Link to Page 1959

 

…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1960ê

 

CHAPTER 352, SB 452

Senate Bill No. 452–Committee 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1961 (Chapter 352, SB 452)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1962 (Chapter 352, SB 452)ê

 

      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.

________

 

CHAPTER 353, AB 394

Assembly Bill No. 394–Assemblymen 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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1963 (Chapter 353, AB 394)ê

 

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.

________

 

CHAPTER 354, SB 475

Senate Bill No. 475–Committee 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1964 (Chapter 354, SB 475)ê

 

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 company’s 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. § 292.101, which was constructed before July 1, 1997 [.] , or to an exempt wholesale generator, as defined in 15 U.S.C. § 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. § 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1965 (Chapter 354, SB 475)ê

 

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.

________

 

CHAPTER 355, SB 196

Senate Bill No. 196–Senator 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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1966 (Chapter 355, SB 196)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1967 (Chapter 355, SB 196)ê

 

      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 trustee’s 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;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1968 (Chapter 355, SB 196)ê

 

      (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 asset’s 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 trustee’s 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 agent’s actions in order to verify the agent’s 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.”


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1969 (Chapter 355, SB 196)ê

 

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 decedent’s 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 trustee’s 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 trust’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1970 (Chapter 355, SB 196)ê

 

must be distributed to a beneficiary by referring to the trust’s 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;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1971 (Chapter 355, SB 196)ê

 

      (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 decedent’s 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 decedent’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1972 (Chapter 355, SB 196)ê

 

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 decedent’s death or an income interest’s 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 beneficiary’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1973 (Chapter 355, SB 196)ê

 

      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 transferor’s life;

      (b) On the date of a testator’s 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 testator’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1974 (Chapter 355, SB 196)ê

 

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 trustee’s obligation to pay a fixed annuity or a fixed fraction of the value of the trust’s 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 trust’s 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 entity’s gross assets, as shown by the entity’s 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 entity’s 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 corporation’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1975 (Chapter 355, SB 196)ê

 

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 trust’s 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 trust’s 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 trust’s 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 transferor’s lifetime, a decedent’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1976 (Chapter 355, SB 196)ê

 

      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 trustee’s 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 trust’s assets at the beginning of the accounting period.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1977 (Chapter 355, SB 196)ê

 

      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 payor’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1978 (Chapter 355, SB 196)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1979 (Chapter 355, SB 196)ê

 

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 trust’s 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 trust’s 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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1980 (Chapter 355, SB 196)ê

 

      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 trustee’s 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 decedent’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1981 (Chapter 355, SB 196)ê

 

      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 broker’s 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 trust’s share of an entity’s 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 trust’s share of the entity’s 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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1982 (Chapter 355, SB 196)ê

 

      (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 Children’s Home or the Southern Nevada Children’s 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 children’s 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;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1983 (Chapter 355, SB 196)ê

 

      (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 authority’s 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 authority’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1984 (Chapter 355, SB 196)ê

 

164.320, 164.330, 164.340, 164.350, 164.360 and 164.370 are hereby repealed.

________

 

CHAPTER 356, SB 19

Senate Bill No. 19–Committee 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1985 (Chapter 356, SB 19)ê

 

      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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1986 (Chapter 356, SB 19)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1987 (Chapter 356, SB 19)ê

 

      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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1988 (Chapter 356, SB 19)ê

 

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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1989 (Chapter 356, SB 19)ê

 

      (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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1990 (Chapter 356, SB 19)ê

 

      (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) [.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1991 (Chapter 356, SB 19)ê

 

      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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1992 (Chapter 356, SB 19)ê

 

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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1993 (Chapter 356, SB 19)ê

 

      (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 contractor’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1994 (Chapter 356, SB 19)ê

 

      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 contractor’s 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 contractor’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1995 (Chapter 356, SB 19)ê

 

      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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1996 (Chapter 356, SB 19)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1997 (Chapter 356, SB 19)ê

 

      [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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1998 (Chapter 356, SB 19)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 1999 (Chapter 356, SB 19)ê

 

      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 contractor’s 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 contractor’s 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 contractor’s 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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2000 (Chapter 356, SB 19)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2001 (Chapter 356, SB 19)ê

 

      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.

________

 

CHAPTER 357, SB 331

Senate Bill No. 331–Senator 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;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2002 (Chapter 357, SB 331)ê

 

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 person’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2003 (Chapter 357, SB 331)ê

 

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.

________

 

CHAPTER 358, SB 329

Senate Bill No. 329–Senator 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2004 (Chapter 358, SB 329)ê

 

      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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2005 (Chapter 358, SB 329)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2006 (Chapter 358, SB 329)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2007 (Chapter 358, SB 329)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2008 (Chapter 358, SB 329)ê

 

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 agency’s 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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2009 (Chapter 358, SB 329)ê

 

      (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.

________

 

CHAPTER 359, AB 452

Assembly Bill No. 452–Committee 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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2010 (Chapter 359, AB 452)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2011 (Chapter 359, AB 452)ê

 

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 wearer’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2012 (Chapter 359, AB 452)ê

 

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;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2013 (Chapter 359, AB 452)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2014 (Chapter 359, AB 452)ê

 

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 holder’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2015 (Chapter 359, AB 452)ê

 

      [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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2016 (Chapter 359, AB 452)ê

 

      [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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2017 (Chapter 359, AB 452)ê

 

      (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 applicant’s 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. § 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2018 (Chapter 359, AB 452)ê

 

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. § 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.

________

 

CHAPTER 360, AB 515

Assembly Bill No. 515–Committee 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:

 


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2019 (Chapter 360, AB 515)ê

 

                                                                                                      PERCENT TAX

                                                                                                           Percent of

                        INCOME RANGE                                                 Claimant’s

                         If the Amount of                                                 Property Tax

                   Applicant’s 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 applicant’s 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 applicant’s 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 claimant’s 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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2020 (Chapter 360, AB 515)ê

 

      (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.]


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2021 (Chapter 360, AB 515)ê

 

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.

________

 


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2022ê

 

CHAPTER 361, AB 401

Assembly Bill No. 401–Assemblymen 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2023 (Chapter 361, AB 401)ê

 

      (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;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2024 (Chapter 361, AB 401)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2025 (Chapter 361, AB 401)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2026 (Chapter 361, AB 401)ê

 

      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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2027 (Chapter 361, AB 401)ê

 

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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2028 (Chapter 361, AB 401)ê

 

             (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2029 (Chapter 361, AB 401)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2030 (Chapter 361, AB 401)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2031 (Chapter 361, AB 401)ê

 

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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2032 (Chapter 361, AB 401)ê

 

      (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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2033 (Chapter 361, AB 401)ê

 

      (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.

________

 


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2034ê

 

CHAPTER 362, SB 241

Senate Bill No. 241–Committee 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2035 (Chapter 362, SB 241)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2036 (Chapter 362, SB 241)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2037 (Chapter 362, SB 241)ê

 

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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2038 (Chapter 362, SB 241)ê

 

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 materialmen’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2039 (Chapter 362, SB 241)ê

 

      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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2040 (Chapter 362, SB 241)ê

 

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 party’s 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 party’s 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 attorney’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2041 (Chapter 362, SB 241)ê

 

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 homeowner’s 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:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2042 (Chapter 362, SB 241)ê

 

      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 contractor’s [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 contractor’s 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 ;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2043 (Chapter 362, SB 241)ê

 

      (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 homeowner’s 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 claimant’s last known address.

