to each private car line company based on the valuation established pursuant to this section and in accordance with the tax levies of the several districts in each county. The company shall remit the ad valorem taxes due on or before December 15 to the Department which shall allocate the taxes due each county on a mile-unit basis and remit the taxes to the counties no later than January 31. The portion of the taxes which is due the State must be transmitted directly to the State Treasurer. A company which fails to pay the tax within the time required shall pay a penalty of 10 percent of the tax due or $5,000, whichever is greater, in addition to the tax. Any amount paid as a penalty must be deposited in the State General Fund. The Department may, for good cause shown, waive the payment of a penalty pursuant to this subsection. As an alternative to any other method of recovering delinquent taxes provided by this chapter, the Attorney General may bring a civil action in a court of competent jurisdiction to recover delinquent taxes due pursuant to this subsection in the manner provided in NRS 361.560.
Sec. 2. This act becomes effective on July 1, 2003.
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Senate Bill No. 196Senator Care
CHAPTER 355
AN ACT relating to trusts; adapting the Uniform Prudent Investor Act and the Uniform Principal and Income Act (1997) to each other and the structure of Nevada Revised Statutes; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 164 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 44, inclusive, of this act.
Sec. 2. As used in sections 2 to 44, inclusive, of this act:
1. Fiduciary means a trustee or, to the extent that sections 15 to 44, inclusive, of this act apply to an estate, a personal representative.
2. Terms of a trust means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.
Sec. 3. In performing his duties under sections 2 to 44, inclusive, of this act, a fiduciary:
1. Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in sections 2 to 44, inclusive, of this act;
2. May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by sections 2 to 44, inclusive, of this act; and
๊2003 Statutes of Nevada, Page 1966 (Chapter 355, SB 196)๊
the will, even if the exercise of the power produces a result different from a result required or permitted by sections 2 to 44, inclusive, of this act; and
3. Shall administer a trust or estate in accordance with sections 2 to 44, inclusive, of this act if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration.
Sec. 4. A trustee shall invest and manage the trust property solely in the interest of the beneficiaries.
Sec. 5. 1. If a trust has two or more beneficiaries, the trustee shall act impartially in investing and managing the trust property, taking into account any differing interests of the beneficiaries.
2. In exercising the power to adjust under section 18 of this act or a discretionary power of administration regarding a matter within the scope of sections 15 to 44, inclusive, of this act, whether granted by the terms of a trust, a will or sections 15 to 44, inclusive, of this act, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with sections 15 to 44, inclusive, of this act is presumed to be fair and reasonable to all the beneficiaries.
Sec. 5.3. 1. As used in this section, action includes a course of action and a decision on whether or not to take action.
2. A trustee may provide a notice of proposed action regarding any matter governed by sections 2 to 44, inclusive, of this act.
3. If a trustee provides a notice of proposed action, the trustee shall mail the notice of proposed action to every adult beneficiary who, at the time the notice is provided, receives, or is entitled to receive, income under the trust or who would be entitled to receive a distribution of principal if the trust were terminated. A notice of proposed action need not be provided to a person who consents in writing to the proposed action. A consent to a proposed action may be executed before or after the proposed action is taken.
4. The notice of proposed action must state:
(a) That the notice is provided pursuant to this section;
(b) The name and mailing address of the trustee;
(c) The name and telephone number of a person with whom to communicate for additional information regarding the proposed action;
(d) A description of the proposed action and an explanation of the reason for taking the action;
(e) The time within which objection to the proposed action may be made, which must be not less than 30 days after the notice of proposed action is mailed; and
(f) The date on or after which the proposed action is to be taken or is to be effective.
5. A beneficiary may object to the proposed action by mailing a written objection to the trustee at the address and within the time stated in the notice.
6. If no beneficiary entitled to receive notice of a proposed action objects to the proposed action and the other requirements of this section are met, the trustee is not liable to any present or future beneficiary with respect to that proposed action.
๊2003 Statutes of Nevada, Page 1967 (Chapter 355, SB 196)๊
7. If the trustee received a written objection to the proposed action within the period specified in the notice, the trustee or a beneficiary may petition the court for an order to take the action as proposed, take the action with modification or deny the proposed action. A beneficiary who failed to object to the proposed action is not estopped from opposing the proposed action. The burden is on a beneficiary to prove that the proposed action should not be taken or should be modified.
8. If the trustee decides not to take a proposed action for which notice has been provided, the trustee shall notify the beneficiaries of his decision not to take the proposed action and the reasons for his decision. The trustee is not liable to any present or future beneficiary with respect to the decision not to take the proposed action. A beneficiary may petition the court for an order to take the action as proposed. The burden is on the beneficiary to prove that the proposed action should be taken.
9. If the proposed action for which notice has been proved is an adjustment to principal and income pursuant to section 18 of this act, the sole remedy a court may order, pursuant to subsections 7 and 8, is to make the adjustment, to make the adjustment with a modification or to order the adjustment not to be made.
Sec. 5.5. 1. The provisions of sections 2 to 44, inclusive, of this act do not impose or create a duty of a trustee to make an adjustment between principal and income pursuant to the provisions of section 18 of this act.
2. A trustee shall not be liable for:
(a) Not considering whether to make such an adjustment; or
(b) Deciding not to make such an adjustment.
Sec. 5.7. Except as specifically provided in a trust instrument, a will or sections 2 to 44, inclusive, the provisions of sections 2 to 44, inclusive, apply to any trust or estate of a decedent existing on or after October 1, 2003.
Sec. 6. Sections 2 to 14, inclusive, of this act may be cited as the Uniform Prudent Investor Act.
Sec. 7. A trustee who invests and manages trust property owes a duty to the beneficiaries of the trust to comply with the prudent investor rule as set forth in sections 2 to 14, inclusive, of this act but a trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the terms of the trust.
Sec. 8. 1. A trustee shall invest and manage trust property as a prudent investor would, considering the terms, purposes, requirements for distribution, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill and caution.
2. A trustees decisions concerning investment and management as applied to individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as part of an overall strategy of investment having objectives for risk and return reasonably suited to the trust.
3. Among circumstances that a trustee shall consider in investing and managing trust property are such of the following as are relevant to the trust or its beneficiaries:
(a) General economic conditions;
(b) The possible effect of inflation or deflation;
(c) The expected tax consequences of decisions or strategies;
๊2003 Statutes of Nevada, Page 1968 (Chapter 355, SB 196)๊
(d) The role that each investment or course of action plays within the overall trust portfolio;
(e) The expected total return from income and the appreciation of capital;
(f) Other resources of the beneficiaries;
(g) Needs for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) An assets special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.
4. A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust property.
5. A trustee may invest in any kind of property or type of investment consistent with the standards of sections 2 to 14, inclusive, of this act, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property.
6. A trustee who has special skills or expertise, or is named trustee in reliance upon his representation that he has special skills or expertise, has a duty to use those special skills or expertise.
Sec. 9. A trustee shall diversify the investments of the trust unless he reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.
Sec. 10. Within a reasonable time after accepting a trusteeship or receiving trust property, a trustee shall review the trust property and make and carry out decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, requirements for distribution and other circumstances of the trust, and with the requirements of sections 2 to 14, inclusive, of this act.
Sec. 11. In investing and managing trust property, a trustee may only incur costs that are appropriate and reasonable in relation to the property, the purposes of the trust and the skills of the trustee.
Sec. 12. Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustees decision or action and not by hindsight.
Sec. 13. 1. A trustee may delegate functions of investment and management that a prudent trustee of comparable skills could properly delegate under the circumstances. He shall exercise reasonable care, skill and caution in:
(a) Selecting an agent;
(b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
(c) Periodically reviewing the agents actions in order to verify the agents performance and compliance with the terms of the delegation.
2. In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
3. A trustee who complies with the requirements of subsection 1 is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.
4. By accepting the delegation of a function from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.
Sec. 14. The following terms or comparable language in the terms of a trust, unless otherwise limited or modified, authorizes any investment or strategy permitted under sections 2 to 14, inclusive, of this act: investments permissible by law for investment of trust funds, legal investments, authorized investments, using the judgment and care under the circumstances then prevailing that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital, prudent man rule, prudent trustee rule, prudent person rule and prudent investor rule.
๊2003 Statutes of Nevada, Page 1969 (Chapter 355, SB 196)๊
strategy permitted under sections 2 to 14, inclusive, of this act: investments permissible by law for investment of trust funds, legal investments, authorized investments, using the judgment and care under the circumstances then prevailing that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital, prudent man rule, prudent trustee rule, prudent person rule and prudent investor rule.
Sec. 15. Section 2, subsection 2 of section 5 and sections 15 to 44, inclusive, of this act may be cited as the Uniform Principal and Income Act (1997).
Sec. 16. As used in sections 15 to 44, inclusive, of this act:
1. Accounting period means a calendar year unless another 12-month period is selected by a fiduciary. The term includes a portion of a calendar year or other 12-month period that begins when an income interest begins or ends when an income interest ends.
2. Beneficiary includes, in the case of a decedents estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
3. Fiduciary includes an executor, administrator, successor personal representative, special administrator and a person performing substantially the same function.
4. Income means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange or liquidation of a principal asset, to the extent provided in sections 24 to 38, inclusive, of this act.
5. Income beneficiary means a person to whom net income of a trust is or may be payable.
6. Income interest means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustees discretion.
7. Mandatory income interest means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.
8. Net income means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under sections 15 to 44, inclusive, of this act to or from income during the period.
9. Principal means property held in trust for distribution to a remainder beneficiary when the trust terminates.
10. Remainder beneficiary means a person entitled to receive principal when an income interest ends.
Sec. 17. In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of sections 19 to 23, inclusive, of this act, a fiduciary shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and sections 15 to 44, inclusive, of this act do not provide a rule for allocating the receipt or disbursement to or between principal and income.
Sec. 18. 1. A trustee may adjust between principal and income to the extent he considers necessary if he invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trusts income, and he determines, after applying the rules in sections 3 and 17 of this act, that he is unable to comply with subsection 2 of section 5 of this act.
๊2003 Statutes of Nevada, Page 1970 (Chapter 355, SB 196)๊
must be distributed to a beneficiary by referring to the trusts income, and he determines, after applying the rules in sections 3 and 17 of this act, that he is unable to comply with subsection 2 of section 5 of this act.
2. In deciding whether and to what extent to exercise the power conferred by subsection 1, a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant:
(a) The nature, purpose and expected duration of the trust;
(b) The intent of the settlor;
(c) The identity and circumstances of the beneficiaries;
(d) The needs for liquidity, regularity of income, and preservation and appreciation of capital;
(e) The assets held in the trust, the extent to which the assets consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property, the extent to which an asset is used by a beneficiary, and whether an asset was purchased by the trustee or received from the settlor;
(f) The net amount allocated to income under the other provisions of sections 15 to 44, inclusive, of this act and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
(g) Whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit him from invading principal or accumulating income, and the extent to which he has exercised a power from time to time to invade principal or accumulate income;
(h) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
(i) The anticipated tax consequences of an adjustment.
3. A trustee may not make an adjustment:
(a) That diminishes the income interest in a trust that requires all the income to be paid at least annually to a surviving spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment;
(b) That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
(c) That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
(d) From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
(e) If possessing or exercising the power to make an adjustment causes a natural person to be treated as the owner of all or part of the trust for income tax purposes, and the natural person would not be treated as the owner if the trustee did not possess the power to make an adjustment;
(f) If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of a natural person who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the natural person if the trustee did not possess the power to make an adjustment;
๊2003 Statutes of Nevada, Page 1971 (Chapter 355, SB 196)๊
(g) If the trustee is a beneficiary of the trust; or
(h) If the trustee is not a beneficiary, but the adjustment would benefit him directly or indirectly.
4. If paragraph (e), (f), (g) or (h) of subsection 3 applies to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust.
5. A trustee may release the entire power conferred by subsection 1 or may release only the power to adjust from income to principal or the power to adjust from principal to income if he is uncertain about whether possessing or exercising the power will cause a result described in paragraphs (a) to (f), inclusive, or (h) of subsection 3 or if he determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection 3. The release may be permanent or for a specified period, including a period measured by the life of a natural person.
6. Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection 1.
Sec. 19. After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:
1. A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in sections 21 to 44, inclusive, of this act which apply to trustees and the rules in subsection 5. He shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.
2. A fiduciary shall determine the remaining net income of a decedents estate or a terminating income interest under the rules in sections 21 to 44, inclusive, of this act which apply to trustees and by:
(a) Including in net income all income from property used to discharge liabilities;
(b) Paying from income or principal, in his discretion, fees of attorneys, accountants and fiduciaries, court costs and other expenses of administration, and interest on death taxes, but he may pay those expenses from income of property passing to a trust for which he claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and
(c) Paying from principal all other disbursements made or incurred in connection with the settlement of a decedents estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law.
3. A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under subsection 2 or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will.
๊2003 Statutes of Nevada, Page 1972 (Chapter 355, SB 196)๊
outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will.
4. A fiduciary shall distribute the net income remaining after distributions required by subsection 3 in the manner described in section 20 of this act to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if he holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust.
5. A fiduciary may not reduce principal or income receipts from property described in subsection 1 because of a payment described in section 39 or 40 of this act to the extent that the will, the terms of the trust, or applicable law requires him to make the payment from assets other than the property or to the extent he recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedents death or an income interests terminating event, and by making a reasonable provision for amounts that he believes the estate or terminating income interest may become obligated to pay after the property is distributed.
Sec. 20. 1. Each beneficiary described in subsection 4 of section 19 of this act is entitled to receive a portion of the net income equal to his fractional interest in undistributed principal assets, using values as of the date of distribution. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each date of distribution, to the net income the fiduciary has received after the date of death or terminating event or earlier date of distribution but has not distributed as of the current date of distribution.
2. In determining a beneficiarys share of net income, the following rules apply:
(a) He is entitled to receive a portion of the net income equal to his fractional interest in the undistributed principal assets immediately before the date of distribution, including assets that later may be sold to meet principal obligations.
(b) His fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust.
(c) His fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the date of distribution without reducing the value by any unpaid principal obligation.
(d) The date of distribution for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
3. If a fiduciary does not distribute all the collected but undistributed net income to each person as of a date of distribution, he shall maintain appropriate records showing the interest of each beneficiary in that net income.
๊2003 Statutes of Nevada, Page 1973 (Chapter 355, SB 196)๊
4. A trustee may apply the rules in this section, to the extent that he considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier date of distribution from the disposition of a principal asset if this section applies to the income from the asset.
Sec. 21. 1. An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
2. An asset becomes subject to a trust:
(a) On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferors life;
(b) On the date of a testators death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testators estate; or
(c) On the date of the death of a natural person in the case of an asset that is transferred to a fiduciary by a third party because of the death of the natural person.
3. An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection 4, even if there is an intervening period of administration to wind up the preceding income interest.
4. An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.
Sec. 22. 1. A trustee shall allocate an income receipt or disbursement other than one to which subsection 1 of section 19 of this act applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
2. A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.
3. An item of income or an obligation is due on the date the payor is required to make a payment. If a date for payment is not stated, there is no due date for the purposes of sections 15 to 44, inclusive, of this act. Distributions to shareholders or other owners from an entity to which section 24 of this act applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the date of declaration of the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.
Sec. 23. 1. As used in this section, undistributed income means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.
๊2003 Statutes of Nevada, Page 1974 (Chapter 355, SB 196)๊
or net income that has been added or is required to be added to principal under the terms of the trust.
2. When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, his share of the undistributed income that is not disposed of under the terms of the trust unless he has an unqualified power to revoke more than 5 percent of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal.
3. When a trustees obligation to pay a fixed annuity or a fixed fraction of the value of the trusts assets ends, he shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate or other tax requirements.
Sec. 24. 1. As used in this section, entity means a corporation, partnership, limited-liability company, regulated investment company, real estate investment trust, common trust fund or any other organization in which a trustee has an interest other than a trust or estate to which section 25 of this act applies, a business or activity to which section 26 of this act applies or an asset-backed security to which section 38 of this act applies.
2. Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.
3. A trustee shall allocate the following receipts from an entity to principal:
(a) Property other than money;
(b) Money received in one distribution or a series of related distributions in exchange for part or all of a trusts interest in the entity;
(c) Money received in total or partial liquidation of the entity; and
(d) Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.
4. Money is received in partial liquidation:
(a) To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
(b) If the total amount of money and property received in a distribution or series of related distributions is greater than 20 percent of the entitys gross assets, as shown by the entitys year-end financial statements immediately preceding the initial receipt.
5. Money is not received in partial liquidation, nor may it be taken into account under paragraph (b) of subsection 4, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.
6. A trustee may rely upon a statement made by an entity about the source of character of a distribution if the statement is made at or near the time of distribution by the entitys board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporations board of directors.
Sec. 25. A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and a trustee shall allocate to principal an amount received as a distribution of principal from such a trust or estate.
๊2003 Statutes of Nevada, Page 1975 (Chapter 355, SB 196)๊
trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, section 24 or 38 of this act applies to a receipt from the trust.
Sec. 26. 1. If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trusts general accounting records, he may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
2. A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trusts general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, he shall account for the net amount received as principal in the trusts general accounting records to the extent he determines that the amount received is no longer required in the conduct of the business.
3. Activities for which a trustee may maintain separate accounting records include:
(a) Retail, manufacturing, service and other traditional business activities;
(b) Farming;
(c) Raising and selling livestock and other animals;
(d) Management of rental properties;
(e) Extraction of minerals and other natural resources;
(f) Timber operations; and
(g) Activities to which section 37 of this act applies.
Sec. 27. A trustee shall allocate to principal:
1. To the extent not allocated to income under sections 15 to 44, inclusive, of this act, assets received from a transferor during the transferors lifetime, a decedents estate, a trust with a terminating income interest, or a payor under a contract naming the trust or its trustee as beneficiary;
2. Money or other property received from the sale, exchange, liquidation or change in form of a principal asset, including realized profit, subject to sections 15 to 44, inclusive, of this act;
3. Amounts recovered from third parties to reimburse the trust because of disbursements described in paragraph (g) of subsection 1 of section 40 of this act or for other reasons to the extent not based on the loss of income;
4. Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
5. Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and
6. Other receipts as provided in sections 21, 22 and 23 of this act.
๊2003 Statutes of Nevada, Page 1976 (Chapter 355, SB 196)๊
Sec. 28. To the extent that a trustee accounts for receipts from rental property pursuant to this section, he shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustees contractual obligations have been satisfied with respect to that amount.
Sec. 29. 1. An amount received as interest, whether determined at a fixed, variable or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium.
2. A trustee shall allocate to principal an amount received from the sale, redemption or other disposition of an obligation to pay money to him more than 1 year after it is purchased or acquired by him, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within 1 year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income.
3. This section does not apply to an obligation to which section 32, 33, 34, 35, 37 or 38 of this act applies.
Sec. 30. 1. Except as otherwise provided in this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. He shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.
2. A trustee shall allocate to income proceeds of a contract that insures him against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to section 26 of this act, loss of profits from a business.
3. This section does not apply to a contract to which section 32 of this act applies.
Sec. 31. If a trustee determines that an allocation between principal and income required by section 32, 33, 34, 35 or 38 of this act is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in subsection 3 of section 18 of this act applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in subsection 4 of section 18 of this act and may be released for the reasons and in the manner described in subsection 5 of section 18 of this act. An allocation is presumed to be insubstantial if:
1. The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than 10 percent; or
2. The value of the asset producing the receipt for which the allocation would be made is less than 10 percent of the total value of the trusts assets at the beginning of the accounting period.
๊2003 Statutes of Nevada, Page 1977 (Chapter 355, SB 196)๊
Sec. 32. 1. As used in this section, payment means a payment that a trustee may receive over a fixed number of years or during the life of one or more natural persons because of services rendered or property transferred to the payor in exchange for future payments. The term includes a payment made in money or property from the payors general assets or from a separate fund created by the payor, including a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus or stock-ownership plan.
2. To the extent that a payment is characterized as interest or a dividend or a payment made in lieu of interest or a dividend, a trustee shall allocate it to income. He shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend or an equivalent payment.
3. If no part of a payment is characterized as interest, a dividend or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income 10 percent of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, he shall allocate the entire payment to principal. For purposes of this subsection, a payment is not required to be made to the extent that it is made because the trustee exercises a right of withdrawal.
4. If, to obtain an estate tax marital deduction for a trust, a trustee must allocate more of a payment to income than provided for by this section, he shall allocate to income the additional amount necessary to obtain the marital deduction.
5. This section does not apply to payments to which section 33 of this act applies.
Sec. 33. 1. As used in this section, liquidating asset means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right and right to receive payments during a period of more than 1 year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to section 32 of this act, resources subject to section 34 of this act, timber subject to section 35 of this act, an activity subject to section 37 of this act, an asset subject to section 38 of this act, or any asset for which the trustee establishes a reserve for depreciation under section 41 of this act.
2. A trustee shall allocate to income 10 percent of the receipts from a liquidating asset and the balance to principal.
Sec. 34. 1. To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:
(a) If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income.
(b) If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal.
๊2003 Statutes of Nevada, Page 1978 (Chapter 355, SB 196)๊
(c) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus or delay rental is more than nominal, 90 percent must be allocated to principal and the balance to income.
(d) If an amount is received from a working interest or any other interest not provided for in paragraph (a), (b) or (c), 90 percent of the net amount received must be allocated to principal and the balance to income.
2. An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, 90 percent of the amount must be allocated to principal and the balance to income.
3. Sections 15 to 44, inclusive, of this act apply whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
4. If a trust owns an interest in minerals, water or other natural resources on October 1, 2003, the trustee may allocate receipts from the interest as provided in sections 15 to 44, inclusive, of this act or in the manner used by the trustee before October 1, 2003. If the trust acquires an interest in minerals, water or other natural resources after October 1, 2003, the trustee shall allocate receipts from the interest as provided in sections 15 to 44, inclusive, of this act.
Sec. 35. 1. To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:
(a) To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
(b) To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of timber or the net receipts are from the sale of standing timber;
(c) To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease of contract and applying the rules in paragraphs (a) and (b); or
(d) To principal to the extent that advance payments, bonuses and other payments are not allocated pursuant to paragraph (a), (b) or (c).
2. In determining net receipts to be allocated pursuant to subsection 1, a trustee shall deduct and transfer to principal a reasonable amount for depletion.
3. Sections 15 to 44, inclusive, of this act apply whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.
4. If a trust owns an interest in timberland on October 1, 2003, the trustee may allocate net receipts from the sale of timber and related products as provided in sections 15 to 44, inclusive, of this act or in the manner used by the trustee before October 1, 2003. If the trust acquires an interest in timberland after October 1, 2003, the trustee shall allocate net receipts from the sale of timber and related products as provided in sections 15 to 44, inclusive, of this act.
Sec. 36. 1. If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the surviving spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under section 18 of this act and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by subsection 1 of section 18 of this act.
๊2003 Statutes of Nevada, Page 1979 (Chapter 355, SB 196)๊
if the amounts that the trustee transfers from principal to income under section 18 of this act and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by subsection 1 of section 18 of this act. The trustee may decide which action or combination of actions to take.