      (b) Must respond to each constructional defect set forth in the claimant’s 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 contractor’s 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 homeowner’s 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


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2044 (Chapter 362, SB 241)ê

 

      (c) A copy of the expert opinion is included with the notice.

      5.  A representative of a homeowner’s 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 claimant’s attorney’s fees and costs; and

      (b) Award attorney’s fees and costs to the contractor.

Any sums paid under a homeowner’s 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 homeowner’s 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 homeowner’s 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 attorney’s fees and costs.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2045 (Chapter 362, SB 241)ê

 

      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 attorney’s 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 attorney’s 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.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2046 (Chapter 362, SB 241)ê

 

      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 claimant’s 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 attorney’s 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 expert’s 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 claimant’s attorney’s fees, fees for an expert witness or costs; and

      (b) Award attorney’s 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 attorney’s fees and costs in addition to any other damages recoverable under any other law.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2047 (Chapter 362, SB 241)ê

 

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 attorney’s 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 attorney’s 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]


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2048 (Chapter 362, SB 241)ê

 

      (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 conferences or engage in any ex parte meetings regarding the action.

      [5.] 7.  Upon application by a party to the court in which the action is commenced, any decision or other action taken by a special master appointed pursuant to this section may be appealed to the court for a decision.

      [6.] 8.  A report issued by a mediator or special master that indicates that [either] a party has failed to appear before him or to mediate in good faith is admissible in the action, but a statement or admission made by [either] a party in the course of mediation is not admissible.

      Sec. 29.  NRS 40.688 is hereby amended to read as follows:

      40.688  1.  If a claimant attempts to sell a residence that is or has been the subject of a claim governed by NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, he shall disclose, in writing, to any prospective purchaser of the residence, not less than 30 days before the close of escrow for the sale of the residence or, if escrow is to close less than 30 days after the execution of the sales agreement, then immediately upon the execution of the sales agreement or, if a claim is initiated less than 30 days before the close of escrow, within 24 hours after giving written notice to the contractor pursuant to [subsection 1 of] NRS 40.645 : [or subsection 1 of NRS 40.682:]


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2049 (Chapter 362, SB 241)ê

 

contractor pursuant to [subsection 1 of] NRS 40.645 : [or subsection 1 of NRS 40.682:]

      (a) All notices given by the claimant to the contractor pursuant to NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act that are related to the residence;

      (b) All opinions the claimant has obtained from experts regarding a constructional defect that is or has been the subject of the claim;

      (c) The terms of any settlement, order or judgment relating to the claim; and

      (d) A detailed report of all repairs made to the residence by or on behalf of the claimant as a result of a constructional defect that is or has been the subject of the claim.

      2.  Before taking any action on a claim pursuant to NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, the attorney for a claimant shall notify the claimant in writing of the provisions of this section.

      Sec. 30.  NRS 40.6882 is hereby amended to read as follows:

      40.6882  [“Complainant”] As used in NRS 40.6884 and 40.6885, unless the context otherwise requires, “complainant” means a person who makes a claim or files an action against a design professional pursuant to NRS 40.600 to 40.695, inclusive [.] , and sections 2 to 15, inclusive, of this act.

      Sec. 31.  NRS 40.692 is hereby amended to read as follows:

      40.692  [If, after complying with the procedural requirements of NRS 40.645 and 40.680, or NRS 40.682, a claimant proceeds with an action for damages arising from a constructional defect:

      1.  The claimant and each contractor who is named in the original complaint when the action is commenced are not required, while the action is pending, to comply with the requirements of NRS 40.645 or 40.680, or NRS 40.682, for any constructional defect that the claimant includes in an amended complaint, if the constructional defect:

      (a) Is attributable, in whole or in part, to such a contractor;

      (b) Is located on the same property described in the original complaint; and

      (c) Was not discovered before the action was commenced provided that a good faith effort had been undertaken by the claimant.

      2.  The] A claimant who commences an action for a constructional defect is not required to give written notice of a defect pursuant to [subsection 1 of NRS 40.645 or subsection 1 of NRS 40.682] NRS 40.645 to any person who [is joined to or] intervenes in the action as a party after it is commenced. If such a person becomes a party to the action:

      [(a)] 1.  For the purposes of [subsection 1 of NRS 40.645 or subsection 1 of NRS 40.682,] NRS 40.645, the person shall be deemed to have been given notice of the defect by the claimant on the date on which the person becomes a party to the action; and

      [(b)] 2.  The provisions of NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act apply to the person after that date.

      Sec. 32.  NRS 40.695 is hereby amended to read as follows:

      40.695  1.  Except as otherwise provided in subsection 2, statutes of limitation or repose applicable to a claim based on a constructional defect governed by NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this act are tolled from the time notice of the claim is given, until 30 days after mediation is concluded or waived in writing pursuant to NRS 40.680 .


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2050 (Chapter 362, SB 241)ê

 

until 30 days after mediation is concluded or waived in writing pursuant to NRS 40.680 . [or subsection 4 of NRS 40.682.]

      2.  Tolling under this section applies [:

      (a) Only to a claim that is not a complex matter.

      (b) To] to a third party regardless of whether the party is required to appear in the proceeding.

      Sec. 33.  NRS 40.613, 40.682, 40.6881 and 40.6883 are hereby repealed.

      Sec. 34.  The amendatory provisions of this act apply only to claim for a constructional defect that arises before, on or after August 1, 2003, unless the claimant:

      1.  Has commenced an action concerning the claim in accordance with NRS 40.600 to 40.695, inclusive, before August 1, 2003; or

      2.  Has given notice of the claim to the contractor, subcontractor, supplier or design professional pursuant to NRS 40.600 to 40.695, inclusive, before August 1, 2003, including notice on behalf of named and unnamed claimants.

      Sec. 35.  1.  This section and section 12 of this act become effective upon passage and approval for the purpose of adopting regulations and on August 1, 2003, for all other purposes.

      2.  Sections 1 to 11, inclusive, and 13 to 34, inclusive, of this act become effective on August 1, 2003.

________

 


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2051ê

 

CHAPTER 363, SB 439

Senate Bill No. 439–Committee on Government Affairs

 

CHAPTER 363

 

AN ACT relating to public retirement systems; changing the term “fireman” to “firefighter”; requiring certain educational qualifications for certain persons employed by the Public Employees’ Retirement Board; limiting the length of designations of certain positions in government as being positions for which a monthly service retirement allowance may be paid when a previously retired employee fills the position during a critical labor shortage; providing for an adjustment to the total contribution rate that is actuarially determined for members of the Judicial Retirement Plan; authorizing certain justices of the Supreme Court and district judges to receive benefits for retirement, benefits for disability and survivor benefits pursuant to the Judicial Retirement Plan; eliminating the restriction relating to eligibility for service credit in the calculation of the monthly retirement allowance of a member of the Judicial Retirement Plan; authorizing members of the Public Employees’ Retirement System and the Judicial Retirement System to designate additional payees to receive survivor benefits; 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 286.031 is hereby amended to read as follows:

      286.031  “Disability retirement allowance” means monthly payments from the Public Employees’ Retirement Fund or the Police and [Firemen’s] Firefighters’ Retirement Fund paid to disabled retired employees.

      Sec. 2.  NRS 286.042 is hereby amended to read as follows:

      286.042  [“Fireman”] “Firefighter” means a member who is:

      1.  Filling a full-time position with a participating public employer, the principal duties of which require emotional stability and physical capacity in protecting the public and controlling and extinguishing fires.

      2.  The former holder of a position defined in subsection 1 who has:

      (a) Earned at least 2 years of creditable service in that position; and

      (b) Been promoted or transferred within the chain of command by the same public employer to a position related to protecting the public and controlling and extinguishing fires.

      3.  The former holder of a position defined in subsection 1 who:

      (a) Has earned at least 2 years of creditable service in that position; and

      (b) Is employed by a different public employer in a position that would have been eligible under paragraph (b) of subsection 2 had he remained with his former employer.

      Sec. 3.  NRS 286.070 is hereby amended to read as follows:

      286.070  1.  “Public employer” means the State, one of its agencies or one of its political subdivisions, the System, irrigation districts created under the laws of the State of Nevada, [a nonprofit corporation to which a public hospital has been conveyed or leased pursuant to NRS 450.500,] a public or quasi-public organization or agency that is funded, at least in part, by public money, including a regional transportation commission, a governing body of a charter school and a council of governments created pursuant to the laws of the State of Nevada.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2052 (Chapter 363, SB 439)ê

 

quasi-public organization or agency that is funded, at least in part, by public money, including a regional transportation commission, a governing body of a charter school and a council of governments created pursuant to the laws of the State of Nevada.

      2.  State agencies are those agencies subject to state control and supervision, including those whose employees are governed by chapter 284 of NRS, unless specifically exempted therefrom, and those which deposit money with the State Treasurer.

      Sec. 4.  NRS 286.080 is hereby amended to read as follows:

      286.080  “Service retirement allowance” means monthly payments from the Public Employees’ Retirement Fund or the Police and [Firemen’s] Firefighters’ Retirement Fund paid to a retired employee for the remainder of his life.

      Sec. 5.  NRS 286.130 is hereby amended to read as follows:

      286.130  1.  Three members of the Board must be persons who:

      (a) Have had at least 10 years of service as employees of the State of Nevada or its political subdivisions;

      (b) Are not elected officers of the State of Nevada or its political subdivisions;

      (c) Are active members of the System; and

      (d) Are appointed from written nominations submitted by the following groups:

             (1) Employees of the State and the University and Community College System of Nevada;

             (2) The academic staff of school districts;

             (3) Employees of cities, excluding Carson City;

             (4) Employees of counties, including Carson City and excluding employees of county hospitals;

             (5) Employees of county hospitals, public utilities, power districts, sanitation districts, classified school employees and employees of other districts as determined by the Board; and

             (6) Employees whose current positions entitle them to participate in the Police and [Firemen’s] Firefighters’ Retirement Fund.

Each nominee must be a member of the group or organization that is nominating him.

      2.  Two members of the Board must be persons who:

      (a) Have had at least 10 years of service as employees of the State of Nevada or its political subdivisions;

      (b) Are not elected officers of the State of Nevada or its political subdivisions;

      (c) Are active members of the System; and

      (d) Are appointed from written nominations submitted by the following groups:

             (1) Administrators of school districts or members of boards of trustees of school districts; and

             (2) Members of boards of county commissioners or the governing bodies of cities or administrators of counties or cities.

      3.  One member of the Board must be a person who:

      (a) Is an employee of the State of Nevada or its political subdivisions with at least 10 years of service;

      (b) Is serving in a position at least equivalent to the manager of a department or division;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2053 (Chapter 363, SB 439)ê

 

      (c) Is not an elected officer of the State of Nevada or its political subdivisions; and

      (d) Is an active member of the System.

      4.  One member of the board must be a person who:

      (a) Has had at least 10 years of service as an employee of the State of Nevada or its political subdivisions;

      (b) Is not an elected officer of the State of Nevada or its political subdivisions; and

      (c) Is receiving an allowance for service or disability retirement pursuant to this chapter.

      5.  A member of the Board shall serve for 4 years, so long as he has the qualifications required by this section, and until his successor is appointed and takes office. A member of the Board who no longer has the qualifications specified in the subsection under which he was appointed may serve the remainder of his term if the member loses those qualifications in the final 24 months of his term.

      Sec. 6.  NRS 286.160 is hereby amended to read as follows:

      286.160  1.  The Board shall employ an Executive Officer who serves at the pleasure of the Board. The Executive Officer shall select an Operations Officer, Investment Officer, Assistant Investment Officer, Manager of Information Systems, Administrative Assistant and Administrative Analyst whose appointments are effective upon confirmation by the Board. The Operations Officer, Investment Officer, Assistant Investment Officer, Manager of Information Systems, Administrative Assistant and Administrative Analyst serve at the pleasure of the Executive Officer.

      2.  The Executive Officer, Operations Officer, Investment Officer, Assistant Investment Officer, Manager of Information Systems, Administrative Assistant and Administrative Analyst are entitled to annual salaries fixed by the Board with the approval of the Interim Retirement and Benefits Committee of the Legislature created pursuant to NRS 218.5373. The salaries of these employees are exempt from the limitations of NRS 281.123.

      3.  The Executive Officer must:

      (a) Be a graduate of a 4‑year college or university with a degree in business administration or public administration or equivalent degree.

      (b) Possess at least 5 years’ experience in a high level administrative or executive capacity, including responsibility for a variety of administrative functions such as retirement, insurance, investment or fiscal operations.

      4.  The Operations Officer , [and the] Investment Officer , Assistant Investment Officer, Manager of Information Systems and Administrative Analyst must each be a graduate of a 4-year college or university with a degree in business administration or public administration or an equivalent degree.

      5.  Except as otherwise provided in NRS 284.143, the Executive Officer shall not pursue any other business or occupation or perform the duties of any other office of profit during normal office hours unless on leave approved in advance. The Executive Officer shall not participate in any business enterprise or investment in real or personal property if the System owns or has a direct financial interest in that enterprise or property.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2054 (Chapter 363, SB 439)ê

 

      Sec. 7.  NRS 286.211 is hereby amended to read as follows:

      286.211  1.  The Board shall, with the advice of the Interim Retirement and Benefits Committee of the Legislature created pursuant to NRS 218.5373:

      (a) Adopt regulations for the evaluation of requests for enrollment under the Police and [Firemen’s] Firefighters’ Retirement Fund; and

      (b) Determine those positions eligible under the early retirement provisions for police officers and [firemen.] firefighters.

      2.  Service in any position which has not been determined by the Board to be eligible does not entitle a member to early retirement as a [fireman] firefighter or police officer.

      Sec. 8.  NRS 286.225 is hereby amended to read as follows:

      286.225  1.  The Board shall establish a separate retirement fund known as the Police and [Firemen’s] Firefighters’ Retirement Fund.

      2.  All refunds, disability retirement allowances, benefits for survivors, and service retirement allowances paid to police officers and [firemen] firefighters and their beneficiaries [shall] must be paid from the Police and [Firemen’s] Firefighters’ Retirement Fund.

      3.  All contributions paid by and for police officers and [firemen shall] firefighters must be credited to the Police and [Firemen’s] Firefighters’ Retirement Fund.

      4.  The Police and [Firemen’s] Firefighters’ Retirement Fund [shall] must be administered by the Board and is subject to all restrictions and regulations applicable to the Board.

      5.  Any postretirement increase appropriated by the Legislature in accordance with this chapter, [shall] must be paid to eligible retired police officers and [firemen] firefighters and their beneficiaries from any such appropriation.

      6.  Investment return on moneys in the Police and [Firemen’s] Firefighters’ Retirement Fund [shall] must be deposited in that Fund at the end of each fiscal year based on annual average yield of the System.