2. In cases not governed by subsection 1, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.
Sec. 37. 1. As used in this section, derivative means a contract of financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.
2. To the extent that a trustee accounts for transactions in derivatives pursuant to this section, he shall allocate to principal receipts from and disbursements made in connection with those transactions.
3. If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.
Sec. 38. 1. As used in this section, asset-backed security means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which section 24 or 32 of this act applies.
2. If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payor identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
3. If a trust receives one or more payments in exchange for the trusts entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trusts interest in the security over more than one accounting period, the trustee shall allocate 10 percent of the payment to income and the balance to principal.
Sec. 39. A trustee shall make the following disbursements from income to the extent that they are not disbursements to which paragraph (b) or (c) of subsection 2 of section 19 of this act applies:
๊2003 Statutes of Nevada, Page 1980 (Chapter 355, SB 196)๊
1. One-half of the regular compensation of the trustee and of any person providing advisory or custodial services to the trustee concerning investment;
2. One-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;
3. All the other ordinary expenses incurred in connection with the administration, management or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and
4. Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.
Sec. 40. 1. A trustee shall make the following disbursements from principal:
(a) The remaining one-half of the disbursements described in subsections 1 and 2 of section 39 of this act;
(b) All the trustees compensation calculated on principal as a fee for acceptance, distribution or termination, and disbursements made to prepare property for sale;
(c) Payments on the principal of a trust debt;
(d) Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
(e) Premiums paid on a policy of insurance not described in subsection 4 of section 39 of this act of which the trust is the owner and beneficiary;
(f) Estate, inheritance and other transfer taxes, including penalties, apportioned to the trust; and
(g) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters.
2. If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.
Sec. 41. 1. As used in this section, depreciation means a reduction in value due to wear, tear, decay, corrosion or gradual obsolescence of a fixed asset having a useful life of more than 1 year.
2. A fiduciary may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:
(a) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
(b) During the administration of a decedents estate; or
(c) Under this section if a trustee is accounting under section 26 of this act for the business or activity in which the asset is used.
๊2003 Statutes of Nevada, Page 1981 (Chapter 355, SB 196)๊
3. An amount transferred to principal need not be held as a separate fund.
Sec. 42. 1. If a trustee makes or expects to make a principal disbursement described in this section, he may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
2. Principal disbursements to which subsection 1 applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:
(a) An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
(b) A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
(c) Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements and brokers commissions;
(d) Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
(e) Disbursements described in paragraph (g) of subsection 1 of section 40 of this act.
3. If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection 1.
Sec. 43. 1. A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.
2. A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.
3. A tax required to be paid by a trustee on the trusts share of an entitys taxable income must be paid proportionately:
(a) From income to the extent that receipts from the entity are allocated to income; and
(b) From principal to the extent that:
(1) Receipts from the entity are allocated to principal; and
(2) The trusts share of the entitys taxable income exceeds the total receipts described in paragraph (a) and subparagraph (1).
4. For the purposes of this section, receipts allocated to principal or income must be reduced by the amount distributed to a beneficiary from principal or income for which the trust receives a deduction in calculating the tax.
Sec. 44. 1. A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:
(a) Elections and decisions, other than those described in subsection 2, that the fiduciary makes from time to time regarding tax matters;
(b) An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or the trust; or
๊2003 Statutes of Nevada, Page 1982 (Chapter 355, SB 196)๊
(c) The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, the trust, or a beneficiary.
2. If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust or beneficiary are decreased, each estate, trust or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.
Sec. 45. NRS 423.235 is hereby amended to read as follows:
423.235 1. Except as otherwise provided in NRS 423.230, all money received by a child in the Northern Nevada Childrens Home or the Southern Nevada Childrens Home, including, but not limited to, social security benefits, benefits paid to heirs of United States employees and payments payable by the United States through the Department of Veterans Affairs, must be held by the Superintendent in trust for the child.
2. The Superintendent as trustee shall accumulate such money during the period the child is a ward of the State under the provisions of [chapter 423 of NRS,] this chapter and shall invest such money subject to the provisions of [NRS 164.050, 164.060 and 164.065.] sections 2 to 14, inclusive, of this act.
3. The Superintendent shall:
(a) Keep a separate account for each child who receives money.
(b) Deduct from the account the costs for the care and support of the child that are provided by the State, excluding any amount for which a county is responsible. If the child is placed in foster care, money in the account may be used for payments to a foster parent. Any surplus remaining may be expended for extraordinary items deemed beneficial to the child.
(c) Remit any surplus balance to the child or his parent or legal guardian upon release from the school.
4. The Superintendent may be removed as trustee of such money only upon application to the district court for the county in which the childrens home is located. The district court may, for good cause shown and upon notice to the beneficiary, relieve the Superintendent from his duties as trustee.
Sec. 46. NRS 452.160 is hereby amended to read as follows:
452.160 1. Endowment care funds must not be used for any purpose other than to provide, through income only, for the reserves authorized by law and for the endowment care of the cemetery in accordance with the resolutions, bylaws, rules and regulations or other actions or instruments of the cemetery authority.
2. The funds must be invested and reinvested in:
(a) Bonds of the United States;
(b) Bonds of this state or the bonds of other states;
๊2003 Statutes of Nevada, Page 1983 (Chapter 355, SB 196)๊
(c) Bonds of counties or municipalities of any state;
(d) With the approval of the Administrator, first mortgages or first trust deeds on improved real estate;
(e) Deposits in any bank, credit union or savings and loan association that is federally insured or insured by a private insurer approved pursuant to NRS 678.755; or
(f) With the written approval of the Administrator, any investment which would be proper under the provisions of [NRS 164.050.] sections 2 to 14, inclusive, of this act.
Pending investment as provided in this subsection, such funds may be deposited in an account in any savings bank, credit union or savings and loan association which is qualified to do business in the State of Nevada and which is federally insured or insured by a private insurer approved pursuant to NRS 678.755.
3. Each cemetery authority operating an endowment care cemetery shall submit to the Administrator annually, on a form prescribed and adopted by the Administrator, a financial statement of the condition of its endowment care fund. The statement must be accompanied by a fee of $10. If the statement is not received by the Administrator , he may, after giving 10 days notice, revoke the cemetery authoritys certificate of authority.
Sec. 47. NRS 452.720 is hereby amended to read as follows:
452.720 1. Money held in trust for the endowment care of a cemetery for pets must not be used for any purpose other than to provide, through income only, for the reserves authorized by law and for the endowment care of the cemetery in accordance with the resolutions, bylaws, rules and regulations or other actions or instruments of the cemetery authority.
2. The money must be invested and reinvested in:
(a) Bonds of the United States;
(b) Bonds of this state or the bonds of other states;
(c) Bonds of counties or municipalities of any state;
(d) With the approval of the Administrator, first mortgages or first trust deeds on improved real estate;
(e) Deposits in any bank, credit union or savings and loan association that is federally insured or insured by a private insurer approved pursuant to NRS 678.755; or
(f) With the written approval of the Administrator, any investment which would be proper under the provisions of [NRS 164.050.] sections 2 to 14, inclusive, of this act.
Pending investment as provided in this subsection, such money may be deposited in an account in any savings bank, credit union or savings and loan association which is qualified to do business in this state and which is federally insured or insured by a private insurer approved pursuant to NRS 678.755.
3. Each cemetery authority shall annually submit to the Administrator, on a form prescribed and adopted by the Administrator, a financial statement of the condition of its trust fund for the endowment care of the cemetery. The statement must be accompanied by a fee of $10. If the statement is not received by the Administrator , he may, after giving 10 days notice, revoke the cemetery authoritys certificate of authority.
Sec. 48. NRS 150.235, 164.050, 164.060, 164.065, 164.140, 164.150, 164.160, 164.170, 164.180, 164.190, 164.200, 164.210, 164.220, 164.230, 164.240, 164.250, 164.260, 164.270, 164.280, 164.290, 164.300, 164.310, 164.320, 164.330, 164.340, 164.350, 164.360 and 164.370 are hereby repealed.
๊2003 Statutes of Nevada, Page 1984 (Chapter 355, SB 196)๊
164.320, 164.330, 164.340, 164.350, 164.360 and 164.370 are hereby repealed.
________
Senate Bill No. 19Committee on Government Affairs
CHAPTER 356
AN ACT relating to public works; providing for an expedited process by which the State or a local government solicits bids and awards contracts for certain smaller public works projects to properly licensed contractors or completes such projects itself; providing that such an expedited process does not relieve the State or a local government from certain duties; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 338 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 7, inclusive, of this act.
Sec. 2. If the estimated cost of a public work is $100,000 or less, this state or a local government shall:
1. Award a contract for the completion of the project to a properly licensed contractor in accordance with section 3 of this act; or
2. Perform the project itself in accordance with section 4 of this act.
Sec. 3. 1. Before this state or a local government awards a contract for the completion of a public works project in accordance with subsection 1 of section 2 of this act, the State or the local government must:
(a) If the estimated cost of the public work is more than $25,000 but not more than $100,000, solicit bids from at least three properly licensed contractors; and
(b) If the estimated cost of the public work is $25,000 or less, solicit a bid from at least one properly licensed contractor.
2. Any bids received in response to a solicitation for bids made pursuant to this section may be rejected if the State or the local government determines that:
(a) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications;
(b) The bidder is not responsive or responsible; or
(c) The public interest would be served by such a rejection.
3. At least once each quarter, the State and each local government shall prepare a report detailing, for each public works project over $25,000 for which a contract for its completion is awarded pursuant to paragraph (a) of subsection 1, if any:
(a) The name of the contractor to whom the contract was awarded;
(b) The amount of the contract awarded;
(c) A brief description of the project; and
(d) The names of all contractors from whom bids were solicited.
๊2003 Statutes of Nevada, Page 1985 (Chapter 356, SB 19)๊
4. A report prepared pursuant to subsection 3 is a public record and must be maintained on file at the administrative offices of the applicable public body.
5. The provisions of this section do not relieve this state from the duty to award the contract for the public work to a bidder who is:
(a) Qualified pursuant to the applicable provisions of NRS 338.1375 to 338.1383, inclusive; and
(b) The lowest responsive and responsible bidder, if bids are required to be solicited from more than one properly licensed contractor pursuant to subsection 1.
Sec. 4. 1. If the State or a local government proposes to perform a public works project itself in accordance with subsection 2 of section 2 of this act, the public officer responsible for the management of the public works projects of the State or the local government, as applicable, must, if the estimated cost of the public work is more than $25,000 but not more than $100,000 and before work on the project is commenced, prepare a signed attestation regarding the decision of the State or the local government to perform the project itself.
2. An attestation prepared pursuant to subsection 1:
(a) Must set forth:
(1) The estimated cost of the project;
(2) A general statement as to why the State or the local government has decided to perform the project itself; and
(3) A general statement that the project will adhere to the same quality and standards as would be required of a properly licensed contractor if the project had been awarded to a properly licensed contractor;
(b) Is a public record and must be maintained on file at the administrative offices of the applicable public body.
Sec. 5. If the estimated cost of a public work is $100,000 or less, a local government shall:
1. Award a contract for the completion of the project to a properly licensed contractor in accordance with section 6 of this act; or
2. Perform the project itself in accordance with section 7 of this act.
Sec. 6. 1. Before a local government awards a contract for the completion of a public works project in accordance with subsection 1 of section 5 of this act, the local government must:
(a) If the estimated cost of the public work is more than $25,000 but not more than $100,000, solicit bids from at least three properly licensed contractors; and
(b) If the estimated cost of the public work is $25,000 or less, solicit a bid from at least one properly licensed contractor.
2. Any bids received in response to a solicitation for bids made pursuant to this section may be rejected if the local government determines that:
(a) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications;
(b) The bidder is not responsive or responsible; or
(c) The public interest would be served by such a rejection.
3. At least once each quarter, a local government shall prepare a report detailing, for each public works project over $25,000 for which a contract for its completion is awarded pursuant to paragraph (a) of subsection 1, if any:
๊2003 Statutes of Nevada, Page 1986 (Chapter 356, SB 19)๊
contract for its completion is awarded pursuant to paragraph (a) of subsection 1, if any:
(a) The name of the contractor to whom the contract was awarded;
(b) The amount of the contract awarded;
(c) A brief description of the project; and
(d) The names of all contractors from whom bids were solicited.
4. A report prepared pursuant to subsection 3 is a public record and must be maintained on file at the administrative offices of the applicable public body.
5. The provisions of this section do not relieve a local government from the duty to award the contract for the public work to a bidder who is the lowest responsive and responsible bidder, if bids are required to be solicited from more than one properly licensed contractor pursuant to subsection 1 of this section.
Sec. 7. 1. If a local government proposes to perform a public works project itself in accordance with subsection 2 of section 5 of this act, the public officer responsible for the management of the public works projects of the local government must, if the estimated cost of the public work is more than $25,000 but not more than $100,000 and before work on the project is commenced, prepare a signed attestation regarding the decision of the local government to perform the project itself.
2. An attestation prepared pursuant to subsection 1:
(a) Must set forth:
(1) The estimated cost of the project;
(2) A general statement as to why the local government has decided to perform the project itself; and
(3) A general statement that the project will adhere to the same quality and standards as would be required of a properly licensed contractor if the project had been awarded to a properly licensed contractor;
(b) Is a public record and must be maintained on file at the administrative offices of the local government.
Sec. 8. NRS 338.010 is hereby amended to read as follows:
338.010 As used in this chapter:
1. Day labor means all cases where public bodies, their officers, agents or employees, hire, supervise and pay the wages thereof directly to a workman or workmen employed by them on public works by the day and not under a contract in writing.
2. Design-build contract means a contract between a public body and a design-build team in which the design-build team agrees to design and construct a public work.
3. Design-build team means an entity that consists of:
(a) At least one person who is licensed as a general engineering contractor or a general building contractor pursuant to chapter 624 of NRS; and
(b) For a public work that consists of:
(1) A building and its site, at least one person who holds a certificate of registration to practice architecture pursuant to chapter 623 of NRS.
(2) Anything other than a building and its site, at least one person who holds a certificate of registration to practice architecture pursuant to chapter 623 of NRS or is licensed as a professional engineer pursuant to chapter 625 of NRS.
๊2003 Statutes of Nevada, Page 1987 (Chapter 356, SB 19)๊
4. Design professional means:
(a) A person who is licensed as a professional engineer pursuant to chapter 625 of NRS;
(b) A person who is licensed as a professional land surveyor pursuant to chapter 625 of NRS;
(c) A person who holds a certificate of registration to engage in the practice of architecture pursuant to chapter 623 of NRS;
(d) A person who holds a certificate of registration to engage in the practice of landscape architecture pursuant to chapter 623A of NRS; or
(e) A business entity that engages in the practice of professional engineering, land surveying, architecture or landscape architecture.
5. Eligible bidder means a person who is:
(a) Found to be a responsible and responsive contractor by a local government which requests bids for a public work in accordance with paragraph (b) of subsection 1 of NRS 338.1373; or
(b) Determined by a public body which awarded a contract for a public work pursuant to NRS 338.1375 to 338.139, inclusive, and sections 2, 3 and 4 of this act, to be qualified to bid on that contract pursuant to NRS 338.1379 or was exempt from meeting such qualifications pursuant to NRS 338.1383.
6. General contractor means a person who is licensed to conduct business in one, or both, of the following branches of the contracting business:
(a) General engineering contracting, as described in subsection 2 of NRS 624.215.
(b) General building contracting, as described in subsection 3 of NRS 624.215.
7. Local government means every political subdivision or other entity which has the right to levy or receive money from ad valorem or other taxes or any mandatory assessments, and includes, without limitation, counties, cities, towns, boards, school districts and other districts organized pursuant to chapters 244A, 309, 318, 379, 474, 541, 543 and 555 of NRS, NRS 450.550 to 450.750, inclusive, and any agency or department of a county or city which prepares a budget separate from that of the parent political subdivision. The term includes a person who has been designated by a local government to serve as the authorized representative of the local government in developing and awarding contracts for public works projects on behalf of the local government.
8. Offense means failing to:
(a) Pay the prevailing wage required pursuant to this chapter;
(b) Pay the contributions for unemployment compensation required pursuant to chapter 612 of NRS;
(c) Provide and secure compensation for employees required pursuant to chapters 616A to 617, inclusive, of NRS; or
(d) Comply with subsection 4 or 5 of NRS 338.070.
9. Prime contractor means a person who:
(a) Contracts to construct an entire project;
(b) Coordinates all work performed on the entire project;
(c) Uses his own workforce to perform all or a part of the construction, repair or reconstruction of the project; and
(d) Contracts for the services of any subcontractor or independent contractor or is responsible for payment to any contracted subcontractors or independent contractors.
๊2003 Statutes of Nevada, Page 1988 (Chapter 356, SB 19)๊
The term includes, without limitation, a general contractor or a specialty contractor who is authorized to bid on a project pursuant to NRS 338.139 or 338.148.
10. Public body means the State, county, city, town, school district or any public agency of this state or its political subdivisions sponsoring or financing a public work.
11. Public work means any project for the new construction, repair or reconstruction of:
(a) A project financed in whole or in part from public money for:
(1) Public buildings;
(2) Jails and prisons;
(3) Public roads;
(4) Public highways;
(5) Public streets and alleys;
(6) Public utilities which are financed in whole or in part by public money;
(7) Publicly owned water mains and sewers;
(8) Public parks and playgrounds;
(9) Public convention facilities which are financed at least in part with public [funds;] money; and
(10) All other publicly owned works and property . [whose cost as a whole exceeds $20,000. Each separate unit that is a part of a project is included in the cost of the project to determine whether a project meets that threshold.]
(b) A building for the University and Community College System of Nevada of which 25 percent or more of the costs of the building as a whole are paid from money appropriated by this state or from federal money.
12. Specialty contractor means a person who is licensed to conduct business as described in subsection 4 of NRS 624.215.
13. Stand-alone underground utility project means an underground utility project that is not integrated into a larger project, including, without limitation:
(a) An underground sewer line or an underground pipeline for the conveyance of water, including facilities appurtenant thereto; and
(b) A project for the construction or installation of a storm drain, including facilities appurtenant thereto,
that is not located at the site of a public work for the design and construction of which a public body is authorized to contract with a design-build team pursuant to subsection 2 of NRS 338.1711.
14. Wages means:
(a) The basic hourly rate of pay; and
(b) The amount of pension, health and welfare, vacation and holiday pay, the cost of apprenticeship training or other similar programs or other bona fide fringe benefits which are a benefit to the workman.
15. Workman means a skilled mechanic, skilled workman, semiskilled mechanic, semiskilled workman or unskilled workman. The term does not include a design professional.
Sec. 9. NRS 338.1373 is hereby amended to read as follows:
338.1373 1. A local government shall award a contract for the construction, alteration or repair of a public work pursuant to the provisions of:
๊2003 Statutes of Nevada, Page 1989 (Chapter 356, SB 19)๊
(a) NRS 338.1377 to 338.139, inclusive [;] , and sections 2, 3 and 4 of this act; or
(b) NRS 338.143 to 338.148, inclusive [.] , and sections 5, 6 and 7 of this act.
2. The provisions of NRS 338.1375 to 338.1383, inclusive, and 338.139 and sections 2 to 7, inclusive, of this act do not apply with respect to contracts for the construction, reconstruction, improvement and maintenance of highways that are awarded by the Department of Transportation pursuant to NRS 408.313 to 408.433, inclusive.
Sec. 10. NRS 338.1385 is hereby amended to read as follows:
338.1385 1. Except as otherwise provided in subsection [7] 6 and NRS 338.1906 and 338.1907, this state, or a local government that awards a contract for the construction, alteration or repair of a public work in accordance with paragraph (a) of subsection 1 of NRS 338.1373, or a public officer, public employee or other person responsible for awarding a contract for the construction, alteration or repair of a public work who represents the State or the local government, shall not:
(a) Commence such a project for which the estimated cost exceeds $100,000 unless it advertises in a newspaper of general circulation in this state for bids for the project; [or]
(b) Commence such a project for which the estimated cost is $100,000 or less unless it complies with the provisions of sections 2, 3 and 4 of this act; or
(c) Divide such a project into separate portions to avoid the requirements of paragraph (a) [.
2. Except as otherwise provided in subsection 7, a public body that maintains a list of properly licensed contractors who are interested in receiving offers to bid on public works projects for which the estimated cost is more than $25,000 but less than $100,000 shall solicit bids from not more than three of the contractors on the list for a contract of that value for the construction, alteration or repair of a public work. The public body shall select contractors from the list in such a manner as to afford each contractor an equal opportunity to bid on a public works project. A properly licensed contractor must submit a written request annually to the public body to remain on the list. Offers for bids which are made pursuant to this subsection must be sent by certified mail.
3.] or (b).
2. Each advertisement for bids must include a provision that sets forth:
(a) The requirement that a contractor must be qualified pursuant to NRS 338.1379 to bid on the contract or must be exempt from meeting such qualifications pursuant to NRS 338.1383; and
(b) The period during which an application to qualify as a bidder on the contract must be submitted.
[4.] 3. Approved plans and specifications for the bids must be on file at a place and time stated in the advertisement for the inspection of all persons desiring to bid thereon and for other interested persons. Contracts for the project must be awarded on the basis of bids received.
[5.] 4. Any bids received in response to an advertisement for bids may be rejected if the person responsible for awarding the contract determines that:
๊2003 Statutes of Nevada, Page 1990 (Chapter 356, SB 19)๊
(a) The bidder is not a qualified bidder pursuant to NRS 338.1379, unless the bidder is exempt from meeting such qualifications pursuant to NRS 338.1383;
(b) The bidder is not responsive [;] or responsible;
(c) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications; or
(d) The public interest would be served by such a rejection.
[6.] 5. Before the State or a local government may commence a project subject to the provisions of this section, based upon a determination that the public interest would be served by rejecting any bids received in response to an advertisement for bids, it shall prepare and make available for public inspection a written statement containing:
(a) A list of all persons, including supervisors, whom the State or the local government intends to assign to the project, together with their classifications and an estimate of the direct and indirect costs of their labor;
(b) A list of all equipment that the State or the local government intends to use on the project, together with an estimate of the number of hours each item of equipment will be used and the hourly cost to use each item of equipment;
(c) An estimate of the cost of administrative support for the persons assigned to the project;
(d) An estimate of the total cost of the project; and
(e) An estimate of the amount of money the State or the local government expects to save by rejecting the bids and performing the project itself.
[7.] 6. This section does not apply to:
(a) Any utility subject to the provisions of chapter 318 or 710 of NRS;
(b) Any work of construction, reconstruction, improvement and maintenance of highways subject to NRS 408.323 or 408.327;
(c) Normal maintenance of the property of a school district;
(d) The Las Vegas Valley Water District created pursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley Water District created pursuant to chapter 477, Statutes of Nevada 1983 or the Virgin Valley Water District created pursuant to chapter 100, Statutes of Nevada 1993; or
(e) The design and construction of a public work for which a public body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727.