      7.  The Board shall transfer appropriate employee and employer contributions made by and for members who transfer to and from the Public Employees’ Retirement Fund and the Police and [Firemen’s] Firefighters’ Retirement Fund.

      Sec. 9.  NRS 286.227 is hereby amended to read as follows:

      286.227  1.  There is hereby created a Police and [Firemen’s] Firefighters’ Retirement Fund Advisory Committee. The Board shall determine the number of its members and appoint the members. Each member serves at the pleasure of the Board.

      2.  The Committee shall make recommendations to the Board concerning the administration of and benefits payable from the Police and [Firemen’s] Firefighters’ Retirement Fund. The Board shall consult with the Committee on all matters concerning this Fund, and consider its recommendations upon their merits.

      Sec. 10.  NRS 286.230 is hereby amended to read as follows:

      286.230  1.  The Board shall establish a fund known as the Public Employees’ Retirement Administrative Fund in which must be deposited all administrative fees.

      2.  The Board shall fix an administrative fee per capita sufficient to pay the operating expense of the System. Except as otherwise provided by NRS 1A.200 and 218.23745, the System shall transfer monthly from the respective retirement funds to the Public Employees’ Retirement Administrative Fund the amount of the per capita fee multiplied by the combined number of members and persons receiving allowances from that Fund.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2055 (Chapter 363, SB 439)ê

 

respective retirement funds to the Public Employees’ Retirement Administrative Fund the amount of the per capita fee multiplied by the combined number of members and persons receiving allowances from that Fund.

      3.  The Board may establish a separate and additional administrative fee for police officers and [firemen] firefighters and their public employers to pay the additional expense of maintaining a separate fund and to pay the actual and necessary travel expenses and other expenses, within the limits established by the Board, for meetings of the Police and [Firemen’s] Firefighters’ Retirement Fund Advisory Committee.

      Sec. 11.  NRS 286.260 is hereby amended to read as follows:

      286.260  1.  The Board shall provide for an individual account for each member of the System. Each account [shall] must show the amount of the member’s contributions to the Public Employees’ Retirement Fund or Police and [Firemen’s] Firefighters’ Retirement Fund and any changes in the account that may be legally authorized.

      2.  Any interest paid by a member with the repayment of withdrawn contributions or purchase of any service [shall] must not be credited to such member’s account.

      3.  The Board is relieved of any further liability regarding a member, his estate or a beneficiary upon the return of all employee contributions to the member, his estate or beneficiary or a combination thereof.

      Sec. 12.  NRS 286.300 is hereby amended to read as follows:

      286.300  Except as otherwise required as a result of NRS 286.537:

      1.  Any member of the System may, except as otherwise provided in subsection 4, purchase all previous creditable service performed with his present employing agency if that service was performed before the enrollment of his agency in the System, even if the service is still creditable in some other system where it cannot be cancelled. The public employer must certify the inclusive dates of employment and number of hours regularly worked by the member to validate the service. The member must pay the full actuarial cost as determined by the actuary.

      2.  In addition to the purchase authorized pursuant to the provisions of subsection 1, any member who has 5 years of creditable service may, except as otherwise provided in subsection 4, purchase up to 5 years of service. The member must pay the full actuarial cost of the service as determined by an actuary of the System.

      3.  In addition to the purchase authorized pursuant to the provisions of subsection 1, any member who:

      (a) Is a licensed teacher;

      (b) Has 5 years of creditable service;

      (c) Is, pursuant to statute, regulation or contract, entitled to payment for unused sick leave; and

      (d) Is employed by the board of trustees of a school district that has, pursuant to subsection 5 of NRS 391.180, provided for the payment of unused sick leave in the form of purchase of service,

may, except as otherwise provided in subsection 4, cause to be purchased on his behalf service credit, not to exceed the number of hours of unused sick leave or 1 year, whichever is less. The full actuarial cost of the service as determined by an actuary of the System must be paid for such a purchase. Any service credit purchased pursuant to this subsection must be included as a part of, and is not in addition to, service purchased pursuant to subsection 2.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2056 (Chapter 363, SB 439)ê

 

a part of, and is not in addition to, service purchased pursuant to subsection 2.

      4.  A person who becomes a member of the System for the first time on or after January 1, 2000, may, on or after July 1, 2001, purchase creditable service pursuant to subsection 1 or 2, or cause to be purchased on his behalf service credit pursuant to subsection 3, only if, at the time of the purchase, he is employed by a participating public employer in a position [whose occupant is thereby] eligible for membership in the System.

      5.  Any member of the System may use:

      (a) All or any portion of the balance of the member’s interest in a qualified trust pursuant to section 401(a) of the Internal Revenue Code, 26 U.S.C. § 401(a); or

      (b) The money contained in an individual retirement account or an individual retirement annuity of a member, the entire amount of which is:

             (1) Attributable to a qualified distribution from a qualified trust pursuant to section 401(a) of the Internal Revenue Code, 26 U.S.C. § 401(a); and

             (2) Qualified as an eligible rollover distribution pursuant to section 402 of the Internal Revenue Code, 26 U.S.C. § 402,

to purchase creditable service pursuant to subsection 1 or 2.

      6.  A member of the System who purchases creditable service pursuant to subsection 1 or 2 is entitled to receive a refund of any contributions paid toward the purchase of the service only if he is no longer in the employ of a participating public employer.

      7.  If a member of the System enters into an agreement whereby he agrees to pay for the purchase of service credit in installments and he defaults on that agreement, the member is entitled to receive service credit in the proportion that the principal paid bears to the principal due under the agreement.

      Sec. 13.  NRS 286.367 is hereby amended to read as follows:

      286.367  1.  The volunteers of a regularly organized and recognized fire department may, by the joint application of a majority of those volunteers addressed to the Board, become members of the System. A volunteer [fireman] firefighter who joins a fire department of which all the volunteers have become members of the System becomes a member of the System. The volunteers of a participating fire department may withdraw from the System by the joint application of a majority of those volunteers addressed to the Board.

      2.  The city, town, county or district which recognizes the volunteers is the public employer and shall collect and pay over the employee’s share and pay the employer’s share of the contribution to the Public Employees’ Retirement Fund and the Public Employees’ Retirement Administrative Fund, in the manner prescribed in this chapter. The local government may, if so requested by the volunteers, further contribute any amount by which the sum receivable by each volunteer for any month is less than the amount of his required share of the contribution, but no further contributions may be placed in a volunteer’s account with the System or refunded to a volunteer or his employer upon the volunteer’s termination.

      3.  In determining the amount of contributions to be paid for the volunteers, they are assumed to be receiving a wage established by the local government which is not less than $150 nor more than $750 per month.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2057 (Chapter 363, SB 439)ê

 

      4.  Except as otherwise required as a result of NRS 286.535 or 286.537, the average compensation for a volunteer [fireman] firefighter is the weighted average of:

      (a) The assumed wage as a volunteer [fireman;] firefighter; and

      (b) The average salary in other covered employment which, if the service in that employment exceeds 3 years, is calculated upon the 3 highest consecutive years.

The weight given to the assumed wage and average salary, respectively, is proportionate to the length of service in each capacity. Except as otherwise required as a result of NRS 286.535 or 286.537, average compensation is computed from the sum of the assumed wage and actual salary if a member is employed simultaneously as a volunteer [fireman] firefighter and as a regular member.

      5.  Any dispute over the status of a person as a volunteer [fireman] firefighter under this section must be conclusively determined by the Board.

      6.  A volunteer [fireman] firefighter may purchase all previous service as a volunteer [fireman] firefighter with any volunteer fire department which is a member of the System. To validate such service, the volunteer [fireman] firefighter must pay the full cost as determined by the actuary. The employing agency may pay the employer’s share of the cost but is not required to do so.

      7.  In addition to the purchase authorized pursuant to the provisions of subsection 6, a volunteer [fireman] firefighter who has 5 years creditable service as a volunteer [fireman] firefighter may purchase up to 5 years of service to add to his volunteer service. The member must pay the full actuarial cost of the service as determined by an actuary of the System.

      Sec. 14.  NRS 286.410 is hereby amended to read as follows:

      286.410  1.  The employee contribution rate must be:

      (a) The matching contribution rate for employees and employers that is actuarially determined for police officers and [firemen] firefighters and for regular members, depending upon the retirement fund in which the member is participating.

      (b) Adjusted on the first monthly retirement reporting period commencing on or after July 1 of each odd‑numbered year based on the actuarially determined contribution rate indicated in the biennial actuarial valuation and report of the immediately preceding year. The adjusted rate must be rounded to the nearest one-quarter of 1 percent.

      2.  The employee’s portion of the matching contribution rate for employees and employers must not be adjusted in accordance with the provisions of paragraph (b) of subsection 1 if the existing rate is within one-quarter of 1 percent of the actuarially determined rate.

      3.  From each payroll during the period of his membership, the employer shall deduct the amount of the member’s contributions and transmit the deduction to the Board at intervals designated and upon forms prescribed by the Board. The contributions must be paid on compensation earned by a member from his first day of service.

      4.  Any employee whose position is determined after July 1, 1971, to be eligible under the early retirement provisions for police officers and [firemen] firefighters shall contribute the additional contributions required of police officers and [firemen] firefighters from July 1, 1971, to the date of his enrollment under the Police and [Firemen’s] Firefighters’ Retirement Fund, if employment in this position occurred before July 1, 1971, or from date of employment in this position to the date of his enrollment under the Police and [Firemen’s] Firefighters’ Retirement Fund, if employment occurs later.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2058 (Chapter 363, SB 439)ê

 

employment in this position to the date of his enrollment under the Police and [Firemen’s] Firefighters’ Retirement Fund, if employment occurs later.

      5.  Except as otherwise provided in NRS 286.430, the System shall guarantee to each member the return of at least the total employee contributions which the member has made and which were credited to his individual account. These contributions may be returned to the member, his estate or beneficiary or a combination thereof in monthly benefits, a lump-sum refund or both.

      6.  Disabled members who are injured on the job and receive industrial insurance benefits for temporary total disability remain contributing members of the System for the duration of the benefits if and while the public employer continues to pay the difference between these benefits and his regular compensation. The public employer shall pay the employer contributions on these benefits.

      Sec. 15.  NRS 286.421 is hereby amended to read as follows:

      286.421  1.  A public employer that elected to pay on behalf of its employees the contributions required by subsection 1 of NRS 286.410 before July 1, 1983, shall continue to do so, but a public employer may not elect to pay those contributions on behalf of its employees on or after July 1, 1983.

      2.  An employee of a public employer that did not elect to pay on behalf of its employees the contributions required by subsection 1 of NRS 286.410 before July 1, 1983, may elect to:

      (a) Pay the contribution required by subsection 1 of NRS 286.410 on his own behalf; or

      (b) Have his portion of the contribution paid by his employer pursuant to the provisions of NRS 286.425.

      3.  Except for any person chosen by election or appointment to serve in an elective office of a political subdivision or as a district judge or a justice of the Supreme Court of this state:

      (a) Payment of the employee’s portion of the contributions pursuant to subsection 1 must be:

             (1) Made in lieu of equivalent basic salary increases or cost-of-living increases, or both; or

             (2) Counterbalanced by equivalent reductions in employees’ salaries.

      (b) The average compensation from which the amount of benefits payable pursuant to this chapter is determined must be increased with respect to each month beginning after June 30, 1975, by 50 percent of the contribution made by the public employer, and must not be less than it would have been if contributions had been made by the member and the public employer separately. In the case of any officer or judge described in this subsection, any contribution made by the public employer on his behalf does not affect his compensation but is an added special payment.

      4.  Employee contributions made by a public employer must be deposited in either the Public Employees’ Retirement Fund or the Police and [Firemen’s] Firefighters’ Retirement Fund as is appropriate. These contributions must not be credited to the individual account of the member and may not be withdrawn by the member upon his termination.

      5.  The membership of an employee who became a member on or after July 1, 1975, and all contributions on whose behalf were made by his public employer must not be cancelled upon the termination of his service.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2059 (Chapter 363, SB 439)ê

 

      6.  If an employer is paying the basic contribution on behalf of an employee, the total contribution rate, in lieu of the amounts required by subsection 1 of NRS 286.410 and NRS 286.450, must be:

      (a) The total contribution rate for employers that is actuarially determined for police officers and [firemen] firefighters and for regular members, depending upon the retirement fund in which the member is participating.

      (b) Adjusted on the first monthly retirement reporting period commencing on or after July 1 of each odd‑numbered year based on the actuarially determined contribution rate indicated in the biennial actuarial valuation and report of the immediately preceding year. The adjusted rate must be rounded to the nearest one-quarter of 1 percent.

      7.  The total contribution rate for employers must not be adjusted in accordance with the provisions of paragraph (b) of subsection 6 if the existing rate is within one-half of 1 percent of the actuarially determined rate.

      8.  For the purposes of adjusting salary increases and cost-of-living increases or of salary reduction, the total contribution must be equally divided between employer and employee.

      9.  Public employers other than the State of Nevada shall pay the entire employee contribution for those employees who contribute to the Police and [Firemen’s] Firefighters’ Retirement Fund on and after July 1, 1981.

      Sec. 16.  NRS 286.430 is hereby amended to read as follows:

      286.430  1.  Except as otherwise provided in subsection 8 and NRS 286.300, a member may withdraw the employee contributions credited to his individual account if:

      (a) He has terminated service for which contribution is required; or

      (b) He is employed in a position for which contribution is prohibited.

      2.  The System shall not refund these contributions until it has received:

      (a) A properly completed application for refund;

      (b) A notice of termination from the member’s public employer or a certification by the public employer that the member is employed in a position for which contribution is prohibited; and

      (c) Except as otherwise provided in subsection 3, all contributions withheld from such member’s compensation.

      3.  If a member submits an application for a refund of his contributions before all of his contributions which were withheld have been remitted, the System may refund the portion of his contributions which it has received.

      4.  If it is determined, after the System has refunded the contributions of a member, that an additional amount of less than $10 is due to him, a refund of that amount need not be paid.

      5.  Refunds, pursuant to this section, must be made by check mailed to the address specified by a member in his application for refund.

      6.  The System shall transfer all money retained pursuant to subsection 4 and the amount of any unclaimed refund checks to the Public Employees’ Retirement Fund or the Police and [Firemen’s] Firefighters’ Retirement Fund.

      7.  All membership rights and active service credit in the System, including service for which the public employer paid the employee contributions, are cancelled upon the withdrawal of contributions from a member’s account.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2060 (Chapter 363, SB 439)ê

 

      8.  A member who transfers to a position for which contribution is prohibited must remain in that position for at least 90 days before he is eligible to receive a refund pursuant to this section.