Sec. 11. NRS 338.1385 is hereby amended to read as follows:
338.1385 1. Except as otherwise provided in subsection [8,] 7, this state, or a local government that awards a contract for the construction, alteration or repair of a public work in accordance with paragraph (a) of subsection 1 of NRS 338.1373, or a public officer, public employee or other person responsible for awarding a contract for the construction, alteration or repair of a public work who represents the State or the local government, shall not:
(a) Commence such a project for which the estimated cost exceeds $100,000 unless it advertises in a newspaper of general circulation in this state for bids for the project; [or]
(b) Commence such a project for which the estimated cost is $100,000 or less unless it complies with the provisions of sections 2, 3 and 4 of this act; or
(c) Divide such a project into separate portions to avoid the requirements of paragraph (a) [.
๊2003 Statutes of Nevada, Page 1991 (Chapter 356, SB 19)๊
2. Except as otherwise provided in subsection 8, a public body that maintains a list of properly licensed contractors who are interested in receiving offers to bid on public works projects for which the estimated cost is more than $25,000 but less than $100,000 shall solicit bids from not more than three of the contractors on the list for a contract of that value for the construction, alteration or repair of a public work. The public body shall select contractors from the list in such a manner as to afford each contractor an equal opportunity to bid on a public works project. A properly licensed contractor must submit a written request annually to the public body to remain on the list. Offers for bids which are made pursuant to this subsection must be sent by certified mail.
3.] or (b).
2. Each advertisement for bids must include a provision that sets forth:
(a) The requirement that a contractor must be qualified pursuant to NRS 338.1379 to bid on the contract or must be exempt from meeting such qualifications pursuant to NRS 338.1383; and
(b) The period during which an application to qualify as a bidder on the contract must be submitted.
[4.] 3. Approved plans and specifications for the bids must be on file at a place and time stated in the advertisement for the inspection of all persons desiring to bid thereon and for other interested persons. Contracts for the project must be awarded on the basis of bids received.
[5.] 4. Any bids received in response to an advertisement for bids may be rejected if the person responsible for awarding the contract determines that:
(a) The bidder is not a qualified bidder pursuant to NRS 338.1379, unless the bidder is exempt from meeting such qualifications pursuant to NRS 338.1383;
(b) The bidder is not responsive [;] or responsible;
(c) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications; or
(d) The public interest would be served by such a rejection.
[6.] 5. Before the State or a local government may commence a project subject to the provisions of this section, based upon a determination that the public interest would be served by rejecting any bids received in response to an advertisement for bids, it shall prepare and make available for public inspection a written statement containing:
(a) A list of all persons, including supervisors, whom the State or the local government intends to assign to the project, together with their classifications and an estimate of the direct and indirect costs of their labor;
(b) A list of all equipment that the State or the local government intends to use on the project, together with an estimate of the number of hours each item of equipment will be used and the hourly cost to use each item of equipment;
(c) An estimate of the cost of administrative support for the persons assigned to the project;
(d) An estimate of the total cost of the project; and
(e) An estimate of the amount of money the State or the local government expects to save by rejecting the bids and performing the project itself.
[7.] 6. In preparing the estimated cost of a project pursuant to subsection [6,] 5, the State or a local government must include the fair market value of, or, if known, the actual cost of, all materials, supplies, labor and equipment to be used for the project.
๊2003 Statutes of Nevada, Page 1992 (Chapter 356, SB 19)๊
market value of, or, if known, the actual cost of, all materials, supplies, labor and equipment to be used for the project.
[8.] 7. This section does not apply to:
(a) Any utility subject to the provisions of chapter 318 or 710 of NRS;
(b) Any work of construction, reconstruction, improvement and maintenance of highways subject to NRS 408.323 or 408.327;
(c) Normal maintenance of the property of a school district; [or]
(d) The Las Vegas Valley Water District created pursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley Water District created pursuant to chapter 477, Statutes of Nevada 1983 or the Virgin Valley Water District created pursuant to chapter 100, Statutes of Nevada 1993; or
(e) The design and construction of a public work for which a public body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727, inclusive.
Sec. 12. NRS 338.1389 is hereby amended to read as follows:
338.1389 1. Except as otherwise provided in sections 2 and 4 of this act, NRS 338.1385 and 338.1711 to 338.1727, inclusive, a public body shall award a contract for a public work to the contractor who submits the best bid.
2. Except as otherwise provided in subsection 10 or limited by subsection 11, for the purposes of this section, a contractor who:
(a) Has been determined by the public body to be a qualified bidder pursuant to NRS 338.1379 or is exempt from meeting such requirements pursuant to NRS 338.1373 or 338.1383; and
(b) At the time he submits his bid, provides to the public body a copy of a certificate of eligibility to receive a preference in bidding on public works issued to him by the State Contractors Board pursuant to subsection 3 or 4,
shall be deemed to have submitted a better bid than a competing contractor who has not provided a copy of such a valid certificate of eligibility if the amount of his bid is not more than 5 percent higher than the amount bid by the competing contractor.
3. The State Contractors Board shall issue a certificate of eligibility to receive a preference in bidding on public works to a general contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board an affidavit from a certified public accountant setting forth that the general contractor has, while licensed as a general contractor in this state:
(a) Paid directly, on his own behalf:
(1) The sales and use taxes imposed pursuant to chapters 372, 374 and 377 of NRS on materials used for construction in this state, including, without limitation, construction that is undertaken or carried out on land within the boundaries of this state that is managed by the Federal Government or is on an Indian reservation or Indian colony, of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to chapter 371 of NRS on the vehicles used in the operation of his business in this state of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and governmental services tax; or
๊2003 Statutes of Nevada, Page 1993 (Chapter 356, SB 19)๊
(b) Acquired, by purchase, inheritance, gift or transfer through a stock option plan, all the assets and liabilities of a viable, operating construction firm that possesses a:
(1) License as a general contractor pursuant to the provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding on public works.
4. The State Contractors Board shall issue a certificate of eligibility to receive a preference in bidding on public works to a specialty contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board an affidavit from a certified public accountant setting forth that the specialty contractor has, while licensed as a specialty contractor in this state:
(a) Paid directly, on his own behalf:
(1) The sales and use taxes pursuant to chapters 372, 374 and 377 of NRS on materials used for construction in this state, including, without limitation, construction that is undertaken or carried out on land within the boundaries of this state that is managed by the Federal Government or is on an Indian reservation or Indian colony, of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to chapter 371 of NRS on the vehicles used in the operation of his business in this state of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a stock option plan, all the assets and liabilities of a viable, operating construction firm that possesses a:
(1) License as a specialty contractor pursuant to the provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding on public works.
5. For the purposes of complying with the requirements set forth in paragraph (a) of subsection 3 and paragraph (a) of subsection 4, a contractor shall be deemed to have paid:
(a) Sales and use taxes and governmental services taxes that were paid in this state by an affiliate or parent company of the contractor, if the affiliate or parent company is also a general contractor or specialty contractor, as applicable; and
(b) Sales and use taxes that were paid in this state by a joint venture in which the contractor is a participant, in proportion to the amount of interest the contractor has in the joint venture.
6. A contractor who has received a certificate of eligibility to receive a preference in bidding on public works from the State Contractors Board pursuant to subsection 3 or 4 shall, at the time for the annual renewal of his contractors license pursuant to NRS 624.283, submit to the Board an affidavit from a certified public accountant setting forth that the contractor has, during the immediately preceding 12 months, paid the taxes required pursuant to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, as applicable, to maintain his eligibility to hold such a certificate.
๊2003 Statutes of Nevada, Page 1994 (Chapter 356, SB 19)๊
7. A contractor who fails to submit an affidavit to the Board pursuant to subsection 6 ceases to be eligible to receive a preference in bidding on public works unless he reapplies for and receives a certificate of eligibility pursuant to subsection 3 or 4, as applicable.
8. If a contractor holds more than one contractors license, he must submit a separate application for each license pursuant to which he wishes to qualify for a preference in bidding. Upon issuance, the certificate of eligibility to receive a preference in bidding on public works becomes part of the contractors license for which the contractor submitted the application.
9. If a contractor who applies to the State Contractors Board for a certificate of eligibility to receive a preference in bidding on public works submits false information to the Board regarding the required payment of taxes, the contractor is not eligible to receive a preference in bidding on public works for a period of 5 years after the date on which the Board becomes aware of the submission of the false information.
10. If any federal statute or regulation precludes the granting of federal assistance or reduces the amount of that assistance for a particular public work because of the provisions of subsection 2, those provisions do not apply insofar as their application would preclude or reduce federal assistance for that work. The provisions of subsection 2 do not apply to any contract for a public work which is expected to cost less than $250,000.
11. If a bid is submitted by two or more contractors as a joint venture or by one of them as a joint venturer, the provisions of subsection 2 apply only if both or all of the joint venturers separately meet the requirements of that subsection.
12. The State Contractors Board shall adopt regulations and may assess reasonable fees relating to the certification of contractors for a preference in bidding on public works.
13. A person or entity who believes that a contractor wrongfully holds a certificate of eligibility to receive a preference in bidding on public works may challenge the validity of the certificate by filing a written objection with the public body to which the contractor has submitted a bid or proposal on a contract for the construction of a public work. A written objection authorized pursuant to this subsection must:
(a) Set forth proof or substantiating evidence to support the belief of the person or entity that the contractor wrongfully holds a certificate of eligibility to receive a preference in bidding on public works; and
(b) Be filed with the public body at or after the time at which the contractor submitted the bid or proposal to the public body and before the time at which the public body awards the contract for which the bid or proposal was submitted.
14. If a public body receives a written objection pursuant to subsection 13, the public body shall determine whether the objection is accompanied by the proof or substantiating evidence required pursuant to paragraph (a) of that subsection. If the public body determines that the objection is not accompanied by the required proof or substantiating evidence, the public body shall dismiss the objection and may proceed immediately to award the contract. If the public body determines that the objection is accompanied by the required proof or substantiating evidence, the public body shall determine whether the contractor qualifies for the certificate pursuant to the provisions of this section and may proceed to award the contract accordingly.
๊2003 Statutes of Nevada, Page 1995 (Chapter 356, SB 19)๊
Sec. 13. NRS 338.143 is hereby amended to read as follows:
338.143 1. Except as otherwise provided in subsection [6] 5 and NRS 338.1907, a local government that awards a contract for the construction, alteration or repair of a public work in accordance with paragraph (b) of subsection 1 of NRS 338.1373, or a public officer, public employee or other person responsible for awarding a contract for the construction, alteration or repair of a public work who represents that local government, shall not:
(a) Commence such a project for which the estimated cost exceeds $100,000 unless it advertises in a newspaper of general circulation in this state for bids for the project; [or]
(b) Commence such a project for which the estimated cost is $100,000 or less unless it complies with the provisions of sections 5, 6 and 7 of this act; or
(c) Divide such a project into separate portions to avoid the requirements of paragraph (a) [.
2. Except as otherwise provided in subsection 6, a local government that maintains a list of properly licensed contractors who are interested in receiving offers to bid on public works projects for which the estimated cost is more than $25,000 but less than $100,000 shall solicit bids from not more than three of the contractors on the list for a contract of that value for the construction, alteration or repair of a public work. The local government shall select contractors from the list in such a manner as to afford each contractor an equal opportunity to bid on a public works project. A properly licensed contractor must submit a written request annually to the local government to remain on the list. Offers for bids which are made pursuant to this subsection must be sent by certified mail.
3.] or (b).
2. Approved plans and specifications for the bids must be on file at a place and time stated in the advertisement for the inspection of all persons desiring to bid thereon and for other interested persons. Contracts for the project must be awarded on the basis of bids received.
[4.] 3. Any bids received in response to an advertisement for bids may be rejected if the person responsible for awarding the contract determines that:
(a) The bidder is not responsive or responsible;
(b) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications; or
(c) The public interest would be served by such a rejection.
[5.] 4. Before a local government may commence a project subject to the provisions of this section, based upon a determination that the public interest would be served by rejecting any bids received in response to an advertisement for bids, it shall prepare and make available for public inspection a written statement containing:
(a) A list of all persons, including supervisors, whom the local government intends to assign to the project, together with their classifications and an estimate of the direct and indirect costs of their labor;
(b) A list of all equipment that the local government intends to use on the project, together with an estimate of the number of hours each item of equipment will be used and the hourly cost to use each item of equipment;
(c) An estimate of the cost of administrative support for the persons assigned to the project;
(d) An estimate of the total cost of the project; and
๊2003 Statutes of Nevada, Page 1996 (Chapter 356, SB 19)๊
(e) An estimate of the amount of money the local government expects to save by rejecting the bids and performing the project itself.
[6.] 5. This section does not apply to:
(a) Any utility subject to the provisions of chapter 318 or 710 of NRS;
(b) Any work of construction, reconstruction, improvement and maintenance of highways subject to NRS 408.323 or 408.327;
(c) Normal maintenance of the property of a school district;
(d) The Las Vegas Valley Water District created pursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley Water District created pursuant to chapter 477, Statutes of Nevada 1983 or the Virgin Valley Water District created pursuant to chapter 100, Statutes of Nevada 1993; or
(e) The design and construction of a public work for which a public body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727, inclusive.
Sec. 14. NRS 338.143 is hereby amended to read as follows:
338.143 1. Except as otherwise provided in subsection [7,] 6, a local government that awards a contract for the construction, alteration or repair of a public work in accordance with paragraph (b) of subsection 1 of NRS 338.1373, or a public officer, public employee or other person responsible for awarding a contract for the construction, alteration or repair of a public work who represents that local government, shall not:
(a) Commence such a project for which the estimated cost exceeds $100,000 unless it advertises in a newspaper of general circulation in this state for bids for the project; [or]
(b) Commence such a project for which the estimated cost is $100,000 or less unless it complies with the provisions of sections 5, 6 and 7 of this act; or
(c) Divide such a project into separate portions to avoid the requirements of paragraph (a) [.
2. Except as otherwise provided in subsection 7, a local government that maintains a list of properly licensed contractors who are interested in receiving offers to bid on public works projects for which the estimated cost is more than $25,000 but less than $100,000 shall solicit bids from not more than three of the contractors on the list for a contract of that value for the construction, alteration or repair of a public work. The local government shall select contractors from the list in such a manner as to afford each contractor an equal opportunity to bid on a public works project. A properly licensed contractor must submit a written request annually to the local government to remain on the list. Offers for bids which are made pursuant to this subsection must be sent by certified mail.
3.] or (b).
2. Approved plans and specifications for the bids must be on file at a place and time stated in the advertisement for the inspection of all persons desiring to bid thereon and for other interested persons. Contracts for the project must be awarded on the basis of bids received.
[4.] 3. Any bids received in response to an advertisement for bids may be rejected if the person responsible for awarding the contract determines that:
(a) The bidder is not responsive or responsible;
(b) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications; or
(c) The public interest would be served by such a rejection.
๊2003 Statutes of Nevada, Page 1997 (Chapter 356, SB 19)๊
[5.] 4. Before a local government may commence a project subject to the provisions of this section, based upon a determination that the public interest would be served by rejecting any bids received in response to an advertisement for bids, it shall prepare and make available for public inspection a written statement containing:
(a) A list of all persons, including supervisors, whom the local government intends to assign to the project, together with their classifications and an estimate of the direct and indirect costs of their labor;
(b) A list of all equipment that the local government intends to use on the project, together with an estimate of the number of hours each item of equipment will be used and the hourly cost to use each item of equipment;
(c) An estimate of the cost of administrative support for the persons assigned to the project;
(d) An estimate of the total cost of the project; and
(e) An estimate of the amount of money the local government expects to save by rejecting the bids and performing the project itself.
[6.] 5. In preparing the estimated cost of a project pursuant to subsection [5,] 4, a local government must include the fair market value of, or, if known, the actual cost of, all materials, supplies, labor and equipment to be used for the project.
[7.] 6. This section does not apply to:
(a) Any utility subject to the provisions of chapter 318 or 710 of NRS;
(b) Any work of construction, reconstruction, improvement and maintenance of highways subject to NRS 408.323 or 408.327;
(c) Normal maintenance of the property of a school district;
(d) The Las Vegas Valley Water District created pursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley Water District created pursuant to chapter 477, Statutes of Nevada 1983 or the Virgin Valley Water District created pursuant to chapter 100, Statutes of Nevada 1993; or
(e) The design and construction of a public work for which a public body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727, inclusive.
Sec. 15. NRS 338.147 is hereby amended to read as follows:
338.147 1. Except as otherwise provided in sections 5 and 7 of this act, NRS 338.143 and 338.1711 to 338.1727, inclusive, a local government shall award a contract for a public work to the contractor who submits the best bid.
2. Except as otherwise provided in subsection 10 or limited by subsection 11, for the purposes of this section, a contractor who:
(a) Has been found to be a responsible and responsive contractor by the local government; and
(b) At the time he submits his bid, provides to the local government a copy of a certificate of eligibility to receive a preference in bidding on public works issued to him by the State Contractors Board pursuant to subsection 3 or 4,
shall be deemed to have submitted a better bid than a competing contractor who has not provided a copy of such a valid certificate of eligibility if the amount of his bid is not more than 5 percent higher than the amount bid by the competing contractor.
3. The State Contractors Board shall issue a certificate of eligibility to receive a preference in bidding on public works to a general contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board an affidavit from a certified public accountant setting forth that the general contractor has, while licensed as a general contractor in this state:
๊2003 Statutes of Nevada, Page 1998 (Chapter 356, SB 19)๊
the Board an affidavit from a certified public accountant setting forth that the general contractor has, while licensed as a general contractor in this state:
(a) Paid directly, on his own behalf:
(1) The sales and use taxes imposed pursuant to chapters 372, 374 and 377 of NRS on materials used for construction in this state, including, without limitation, construction that is undertaken or carried out on land within the boundaries of this state that is managed by the Federal Government or is on an Indian reservation or Indian colony, of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to chapter 371 of NRS on the vehicles used in the operation of his business in this state of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a stock option plan, all the assets and liabilities of a viable, operating construction firm that possesses a:
(1) License as a general contractor pursuant to the provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding on public works.
4. The State Contractors Board shall issue a certificate of eligibility to receive a preference in bidding on public works to a specialty contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board an affidavit from a certified public accountant setting forth that the specialty contractor has, while licensed as a specialty contractor in this state:
(a) Paid directly, on his own behalf:
(1) The sales and use taxes pursuant to chapters 372, 374 and 377 of NRS on materials used for construction in this state, including, without limitation, construction that is undertaken or carried out on land within the boundaries of this state that is managed by the Federal Government or is on an Indian reservation or Indian colony, of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to chapter 371 of NRS on the vehicles used in the operation of his business in this state of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a stock option plan, all the assets and liabilities of a viable, operating construction firm that possesses a:
(1) License as a specialty contractor pursuant to the provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding on public works.
๊2003 Statutes of Nevada, Page 1999 (Chapter 356, SB 19)๊
5. For the purposes of complying with the requirements set forth in paragraph (a) of subsection 3 and paragraph (a) of subsection 4, a contractor shall be deemed to have paid:
(a) Sales and use taxes and governmental services taxes paid in this state by an affiliate or parent company of the contractor, if the affiliate or parent company is also a general contractor or specialty contractor, as applicable; and
(b) Sales and use taxes paid in this state by a joint venture in which the contractor is a participant, in proportion to the amount of interest the contractor has in the joint venture.
6. A contractor who has received a certificate of eligibility to receive a preference in bidding on public works from the State Contractors Board pursuant to subsection 3 or 4 shall, at the time for the annual renewal of his contractors license pursuant to NRS 624.283, submit to the Board an affidavit from a certified public accountant setting forth that the contractor has, during the immediately preceding 12 months, paid the taxes required pursuant to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, as applicable, to maintain his eligibility to hold such a certificate.
7. A contractor who fails to submit an affidavit to the Board pursuant to subsection 6 ceases to be eligible to receive a preference in bidding on public works unless he reapplies for and receives a certificate of eligibility pursuant to subsection 3 or 4, as applicable.
8. If a contractor holds more than one contractors license, he must submit a separate application for each license pursuant to which he wishes to qualify for a preference in bidding. Upon issuance, the certificate of eligibility to receive a preference in bidding on public works becomes part of the contractors license for which the contractor submitted the application.
9. If a contractor who applies to the State Contractors Board for a certificate of eligibility to receive a preference in bidding on public works submits false information to the Board regarding the required payment of taxes, the contractor is not eligible to receive a preference in bidding on public works for a period of 5 years after the date on which the Board becomes aware of the submission of the false information.
10. If any federal statute or regulation precludes the granting of federal assistance or reduces the amount of that assistance for a particular public work because of the provisions of subsection 2, those provisions do not apply insofar as their application would preclude or reduce federal assistance for that work. The provisions of subsection 2 do not apply to any contract for a public work which is expected to cost less than $250,000.
11. If a bid is submitted by two or more contractors as a joint venture or by one of them as a joint venturer, the provisions of subsection 2 apply only if both or all of the joint venturers separately meet the requirements of that subsection.
12. The State Contractors Board shall adopt regulations and may assess reasonable fees relating to the certification of contractors for a preference in bidding on public works.
13. A person or entity who believes that a contractor wrongfully holds a certificate of eligibility to receive a preference in bidding on public works may challenge the validity of the certificate by filing a written objection with the public body to which the contractor has submitted a bid or proposal on a contract for the completion of a public work. A written objection authorized pursuant to this subsection must:
๊2003 Statutes of Nevada, Page 2000 (Chapter 356, SB 19)๊
(a) Set forth proof or substantiating evidence to support the belief of the person or entity that the contractor wrongfully holds a certificate of eligibility to receive a preference in bidding on public works; and
(b) Be filed with the public body at or after the time at which the contractor submitted the bid or proposal to the public body and before the time at which the public body awards the contract for which the bid or proposal was submitted.
14. If a public body receives a written objection pursuant to subsection 13, the public body shall determine whether the objection is accompanied by the proof or substantiating evidence required pursuant to paragraph (a) of that subsection. If the public body determines that the objection is not accompanied by the required proof or substantiating evidence, the public body shall dismiss the objection and may proceed immediately to award the contract. If the public body determines that the objection is accompanied by the required proof or substantiating evidence, the public body shall determine whether the contractor qualifies for the certificate pursuant to the provisions of this section and may proceed to award the contract accordingly.
Secs. 16 and 17. (Deleted by amendment.)
Sec. 18. NRS 341.148 is hereby amended to read as follows:
341.148 [1. Except as otherwise provided in subsection 2, the] The Board shall advertise in a newspaper of general circulation in the State of Nevada for separate sealed bids for each construction project [.] whose estimated cost is more than $100,000. Approved plans and specifications for the construction must be on file at a place and time stated in the advertisement for the inspection of all persons desiring to bid thereon and for other interested persons. The Board may accept bids on either the whole or a part of the construction, equipment and furnishings [,] of a construction project and may let separate contracts for different and separate portions of any project, or a combination contract for structural, mechanical and electrical construction if savings will result to the lowest responsible and responsive bidder.
[2. The Board is not required to advertise for sealed bids for construction projects if the estimated cost is less than $25,000, but the Board may solicit firm written bids from not less than two licensed contractors doing business in the area and may award the contract to the lowest responsible and responsive bidder or reject all bids.]