      Sec. 17.  NRS 286.450 is hereby amended to read as follows:

      286.450  1.  The employer contribution rate must be:

      (a) The matching contribution rate for employees and employers that is actuarially determined for police officers and [firemen] firefighters and for regular members, depending upon the retirement fund in which the member is participating.

      (b) Adjusted on the first monthly retirement reporting period commencing on or after July 1 of each odd‑numbered year based on the actuarially determined contribution rate indicated in the biennial actuarial valuation and report of the immediately preceding year. The adjusted rate must be rounded to the nearest one-quarter of 1 percent.

      2.  The employer’s portion of the matching contribution rate for employees and employers must not be adjusted in accordance with the provisions of paragraph (b) of subsection 1 if the existing rate is within one-quarter of 1 percent of the actuarially determined rate.

      Sec. 18.  NRS 286.510 is hereby amended to read as follows:

      286.510  1.  Except as otherwise provided in subsections 2 and 3, a member of the System is eligible to retire at age 65 if he has at least 5 years of service, at age 60 if he has at least 10 years of service and at any age if he has at least 30 years of service.

      2.  A police officer or [fireman] firefighter is eligible to retire at age 65 if he has at least 5 years of service, at age 55 if he has at least 10 years of service, at age 50 if he has at least 20 years of service and at any age if he has at least 25 years of service. Only service performed in a position as a police officer or [fireman,] firefighter, established as such by statute or regulation, service performed pursuant to subsection 3 and credit for military service, may be counted toward eligibility for retirement pursuant to this subsection.

      3.  Except as otherwise provided in subsection 4, a police officer or [fireman] firefighter who has at least 5 years of service as a police officer or [fireman] firefighter and is otherwise eligible to apply for disability retirement pursuant to NRS 286.620 because of an injury arising out of and in the course of his employment remains eligible for retirement pursuant to subsection 2 if:

      (a) He applies to the Board for disability retirement and the Board approves his application;

      (b) In lieu of a disability retirement allowance, he accepts another position with the public employer with which he was employed when he became disabled as soon as practicable but not later than 90 days after the Board approves his application for disability retirement;

      (c) He remains continuously employed by that public employer until he becomes eligible for retirement pursuant to subsection 2; and

      (d) After he accepts a position pursuant to paragraph (b), his contributions are paid at the rate that is actuarially determined for police officers and [firemen] firefighters until he becomes eligible for retirement pursuant to subsection 2.

      4.  If a police officer or [fireman] firefighter who accepted another position with the public employer with which he was employed when he became disabled pursuant to subsection 3 ceases to work for that public employer before becoming eligible to retire pursuant to subsection 2, he may begin to receive a disability retirement allowance without further approval by the Board by notifying the Board on a form prescribed by the Board.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2061 (Chapter 363, SB 439)ê

 

employer before becoming eligible to retire pursuant to subsection 2, he may begin to receive a disability retirement allowance without further approval by the Board by notifying the Board on a form prescribed by the Board.

      5.  Eligibility for retirement, as provided in this section, does not require the member to have been a participant in the System at the beginning of his credited service.

      6.  Any member who has the years of creditable service necessary to retire but has not attained the required age, if any, may retire at any age with a benefit actuarially reduced to the required retirement age. Except as otherwise required as a result of NRS 286.537, a retirement benefit pursuant to this subsection must be reduced by 4 percent of the unmodified benefit for each full year that the member is under the appropriate retirement age, and an additional 0.33 percent for each additional month that the member is under the appropriate retirement age. Any option selected pursuant to this subsection must be reduced by an amount proportionate to the reduction provided in this subsection for the unmodified benefit. The Board may adjust the actuarial reduction based upon an experience study of the System and recommendation by the actuary.

      Sec. 19.  NRS 286.520 is hereby amended to read as follows:

      286.520  1.  Except as otherwise provided in this section and NRS 286.523 and 286.525, the consequences of the employment of a retired employee are:

      (a) A retired employee who accepts employment or an independent contract with a public employer under this System is disqualified from receiving any allowances under this System for the duration of that employment or contract if:

             (1) He accepted the employment or contract within 90 calendar days after the effective date of his retirement; or

             (2) He is employed in a position which is eligible to participate in this System.

      (b) If a retired employee accepts employment or an independent contract with a public employer under this System more than 90 calendar days after the effective date of his retirement in a position which is not eligible to participate in this System, his allowance under this System terminates upon his earning an amount equal to one-half of the average salary for participating public employees who are not police officers or [firemen] firefighters in any fiscal year, for the duration of that employment or contract.

      (c) If a retired employee accepts employment with an employer who is not a public employer under this System, the employee is entitled to the same allowances as a retired employee who has no employment.

      2.  The retired employee and the public employer shall notify the System:

      (a) Within 10 days after the first day of an employment or contract governed by paragraph (a) [;] of subsection 1.

      (b) Within 30 days after the first day of an employment or contract governed by paragraph (b) [; and] of subsection 1.

      (c) Within 10 days after a retired employee earns more than one-half of the average salary for participating public employees who are not police officers or [firemen] firefighters in any fiscal year from an employment or contract governed by paragraph (b) [,] of subsection 1.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2062 (Chapter 363, SB 439)ê

 

      3.  For the purposes of this section, the average salary for participating public employees who are not police officers or [firemen] firefighters must be computed on the basis of the most recent actuarial valuation of the System.

      4.  If a retired employee who accepts employment or an independent contract with a public employer under this System pursuant to this section elects not to reenroll in the System pursuant to subsection 1 of NRS 286.525, the public employer with which the retired employee accepted employment or an independent contract may pay contributions on behalf of the retired employee to a retirement fund which is not a part of the System in an amount not to exceed the amount of the contributions that the public employer would pay to the System on behalf of a participating public employee who is employed in a similar position.

      5.  If a retired employee is chosen by election or appointment to fill an elective public office, he is entitled to the same allowances as a retired employee who has no employment, unless he is serving in the same office in which he served and for which he received service credit as a member. A public employer may pay contributions on behalf of such a retired employee to a retirement fund which is not a part of the System in an amount not to exceed the amount of the contributions that the public employer would pay to the System on behalf of a participating public employee who serves in the same office.

      6.  The System may waive for one period of 30 days or less a retired employee’s disqualification under this section if the public employer certifies in writing, in advance, that the retired employee is recalled to meet an emergency and that no other qualified person is immediately available.

      7.  A person who accepts employment or an independent contract with either house of the Legislature or by the Legislative Counsel Bureau is exempt from the provisions of subsections 1 and 2 for the duration of that employment or contract.

      Sec. 20.  NRS 286.523 is hereby amended to read as follows:

      286.523  1.  The provisions of subsections 1 and 2 of NRS 286.520 do not apply to a retired employee who accepts employment or an independent contract with a public employer under the System if:

      (a) He fills a position for which there is a critical labor shortage; and

      (b) At the time of his reemployment, he is receiving:

             (1) [An unmodified benefit;] A benefit that is not actuarially reduced pursuant to subsection 6 of NRS 286.510; or

             (2) A benefit actuarially reduced pursuant to subsection 6 of NRS 286.510 and has reached the required age at which he could have retired with [an unmodified benefit.] a benefit that was not actuarially reduced pursuant to subsection 6 of NRS 286.510.

      2.  A retired employee who is reemployed under the circumstances set forth in subsection 1 may reenroll in the system as provided in NRS 286.525.