Sec. 19. NRS 341.166 is hereby amended to read as follows:
341.166 1. The Board may, with the approval of the Interim Finance Committee when the Legislature is not in regular or special session, or with the approval of the Legislature by concurrent resolution when the Legislature is in regular or special session, enter into a contract for services with a contractor licensed pursuant to chapter 624 of NRS to assist the Board:
(a) In the development of designs, plans, specifications and estimates of costs for a proposed construction project.
(b) In the review of designs, plans, specifications and estimates of costs for a proposed construction project to ensure that the designs, plans, specifications and estimates of costs are complete and that the project is feasible to construct.
2. The Board is not required to advertise for bids for a contract for services pursuant to subsection 1, but may solicit bids from not fewer than three licensed contractors and may award the contract to the lowest responsible and responsive bidder.
๊2003 Statutes of Nevada, Page 2001 (Chapter 356, SB 19)๊
3. The Board shall adopt regulations establishing procedures for:
(a) The determination of the qualifications of contractors to bid for the contracts for services described in subsection 1.
(b) The bidding and awarding of such contracts.
4. If a proposed construction project for which a contractor is awarded a contract for services by the Board pursuant to subsection 1 is advertised pursuant to NRS [341.148,] 338.1385, that contractor may submit a bid for the contract for the proposed construction project if he is qualified pursuant to NRS [338.1377.] 338.1375.
Secs. 20-26. (Deleted by amendment.)
Sec. 27. 1. This section and sections 1 to 10, inclusive, 12, 13 and 15 to 26, inclusive, of this act become effective on October 1, 2003.
2. Sections 10 and 13 of this act expire by limitation on April 30, 2013.
3. Sections 11 and 14 of this act become effective on May 1, 2013.
________
Senate Bill No. 331Senator Amodei
CHAPTER 357
AN ACT relating to state personnel; authorizing the Chairman of the Employee-Management Committee to issue subpoenas in certain circumstances for the attendance of witnesses and the production of books and papers; providing certain rights for employees that are the subject of an internal administrative investigation; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 284 of NRS is hereby amended by adding thereto the provisions set forth as sections 2, 3 and 4 of this act.
Sec. 2. 1. In carrying out the provisions of subsection 5 of NRS 284.073, the Chairman of the Employee-Management Committee may issue subpoenas to compel the attendance and testimony of a person that the Committee finds, based upon its information and belief, has direct personal knowledge of the issues presented in the grievance, and to compel the production of books, papers and other items that are relevant to a matter being investigated or considered by the Committee.
2. If a person named in a subpoena fails or refuses to attend or testify before the Committee, to answer any questions propounded by the Committee or to produce the books, papers or other items required by the subpoena, the Chairman of the Committee may petition the district court to enter an order compelling the person to attend and testify before the Committee, to answer the questions propounded by the Committee or to produce the books, papers or other items required by the subpoena. The petition filed by the Chairman must set forth that:
(a) Due notice has been given to the person named in the subpoena of the time and place for his attendance and testimony before the Committee or for the production of the books, papers or other items required by the subpoena;
๊2003 Statutes of Nevada, Page 2002 (Chapter 357, SB 331)๊
or for the production of the books, papers or other items required by the subpoena;
(b) The person has been subpoenaed by the Chairman of the Committee pursuant to this section; and
(c) The person has failed or refused to attend or testify before the Committee, to answer certain questions propounded by the Committee or to produce the books, papers or other items required by the subpoena.
3. Upon such a petition, the court shall enter an order directing the person named in the subpoena to:
(a) Appear before the court at the place and time designated in the order. The time designated by the court must be not later than 10 days after the date of the order.
(b) Show cause why the person has failed or refused to attend or testify before the Committee, to answer the questions propounded by the Committee or to produce the books, papers or other items required by the subpoena.
A certified copy of the order must be served upon the person named in the subpoena.
4. If it appears to the court that the subpoena was regularly issued by the Chairman of the Committee and properly served, the court shall enter an order directing the person named in the subpoena to appear before the Committee at the place and time designated in the order and to testify before the Committee, to answer the questions propounded by the Committee or to produce the books, papers or other items required by the subpoena. Failure to obey the order constitutes contempt of court.
Sec. 3. 1. A subpoena issued by the Chairman of the Employee-Management Committee extends to all parts of this state and must be served in accordance with the provisions of N.R.C.P. 4(c). The Chairman may not require a person named in a subpoena to attend at a place outside the county in which the person resides unless:
(a) The location of the place is less than 100 miles from the persons primary residence; or
(b) A party, by affidavit, shows that the testimony of the person is material and necessary to the proceedings and the Chairman endorses on the subpoena an order requiring the person to attend at the place named in the subpoena, regardless of its location in this state.
2. A person who appears before the Committee pursuant to a subpoena is entitled to receive fees and mileage in the same amounts and under the same circumstances as prescribed by law for a witness in a civil action in the district court, unless the person is a party to the proceeding or an officer or employee of this state or any of its political subdivisions.
3. If a person who is entitled to receive fees and mileage pursuant to subsection 2 must appear at a hearing before the Committee at a place located so far from his primary residence that it is not reasonable for the person to return to that residence from day to day, the person is entitled, in addition to fees and mileage, to receive the per diem compensation for subsistence and transportation authorized by NRS 281.160 for each day of actual attendance at such a hearing and for each day necessarily occupied in traveling to and from such a hearing.
4. Except as otherwise provided in subsection 5, a party who requests that the Chairman issue a subpoena to a person shall pay to the Committee the amount of any compensation for subsistence and transportation that the person is entitled to receive from the Committee pursuant to subsection 3.
๊2003 Statutes of Nevada, Page 2003 (Chapter 357, SB 331)๊
the person is entitled to receive from the Committee pursuant to subsection 3.
5. As part of an award of costs to the party who prevails in a proceeding, the Committee may require the party who did not prevail in the proceeding to pay to the Committee the amount of any compensation for subsistence and transportation that the prevailing party would have otherwise been required to pay to the Committee pursuant to subsection 4.
Sec. 4. An employee who is the subject of an internal administrative investigation that could lead to disciplinary action against him pursuant to NRS 284.385 must be:
1. Provided notice in writing of the allegations against him before he is questioned regarding the allegations; and
2. Afforded the right to have a lawyer or other representative of his choosing present with him at any time that he is questioned regarding those allegations. The employee must be given not less than 2 business days to obtain such representation, unless he waives his right to be represented.
Sec. 5. This act becomes effective on July 1, 2003.
________
Senate Bill No. 329Senator Amodei
CHAPTER 358
AN ACT relating to administrative regulations; authorizing the review of a temporary regulation by the Legislative Commission upon the request of a Legislator; providing a procedure for such a review; authorizing the Legislative Commission to object to and suspend the filing of a temporary regulation and the Legislature to prevent that regulation from becoming effective under certain circumstances; providing a procedure for an agency to revise and resubmit to the Legislative Commission a temporary regulation to which the Commission has objected; revising the date by which an agency that adopts a temporary regulation may file the regulation with the Secretary of State; expanding the list of administrative regulations subject to review by the Legislative Committee on Health Care; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 233B of NRS is hereby amended by adding thereto a new section to read as follows:
1. Upon the request of a Legislator, the Legislative Commission may examine a temporary regulation adopted by an agency that is not yet effective pursuant to subsection 2 of NRS 233B.070 to determine whether the temporary regulation conforms to the statutory authority pursuant to which it was adopted and whether the temporary regulation carries out the intent of the Legislature in granting that authority.
๊2003 Statutes of Nevada, Page 2004 (Chapter 358, SB 329)๊
2. If a temporary regulation that the Legislative Commission is requested to examine pursuant to subsection 1 was required to be adopted by the agency pursuant to a federal statute or regulation and the temporary regulation exceeds the specific statutory authority of the agency or sets forth requirements that are more stringent than a statute of this state, the agency shall submit a statement to the Legislative Commission that adoption of the temporary regulation was required by a federal statute or regulation. The statement must include the specific citation of the federal statute or regulation requiring such adoption.
3. The Legislative Commission shall review the temporary regulation at its next regularly scheduled meeting if the temporary regulation is received more than 10 working days before the meeting and a regular meeting is held within 35 days after receipt of the temporary regulation. The Legislative Commission may direct the Committee to Review Regulations to examine any temporary regulation that a Legislator has requested to be reviewed more than 35 days before a regular meeting of the Commission is scheduled to be held.
4. The Legislative Counsel shall notify the agency that adopted the temporary regulation of the results of the review of the temporary regulation by the Legislative Commission within 30 days after receipt of the request for review of the temporary regulation from a Legislator. If the Commission does not object to the temporary regulation, the Legislative Counsel shall notify the agency that the agency may file the temporary regulation with the Secretary of State. If the Commission objects to the temporary regulation after determining that:
(a) If subsection 2 is applicable, the temporary regulation is not required pursuant to a federal statute or regulation;
(b) The temporary regulation does not conform to statutory authority; or
(c) The temporary regulation does not carry out legislative intent,
the Legislative Counsel shall attach to the temporary regulation a written notice of the objection of the Commission, including a statement of the reasons for its objection, and shall promptly return the temporary regulation to the agency.
5. If the Legislative Commission has objected to a temporary regulation, the agency that adopted the temporary regulation may revise it and return it to the Legislative Counsel. Upon receipt of the revised temporary regulation, the Legislative Counsel shall resubmit the temporary regulation to the Commission at its next regularly scheduled meeting. If the Commission does not object to the revised temporary regulation, the Legislative Counsel shall notify the agency that the agency may file the revised temporary regulation with the Secretary of State.
6. If the Legislative Commission objects to the revised temporary regulation, the agency may continue to revise it and resubmit it.
7. If the agency refuses to revise a temporary regulation to which the Legislative Commission has objected, the Commission may suspend the filing of the temporary regulation until the final day of the next regular session of the Legislature. Before the final day of the next regular session, the Legislature may, by concurrent resolution or other appropriate legislative measure, declare that the temporary regulation will not become effective. If the Legislature makes such a declaration, the agency shall not file or enforce the temporary regulation or subsequently adopt a substantively identical permanent regulation.
๊2003 Statutes of Nevada, Page 2005 (Chapter 358, SB 329)๊
substantively identical permanent regulation. If the Legislature has not so declared by the final day of the session, the agency may file the temporary regulation with the Secretary of State.
Sec. 2. NRS 233B.0613 is hereby amended to read as follows:
233B.0613 1. If an agency determines that an emergency exists, it shall submit to the Governor a written statement of the emergency which sets forth the reasons for the determination. If the Governor endorses the statement of the emergency by written endorsement at the end of the full text of the statement of emergency on the original copy of a proposed regulation, the regulation may be adopted and become effective immediately upon its being filed in the Office of the Secretary of State pursuant to subsection [2] 3 of NRS 233B.070. The statement of the emergency endorsed by the Governor must be included as a part of the regulation for all purposes. A regulation so adopted may be effective for a period of not longer than 120 days. A regulation may be adopted by this emergency procedure only once.
2. If an agency adopts, after providing notice and the opportunity for a hearing as required in this chapter, a permanent or temporary regulation which becomes effective and is substantially identical to its effective emergency regulation, the emergency regulation expires automatically on the effective date of the temporary or permanent regulation.
Sec. 3. NRS 233B.063 is hereby amended to read as follows:
233B.063 1. At or before the time of giving notice of its intention to adopt, amend or repeal a permanent regulation an agency shall deliver to the Legislative Counsel a copy of the proposed regulation or amendment or an identification of the regulation to be repealed. The Legislative Counsel shall examine and if appropriate revise the language submitted so that it is clear, concise and suitable for incorporation in the Nevada Administrative Code, but shall not alter the meaning or effect without the consent of the agency.
2. Unless the proposed regulation is submitted to him between July 1 of an even-numbered year and July 1 of the succeeding odd-numbered year, the Legislative Counsel shall deliver the approved or revised text of the regulation within 30 days after it is submitted to him. If the proposed or revised text of a regulation is changed before adoption, the agency shall submit the changed text to the Legislative Counsel, who shall examine and revise it if appropriate pursuant to the standards of subsection 1. Unless it is submitted between July 1 of an even-numbered year and July 1 of the succeeding odd-numbered year, the Legislative Counsel shall return it with any appropriate revisions within 30 days. If the agency is a licensing board as defined in NRS 439B.225 and the proposed regulation relates to standards for licensing or registration or for the renewal of a license or a certificate of registration issued to a person or facility regulated by the agency, the Legislative Counsel shall also deliver one copy of the approved or revised text of the regulation to the Legislative Committee on Health Care.
3. An agency may adopt a temporary regulation between August 1 of an even-numbered year and July 1 of the succeeding odd-numbered year without following the procedure required by this section and NRS 233B.064, but any such regulation expires by limitation on November 1 of the odd-numbered year. A substantively identical permanent regulation may be subsequently adopted.
4. An agency may amend or suspend a permanent regulation between August 1 of an even-numbered year and July 1 of the succeeding odd-numbered year by adopting a temporary regulation in the same manner and subject to the same provisions as prescribed in subsection 3.
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numbered year by adopting a temporary regulation in the same manner and subject to the same provisions as prescribed in subsection 3.
Sec. 4. NRS 233B.066 is hereby amended to read as follows:
233B.066 1. Except as otherwise provided in subsection 2, each adopted regulation which is submitted to the Legislative Counsel [Bureau] pursuant to NRS 233B.067 or filed with the Secretary of State pursuant to subsection 2 or 3 of NRS 233B.070 must be accompanied by a statement concerning the regulation which contains the following information:
(a) A description of how public comment was solicited, a summary of the public response, and an explanation how other interested persons may obtain a copy of the summary.
(b) The number of persons who:
(1) Attended each hearing;
(2) Testified at each hearing; and
(3) Submitted to the agency written statements.
(c) A description of how comment was solicited from affected businesses, a summary of their response, and an explanation how other interested persons may obtain a copy of the summary.
(d) If the regulation was adopted without changing any part of the proposed regulation, a summary of the reasons for adopting the regulation without change.
(e) The estimated economic effect of the regulation on the business which it is to regulate and on the public. These must be stated separately, and in each case must include:
(1) Both adverse and beneficial effects; and
(2) Both immediate and long-term effects.
(f) The estimated cost to the agency for enforcement of the proposed regulation.
(g) A description of any regulations of other state or government agencies which the proposed regulation overlaps or duplicates and a statement explaining why the duplication or overlapping is necessary. If the regulation overlaps or duplicates a federal regulation, the name of the regulating federal agency.
(h) If the regulation includes provisions which are more stringent than a federal regulation which regulates the same activity, a summary of such provisions.
(i) If the regulation provides a new fee or increases an existing fee, the total annual amount the agency expects to collect and the manner in which the money will be used.
2. The requirements of paragraphs (a) to (d), inclusive, of subsection 1 do not apply to emergency regulations.
Sec. 5. NRS 233B.067 is hereby amended to read as follows:
233B.067 1. After adopting a permanent regulation, the agency shall submit the informational statement prepared pursuant to NRS 233B.066 and one copy of each regulation adopted to the Legislative Counsel for review by the Legislative Commission, which may refer it to a joint interim committee, to determine whether the regulation conforms to the statutory authority pursuant to which it was adopted and whether the regulation carries out the intent of the Legislature in granting that authority. The Legislative Counsel shall endorse on the original and the copy of each adopted regulation the date of their receipt. The Legislative Counsel shall maintain the copy of the regulation in a file and make the copy available for public inspection for 2 years.
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regulation in a file and make the copy available for public inspection for 2 years.
2. If an agency submits an adopted regulation to the Legislative Counsel pursuant to subsection 1 that:
(a) The agency is required to adopt pursuant to a federal statute or regulation; and
(b) Exceeds the specific statutory authority of the agency or sets forth requirements that are more stringent than a statute of this state,
it shall include a statement that adoption of the regulation is required by a federal statute or regulation. The statement must include the specific citation of the federal statute or regulation requiring such adoption.
3. The Legislative Commission, or the joint interim committee if the Commission has referred it to such a committee, shall review the regulation at its next regularly scheduled meeting if the regulation is received more than 10 working days before the meeting and a regular meeting is held within 35 days after receipt of the regulation. The Commission may appoint a [committee] Committee to Review Regulations composed of three or more members of the Commission or any joint interim committee to examine proposed regulations received more than 35 days before a regular meeting is scheduled to be held.
4. The Legislative Commission shall notify the Legislative Counsel of the results of its review within 30 days after receipt of the regulation from the agency. If the Commission does not object to the regulation, the Legislative Counsel shall file it with the Secretary of State within 35 days after receipt from the agency and notify the agency of the filing. If the Commission objects to the regulation after determining that:
(a) If subsection 2 is applicable, the regulation is not required pursuant to a federal statute or regulation;
(b) The regulation does not conform to statutory authority; or
(c) The regulation does not carry out legislative intent,
the Legislative Counsel shall attach to the regulation a written notice of the objection of the Commission, including a statement of the reasons for its objection, and shall promptly return the regulation to the agency.
Sec. 6. NRS 233B.0681 is hereby amended to read as follows:
233B.0681 The Legislative Commission may provide for:
1. Its early review of a proposed permanent regulation after the agency has given notice of a hearing on the regulation but before the hearing is held. If the permanent regulation adopted after the hearing is identical to the regulation submitted for early review, the Legislative Counsel shall promptly file the regulation with the Secretary of State and notify the agency of the filing.
2. A waiver of its review of a permanent regulation in a case of administrative convenience or necessity.
Sec. 7. NRS 233B.070 is hereby amended to read as follows:
233B.070 1. A permanent regulation becomes effective when the Legislative Counsel files with the Secretary of State the original of the final draft or revision of a regulation, except as otherwise provided in NRS 233B.0665 or where a later date is specified in the regulation.
2. [A temporary or] Except as otherwise provided in section 1 of this act, an agency that has adopted a temporary regulation may not file the temporary regulation with the Secretary of State until 35 days after the date on which the temporary regulation was adopted by the agency. A temporary regulation becomes effective when the agency files with the Secretary of State the original of the final draft or revision of the regulation, together with the informational statement prepared pursuant to NRS 233B.066.
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temporary regulation becomes effective when the agency files with the Secretary of State the original of the final draft or revision of the regulation, together with the informational statement prepared pursuant to NRS 233B.066. The agency shall also file a copy of the temporary regulation with the Legislative Counsel, together with the informational statement prepared pursuant to NRS 233B.066.
3. An emergency regulation becomes effective when the agency files with the Secretary of State the original of the final draft or revision of [a] an emergency regulation, together with the informational statement prepared pursuant to NRS 233B.066. The agency shall also file a copy of the [temporary or] emergency regulation with the Legislative Counsel, together with the informational statement prepared pursuant to NRS 233B.066.
[3.] 4. The Secretary of State shall maintain the original of the final draft or revision of each regulation in a permanent file to be used only for the preparation of official copies.
[4.] 5. The Secretary of State shall file, with the original of each agencys rules of practice, the current statement of the agency concerning the date and results of its most recent review of those rules.
[5.] 6. Immediately after each permanent or temporary regulation is filed, the agency shall deliver one copy of the final draft or revision, bearing the stamp of the Secretary of State indicating that it has been filed, including material adopted by reference which is not already filed with the State Library and Archives Administrator, to the State Library and Archives Administrator for use by the public. If the agency is a licensing board as defined in NRS 439B.225 and it has adopted a permanent regulation relating to standards for licensing or registration or for the renewal of a license or a certificate of registration issued to a person or facility regulated by the agency, the agency shall also deliver one copy of the regulation, bearing the stamp of the Secretary of State, to the Legislative Committee on Health Care within 10 days after the regulation is filed with the Secretary of State.
[6.] 7. Each agency shall furnish a copy of all or part of that part of the Nevada Administrative Code which contains its regulations, to any person who requests a copy, and may charge a reasonable fee for the copy based on the cost of reproduction if it does not have money appropriated or authorized for that purpose.
[7.] 8. An agency which publishes any regulations included in the Nevada Administrative Code shall use the exact text of the regulation as it appears in the Nevada Administrative Code, including the leadlines and numbers of the sections. Any other material which an agency includes in a publication with its regulations must be presented in a form which clearly distinguishes that material from the regulations.
Sec. 8. NRS 439B.225 is hereby amended to read as follows:
439B.225 1. As used in this section, licensing board means any board empowered to adopt standards for licensing or registration or for the renewal of licenses or certificates of registration pursuant to chapter 449, 625A, 630, 630A, 631, 632, 633, 634, 634A, 635, 636, 637, 637A, 637B, 639, 640, 640A, 641, 641A, 641B, 641C, 652 or 654 of NRS.
2. The Committee shall review each regulation that a licensing board proposes or adopts that relates to standards for licensing or registration or to the renewal of a license or certificate of registration issued to a person or facility regulated by the board, giving consideration to:
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(a) Any oral or written comment made or submitted to it by members of the public or by persons or facilities affected by the regulation;
(b) The effect of the regulation on the cost of health care in this state;
(c) The effect of the regulation on the number of licensed or registered persons and facilities available to provide services in this state; and
(d) Any other related factor the Committee deems appropriate.
3. After reviewing a proposed regulation, the Committee shall notify the agency of the opinion of the Committee regarding the advisability of adopting or revising the proposed regulation.
4. The Committee shall recommend to the Legislature as a result of its review of regulations pursuant to this section any appropriate legislation.
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Assembly Bill No. 452Committee on Commerce and Labor
CHAPTER 359
AN ACT relating to dispensing opticians; permitting the Board of Dispensing Opticians to investigate complaints of unlicensed activity and to issue certain orders and impose administrative fines regarding such activity; providing for administrative fines for persons who violate certain provisions relating to ophthalmic dispensing; providing for one license for dispensing opticians that would authorize the licensee to engage in all activities reserved for dispensing opticians, including those relating to contact lenses; providing for a limited license for existing dispensing opticians who are not authorized to provide contact lenses; revising various provisions relating to apprentice dispensing opticians; revising the applicability of the provisions regulating dispensing opticians; revising fees for issuance and renewal of certain licenses; revising continuing education requirements for licensees; repealing the provision limiting the definition of person to a natural person for the purposes of regulating dispensing opticians; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 637 of NRS is hereby amended by adding thereto the provisions set forth as sections 2, 3 and 4 of this act.
Sec. 2. 1. Except as otherwise provided in this section, a limited license as a dispensing optician authorizes the licensee to engage in the practice of ophthalmic dispensing pursuant to this chapter.
2. Only a person who is deemed to hold an active, inactive or delinquent limited license as a dispensing optician on February 1, 2004, may hold a limited license as a dispensing optician. A limited license as a dispensing optician may not be issued to any other person.
3. A person practicing ophthalmic dispensing pursuant to a limited license:
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(a) Except as otherwise provided in this section, is subject to the provisions of this chapter in the same manner as a person practicing ophthalmic dispensing pursuant to a license issued pursuant to NRS 637.120, including, without limitation, the provisions of this chapter governing the renewal or reactivation of a license; and
(b) Shall not sell, furnish or fit contact lenses.
4. A limited license as a dispensing optician:
(a) Expires on January 31 of each year.
(b) May be renewed before its expiration upon:
(1) Presentation of proof of completion of the continuing education required by this section; and
(2) Payment of a renewal fee set by the Board of not more than $200.
(c) Except as otherwise provided in subsection 5, is delinquent if it is not renewed before January 31 of each year. Such a delinquent limited license may be reinstated, at the discretion of the Board, upon payment of each applicable annual renewal fee in addition to the annual delinquency fee set by the Board of not more than $500.
5. Upon written request to the Board, and payment of a fee not to exceed $300, a licensee in good standing may have his name and limited license as a dispensing optician transferred to an inactive list. Such a licensee shall not practice ophthalmic dispensing during the time the limited license is inactive. If an inactive licensee desires to resume the practice of ophthalmic dispensing as limited by this section, the Board shall reactivate the limited license upon:
(a) If deemed necessary by the Board, the demonstration by the licensee that the licensee is then qualified and competent to practice;
(b) The completion of an application; and
(c) Payment of the renewal fee set by the Board pursuant to subsection 4.
6. To reactivate a limited license as a dispensing optician pursuant to subsection 5, an inactive licensee is not required to pay the delinquency fee and the renewal fee for any year while the license was inactive.
7. Except as otherwise provided in subsection 8, each person with a limited license as a dispensing optician must complete courses of continuing education in ophthalmic dispensing each year. Such continuing education must:
(a) Encompass such subjects as are established by regulations of the Board.
(b) Consist of a minimum of 12 hours for a period of 12 months.
8. A person with a limited license as a dispensing optician who is on active military service is exempt from the requirements of subsection 7.
9. The Board shall adopt any regulations necessary to carry out the provisions of this section.
Sec. 3. 1. The Board shall conduct an investigation if it receives a complaint that sets forth reason to believe that a person, without the proper license, is engaging in an activity for which a license is required pursuant to this chapter. The complaint must be:
(a) Made in writing; and
(b) Signed and verified by the person filing the complaint.
2. If the Board determines that a person, without the proper license, is engaging in an activity for which a license is required pursuant to this chapter, the Board shall issue and serve on the person an order to cease and desist engaging in the activity until such time as the person obtains the proper license from the Board.
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chapter, the Board shall issue and serve on the person an order to cease and desist engaging in the activity until such time as the person obtains the proper license from the Board.
3. If a person upon whom an order to cease and desist is served does not comply with the order within 30 days after service, the Board shall, after notice and opportunity for a hearing, impose upon the person an administrative fine of not more than $10,000. The imposition of an administrative fine is a final decision for the purposes of judicial review.
4. An administrative fine imposed pursuant to this section is in addition to any other penalty provided in this chapter.
Sec. 4. 1. The Board may impose an administrative fine against a person who is not licensed pursuant to the provisions of this chapter if:
(a) The person violates any provision of NRS 637.125 or any regulation adopted by the Board to carry out the provisions of that section; or
(b) The person employs a dispensing optician, apprentice dispensing optician or other person and the dispensing optician, apprentice dispensing optician or other person, in the course of his employment or apprenticeship, violates any provision of NRS 637.125 or any regulation adopted by the Board to carry out the provisions of that section.
2. The Board may impose a separate administrative fine against the person for each act that constitutes a separate violation.
3. In the first administrative proceeding brought against the person pursuant to this section, the Board may impose, for each act that constitutes a separate violation, an administrative fine of not more than $1,000.
4. In the second and any subsequent administrative proceeding brought against the person pursuant to this section, the Board may impose, for each act that constitutes a separate violation, an administrative fine of not more than $5,000.
Sec. 5. NRS 637.022 is hereby amended to read as follows:
637.022 1. Ophthalmic dispensing means the design, verification and delivery to the intended wearer of lenses, frames and other specially fabricated optical devices upon prescription.
2. The term includes:
[1.] (a) The taking of measurements to determine the size, shape and specifications of the lenses, frames or contact lenses;
[2.] (b) The preparation and delivery of work orders to laboratory technicians engaged in grinding lenses and fabricating eyewear;
[3.] (c) The verification of the quality of finished ophthalmic products;
[4.] (d) The adjustment of lenses or frames to the intended wearers face or eyes;
[5.] (e) The adjustment, replacement, repair and reproduction of previously prepared ophthalmic lenses, frames or other specially fabricated ophthalmic devices; and
[6.] (f) The fitting of contact lenses and the dispensing of prepackaged contact lenses pursuant to a written prescription , when done by a dispensing optician or apprentice dispensing optician who [has been licensed pursuant to NRS 637.122] is authorized to do so [.] pursuant to the provisions of this chapter.
3. The term does not include any act for which a license is required pursuant to chapter 630 or 636 of NRS, and the provisions of this chapter do not authorize a dispensing optician or apprentice dispensing optician to perform any such act.
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do not authorize a dispensing optician or apprentice dispensing optician to perform any such act.
Sec. 5.5. NRS 637.025 is hereby amended to read as follows:
637.025 [Nothing in this chapter shall be construed:
1. To apply to ophthalmic] The provisions of this chapter do not apply to:
1. Ophthalmic dispensing personally by a licensed physician, surgeon or optometrist unless exclusively engaged in the business of filling prescriptions.
2. [To prohibit the] Ophthalmic dispensing by an employee of a licensed physician, surgeon or optometrist if the employee practices ophthalmic dispensing only under the direct supervision of the licensed physician, surgeon or optometrist and only as an assistant to the licensed physician, surgeon or optometrist.
3. A licensed pharmacist dispensing prepackaged contact lenses pursuant to the provisions of NRS 639.2825.
4. The sale of goggles, sun glasses, colored glasses or occupational protective eye devices not having a refractive value, or the sale as merchandise of complete ready-to-wear eyeglasses.
Sec. 6. NRS 637.100 is hereby amended to read as follows:
637.100 [A candidate, in order to]
1. To qualify for examination and licensing as a dispensing optician, an applicant must furnish proof that he:
[1.] (a) Is at least 18 years of age.
[2.] (b) Is of good moral character.
[3.] (c) Is a citizen of the United States, or is lawfully entitled to remain and work in the United States.
[4.] (d) Is a graduate of an accredited high school or its equivalent.
[5.] (e) Has passed the examination of the American Board of Opticianry . [and has:
(a)] (f) Has done either of the following:
(1) Served as an apprentice dispensing optician for not less than 3 [years full-time employment] years in an optical establishment where prescriptions for spectacles or contact lenses from given formulae are fitted and filled [, has acquired experience in optical technology and has had 1 year of experience in ophthalmic dispensing] under the direct supervision of a licensed dispensing optician , licensed ophthalmologist or licensed optometrist [,] for the purpose of acquiring experience in ophthalmic dispensing and has passed [the career progression program of the National Academy of Opticianry or an equivalent program accepted] an educational program on the theory of ophthalmic dispensing approved by the Board; or
[(b)] (2) Successfully completed a course of study in a school which offers a degree of associate in applied science for studies in ophthalmic dispensing approved by the Board and has had 1 year of ophthalmic experience as an apprentice dispensing optician under the direct supervision of a licensed dispensing optician , licensed ophthalmologist or licensed optometrist.
(g) Has done all of the following:
(1) Successfully completed a course of instruction on the fitting of contact lenses approved by the Board;
(2) Completed at least 100 hours of training and experience in the fitting of and filling of prescriptions for contact lenses under the direct supervision of a licensed dispensing optician authorized to fit and fill prescriptions for contact lenses, a licensed ophthalmologist or a licensed optometrist;
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supervision of a licensed dispensing optician authorized to fit and fill prescriptions for contact lenses, a licensed ophthalmologist or a licensed optometrist;
(3) Passed the Contact Lens Registry Examination of the National Committee of Contact Lens Examiners; and
(4) Passed the practical examination on the fitting of and filling of prescriptions for contact lenses adopted by the Board.
2. The Board shall adopt regulations to carry out the provisions of this section, including, without limitation, regulations that establish requirements for:
(a) The program of apprenticeship for apprentice dispensing opticians;
(b) The training and experience of apprentice dispensing opticians; and
(c) The issuance of licenses to apprentice dispensing opticians.
Sec. 7. NRS 637.110 is hereby amended to read as follows:
637.110 1. An application for the issuance of a license as [a dispensing optician or] an apprentice dispensing optician must [include the social security number of the applicant.] be accompanied by a fee of not more than $250 to cover the costs of the Board and the initial licensing.
2. An application for the issuance of a license as a dispensing optician must be accompanied by [:
(a) The statement required pursuant to NRS 637.113;
(b) A] a fee of not more than $250 to cover the cost of the examination by the Board and the initial licensing.
3. The Board shall, if it approves an application [,] for the issuance of a license as a dispensing optician, examine the applicant in ophthalmic dispensing, except that the Board may waive the examination of an applicant who is, at the time of application, licensed as a dispensing optician in another state.
4. To pass the examination [,] for the issuance of a license as a dispensing optician, an applicant must achieve a score of at least 70 percent.
Sec. 8. NRS 637.110 is hereby amended to read as follows:
637.110 1. An application for the issuance of a license as an apprentice dispensing optician must be accompanied by a fee of not more than $250 to cover the costs of the Board and the initial licensing.
2. An application for the issuance of a license as a dispensing optician must be accompanied by a fee of not more than [$250] $500 to cover the cost of the examination by the Board and the initial licensing.
3. The Board shall, if it approves an application for the issuance of a license as a dispensing optician, examine the applicant in ophthalmic dispensing, except that the Board may waive the examination of an applicant who is, at the time of application, licensed as a dispensing optician in another state.
4. To pass the examination for the issuance of a license as a dispensing optician, an applicant must achieve a score of at least 70 percent.
Sec. 9. NRS 637.113 is hereby amended to read as follows:
637.113 1. [An] In addition to any other requirements set forth in this chapter, an applicant for the issuance or renewal of a license as a dispensing optician or apprentice dispensing optician shall submit to the Board :
(a) In any application for issuance of a license, the social security number of the applicant and the statement prescribed by the Welfare Division of the Department of Human Resources pursuant to NRS 425.520.
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Division of the Department of Human Resources pursuant to NRS 425.520. The statement must be completed and signed by the applicant.
(b) In any application for renewal of a license, the statement prescribed by the Welfare Division of the Department of Human Resources pursuant to NRS 425.520. The statement must be completed and signed by the applicant.
2. The Board shall include the statement required pursuant to subsection 1 in:
(a) The application or any other forms that must be submitted for the issuance or renewal of the license; or
(b) A separate form prescribed by the Board.
3. A license as a dispensing optician or apprentice dispensing optician may not be issued or renewed by the Board if the applicant:
(a) Fails to submit the statement required pursuant to subsection 1; or
(b) Indicates on the statement submitted pursuant to subsection 1 that he is subject to a court order for the support of a child and is not in compliance with the order or a plan approved by the district attorney or other public agency enforcing the order for the repayment of the amount owed pursuant to the order.
4. If an applicant indicates on the statement submitted pursuant to subsection 1 that he is subject to a court order for the support of a child and is not in compliance with the order or a plan approved by the district attorney or other public agency enforcing the order for the repayment of the amount owed pursuant to the order, the Board shall advise the applicant to contact the district attorney or other public agency enforcing the order to determine the actions that the applicant may take to satisfy the arrearage.
Sec. 10. NRS 637.120 is hereby amended to read as follows:
637.120 1. [An applicant successfully completing the examination must be issued a] The Board shall issue a license as a dispensing optician to each applicant who satisfies the requirements of this chapter for the issuance of the license.
2. A license as a dispensing optician [by the Board. The license] authorizes the [applicant] holder to engage in the practice of ophthalmic dispensing [,] and must at all times be conspicuously displayed at the holders place of practice. The license is not transferable by the holder. [A separate license is required before the dispensing optician may fit contact lenses.
2.] 3. The Board may, upon application and the payment of a fee not to exceed $100, issue one duplicate license.
Sec. 11. NRS 637.123 is hereby amended to read as follows:
637.123 1. Except as otherwise provided in this section:
(a) The license of [each] an apprentice dispensing optician [must expire] expires on January 31 of each year [. A license may be] unless the license is renewed before expiration upon [submission of the statement required pursuant to NRS 637.113 and] payment of the annual renewal fee set by the Board, not to exceed $200.
[2.] (b) The license of an apprentice dispensing optician that is not renewed before January 31 is delinquent. A delinquent license may be reinstated at the discretion of the Board upon [submission of the statement required pursuant to NRS 637.113 and] payment of each applicable annual renewal fee and an annual delinquency fee established by the Board, not to exceed $100.
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[3.] 2. The Board may by regulation require continuing education as a prerequisite to the renewal of the license of an apprentice dispensing optician.
3. The license of an apprentice dispensing optician may be renewed not more than four times, unless the Board determines that good cause exists for one or more additional renewals.
Sec. 12. NRS 637.125 is hereby amended to read as follows:
637.125 1. A person may not employ another person to perform the services of a dispensing optician unless the other person:
(a) Is licensed by the Board as a dispensing optician; or
(b) Is licensed by the Board as an apprentice dispensing optician and is directly supervised as required by the provisions of this chapter.
2. A licensed dispensing optician may [employ any] not allow another person who is under his direct supervision to perform the services of a dispensing optician [if] unless the other person is licensed by the Board as a dispensing optician or an apprentice dispensing optician.
[2. A]
3. If a person is licensed by the Board as an apprentice dispensing optician, a licensed dispensing optician [shall:
(a) Supervise] , licensed ophthalmologist or licensed optometrist must:
(a) Directly supervise all work done by [an] the apprentice dispensing optician.
(b) Be in attendance whenever [an] the apprentice dispensing optician is engaged in ophthalmic dispensing.
(c) Post the license of the apprentice dispensing optician in a conspicuous place where the apprentice dispensing optician works.
[3.] 4. A licensed dispensing optician may not have under his supervision more than two licensed apprentice dispensing opticians at any one time.
[4. The Board may require a fee of not more than $250 for the licensure of an apprentice dispensing optician.]
5. A licensed dispensing optician or a person who employs a licensed dispensing optician may employ other persons to assist in consulting on optical fashions [and in making optical repairs, and these persons need] , and a licensed dispensing optician may supervise such other persons. Such other persons:
(a) Are not required to be licensed [as apprentices.] pursuant to the provisions of this chapter.
(b) May not perform the services of a dispensing optician.
6. The Board may adopt regulations to carry out the provisions of this section.
Sec. 13. NRS 637.135 is hereby amended to read as follows:
637.135 1. Except as otherwise provided in subsection 2, all licensed dispensing opticians must complete a yearly program of continuing education in ophthalmic dispensing.
2. Licensed dispensing opticians on active military service are exempt from the requirement of this section.
3. The program of continuing education in ophthalmic dispensing must:
(a) Encompass such subjects as are established by regulations of the Board.
(b) Consist of a minimum of [36] 14 hours [in] for a period of [36] 12 months.
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[4. The Board shall require persons who are licensed to fit contact lenses to obtain additional continuing education related to that practice.] Of these 14 hours, 7 hours must be related to contact lenses.
Sec. 14. NRS 637.140 is hereby amended to read as follows:
637.140 1. A license as a dispensing optician issued under the provisions of this chapter expires on January 31 of each year.
2. A license may be renewed before its expiration upon:
(a) Presentation of proof of completion of the continuing education required by NRS 637.135; and
(b) [Submission of the statement required pursuant to NRS 637.113; and
(c)] Payment of a renewal fee set by the Board of not more than $200.
3. Except as otherwise provided in subsection 4, any license which is not renewed before January 31 of each year shall be deemed delinquent. A delinquent license may be reinstated, at the discretion of the Board, upon payment of each applicable annual renewal fee in addition to the annual delinquency fee set by the Board of not more than $500.
4. Upon written request to the Board, and payment of a fee not to exceed $150, a licensee in good standing may have his name and license transferred to an inactive list. Such a licensee shall not practice ophthalmic dispensing during the time the license is inactive. If an inactive licensee desires to resume the practice of ophthalmic dispensing, the Board shall reactivate the license upon the:
(a) Demonstration if deemed necessary by the Board that the licensee is then qualified and competent to practice;
(b) Completion of an application; and
(c) [Submission of the statement required pursuant to NRS 637.113; and
(d)] Payment of the [current fee for renewal of the license.] renewal fee set by the Board pursuant to subsection 2.
Payment of the delinquency fee and the renewal fee for any year while the license was inactive is not required.
Sec. 15. NRS 637.140 is hereby amended to read as follows:
637.140 1. A license as a dispensing optician issued under the provisions of this chapter expires on January 31 of each year.
2. A license may be renewed before its expiration upon:
(a) Presentation of proof of completion of the continuing education required by NRS 637.135; and
(b) Payment of a renewal fee set by the Board of not more than [$200.] $500.
3. Except as otherwise provided in subsection 4, any license which is not renewed before January 31 of each year shall be deemed delinquent. A delinquent license may be reinstated, at the discretion of the Board, upon payment of each applicable annual renewal fee in addition to the annual delinquency fee set by the Board of not more than $500.
4. Upon written request to the Board, and payment of a fee not to exceed [$150,] $300, a licensee in good standing may have his name and license transferred to an inactive list. Such a licensee shall not practice ophthalmic dispensing during the time the license is inactive. If an inactive licensee desires to resume the practice of ophthalmic dispensing, the Board shall reactivate the license upon the:
(a) Demonstration if deemed necessary by the Board that the licensee is then qualified and competent to practice;
(b) Completion of an application; and
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(c) Payment of the renewal fee set by the Board pursuant to subsection 2.
Payment of the delinquency fee and the renewal fee for any year while the license was inactive is not required.
Sec. 16. NRS 637.170 is hereby amended to read as follows:
637.170 Any licensee whose license was revoked by the Board may apply for a new license [as provided in NRS 637.100 to 637.122, inclusive,] pursuant to the provisions of this chapter at any time after the date of revocation. The Board may consider such an application for licensure and may grant it upon the applicants payment of a fee set by the Board to cover the administrative costs of any investigation and hearing.
Sec. 17. Section 518 of chapter 483, Statutes of Nevada 1997, at page 2211, is hereby amended to read as follows:
Sec. 518. The amendatory provisions of sections 1 to 4, inclusive, [and] 6 to 317, inclusive, and 321 to 516, inclusive, of this act expire by limitation on the date on which the provisions of 42 U.S.C. ง 666 requiring each state to establish procedures under which the state has authority to withhold or suspend, or to restrict the use of professional, occupational and recreational licenses of persons who:
1. Have failed to comply with a subpoena or warrant relating to a proceeding to determine the paternity of a child or to establish or enforce an obligation for the support of a child; or
2. Are in arrears in the payment for the support of one or more children,
are repealed by the Congress of the United States.
Sec. 18. 1. NRS 637.0225 is hereby repealed.
2. NRS 637.122 is hereby repealed.
Sec. 19. 1. If, on February 1, 2004, a person holds an active license, inactive license or delinquent license as a dispensing optician who is not authorized to fit contact lenses, the person shall be deemed to hold an active limited license, inactive limited license or delinquent limited license, as appropriate, pursuant to the provisions of section 2 of this act.
2. If, on February 1, 2004, a person holds an active license, inactive license or delinquent license as a dispensing optician who is authorized to fit contact lenses, the person shall be deemed to hold an active license, inactive license or delinquent license, as appropriate, that is issued pursuant to NRS 637.120, as amended by section 10 of this act.
3. Except as otherwise provided in subsection 4, if a person holds a license as an apprentice dispensing optician on or after the effective date of this act, the Board of Dispensing Opticians may not issue the person a license as a dispensing optician unless the person satisfies the requirements set forth in chapter 637 of NRS for the issuance of a license as a dispensing optician who is authorized to fit contact lenses.
4. Notwithstanding the amendatory provisions of this act, if a person holds a license as an apprentice dispensing optician on the effective date of this act:
(a) The person may apply for a license as a dispensing optician who is not authorized to fit contact lenses; and
(b) The Board of Dispensing Opticians shall issue such a license to the person if, before February 1, 2006, the person satisfies the requirements set forth in chapter 637 of NRS for the issuance of such a license, as those requirements existed on the date immediately preceding the effective date of this act.
๊2003 Statutes of Nevada, Page 2018 (Chapter 359, AB 452)๊
this act. Upon issuance of the license, the person shall be deemed to hold an active limited license as a dispensing optician that is subject to the provisions of section 2 of this act.
Sec. 20. 1. This section and sections 1, 3, 4, 5, 5.5, 7, 9, 11, 12, 14, 16, 17 and 19 and subsection 1 of section 18 of this act become effective upon passage and approval.
2. Sections 2, 6, 8, 10, 13 and 15 and subsection 2 of section 18 of this act become effective on February 1, 2004.
3. Section 9 of this act expires by limitation on the date on which the provisions of 42 U.S.C. ง 666 requiring each state to establish procedures under which the state has authority to withhold or suspend, or to restrict the use of professional, occupational and recreational licenses of persons who:
(a) Have failed to comply with a subpoena or warrant relating to a proceeding to determine the paternity of a child or to establish or enforce an obligation for the support of a child; or
(b) Are in arrears in the payment for the support of one or more children,
are repealed by the Congress of the United States.
________
Assembly Bill No. 515Committee on Taxation
CHAPTER 360
AN ACT relating to senior citizens; revising the method for calculating refunds paid to senior citizens for property taxes or rent paid by those senior citizens; extending the time for filing claims for such refunds; revising the qualifications for obtaining such refunds; requiring the Administrator of the Aging Services Division of the Department of Human Resources, or his designee, to review claims for such refunds that are denied under certain circumstances; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 427A.515 is hereby amended to read as follows:
427A.515 1. A senior citizen whose home is placed upon the secured or unsecured tax roll, who has owned the home and maintained it as his primary residence since July 1 immediately preceding the filing of his claim and whose household income is [within one of the income ranges for which assistance is provided pursuant to this subsection] not more than $24,016, as adjusted pursuant to subsection 3, is entitled to a refund of the property tax accrued against his home [to the extent determined by the percentage indicated opposite his household income range on the following schedule, as that income range is adjusted pursuant to subsection 3:
๊2003 Statutes of Nevada, Page 2019 (Chapter 360, AB 515)๊
PERCENT TAX
Percent of
INCOME RANGE Claimants
If the Amount of Property Tax
Applicants Household But Not Accrued Allowable
Income Is Over Over as Assistance Is
$0 $12,700 90
12,700 14,800 80
14,800 17,000 50
17,000 19,100 25
19,100 21,500 10]
, except as otherwise provided in section 2, as follows:
(a) If the amount of the applicants household income is at or below the federally designated level signifying poverty for a family unit of one or two, the applicant is entitled to a refund of 100 percent of the property taxes accrued.
(b) If the amount of the applicants household income is above the federally designated level signifying poverty for a family unit of one or two, the applicant is entitled to a refund of a percentage of the property taxes accrued based on a graduated schedule adopted by the Division.
2. The amount of the refund must not exceed the amount of the accrued property tax or $500, whichever is less.
3. The [monetary amounts shown for each income range ] maximum allowable income to qualify for a refund set forth in subsection 1 must be adjusted for each fiscal year by adding to [each amount] $24,016 the product of [the amount shown] $24,016 multiplied by the percentage increase in the Consumer Price Index from December [1997] 2002 to the [December] November preceding the fiscal year for which the adjustment is calculated.