      3.  Positions for which there are critical labor shortages must be determined as follows:

      (a) Except as otherwise provided in this subsection, the State Board of Examiners shall designate positions in State Government for which there are critical labor shortages.

      (b) The Supreme Court shall designate positions in the Judicial Branch of State Government for which there are critical labor shortages.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2063 (Chapter 363, SB 439)ê

 

      (c) The Board of Regents shall designate positions in the University and Community College System of Nevada for which there are critical labor shortages.

      (d) The Department of Education shall designate positions with the various school districts for which there are critical labor shortages.

      (e) The governing body of a local government shall designate positions with the local government for which there are critical labor shortages.

      (f) The Board shall designate positions within the System for which there are critical labor shortages.

      4.  In determining whether a position is a position for which there is a critical labor shortage, the designating authority shall give consideration to:

      (a) The history of the rate of turnover for the position;

      (b) The number of openings for the position and the number of qualified candidates for those openings;

      (c) The length of time the position has been vacant; and

      (d) The success of recruiting persons in other states to fill the position.

      5.  A designating authority shall not designate a position pursuant to subsection 3 as a position for which there is a critical labor shortage for a period longer than 2 years. To be redesignated as such a position, the designating authority must consider whether the position continues to meet the criteria set forth in subsection 4.

      Sec. 21.  NRS 286.525 is hereby amended to read as follows:

      286.525  1.  A retired employee who accepts employment in a position [whose occupant is thereby] eligible for membership may enroll in the System as of the effective date of that employment. [As] Except as otherwise provided in NRS 286.523, as of the date of enrollment:

      (a) He forfeits all retirement allowances for the duration of that employment.

      (b) He is entitled to receive, after the termination of the employment and upon written request, a refund of all contributions made by him during the employment. Except as otherwise required as a result of NRS 286.535 or 286.537, if he does not request the refund and the duration of the employment was at least 6 months, he gains additional service credit for that employment and is entitled to have a separate service retirement allowance calculated based on his compensation and service, effective upon the termination of that employment. If the duration of the employment was:

             (1) Less than 5 years, the additional allowance must be added to his original allowance and must be under the same option and designate the same beneficiary as the original allowance.

             (2) Five years or more, the additional allowance may be under any option and designate any beneficiary in accordance with NRS 286.545.

      2.  The original service retirement allowance of such a retired employee must not be recalculated based upon the additional service credit, nor is he entitled to any of the rights of membership that were not in effect at the time of his original retirement. The accrual of service credit pursuant to this section is subject to the limits imposed by:

      (a) NRS 286.551; and

      (b) Section 415 of the Internal Revenue Code, 26 U.S.C. § 415, if the member’s effective date of membership is on or after January 1, 1990.

      3.  Except as otherwise required as a result of NRS 286.470, 286.535 or 286.537, a retired employee who has been receiving a retirement allowance and who is reemployed and is enrolled in the system for at least 5 years may have his additional credit for service added to his previous credit for service.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2064 (Chapter 363, SB 439)ê

 

have his additional credit for service added to his previous credit for service. This additional credit for service must not apply to more than one period of employment after the original retirement.

      4.  The survivor of a deceased member who had previously retired and was rehired and enrolled in the System, who qualifies for benefits pursuant to NRS 286.671 to 286.6793, inclusive, is eligible for the benefits based on the service accrued through the second period of employment.

      Sec. 22.  NRS 286.575 is hereby amended to read as follows:

      286.575  1.  Except as otherwise required as a result of NRS 286.537, a postretirement allowance must be paid from the Public Employees’ Retirement Fund or the Police and [Firemen’s] Firefighters’ Retirement Fund to each member receiving a disability allowance or service retirement allowance from that Fund under the provisions of this chapter in the amount and manner provided and from time to time adjusted by law. Each member whose allowance was increased after his retirement by payments for years of service in excess of 20 years is entitled to receive an increase based upon his adjusted allowance.

      2.  Postretirement allowances must be considered a part of a retired employee’s monthly benefit and included in the allowance paid to a beneficiary under one of the optional plans provided in NRS 286.590.

      Sec. 23.  NRS 286.665 is hereby amended to read as follows:

      286.665  1.  Any contributions remaining in a member’s, retired employee’s or beneficiary’s individual account [shall] must be transferred to the Public Employees’ Retirement Fund or the Police and [Firemen’s] Firefighters’ Retirement Fund upon the death of the member, retired employee or beneficiary if there is no heir, devisee or legatee capable of receiving the money.

      2.  If, within 6 years after any transfer under subsection 1, any person appears and claims any money which was transferred to a retirement fund, the claimant may file a petition in the district court for Carson City stating the nature of his claim, with an appropriate prayer for the relief demanded. A copy of the petition [shall] must be served upon the Attorney General before or at the time of filing it. Within 20 days after service, the Attorney General shall appear in the proceeding and respond to the petition. If, after examining all the facts, the Attorney General is convinced that the System has no legal defense against the petition, he may, with the consent of the court, confess judgment on behalf of the System.

      3.  If judgment is not confessed, the petition [shall] must be considered at issue on the 20th day after its filing, and may be heard by the court on that day, or at such future day as the court may order. Upon the hearing, the court shall examine into the claim and hear the allegations and proofs. If the court finds that the claimant is entitled to any money transferred under subsection 1 to a retirement fund, it shall order the Public Employees’ Retirement Board to pay such money forthwith to the claimant, but without interest or cost to the Board.

      4.  All persons, except minors and persons of unsound mind, who fail to appear and file their petitions within the time limited in subsection 2 are forever barred. Minors and persons of unsound mind may appear and file their petitions at any time within 5 years after their respective disabilities are removed.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2065 (Chapter 363, SB 439)ê

 

      Sec. 24.  NRS 286.667 is hereby amended to read as follows:

      286.667  1.  A retired employee whose service or disability retirement allowance is payable from the Police and [Firemen’s] Firefighters’ Retirement Fund is entitled to receive his allowance without modification.

      2.  Upon the death of such a person, a person who was his spouse at the time of his retirement is entitled, upon attaining the age of 50 years, to receive a benefit equal to 50 percent of the allowance to which the retired employee was entitled.

      3.  This section does not apply to a person who:

      (a) Begins receiving a service or disability retirement allowance or a benefit from the Police and [Firemen’s] Firefighters’ Retirement Fund before July 1, 1981.

      (b) At the time of his retirement, elects one of the alternatives to an unmodified retirement allowance.

      4.  Service performed after July 1, 1981, in positions other than as a police officer or [fireman,] firefighter, except military service, may not be credited toward the benefit conferred by this section. A police officer or [fireman] firefighter who has performed service which is not creditable toward this benefit may elect to:

      (a) Select a retirement option other than one permitted by this section;

      (b) Receive the benefit conferred by this section with a spouse’s benefit reduced by a proportion equal to that which the service which is not creditable bears to his total service; or

      (c) Purchase the additional spouse’s benefit at the time he retires by paying the full actuarial cost as computed for his situation by the actuary of the System.

      5.  The entire cost of the benefit conferred by this section must be paid by the employee. Each employer must adjust the salaries of its employees who are eligible for the benefit to offset its cost to the employer. Employers who adjust salaries pursuant to this subsection do not by doing so violate any collective bargaining agreement or other contract.

      Sec. 25.  NRS 286.6705 is hereby amended to read as follows:

      286.6705  1.  Any check for benefits or a refund which has not been paid within 5 years after being transferred to the account for unclaimed benefits or refunds must be transferred to the Public Employees’ Retirement Fund or Police and [Fireman’s] Firefighters’ Retirement Fund, whichever is appropriate.