Sec. 2. NRS 427A.520 is hereby amended to read as follows:
427A.520 1. A senior citizen who has rented and maintained his primary residence in a home or on a lot since July 1 of the preceding calendar year and whose household income is [within one of the income ranges for which assistance is provided in] not more than $24,016, as adjusted pursuant to subsection 3 of NRS 427A.515 , is entitled to a refund as determined in accordance with the [schedule of income ranges as adjusted pursuant to that section.] provisions of subsection 1 of NRS 427A.515.
2. The amount of the refund provided pursuant to subsection 1 must not exceed an amount equal to that portion of the rent which is rent deemed to constitute accrued property tax, even if the rental property is exempt from property tax.
Sec. 3. NRS 427A.530 is hereby amended to read as follows:
427A.530 1. A claim may be filed with the assessor of the county in which the claimants home or mobile home lot is located not earlier than February 1 and not later than April [15.] 30.
2. The claim must be made under oath and filed in such form and content, and accompanied by such proof, as the Division may prescribe.
3. The Division or county assessor shall provide the appropriate form to each claimant.
4. The county assessor shall, within 30 days after receiving a claim for a refund:
๊2003 Statutes of Nevada, Page 2020 (Chapter 360, AB 515)๊
(a) Process the application;
(b) Determine the assessed valuation of the property to which the claim applies, if applicable; and
(c) Submit the claim to the Division.
5. The Division shall not accept a claim submitted pursuant to subsection 4 after July 1 [.] , unless an extension of time to file a claim is provided for by regulation pursuant to NRS 427A.590.
Sec. 4. NRS 427A.535 is hereby amended to read as follows:
427A.535 1. The Division shall examine each claim, granting or denying it, and if granted, shall determine the refund to which the claimant is entitled.
2. Upon examination, if:
(a) The claim is denied, the Division shall so notify the claimant by first-class mail.
(b) The claim is granted, the Division shall pay the refund to the claimant not later than August 15 [.] , unless the Administrator cannot provide for full refunds of all just claims pursuant to subsection 2 of NRS 427A.595. If the Administrator cannot provide for full refunds of all just claims, claims that are required to be reduced pursuant to that subsection must be paid not later than 30 business days after a meeting of the Interim Finance Committee at which those claims are considered.
Sec. 5. NRS 427A.540 is hereby amended to read as follows:
427A.540 No claim may be accepted by the Division if the [claimant] :
1. Claimant or spouse of the claimant owns real property , [in this state,] other than that claimed as a home, which has an assessed value of more than $30,000 [.] ;
2. Home of the claimant has an assessed value of more than $87,500; or
3. Liquid assets of the claimant are more than $150,000.
Sec. 6. NRS 427A.570 is hereby amended to read as follows:
427A.570 A claim must be disallowed if the [Administrator] Division finds that the claimant received title to his home primarily to obtain benefits pursuant to the provisions of NRS 427A.450 to 427A.600, inclusive. If such a claimant has received a refund and does not repay it together with a 10 percent penalty to the Division, the amount of the refund and penalty must be assessed against the property claimed as his home.
Sec. 7. NRS 427A.575 is hereby amended to read as follows:
427A.575 The [Administrator] Division shall deny any claim for assistance to which the claimant is not entitled or any amount in excess of that to which the claimant is entitled. The [Administrator] Division may deny in total any claim which [he finds to have been] is filed with fraudulent intent. If any such claim has been paid and is afterward denied, the amount of the claim together with a 10 percent penalty must be repaid by the claimant to the Division. If the amount of the refund and penalty is not repaid, the amount must be assessed against any real or personal property owned by the claimant.
Sec. 8. NRS 427A.585 is hereby amended to read as follows:
427A.585 1. Any claimant aggrieved by a decision of the [Administrator] Division or a county assessor which denies the refund claimed pursuant to the provisions of NRS 427A.450 to 427A.600, inclusive, may have a review of the denial before the [Director] Administrator, or his designee, if, within 30 days after the claimant receives notice of the denial, he submits a written petition for review to the [Director.]
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he submits a written petition for review to the [Director.] Administrator, or his designee.
2. Any claimant aggrieved by the denial in whole or in part of relief claimed pursuant to the provisions of NRS 427A.450 to 427A.600, inclusive, or by any other final action or review of the [Director,] Administrator, or his designee, is entitled to judicial review thereof.
Sec. 9. NRS 427A.595 is hereby amended to read as follows:
427A.595 1. Money to pay for assistance granted to senior citizens pursuant to the provisions of NRS 427A.450 to 427A.600, inclusive, must be provided by legislative appropriation from the State General Fund. The money so appropriated must be transferred to the Senior Citizens Property Tax Assistance Account in the State General Fund.
2. The Administrator may, from time to time, obtain from the State Controller a statement of the balance in the Senior Citizens Property Tax Assistance Account. The Administrator shall provide for full refunds of all just claims if the total amount of the claims does not exceed the balance in the Account. [The] If the total amount of the claims exceeds that balance, the Administrator shall proportionately reduce each claim [if the total amount of all claims exceeds that balance.] paid pursuant to paragraph (b) of subsection 1 of NRS 427A.515.
3. Money for the administration of the provisions of NRS 427A.450 to 427A.600, inclusive, must be provided by legislative appropriation to the Senior Citizens Property Tax Assistance Account. From this Account, the sum of $4 must be allowed for each claim which is received by the county assessor and submitted to the Division.
4. All claims against the Senior Citizens Property Tax Assistance Account must be certified by the Administrator or a person designated by the Administrator and, if certified and approved by the State Board of Examiners, the State Controller shall draw his warrant against the Account.
5. Any money remaining in the Senior Citizens Property Tax Assistance Account at the end of the fiscal year must remain in the Account and is available for use in the following fiscal year.
Sec. 10. The amendatory provisions of this act apply to claims for assistance filed pursuant to NRS 427A.450 to 427A.600, inclusive, on or after January 1, 2004.
Sec. 11. This act becomes effective on July 1, 2003.
________
๊2003 Statutes of Nevada, Page 2022๊
Assembly Bill No. 401Assemblymen Hardy, Grady, Brown, Andonov, Beers, Christensen, Geddes, Gibbons, Goicoechea, Griffin, Gustavson, Hettrick, Mabey, McClain and Weber
CHAPTER 361
AN ACT relating to public works; providing that a public body or the Department of Transportation may authorize a private entity to develop, construct, improve, maintain or operate, or any combination thereof, a transportation facility; changing the requirements relating to the contracts that may be awarded to a design-build team; providing that certain contracts awarded to a design-build team must comply with the provisions relating to paying a prevailing wage on public works projects; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 338 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 8, inclusive, of this act.
Sec. 2. Transportation facility means a road, railroad, bridge, tunnel, overpass, airport, mass transit facility, parking facility for vehicles or similar commercial facility used for the support of or the transportation of persons or goods, including, without limitation, any other property that is needed to operate the facility. The term does not include a toll bridge or toll road.
Sec. 3. A public body may authorize a person to develop, construct, improve, maintain or operate, or any combination thereof, a transportation facility pursuant to section 4 or 5 of this act.
Sec. 4. 1. A person may submit a request to a public body to develop, construct, improve, maintain or operate, or any combination thereof, a transportation facility.
2. The request must be accompanied by the following information:
(a) A topographic map indicating the location of the transportation facility.
(b) A description of the transportation facility, including, without limitation, the conceptual design of the transportation facility and all proposed interconnections with other transportation facilities.
(c) The projected total cost of the transportation facility over its life and the proposed date for the development of or the commencement of the construction of, or improvements to, the transportation facility.
(d) A statement setting forth the method by which the person submitting the request proposes to secure all property interests required for the transportation facility. The statement must include, without limitation:
(1) The names and addresses, if known, of the current owners of any property needed for the transportation facility;
(2) The nature of the property interests to be acquired; and
(3) Any property that the person submitting the request proposes that the public body condemn.
๊2003 Statutes of Nevada, Page 2023 (Chapter 361, AB 401)๊
(e) Information relating to the current transportation plans, if any, of any governmental entity in the jurisdiction of which any portion of the transportation facility is located.
(f) A list of all permits and approvals required for the development or construction of or improvement to the transportation facility from local, state or federal agencies and a projected schedule for obtaining those permits and approvals.
(g) A list of the facilities of any utility or existing transportation facility that will be crossed by the transportation facility and a statement of the plans of the person submitting the request to accommodate such crossings.
(h) A statement setting forth the general plans of the person submitting the request for financing and operating the transportation facility, which must include, without limitation:
(1) A plan for the development, financing and operation of the transportation facility, including, without limitation, an indication of the proposed sources of money for the development and operation of the transportation facility, the anticipated use of such money and the anticipated schedule for the receipt of such money;
(2) A list of any assumptions made by the person about the anticipated use of the transportation facility, including, without limitation, the fees that will be charged for the use of the transportation facility, and a discussion of those assumptions;
(3) The identification of any risk factors identified by the person that are associated with developing, constructing or improving the transportation facility and the plan for addressing those risk factors;
(4) The identification of any local, state or federal resources that the person anticipates requesting for development and operation of the transportation facility, including, without limitation, an anticipated schedule for the receipt of those resources and the effect of those resources on any statewide or regional program for the improvement of transportation; and
(5) The identification and analysis of any costs or benefits associated with the proposed facility, performed by a professional engineer who is licensed pursuant to chapter 625 of NRS.
(i) The names and addresses of the persons who may be contacted for further information concerning the request.
(j) Any additional material and information that the public body may request.
Sec. 5. If a public body receives a request regarding a transportation facility pursuant to section 4 of this act and the public body determines that the transportation facility serves a public purpose, the public body may request other persons to submit proposals to develop, construct, improve, maintain or operate, or any combination thereof, the transportation facility.
Sec. 6. 1. A public body may approve a request or proposal submitted pursuant to section 4 or 5 of this act if the public body determines that the transportation facility serves a public purpose. In determining whether the transportation facility serves a public purpose, the public body shall consider whether:
(a) There is a public need for the type of transportation facility that is proposed;
๊2003 Statutes of Nevada, Page 2024 (Chapter 361, AB 401)๊
(b) The proposed interconnections between the transportation facility and existing transportation facilities and the plans of the person submitting the request for the operation of the transportation facility are reasonable and compatible with any statewide or regional program for the improvement of transportation and with the transportation plans of any other governmental entity in the jurisdiction of which any portion of the transportation facility will be located;
(c) The estimated cost of the transportation facility is reasonable in relation to similar transportation facilities, as determined by an analysis of the cost performed by a professional engineer who is licensed pursuant to chapter 625 of NRS;
(d) The plans of the person submitting the request will result in the timely development or construction of, or improvement to the transportation facility or its more efficient operation;
(e) The plans of the person submitting the request contain any penalties for the failure of the person submitting the request to meet any deadline which results in the untimely development or construction of or improvement to the transportation facility or failure to meet any deadline for its more efficient operation; and
(f) The long-term quality of the transportation facility will meet a level of performance established by the public body over a sufficient duration of time to provide value to the public.
2. In evaluating a request or proposal submitted pursuant to section 4 or 5 of this act, the public body may consider internal staff reports prepared by personnel of the public body who are familiar with the operation of similar transportation facilities or the advice of outside advisors or consultants with relevant experience.
3. The public body shall request that a person who submitted a request or proposal pursuant to section 4 or 5 of this act furnish a copy of the request or proposal to each governmental entity that has jurisdiction over an area in which any part of the transportation facility is located. Within 30 days after receipt of such a request or proposal, the governmental entity shall submit in writing to the public body, for consideration by the public body, any comments that the governmental entity has concerning the transportation facility and shall indicate whether the transportation facility is compatible with any local, regional or statewide transportation plan or program that is applicable to the governmental entity.
4. A public body shall charge a reasonable fee to cover the costs of processing, reviewing and evaluating a request or proposal submitted pursuant to section 4 or 5 of this act, including, without limitation, reasonable fees for the services of an attorney or a financial or other consultant or advisor, to be collected before the public body accepts the request or proposal for processing, review and evaluation.
5. The approval of a request or proposal by the public body is contingent on the person who submitted the request or proposal entering into an agreement with the public body. In such an agreement, the public body shall include, without limitation:
(a) Criteria that address the long-term quality of the transportation facility.
(b) The date of termination of the authority and duties pursuant to sections 2 to 8, inclusive, of this act of the person whose request or proposal was approved by the public body with respect to the transportation facility and for the dedication of the transportation facility to the public body on that date.
๊2003 Statutes of Nevada, Page 2025 (Chapter 361, AB 401)๊
proposal was approved by the public body with respect to the transportation facility and for the dedication of the transportation facility to the public body on that date.
(c) Provision for the imposition by the person whose request or proposal was approved by the public body of such rates, fees or other charges as may be established from time to time by agreement of the parties for use of all or a portion of a transportation facility, other than a bridge or road.
6. In connection with the approval of a transportation facility, the public body shall establish a date for the development of or the commencement of the construction of, or improvements to, the transportation facility. The public body may extend the date from time to time.
Sec. 7. A public body may contract with a person whose request or proposal is approved pursuant to section 6 of this act for transportation services to be provided by the transportation facility in exchange for such payments for service and other consideration as the public body may deem appropriate.
Sec. 8. The public body may take any action necessary to obtain federal, state or local assistance for a transportation facility that it approves and may enter into any contracts required to receive such assistance. The public body shall, by resolution, determine if it serves the public purpose for all or a portion of the costs of the transportation facility to be paid, directly or indirectly, from the proceeds of a grant or loan made by the local, state or Federal Government or any agency or instrumentality thereof.
Sec. 9. NRS 338.1711 is hereby amended to read as follows:
338.1711 1. Except as otherwise provided in this section [,] and sections 2 to 8, inclusive, of this act, a public body shall contract with a prime contractor for the construction of a public work for which the estimated cost exceeds $100,000.
2. A public body may contract with a design-build team for the design and construction of a public work that is a discrete project if the public body determines that:
(a) The public work is:
(1) A plant or facility for the treatment and pumping of water or the treatment and disposal of wastewater or sewage, the estimated cost of which exceeds $100,000,000; or
(2) Any other type of public work, except a stand-alone underground utility project, the estimated cost of which exceeds [$30,000,000;] $20,000,000; and
(b) Contracting with a design-build team will enable the public body to:
(1) Design and construct the public work at a cost that is significantly lower than the cost that the public body would incur to design and construct the public work using a different method;
(2) Design and construct the public work in a shorter time than would be required to design and construct the public work using a different method, if exigent circumstances require that the public work be designed and constructed within a short time; or
(3) Ensure that the design and construction of the public work is properly coordinated, if the public work is unique, highly technical and complex in nature.
๊2003 Statutes of Nevada, Page 2026 (Chapter 361, AB 401)๊
3. [Each] Except as otherwise provided in subsection 4, each state agency and each department, division, board, unit or agency of a local government may contract with a design-build team [once in each fiscal year] for the design and construction of a public work if the governing body of the entity that is responsible for financing the public work determines that:
(a) The estimated cost of the public work is:
(1) At least $250,000 but less than [$30,000,000] $20,000,000 if the public work is the construction of a park and appurtenances thereto, the rehabilitation or remodeling of a public building, or the construction of an addition to a public building;
(2) At least $500,000 but less than [$30,000,000] $20,000,000 if the public work is the construction of a new public building;
(3) At least $5,000,000 but less than $100,000,000 if the public work is the construction, alteration or repair of a plant or facility for the treatment and pumping of water or the treatment and disposal of wastewater or sewage; or
(4) At least $5,000,000 but less than [$30,000,000] $20,000,000 if the public work is the construction, alteration or repair of any other fixed works as described in subsection 2 of NRS 624.215; and
(b) Contracting with a design-build team will enable the public body to:
(1) Design and construct the public work at a cost that is significantly lower than the cost that the public body would incur to design and construct the public work using a different method;
(2) Design and construct the public work in a shorter time than would be required to design and construct the public work using a different method, if exigent circumstances require that the public work be designed and constructed within a short time; or
(3) Ensure that the design and construction of the public work is properly coordinated, if the public work is unique, highly technical and complex in nature.
4. Each state agency and each department, division, board, unit or agency of a local government may contract with a design-build team once during each fiscal year for the design and construction of a public work subject to the provisions of subparagraph (4) of paragraph (a) of subsection 3.
5. Notwithstanding the provisions of subsections 1 [, 2 and 3,] to 4, inclusive, a public body may contract with:
(a) A nonprofit organization for the design and construction of a project to restore, enhance or develop wetlands.
(b) A prime contractor or design-build team with respect to a public work if the public body determines that the public work is:
(1) Not part of a larger public work; and
(2) Limited in scope to:
(I) Removal of asbestos;
(II) Replacement of equipment or systems for heating, ventilation and air-conditioning;
(III) Replacement of a roof;
(IV) Landscaping; or
(V) Restoration, enhancement or development of wetlands.
[5.] 6. As used in this section, state agency includes an agency, bureau, board, commission, department, division or any other unit of the Legislative Department, Judicial Department or Executive Department of State Government or the University and Community College System of Nevada.
๊2003 Statutes of Nevada, Page 2027 (Chapter 361, AB 401)๊
State Government or the University and Community College System of Nevada.
Sec. 9.5. NRS 338.1727 is hereby amended to read as follows:
338.1727 1. After selecting the finalists pursuant to NRS 338.1725, the public body shall provide to each finalist a request for final proposals for the public work. The request for final proposals must:
(a) Set forth the factors that the public body will use to select a design-build team to design and construct the public work, including the relative weight to be assigned to each factor; and
(b) Set forth the date by which final proposals must be submitted to the public body.
2. Except as otherwise provided in this subsection, in assigning the relative weight to each factor for selecting a design-build team pursuant to subsection 1, the public body shall assign, without limitation, a relative weight of 5 percent to the possession of a certificate of eligibility to receive a preference in bidding on public works and a relative weight of at least 30 percent to the proposed cost of design and construction of the public work. If any federal statute or regulation precludes the granting of federal assistance or reduces the amount of that assistance for a particular public work because of the provisions of this subsection relating to preference in bidding on public works, those provisions of this subsection do not apply insofar as their application would preclude or reduce federal assistance for that public work.
3. A final proposal submitted by a design-build team pursuant to this section must be prepared thoroughly, be responsive to the criteria that the public body will use to select a design-build team to design and construct the public work described in subsection 1 and comply with the provisions of NRS 338.141.
4. After receiving the final proposals for the public work, the public body shall:
(a) Select the most cost-effective and responsive final proposal, using the criteria set forth pursuant to subsections 1 and 2; or
(b) Reject all the final proposals.
5. If a public body selects a final proposal pursuant to paragraph (a) of subsection 4, the public body shall, at its next regularly scheduled meeting:
(a) Review and ratify the selection.
(b) Award the design-build contract to the design-build team whose proposal is selected.
(c) Partially reimburse the unsuccessful finalists if partial reimbursement was provided for in the request for preliminary proposals pursuant to paragraph (f) of subsection 3 of NRS 338.1723. The amount of reimbursement must not exceed, for each unsuccessful finalist, 3 percent of the total amount to be paid to the design-build team as set forth in the design-build contract.
(d) Make available to the public a summary setting forth the factors used by the public body to select the successful design-build team and the ranking of the design-build teams who submitted final proposals. The public body shall not release to a third party, or otherwise make public, financial or proprietary information submitted by a design-build team.
6. A contract awarded pursuant to this section:
(a) Must comply with the provisions of NRS 338.020 to 338.090, inclusive;
(b) Must specify:
๊2003 Statutes of Nevada, Page 2028 (Chapter 361, AB 401)๊
(1) An amount that is the maximum amount that the public body will pay for the performance of all the work required by the contract, excluding any amount related to costs that may be incurred as a result of unexpected conditions or occurrences as authorized by the contract;
(2) An amount that is the maximum amount that the public body will pay for the performance of the professional services required by the contract; and
(3) A date by which performance of the work required by the contract must be completed.
[(b)] (c) May set forth the terms by which the design-build team agrees to name the public body, at the cost of the public body, as an additional insured in an insurance policy held by the design-build team.
[(c)] (d) Except as otherwise provided in paragraph [(d),] (e), must not require the design professional to defend, indemnify or hold harmless the public body or the employees, officers or agents of that public body from any liability, damage, loss, claim, action or proceeding caused by the negligence, errors, omissions, recklessness or intentional misconduct of the employees, officers and agents of the public body.
[(d)] (e) May require the design-build team to defend, indemnify and hold harmless the public body, and the employees, officers and agents of the public body from any liabilities, damages, losses, claims, actions or proceedings, including, without limitation, reasonable attorneys fees, that are caused by the negligence, errors, omissions, recklessness or intentional misconduct of the design-build team or the employees or agents of the design-build team in the performance of the contract.
7. [Any provision of a contract that is in violation of paragraph (c) of subsection 6 is declared to be contrary to the public policy of this state and is void.
8.] A design-build team to whom a contract is awarded pursuant to this section shall:
(a) Assume overall responsibility for ensuring that the design and construction of the public work is completed in a satisfactory manner; and
(b) Use the workforce of the prime contractor on the design-build team to construct at least 15 percent of the public work.
Sec. 10. Chapter 408 of NRS is hereby amended by adding thereto the provisions set forth as sections 11 to 17, inclusive, of this act.
Sec. 11. Transportation facility means a road, railroad, bridge, tunnel, overpass, airport, mass transit facility, parking facility for vehicles or similar commercial facility used for the support of or the transportation of persons or goods, including, without limitation, any other property that is needed to operate the facility. The term does not include a toll bridge or toll road.
Sec. 12. The Department may authorize a person to develop, construct, improve, maintain or operate, or any combination thereof, a transportation facility pursuant to section 13 or 14 of this act.
Sec. 13. 1. A person may submit a request to the Department to develop, construct, improve, maintain or operate, or any combination thereof, a transportation facility.
2. The request must be accompanied by the following information:
(a) A topographic map indicating the location of the transportation facility.
๊2003 Statutes of Nevada, Page 2029 (Chapter 361, AB 401)๊
(b) A description of the transportation facility, including, without limitation, the conceptual design of the transportation facility and all proposed interconnections with other transportation facilities.
(c) The projected total cost of the transportation facility over its life and the proposed date for the development of or the commencement of the construction of, or improvements to, the transportation facility.
(d) A statement setting forth the method by which the person submitting the request proposes to secure all property interests required for the transportation facility. The statement must include, without limitation:
(1) The names and addresses, if known, of the current owners of any property needed for the transportation facility;
(2) The nature of the property interests to be acquired; and
(3) Any property that the person submitting the request proposes that the Department condemn.
(e) Information relating to the current transportation plans, if any, of any governmental entity in the jurisdiction of which any portion of the transportation facility is located.
(f) A list of all permits and approvals required for the development or construction of or improvement to the transportation facility from local, state or federal agencies and a projected schedule for obtaining those permits and approvals.
(g) A list of the facilities of any utility or existing transportation facility that will be crossed by the transportation facility and a statement of the plans of the person submitting the request to accommodate such crossings.
(h) A statement setting forth the general plans of the person submitting the request for financing and operating the transportation facility, which must include, without limitation:
(1) A plan for the development, financing and operation of the transportation facility, including, without limitation, an indication of the proposed sources of money for the development and operation of the transportation facility, the anticipated use of such money and the anticipated schedule for the receipt of such money;
(2) A list of any assumptions made by the person about the anticipated use of the transportation facility, including, without limitation, the fees that will be charged for the use of the transportation facility, and a discussion of those assumptions;
(3) The identification of any risk factors identified by the person submitting the request that are associated with developing, constructing or improving the transportation facility and the plan for addressing those risk factors;
(4) The identification of any local, state or federal resources that the person anticipates requesting for development and operation of the transportation facility, including, without limitation, an anticipated schedule for the receipt of those resources and the effect of those resources on any statewide or regional program for the improvement of transportation; and
(5) The identification and analysis of any costs or benefits associated with the proposed facility, performed by a professional engineer who is licensed pursuant to chapter 625 of NRS.
(i) The names and addresses of the persons who may be contacted for further information concerning the request.
๊2003 Statutes of Nevada, Page 2030 (Chapter 361, AB 401)๊
(j) Any additional material and information that the Department may request.
Sec. 14. 1. If the Department receives a request regarding a transportation facility pursuant to section 13 of this act and the Department determines pursuant to the provisions of subsection 1 of section 15 of this act that the transportation facility serves a public purpose, the Department may request other persons to submit proposals to develop, construct, improve, maintain or operate, or any combination thereof, the transportation facility.
2. The Department shall adopt regulations establishing:
(a) The procedures for requesting other persons to submit proposals to the Department; and
(b) The procedures for other persons to submit proposals to the Department.
Sec. 15. 1. The Department may approve a request or proposal submitted pursuant to section 13 or 14 of this act if the Department determines that the transportation facility serves a public purpose. In determining whether the transportation facility serves a public purpose, the Department shall consider whether:
(a) There is a public need for the type of transportation facility that is proposed;
(b) The proposed interconnections between the transportation facility and existing transportation facilities and the plans of the person submitting the request for the operation of the transportation facility are reasonable and compatible with any statewide or regional program for the improvement of transportation and with the transportation plans of any other governmental entity in the jurisdiction of which any portion of the transportation facility will be located;
(c) The estimated cost of the transportation facility is reasonable in relation to similar transportation facilities, as determined by an analysis of the cost performed by a professional engineer who is licensed pursuant to chapter 625 of NRS;
(d) The plans of the person submitting the request will result in the timely development or construction of, or improvement to the transportation facility or its more efficient operation;
(e) The plans of the person submitting the request contain any penalties for the failure of the person submitting the request to meet any deadline which results in the untimely development or construction of or improvement to the transportation facility or failure to meet any deadline for its more efficient operation; and
(f) The long-term quality of the transportation facility will meet a level of performance established by the Department over a sufficient duration of time to provide real value to the public.
2. In evaluating a request or proposal submitted pursuant to section 13 or 14 of this act, the Department may consider internal staff reports prepared by personnel of the Department who are familiar with the operation of similar transportation facilities or the advice of outside advisors or consultants with relevant experience.
3. The Department shall request that a person who submitted a request or proposal pursuant to section 13 or 14 of this act furnish a copy of the request or proposal to each governmental entity that has jurisdiction over an area in which any part of the transportation facility is located.
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Within 30 days after receipt of such a request or proposal, the governmental entity shall submit in writing to the Department, for consideration by the Department, any comments that the governmental entity has concerning the transportation facility and shall indicate whether the transportation facility is compatible with any local, regional or statewide transportation plan or program that is applicable to the governmental entity.
4. The Department shall charge a reasonable fee to cover the costs of processing, reviewing and evaluating a request or proposal submitted pursuant to section 13 or 14 of this act, including, without limitation, reasonable fees for the services of an attorney or a financial or other consultant or advisor, to be collected before the Department accepts the request or proposal for processing, review and evaluation.
5. The approval of a request or proposal by the Department is contingent on the person who submitted the request or proposal entering into an agreement with the Department. In such an agreement, the Department shall include, without limitation:
(a) Criteria that address the long-term quality of the transportation facility.
(b) The date of termination of the authority and duties pursuant to sections 11 to 17, inclusive, of this act of the person whose request or proposal was approved by the Department with respect to the transportation facility and for the dedication of the transportation facility to the Department on that date.
(c) Provision for the imposition by the person whose request or proposal was approved by the Department of such rates, fees or other charges as may be established from time to time by agreement of the parties for use of all or a portion of a transportation facility, other than a bridge or road.
6. In connection with the approval of a transportation facility, the Department shall establish a date for the development of or the commencement of the construction of, or improvements to, the transportation facility. The Department may extend the date from time to time.
Sec. 16. The Department may contract with a person whose request or proposal is approved pursuant to section 15 of this act for transportation services to be provided by the transportation facility in exchange for such payments for service and other consideration as the Department may deem appropriate.
Sec. 17. The Department may take any action necessary to obtain federal, state or local assistance for a transportation facility that it approves and may enter into any contracts required to receive such assistance. The Department shall make written findings of whether it serves the public purpose for all or a portion of the costs of the transportation facility to be paid, directly or indirectly, from the proceeds of a grant or loan made by the local, state or Federal Government or any agency or instrumentality thereof.
Sec. 18. NRS 408.388 is hereby amended to read as follows:
408.388 1. [The] Except as otherwise provided in sections 11 to 17, inclusive, of this act, the Department may contract with a design-build team for the design and construction of a project if the Department determines that:
๊2003 Statutes of Nevada, Page 2032 (Chapter 361, AB 401)๊
(a) Except as otherwise provided in subsection 2, the estimated cost of the project exceeds [$30,000,000;] $20,000,000; and
(b) Contracting with a design-build team will enable the Department to:
(1) Design and construct the project at a cost that is significantly lower than the cost that the Department would incur to design and construct the project using a different method;
(2) Design and construct the project in a shorter time than would be required to complete the project using a different method, if exigent circumstances require that the project be designed and constructed within a short time; or
(3) Ensure that the design and construction of the project is properly coordinated, if the project is unique, highly technical and complex in nature.
2. Notwithstanding the provisions of subsection 1, the Department may, once in each fiscal year, contract with a design-build team for the design and construction of a project the estimated cost of which is at least $5,000,000 but less than [$30,000,000] $20,000,000 if the Department makes the determinations otherwise required pursuant to paragraph (b) of subsection 1.
Sec. 18.5. NRS 408.3886 is hereby amended to read as follows:
408.3886 1. After selecting the finalists pursuant to NRS 408.3885, the Department shall provide to each finalist a request for final proposals for the project. The request for final proposals must:
(a) Set forth the factors that the Department will use to select a design-build team to design and construct the project, including the relative weight to be assigned to each factor; and
(b) Set forth the date by which final proposals must be submitted to the Department.
2. Except as otherwise provided in this subsection, in assigning the relative weight to each factor for selecting a design-build team pursuant to subsection 1, the Department shall assign, without limitation, a relative weight of 5 percent to the possession of a certificate of eligibility to receive a preference in bidding on public works and a relative weight of at least 30 percent for the proposed cost of design and construction of the project. If any federal statute or regulation precludes the granting of federal assistance or reduces the amount of that assistance for a particular project because of the provisions of this subsection relating to preference in bidding on public works, those provisions of this subsection do not apply insofar as their application would preclude or reduce federal assistance for that project.
3. A final proposal submitted by a design-build team pursuant to this section must be prepared thoroughly, be responsive to the criteria that the Department will use to select a design-build team to design and construct the project described in subsection 1 and comply with the provisions of NRS 338.141.
4. After receiving the final proposals for the project, the Department shall:
(a) Select the most cost-effective and responsive final proposal, using the criteria set forth pursuant to subsections 1 and 2; or
(b) Reject all the final proposals.
5. If the Department selects a final proposal pursuant to paragraph (a) of subsection 4, the Department shall hold a public meeting to:
(a) Review and ratify the selection.
(b) Award the design-build contract to the design-build team whose proposal is selected.
๊2003 Statutes of Nevada, Page 2033 (Chapter 361, AB 401)๊
(c) Partially reimburse the unsuccessful finalists if partial reimbursement was provided for in the request for preliminary proposals pursuant to paragraph (f) of subsection 3 of NRS 408.3883. The amount of reimbursement must not exceed, for each unsuccessful finalist, three percent of the total amount to be paid to the design-build team as set forth in the design-build contract.
(d) Make available to the public a summary setting forth the factors used by the Department to select the successful design-build team and the ranking of the design-build teams who submitted final proposals. The Department shall not release to a third party, or otherwise make public, financial or proprietary information submitted by a design-build team.
6. A contract awarded pursuant to this section [must specify:] :
(a) Must comply with the provisions of NRS 338.020 to 338.090, inclusive; and
(b) Must specify:
(1) An amount that is the maximum amount that the Department will pay for the performance of all the work required by the contract, excluding any amount related to costs that may be incurred as a result of unexpected conditions or occurrences as authorized by the contract;
[(b)] (2) An amount that is the maximum amount that the Department will pay for the performance of the professional services required by the contract; and
[(c)] (3) A date by which performance of the work required by the contract must be completed.
7. A design-build team to whom a contract is awarded pursuant to this section shall:
(a) Assume overall responsibility for ensuring that the design and construction of the project is completed in a satisfactory manner; and
(b) Use the workforce of the prime contractor on the design-build team to construct at least 15 percent of the project.
Sec. 19. This act becomes effective on July 1, 2003.
________
๊2003 Statutes of Nevada, Page 2034๊
Senate Bill No. 241Committee on Commerce and Labor
CHAPTER 362
AN ACT relating to real property; requiring notice, a right to inspect and a right to repair to be provided to a contractor before an action for constructional defects may be commenced; establishing the State Contractors Board as a resource to answer questions and assist in resolving disputes concerning matters which may affect or relate to constructional defects; making various other changes concerning constructional defects; and providing other matters properly relating thereto.
[Approved: June 9, 2003]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 40 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 15, inclusive, of this act.
Sec. 2. Amend a complaint to add a cause of action for a constructional defect means any act by which a claimant seeks to:
1. Add to the pleadings a defective component that is not otherwise included in the pleadings and for which a notice was not previously given; or
2. Amend the pleadings in such a manner that the practical effect is the addition of a constructional defect that is not otherwise included in the pleadings.
The term does not include amending a complaint to plead a different cause for a constructional defect which is included in the same action.
Sec. 3. Design professional means a person who holds a professional license or certificate issued pursuant to chapter 623, 623A or 625 of NRS.
Sec. 4. Subcontractor means a contractor who performs work on behalf of another contractor in the construction of a residence or appurtenance.
Sec. 5. Supplier means a person who provides materials, equipment or other supplies for the construction of a residence or appurtenance.
Sec. 6. 1. Except as otherwise provided in subsection 2, not later than 60 days after a contractor receives a notice pursuant to subsection 4 of NRS 40.645 which alleges common constructional defects to residences or appurtenances within a single development and which complies with the requirements of subsection 4 of NRS 40.645 for giving such notice, the contractor may respond to the named owners of the residences or appurtenances in the notice in the manner set forth in section 9 of this act.
2. The contractor may provide a disclosure of the notice of the alleged common constructional defects to each unnamed owner of a residence or appurtenance within the development to whom the notice may apply in the manner set forth in this section. The disclosure must be sent by certified mail, return receipt requested, to the home address of each such owner. The disclosure must be mailed not later than 60 days after the contractor receives the notice of the alleged common constructional defects, except that if the common constructional defects may pose an imminent threat to health and safety, the disclosure must be mailed as soon as reasonably practicable, but not later than 20 days after the contractor receives the notice.
๊2003 Statutes of Nevada, Page 2035 (Chapter 362, SB 241)๊
receives the notice of the alleged common constructional defects, except that if the common constructional defects may pose an imminent threat to health and safety, the disclosure must be mailed as soon as reasonably practicable, but not later than 20 days after the contractor receives the notice.
3. The disclosure of a notice of alleged common constructional defects provided by a contractor to the unnamed owners to whom the notice may apply pursuant to subsection 2 must include, without limitation:
(a) A description of the alleged common constructional defects identified in the notice that may exist in the residence or appurtenance;
(b) A statement that notice alleging common constructional defects has been given to the contractor which may apply to the owner;
(c) A statement advising the owner that he has 30 days within which to request the contractor to inspect the residence or appurtenance to determine whether the residence or appurtenance has the alleged common constructional defects;
(d) A form which the owner may use to request such an inspection or a description of the manner in which the owner may request such an inspection;
(e) A statement advising the owner that if he fails to request an inspection pursuant to this section, no notice shall be deemed to have been given by him for the alleged common constructional defects; and
(f) A statement that if the owner chooses not to request an inspection of his residence or appurtenance, he is not precluded from sending a notice pursuant to NRS 40.645 individually or commencing an action or amending a complaint to add a cause of action for a constructional defect individually after complying with the requirements set forth in NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act.
4. If an unnamed owner requests an inspection of his residence or appurtenance in accordance with subsection 3, the contractor must provide the response required pursuant to section 9 of this act not later than 45 days after the date on which the contractor receives the request.
5. If a contractor who receives a notice pursuant to subsection 4 of NRS 40.645 does not provide a disclosure to unnamed owners as authorized pursuant to this section, the owners of the residences or appurtenances to whom the notice may apply may commence an action for the constructional defect without complying with any other provision set forth in NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act. This subsection does not establish or prohibit the right to maintain a class action.
6. If a contractor fails to provide a disclosure to an unnamed owner to whom the notice of common constructional defects was intended to apply:
(a) The contractor shall be deemed to have waived his right to inspect and repair any common constructional defect that was identified in the notice with respect to that owner; and
(b) The owner is not required to comply with the provisions set forth in NRS 40.645 or section 11 of this act before commencing an action or amending a complaint to add a cause of action based on that common constructional defect.
Sec. 7. 1. Except as otherwise provided in subsection 2, not later than 30 days after the date on which a contractor receives notice of a constructional defect pursuant to NRS 40.645, the contractor shall forward a copy of the notice by certified mail, return receipt requested, to the last known address of each subcontractor, supplier or design professional whom the contractor reasonably believes is responsible for a defect specified in the notice.
๊2003 Statutes of Nevada, Page 2036 (Chapter 362, SB 241)๊
a copy of the notice by certified mail, return receipt requested, to the last known address of each subcontractor, supplier or design professional whom the contractor reasonably believes is responsible for a defect specified in the notice.
2. If a contractor does not provide notice as required pursuant to subsection 1, the contractor may not commence an action against the subcontractor, supplier or design professional related to the constructional defect unless the contractor demonstrates that, after making a good faith effort, he was unable to identify the subcontractor, supplier or design professional who he believes is responsible for the defect within the time provided pursuant to subsection 1.
3. Except as otherwise provided in subsection 4, not later than 30 days after receiving notice from the contractor pursuant to this section, the subcontractor, supplier or design professional shall inspect the alleged constructional defect in accordance with subsection 1 of section 8 of this act and provide the contractor with a written statement indicating:
(a) Whether the subcontractor, supplier or design professional has elected to repair the defect for which the contractor believes the subcontractor, supplier or design professional is responsible; and
(b) If the subcontractor, supplier or design professional elects to repair the defect, an estimate of the length of time required for the repair, and at least two proposed dates on and times at which the subcontractor, supplier or design professional is able to begin making the repair.
4. If the notice of a constructional defect forwarded by the contractor was given pursuant to subsection 4 of NRS 40.645 and the contractor provides a disclosure of the notice of the alleged common constructional defects to the unnamed owners to whom the notice may apply pursuant to section 6 of this act:
(a) The contractor shall, in addition to the notice provided pursuant to subsection 1, upon receipt of a request for an inspection, forward a copy of the request to or notify each subcontractor, supplier or design professional who may be responsible for the alleged defect of the request not later than 5 working days after receiving such a request; and
(b) Not later than 20 days after receiving notice from the contractor of such a request, the subcontractor, supplier or design professional shall inspect the alleged constructional defect in accordance with subsection 2 of section 8 of this act and provide the contractor with a written statement indicating:
(1) Whether the subcontractor, supplier or design professional has elected to repair the defect for which the contractor believes the subcontractor, supplier or design professional is responsible; and
(2) If the subcontractor, supplier or design professional elects to repair the defect, an estimate of the length of time required for the repair, and at least two proposed dates on and times at which the subcontractor, supplier or design professional is able to begin making the repair.
5. If a subcontractor, supplier or design professional elects to repair the constructional defect, the contractor or claimant may hold the subcontractor liable for any repair which does not eliminate the defect.
Sec. 8. 1. Except as otherwise provided in subsection 2, after notice of a constructional defect is given to a contractor pursuant to NRS 40.645, the claimant shall, upon reasonable notice, allow the contractor and each subcontractor, supplier or design professional who may be responsible for the alleged defect reasonable access to the residence or appurtenance that is the subject of the notice to determine the nature and extent of a constructional defect and the nature and extent of repairs that may be necessary.
๊2003 Statutes of Nevada, Page 2037 (Chapter 362, SB 241)๊
the alleged defect reasonable access to the residence or appurtenance that is the subject of the notice to determine the nature and extent of a constructional defect and the nature and extent of repairs that may be necessary. To the extent possible, the persons entitled to inspect shall coordinate and conduct the inspections in a manner which minimizes the inconvenience to the claimant.
2. If notice is given to the contractor pursuant to subsection 4 of NRS 40.645, the contractor and each subcontractor, supplier or design professional who may be responsible for the defect do not have the right to inspect the residence or appurtenance of an owner who is not named in the notice unless the owner requests the inspection in the manner set forth in section 6 of this act. If the owner does not request the inspection, the owner shall be deemed not to have provided notice pursuant to NRS 40.645.
Sec. 9. 1. Except as otherwise provided in NRS 40.670 and 40.672 and section 6 of this act, a written response must be sent by certified mail, return receipt requested, to a claimant who gives notice of a constructional defect pursuant to NRS 40.645:
(a) By the contractor not later than 90 days after the contractor receives the notice; and
(b) If notice was sent to a subcontractor, supplier or design professional, by the subcontractor, supplier or design professional not later than 90 days after the date that the subcontractor, supplier or design professional receives the notice.
2. The written response sent pursuant to subsection 1 must respond to each constructional defect in the notice and:
(a) Must state whether the contractor, subcontractor, supplier or design professional has elected to repair the defect or cause the defect to be repaired. If an election to repair is included in the response and the repair will cause the claimant to move from his home during the repair, the election must also include monetary compensation in an amount reasonably necessary for temporary housing or for storage of household items, or for both, if necessary.
(b) May include a proposal for monetary compensation, which may include contribution from a subcontractor, supplier or design professional.
(c) May disclaim liability for the constructional defect and state the reasons for such a disclaimer.
3. If the claimant is a homeowners association, the association shall send a copy of the response to each member of the association not later than 30 days after receiving the response.
4. If the contractor, subcontractor, supplier or design professional has elected not to repair the constructional defect, the claimant or contractor may bring a cause of action for the constructional defect or amend a complaint to add a cause of action for the constructional defect.
5. If the contractor, subcontractor, supplier or design professional has elected to repair the constructional defect, the claimant must provide the contractor, subcontractor, supplier or design professional with a reasonable opportunity to repair the constructional defect.
Sec. 10. 1. If the response provided pursuant to section 9 of this act includes an election to repair the constructional defect:
(a) The repairs may be performed by the contractor, subcontractor, supplier or design professional, if he is properly licensed, bonded and insured to perform the repairs and, if he is not, the repairs may be performed by another person who meets those qualifications.
๊2003 Statutes of Nevada, Page 2038 (Chapter 362, SB 241)๊
insured to perform the repairs and, if he is not, the repairs may be performed by another person who meets those qualifications.
(b) The repairs must be performed:
(1) On reasonable dates and at reasonable times agreed to in advance with the claimant;
(2) In compliance with any applicable building code and in a good and workmanlike manner in accordance with the generally accepted standard of care in the industry for that type of repair; and
(3) In a manner which will not increase the cost of maintaining the residence or appurtenance than otherwise would have been required if the residence or appurtenance had been constructed without the constructional defect, unless the contractor and the claimant agree in writing that the contractor will compensate the claimant for the increased cost incurred as a result of the repair.
(c) Any part of the residence or appurtenance that is not defective but which must be removed to correct the constructional defect must be replaced.
(d) The contractor, subcontractor, supplier or design professional shall prevent, remove and indemnify the claimant against any mechanics liens and materialmens liens.
2. Unless the claimant and the contractor, subcontractor, supplier or design professional agree to extend the time for repairs, the repairs must be completed:
(a) If the notice was sent pursuant to subsection 4 of NRS 40.645 and there are four or fewer owners named in the notice, for the named owners, not later than 105 days after the date on which the contractor received the notice.
(b) If the notice was sent pursuant to subsection 4 of NRS 40.645 and there are five or more owners named in the notice, for the named owners, not later than 150 days after the date on which the contractor received the notice.
(c) If the notice was sent pursuant to subsection 4 of NRS 40.645, not later than 105 days after the date on which the contractor provides a disclosure of the notice to the unnamed owners to whom the notice applies pursuant to section 6 of this act.
(d) If the notice was not sent pursuant to subsection 4 of NRS 40.645:
(1) Not later than 105 days after the date on which the notice of the constructional defect was received by the contractor, subcontractor, supplier or design professional if the notice of a constructional defect was received from four or fewer owners; or
(2) Not later than 150 days after the date on which the notice of the constructional defect was received by the contractor, subcontractor, supplier or design professional if the notice was received from five or more owners or from a representative of a homeowners association.
3. If repairs reasonably cannot be completed within the time set forth in subsection 2, the claimant and the contractor, subcontractor, supplier or design professional shall agree to a reasonable time within which to complete the repair. If the claimant and contractor, subcontractor, supplier or design professional cannot agree on such a time, any of them may petition the court to establish a reasonable time for completing the repair.
4. Any election to repair made pursuant to section 9 of this act may not be made conditional upon a release of liability.
๊2003 Statutes of Nevada, Page 2039 (Chapter 362, SB 241)๊
5. Not later than 30 days after the repairs are completed, the contractor, subcontractor, supplier or design professional who repaired or caused the repair of a constructional defect shall provide the claimant with a written statement describing the nature and extent of the repair, the method used to repair the constructional defect and the extent of any materials or parts that were replaced during the repair.
Sec. 11. 1. Except as otherwise provided in section 6 of this act, after notice of a constructional defect is given pursuant to NRS 40.645, before a claimant may commence an action or amend a complaint to add a cause of action for a constructional defect against a contractor, subcontractor, supplier or design professional, the claimant must:
(a) Allow an inspection of the alleged constructional defect to be conducted pursuant to section 8 of this act; and
(b) Allow the contractor, subcontractor, supplier or design professional a reasonable opportunity to repair the constructional defect or cause the defect to be repaired if an election to repair is made pursuant to section 9 of this act.
2. If a claimant commences an action without complying with subsection 1 or NRS 40.645, the court shall:
(a) Dismiss the action without prejudice and compel the claimant to comply with those provisions before filing another action; or
(b) If dismissal of the action would prevent the claimant from filing another action because the action would be procedurally barred by the statute of limitations or statute of repose, the court shall stay the proceeding pending compliance with those provisions by the claimant.
Sec. 12. 1. A claimant and any contractor, subcontractor, supplier and design professional may submit a question or dispute to the State Contractors Board concerning any matter which may affect or relate to a constructional defect, including, without limitation, questions concerning the need for repairs, the appropriate method for repairs, the sufficiency of any repairs that have been made and the respective rights and responsibilities of homeowners, claimants, contractors, subcontractors, suppliers and design professionals.
2. If a question or dispute is submitted to the State Contractors Board pursuant to this section, the State Contractors Board shall, pursuant to its regulations, rules and procedures, respond to the question or investigate the dispute and render a decision. Nothing in this section authorizes the State Contractors Board to require the owner of a residence or appurtenance to participate in any administrative hearing which is held pursuant to this section.
3. Not later than 30 days after a question or dispute is submitted to the State Contractors Board pursuant to subsection 1, the State Contractors Board shall respond to the question or render its decision. The response or decision of the State Contractors Board:
(a) Is not binding and is not subject to judicial review pursuant to the provisions of chapters 233B and 624 of NRS; and
(b) Is not admissible in any judicial or administrative proceeding brought pursuant to the provisions of this chapter.
4. The provisions of this chapter do not preclude a claimant or a contractor, subcontractor, supplier or design professional from pursuing any remedy otherwise available from the State Contractors Board pursuant to the provisions of chapter 624 of NRS concerning a constructional defect.
๊2003 Statutes of Nevada, Page 2040 (Chapter 362, SB 241)๊
pursuant to the provisions of chapter 624 of NRS concerning a constructional defect.
5. If an action for a constructional defect has been commenced, the court shall not stay or delay any proceedings before the court pending an answer to a question or decision concerning a dispute submitted to the State Contractors Board.
6. The State Contractors Board shall adopt regulations necessary to carry out the provisions of this section and may charge and collect reasonable fees from licensees to cover the cost of carrying out its duties pursuant to this section.
Sec. 13. 1. If a contractor, subcontractor, supplier or design professional receives written notice of a constructional defect, the contractor, subcontractor, supplier or design professional may present the claim to an insurer which has issued a policy of insurance that covers all or any portion of the business of the contractor, subcontractor, supplier or design professional.
2. If the contractor, subcontractor, supplier or design professional presents the claim to the insurer pursuant to this section, the insurer:
(a) Must treat the claim as if a civil action has been brought against the contractor, subcontractor, supplier or design professional; and
(b) Must provide coverage to the extent available under the policy of insurance as if a civil action has been brought against the contractor, subcontractor, supplier or design professional.
3. A contractor, subcontractor, supplier or design professional is not required to present a claim to the insurer pursuant to this section, and the failure to present such a claim to the insurer does not relieve the insurer of any duty under the policy of insurance to the contractor, subcontractor, supplier or design professional.
Sec. 14. 1. If a settlement conference is held concerning a claim for a constructional defect, the special master, if any, or the judge presiding over the claim may order a representative of an insurer of a party to attend the settlement conference. If a representative of an insurer is ordered to attend the settlement conference, the insurer shall ensure that the representative is authorized, on behalf of the insurer, to:
(a) Bind the insurer to any settlement agreement relating to the claim;
(b) Enter into any agreement relating to coverage that may be available under the partys policy of insurance which is required to carry out any settlement relating to the claim; and
(c) Commit for expenditure money or other assets available under the partys policy of insurance.
2. If a representative of an insurer who is ordered to attend a settlement conference pursuant to subsection 1 fails to attend the settlement conference or attends but is substantially unprepared to participate, or fails to participate in good faith, the special master or the judge may, on his own motion or that of a party, issue any order with regard thereto that is just under the circumstances.
3. In lieu of or in addition to any other sanction, the special master or the judge may require the insurer to pay any reasonable expenses or attorneys fees incurred by a party because of the failure of the insurer or its representative to comply with the provisions of this section or any order issued pursuant to this section, unless the special master or the judge finds that the failure to comply was substantially justified or that any other circumstances make the award of such expenses or fees unjust.
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that the failure to comply was substantially justified or that any other circumstances make the award of such expenses or fees unjust.
4. Any insurer which conducts business in this state and which insures a party against liability for the claim shall be deemed to have consented to the jurisdiction of the special master or the judge for the purposes of this section.
5. The authority conferred upon the special master or the judge pursuant to this section is in addition to any other authority conferred upon the special master or the judge pursuant to any other statute or any court rule.
Sec. 15. Not later than 15 days before the commencement of mediation required pursuant to NRS 40.680 and upon providing 15 days notice, each party shall provide to the other party, or shall make a reasonable effort to assist the other party to obtain, all relevant reports, photos, correspondence, plans, specifications, warranties, contracts, subcontracts, work orders for repair, videotapes, technical reports, soil and other engineering reports and other documents or materials relating to the claim that are not privileged.
Sec. 16. NRS 40.600 is hereby amended to read as follows:
40.600 As used in NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, unless the context otherwise requires, the words and terms defined in NRS 40.605 to 40.630, inclusive, and sections 2 to 5, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 17. NRS 40.610 is hereby amended to read as follows:
40.610 Claimant means [an] :
1. An owner of a residence or appurtenance [or a] ;
2. A representative of a homeowners association that is responsible for a residence or appurtenance and is acting within the scope of his duties pursuant to chapter 116 or 117 of NRS [.] ; or
3. Each owner of a residence or appurtenance to whom a notice applies pursuant to subsection 4 of NRS 40.645.
Sec. 18. NRS 40.615 is hereby amended to read as follows:
40.615 Constructional defect [includes] means a defect in the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance [. The term includes] and includes, without limitation, the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance:
1. Which is done in violation of law, including, without limitation, in violation of local codes or ordinances;
2. Which proximately causes physical damage to the residence, an appurtenance or the real property to which the residence or appurtenance is affixed [that is proximately caused by a constructional defect.] ;
3. Which is not completed in a good and workmanlike manner in accordance with the generally accepted standard of care in the industry for that type of design, construction, manufacture, repair or landscaping; or
4. Which presents an unreasonable risk of injury to a person or property.
Sec. 19. NRS 40.635 is hereby amended to read as follows:
40.635 NRS 40.600 to 40.695, inclusive [:] , and sections 2 to 15, inclusive, of this act:
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1. Apply to any claim that arises before, on or after July 1, 1995, as the result of a constructional defect, except a claim for personal injury or wrongful death, if the claim is the subject of an action commenced on or after July 1, 1995.
2. Prevail over any conflicting law otherwise applicable to the claim or cause of action.
3. Do not bar or limit any defense otherwise available , except as otherwise provided in those sections.
4. Do not create a new theory upon which liability may be based [.] , except as otherwise provided in those sections.
Sec. 20. NRS 40.645 is hereby amended to read as follows:
40.645 1. Except as otherwise provided in this section and NRS 40.670 , [:
1. For a claim that is not a complex matter, at least 60 days] before a claimant commences an action or amends a complaint to add a cause of action for a constructional defect against a contractor [for damages arising from a constructional defect,] , subcontractor, supplier or design professional the claimant [must] :
(a) Must give written notice by certified mail, return receipt requested, to the contractor, at the contractors [last known address, specifying] address listed in the records of the State Contractors Board or in the records of the office of the county or city clerk or at the contractors last known address if his address is not listed in those records; and
(b) May give written notice by certified mail, return receipt requested, to any subcontractor, supplier or design professional known to the claimant who may be responsible for the constructional defect, if the claimant knows that the contractor is no longer licensed in this state or that he no longer acts as a contractor in this state.
2. The notice given pursuant to subsection 1 must:
(a) Include a statement that the notice is being given to satisfy the requirements of this section;
(b) Specify in reasonable detail the defects or any damages or injuries to each residence or appurtenance that is the subject of the claim [. The notice must describe] ; and
(c) Describe in reasonable detail the cause of the defects if the cause is known, the nature and extent that is known of the damage or injury resulting from the defects and the location of each defect within each residence or appurtenance to the extent known.
3. Notice that includes an expert opinion concerning the cause of the constructional defects and the nature and extent of the damage or injury resulting from the defects which is based on a valid and reliable representative sample of the components of the residences or appurtenances may be used as notice of the common constructional defects within the residences or appurtenances to which the expert opinion applies.
4. Except as otherwise provided in subsection 5, one notice may be sent relating to all similarly situated owners of residences or appurtenances within a single development that allegedly have common constructional defects if:
(a) An expert opinion is obtained concerning the cause of the common constructional defects and the nature and extent of the damage or injury resulting from the common constructional defects ;
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(b) That expert opinion concludes that based on a valid and reliable representative sample of the components of the residences and appurtenances [involved] included in the [action satisfies the requirements of this section. During the 45‑day period after the contractor receives the notice, on his written request, the contractor is entitled to inspect the property that is the subject of the claim to determine the nature and cause of the defect, damage or injury and the nature and extent of repairs necessary to remedy the defect. The contractor shall, before making the inspection, provide reasonable notice of the inspection and shall make the inspection at a reasonable time. The contractor may take reasonable steps to establish the existence of the defect.
2. If a residence or appurtenance that is the subject of the claim is covered by a homeowners warranty that is purchased by or on behalf of a claimant pursuant to NRS 690B.100 to 690B.180, inclusive, a claimant shall diligently pursue a claim under the contract.
3. Within 60 days after the contractor receives the notice, the contractor shall make a written response to the claimant. The response:
(a) Must be served to the claimant by certified mail, return receipt requested, at the claimants last known address.
(b) Must respond to each constructional defect set forth in the claimants notice, and describe in reasonable detail the cause of the defect, if known, the nature and extent of the damage or injury resulting from the defect, and, unless the response is limited to a proposal for monetary compensation, the method, adequacy and estimated cost of any proposed repair.
(c) May include:
(1) A proposal for monetary compensation, which may include a contribution from a subcontractor.
(2) If the contractor or his subcontractor is licensed to make the repairs, an agreement by the contractor or subcontractor to make the repairs.
(3) An agreement by the contractor to cause the repairs to be made, at the contractors expense, by another contractor who is licensed to make the repairs, bonded and insured.
The repairs must be made within 45 days after the contractor receives written notice of acceptance of the response, unless completion is delayed by the claimant or by other events beyond the control of the contractor, or timely completion of the repairs is not reasonably possible. The claimant and the contractor may agree in writing to extend the periods prescribed by this section.
4. Not later than 15 days before the mediation required pursuant to NRS 40.680 and upon providing 15 days notice, each party shall provide the other party, or shall make a reasonable effort to assist the other party to obtain, all relevant reports, photos, correspondence, plans, specifications, warranties, contracts, subcontracts, work orders for repair, videotapes, technical reports, soil and other engineering reports and other documents or materials relating to the claim that are not privileged.
5. If the claimant is a representative of a homeowners association, the association shall submit any response made by the contractor to each member of the association.
6. As used in this section, subcontractor means a contractor who performs work on behalf of another contractor in the construction of a residence or appurtenance.] notice, it is the opinion of the expert that those similarly situated residences and appurtenances may have such common constructional defects; and
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(c) A copy of the expert opinion is included with the notice.
5. A representative of a homeowners association may send notice pursuant to this section on behalf of an association that is responsible for a residence or appurtenance if the representative is acting within the scope of his duties pursuant to chapter 116 or 117 of NRS.
6. Notice is not required pursuant to this section before commencing an action if:
(a) The contractor, subcontractor, supplier or design professional has filed an action against the claimant; or
(b) The claimant has filed a formal complaint with a law enforcement agency against the contractor, subcontractor, supplier or design professional for threatening to commit or committing an act of violence or a criminal offense against the claimant or the property of the claimant.
Sec. 21. NRS 40.650 is hereby amended to read as follows:
40.650 1. If a claimant unreasonably rejects a reasonable written offer of settlement made as part of a response [made] pursuant to [NRS 40.645 or 40.682 or does not permit the contractor or independent contractor a reasonable opportunity to repair the defect pursuant to an accepted offer of settlement] paragraph (b) of subsection 2 of section 9 of this act and thereafter commences an action governed by NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, the court in which the action is commenced may:
(a) Deny the claimants attorneys fees and costs; and
(b) Award attorneys fees and costs to the contractor.
Any sums paid under a homeowners warranty, other than sums paid in satisfaction of claims that are collateral to any coverage issued to or by the contractor, must be deducted from any recovery.
2. If a contractor , subcontractor, supplier or design professional fails to:
(a) Comply with the provisions of section 9 of this act;
(b) Make an offer of settlement;
[(b)] (c) Make a good faith response to the claim asserting no liability;
[(c) Complete, in a good and workmanlike manner, the repairs specified in an accepted offer;]
(d) Agree to a mediator or accept the appointment of a mediator pursuant to NRS 40.680 ; [or subsection 4 of NRS 40.682;] or
(e) Participate in mediation,
the limitations on damages and defenses to liability provided in NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act do not apply and the claimant may commence an action or amend a complaint to add a cause of action for a constructional defect without satisfying any other requirement of NRS 40.600 to 40.695, inclusive [.] , and sections 2 to 15, inclusive, of this act.
3. If a residence or appurtenance that is the subject of the claim is covered by a homeowners warranty that is purchased by or on behalf of a claimant pursuant to NRS 690B.100 to 690B.180, inclusive, a claimant shall diligently pursue a claim under the contract. If coverage under a homeowners warranty is denied by an insurer in bad faith, the homeowner and the contractor , subcontractor, supplier or design professional have a right of action for the sums that would have been paid if coverage had been provided, plus reasonable attorneys fees and costs.
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4. Nothing in this section prohibits an offer of judgment pursuant to Rule 68 of the Nevada Rules of Civil Procedure or NRS 17.115 if the offer of judgment includes all damages to which the claimant is entitled pursuant to NRS 40.655.
Sec. 22. NRS 40.655 is hereby amended to read as follows:
40.655 1. Except as otherwise provided in NRS 40.650, in a claim governed by NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, the claimant may recover only the following damages to the extent proximately caused by a constructional defect:
(a) Any reasonable attorneys fees;
(b) The reasonable cost of any repairs already made that were necessary and of any repairs yet to be made that are necessary to cure any constructional defect that the contractor failed to cure and the reasonable expenses of temporary housing reasonably necessary during the repair;
(c) The reduction in market value of the residence or accessory structure, if any, to the extent the reduction is because of structural failure;
(d) The loss of the use of all or any part of the residence;
(e) The reasonable value of any other property damaged by the constructional defect;
(f) Any additional costs reasonably incurred by the claimant, including, but not limited to, any costs and fees incurred for the retention of experts to:
(1) Ascertain the nature and extent of the constructional defects;
(2) Evaluate appropriate corrective measures to estimate the value of loss of use; and
(3) Estimate the value of loss of use, the cost of temporary housing and the reduction of market value of the residence; and
(g) Any interest provided by statute.
2. The amount of any attorneys fees awarded pursuant to this section must be approved by the court.
3. If a contractor complies with the provisions of NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, the claimant may not recover from the contractor, as a result of the constructional defect, anything other than that which is provided pursuant to NRS 40.600 to 40.695, inclusive [.] , and sections 2 to 15, inclusive, of this act.
4. This section must not be construed as impairing any contractual rights between a contractor and a subcontractor, supplier or design professional.
5. As used in this section, structural failure means physical damage to the load-bearing portion of a residence or appurtenance caused by a failure of the load-bearing portion of the residence or appurtenance.
Sec. 23. NRS 40.660 is hereby amended to read as follows:
40.660 An offer of settlement made pursuant to paragraph (b) of subsection 2 of section 9 of this act that is not accepted within [:
1. In a complex matter, 45 days; or
2. In a matter that is not a complex matter, 25 days,]
35 days after the offer is received by the claimant is considered rejected if the offer contains a clear and understandable statement notifying the claimant of the consequences of his failure to respond or otherwise accept or reject the offer of settlement. An affidavit certifying rejection of an offer of settlement under this section may be filed with the court.
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Sec. 24. NRS 40.665 is hereby amended to read as follows:
40.665 In addition to any other method provided for settling a claim pursuant to NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, a contractor may, pursuant to a written agreement entered into with a claimant, settle a claim by repurchasing the claimants residence and the real property upon which it is located. The agreement may include provisions which reimburse the claimant for:
1. The market value of the residence as if no constructional defect existed, except that if a residence is less than 2 years of age and was purchased from the contractor against whom the claim is brought, the market value is the price at which the residence was sold to the claimant;
2. The value of any improvements made to the property by a person other than the contractor;
3. Reasonable attorneys fees and fees for experts; and
4. Any costs, including costs and expenses for moving and costs, points and fees for loans.
Any offer of settlement made that includes the items listed in this section shall be deemed reasonable for the purposes of subsection 1 of NRS 40.650.
Sec. 25. NRS 40.667 is hereby amended to read as follows:
40.667 1. Except as otherwise provided in subsection 2, a written waiver or settlement agreement executed by a claimant after a contractor has corrected or otherwise repaired a constructional defect does not bar a claim for the constructional defect if it is determined that the contractor failed to correct or repair the defect properly.
2. The provisions of subsection 1 do not apply to any written waiver or settlement agreement described in subsection 1, unless:
(a) The claimant has obtained the opinion of an expert concerning the constructional defect;
(b) The claimant has provided the contractor with a written notice of the defect pursuant to NRS 40.645 [or 40.682] and a copy of the experts opinion; and
(c) The claimant and the contractor have complied with the requirements for inspection and repair as provided in NRS 40.600 to 40.695, inclusive [.] , and sections 2 to 15, inclusive, of this act.
3. The provisions of this section do not apply to repairs which are made pursuant to an election to repair pursuant to section 9 of this act.
4. If a claimant does not prevail in any action which is not barred pursuant to this section, the court may:
(a) Deny the claimants attorneys fees, fees for an expert witness or costs; and
(b) Award attorneys fees and costs to the contractor.
Sec. 26. NRS 40.670 is hereby amended to read as follows:
40.670 1. A contractor , subcontractor, supplier or design professional who receives written notice of a constructional defect resulting from work performed by the contractor , [or his agent, employee or] subcontractor , supplier or design professional which creates an imminent threat to the health or safety of the inhabitants of the residence shall take reasonable steps to cure the defect as soon as practicable. The contractor , subcontractor, supplier or design professional shall not cure the defect by making any repairs for which he is not licensed or by causing any repairs to be made by a person who is not licensed to make those repairs. If the contractor , subcontractor, supplier or design professional fails to cure the defect in a reasonable time, the owner of the residence may have the defect cured and may recover from the contractor , subcontractor, supplier or design professional the reasonable cost of the repairs plus reasonable attorneys fees and costs in addition to any other damages recoverable under any other law.
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defect in a reasonable time, the owner of the residence may have the defect cured and may recover from the contractor , subcontractor, supplier or design professional the reasonable cost of the repairs plus reasonable attorneys fees and costs in addition to any other damages recoverable under any other law.
2. A contractor , subcontractor, supplier or design professional who does not cure a defect pursuant to this section because he has determined, in good faith and after a reasonable inspection, that there is not an imminent threat to the health or safety of the inhabitants is not liable for attorneys fees and costs pursuant to this section, except that if a building inspector, building official or other similar authority employed by a governmental body with jurisdiction certifies that there is an imminent threat to the health and safety of the inhabitants of the residence, the contractor , subcontractor, supplier or design professional is subject to the provisions of subsection 1.
Sec. 27. NRS 40.672 is hereby amended to read as follows:
40.672 Except as otherwise provided in NRS 40.670, if a contractor , subcontractor, supplier or design professional receives written notice of a constructional defect [that is not part of a complex matter] not more than 1 year after the close of escrow of the initial purchase of the residence, the contractor , subcontractor, supplier or design professional shall make the repairs within 45 days after [the contractor receives] receiving the written notice unless completion is delayed by the claimant or by other events beyond the control of the contractor, subcontractor, supplier or design professional, or timely completion of repairs is not reasonably possible. The contractor , subcontractor, supplier or design professional and claimant may agree in writing to extend the period prescribed by this section. If [the] a contractor or subcontractor fails to comply with this section, he is immediately subject to discipline pursuant to NRS 624.300.
Sec. 28. NRS 40.680 is hereby amended to read as follows:
40.680 1. Except as otherwise provided in this chapter, before a claimant commences an action [based on a claim governed by NRS 40.600 to 40.695, inclusive, may be commenced in court,] or amends a complaint to add a cause of action for a constructional defect against a contractor, subcontractor, supplier or design professional, the matter must be submitted to mediation, unless mediation is waived in writing by the contractor , subcontractor, supplier or design professional and the claimant.
2. The claimant and [contractor] each party alleged to have caused the constructional defect must select a mediator by agreement. If the claimant and [contractor] the other parties fail to agree upon a mediator within [45] 20 days after a mediator is first selected by the claimant, [either] any party may petition the American Arbitration Association, the Nevada Arbitration Association, Nevada Dispute Resolution Services or any other mediation service acceptable to the parties for the appointment of a mediator. A mediator so appointed may discover only those documents or records which are necessary to conduct the mediation. The mediator shall convene the mediation within [60] 30 days after the matter is submitted to him and shall complete the mediation within 45 days after the matter is submitted to him, unless the parties agree to extend the time. [Except in a complex matter, the claimant shall, before]
3. Before the mediation begins [,] :
(a) The claimant shall deposit $50 with the mediation service ; and [the contractor]
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(b) Each other party shall deposit with the mediation service , in equal shares, the remaining amount estimated by the mediation service as necessary to pay the fees and expenses of the mediator for the first session of mediation [, and the contractor] and shall deposit additional amounts demanded by the mediation service as incurred for that purpose. [In a complex matter, each party shall share equally in the deposits estimated by the mediation service.]
4. Unless otherwise agreed, the total fees for each day of mediation and the mediator must not exceed $750 per day.
[3.] 5. If the parties do not reach an agreement concerning the matter during mediation or if [the contractor] any party who is alleged to have caused the constructional defect fails to pay the required fees and appear, the claimant may commence [his] an action or amend a complaint to add a cause of action for the constructional defect in court and:
(a) The reasonable costs and fees of the mediation are recoverable by the prevailing party as costs of the action.
(b) [Either] Any party may petition the court in which the action is commenced for the appointment of a special master.
[4.] 6. A special master appointed pursuant to subsection [3] 5 may:
(a) Review all pleadings, papers or documents filed with the court concerning the action.
(b) Coordinate the discovery of any books, records, papers or other documents by the parties, including the disclosure of witnesses and the taking of the deposition of any party.
(c) Order any inspections on the site of the property by a party and any consultants or experts of a party.
(d) Order settlement conferences and attendance at those conferences by any representative of the insurer of a party.
(e) Require any attorney representing a party to provide statements of legal and factual issues concerning the action.
(f) Refer to the judge who appointed him or to the presiding judge of the court in which the action is commenced any matter requiring assistance from the court.
The special master shall not, unless otherwise agreed by the parties, personally conduct any settlement confere