      2.  If, within 6 years after a check for benefits or a refund has been transferred pursuant to subsection 1, any person appears and claims the money, the claimant may file a petition in the district court for Carson City stating the nature of his claim, with an appropriate prayer for the relief demanded. A copy of the petition must be served upon the Attorney General before or at the time it is filed. Within 20 days after service, the Attorney General shall appear in the proceeding and respond to the petition. If, after examining all the facts, the Attorney General is convinced that the System has no legal defense against the petition, he may, with the consent of the court, confess judgment on behalf of the System.

      3.  If judgment is not confessed, the petition must be considered at issue on the 20th day after its filing, and may be heard by the court on that day, or at such future day as the court may order. Upon the hearing, the court shall examine into the claim and hear the allegations and proofs. If the court finds that the claimant is entitled to any money transferred pursuant to subsection 1 to a retirement fund, it shall order the [Public Employees’ Retirement] Board to pay the money forthwith to the claimant, but without interest or cost to the Board.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2066 (Chapter 363, SB 439)ê

 

1 to a retirement fund, it shall order the [Public Employees’ Retirement] Board to pay the money forthwith to the claimant, but without interest or cost to the Board.

      4.  All persons, except minors and persons of unsound mind, who fail to appear and file their petitions within the time limited in subsection 1 are forever barred. Minors and persons of unsound mind may appear and file their petitions at any time within 5 years after their respective disabilities are removed.

      Sec. 26.  NRS 286.6766 is hereby amended to read as follows:

      286.6766  Any spouse eligible for payments under the provisions of NRS 286.674 or 286.676 may elect to waive payment of a monthly allowance and to receive instead in a lump sum a refund of all contributions to the Public Employees’ Retirement Fund or the Police and [Fireman’s] Firefighters’ Retirement Fund made by a deceased member plus any contributions made by a public employer in lieu of the employee’s contributions, but if more than one person is eligible for benefits on account of the contributions of any one deceased member, no such lump-sum payment may be made.

      Sec. 27.  NRS 286.6767 is hereby amended to read as follows:

      286.6767  [An unmarried]

      1.  A member may designate, in writing, a survivor beneficiary and one or more additional payees to receive the payments provided pursuant to NRS 286.67675, 286.6768 or 286.67685 if the member is unmarried on the date of his death.

      2.  A designation pursuant to [this section] subsection 1 must be made on a form approved by the Executive Officer. If a member has designated one or more payees in addition to the survivor beneficiary, the member must designate the percentage of the payments that the survivor beneficiary and each additional payee is entitled to receive.

      Sec. 28.  NRS 286.67675 is hereby amended to read as follows:

      286.67675  1.  [The] Except as otherwise provided in this subsection, the survivor beneficiary of a deceased member is entitled to receive a cumulative benefit of at least $450 per month. If a member has designated one or more payees in addition to the survivor beneficiary pursuant to NRS 286.6767, the cumulative benefit paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 286.6767. The payments must begin on the first day of the month immediately following the death of the member and must cease on the last day of the month in which the survivor beneficiary dies. [If]

      2.  Except as otherwise provided in this subsection, if payments made pursuant to subsection 1 cease before the total amount of contributions made by the deceased member have been received by the survivor beneficiary, the surplus of contributions over payments received must be paid to the survivor beneficiary.

      [2.] If the member had designated one or more payees in addition to the survivor beneficiary pursuant to NRS 286.6767, the surplus of contributions over payments received must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 286.6767.

      3.  The benefits paid pursuant to this section are in addition to any benefits paid pursuant to NRS 286.673.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2067 (Chapter 363, SB 439)ê

 

      [3.] 4.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 286.6767.

      Sec. 29.  NRS 286.6768 is hereby amended to read as follows:

      286.6768  1.  Except as otherwise provided in subsection 2 and as limited by subsection [3,] 4, the survivor beneficiary of a deceased member who had 10 or more years of accredited contributing service is entitled to receive a monthly allowance equivalent to that provided by:

      (a) Option 3 in NRS 286.590, if the deceased member had less than 15 years of service on the date of his death; or

      (b) Option 2 in NRS 286.590, if the deceased member had 15 or more years of service on the date of his death.

To apply the provisions of Options 2 and 3, the deceased member shall be deemed to have retired on the date of his death immediately after having named the survivor beneficiary as beneficiary pursuant to the applicable option. This benefit must be computed without any reduction for age for the deceased member. The benefits provided by this subsection must be paid to the survivor beneficiary for the remainder of the life of the survivor beneficiary.

      2.  If the member had designated one or more payees in addition to the survivor beneficiary pursuant to NRS 286.6767, the monthly allowance to which a survivor beneficiary is entitled pursuant to subsection 1 must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 286.6767.

      3.  The survivor beneficiary may elect to receive the benefits provided by any one of the following only:

      (a) This section;

      (b) NRS 286.67675; or

      (c) NRS 286.6769.

      [3.] 4.  The benefits provided by paragraph (a) of subsection 1 may only be paid to the survivor beneficiary and, if applicable, any additional payee of a member who died on or after January 1, 2002.

      [4.] 5.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 286.6767.

      Sec. 30.  NRS 286.67685 is hereby amended to read as follows:

      286.67685  1.  Except as otherwise provided in subsection 2 and as limited by subsection [2,] 3, the survivor beneficiary of a deceased member who was fully eligible to retire, both as to service and age, is entitled to receive a monthly allowance equivalent to that provided by Option 2 in NRS 286.590. This section does not apply to the survivor beneficiary of a member who was eligible to retire only pursuant to subsection 6 of NRS 286.510. For the purposes of applying the provisions of Option 2, the deceased member shall be deemed to have retired on the date of his death immediately after having named the survivor beneficiary as beneficiary pursuant to Option 2. The benefits provided by this section must be paid to the survivor beneficiary for the remainder of the life of the survivor beneficiary. The survivor beneficiary may elect to receive the benefits provided by any one of the following only:

      (a) This section;

      (b) NRS 286.67675;

      (c) NRS 286.6768; or

      (d) NRS 286.6769.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2068 (Chapter 363, SB 439)ê

 

      2.  If the member had designated one or more payees in addition to the survivor beneficiary pursuant to NRS 286.6767, the monthly allowance to which a survivor beneficiary is entitled pursuant to subsection 1 must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 286.6767.

      3.  The benefits provided by this section may only be paid to the survivor beneficiary and, if applicable, any additional payee of a member who died on or after January 1, 2002.

      [3.] 4.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 286.6767.

      Sec. 31.  NRS 286.6769 is hereby amended to read as follows:

      286.6769  1.  [Any] Except as otherwise provided in subsection 2, any survivor beneficiary eligible for payments pursuant to the provisions of NRS 286.67675 or 286.6768 may elect to waive payment of a monthly allowance and to receive instead in a lump sum a refund of all contributions to the Public Employees’ Retirement Fund or the Police and [Fireman’s] Firefighters’ Retirement Fund made by a deceased member plus any contributions made by a public employer in lieu of the employee’s contributions, but if more than one person is eligible for benefits on account of the contributions of any one deceased member, no such lump-sum payment may be made.

      2.  If the member had designated one or more payees in addition to the survivor beneficiary pursuant to NRS 286.6767, the lump sum to which a survivor beneficiary is entitled pursuant to subsection 1 must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 286.6767.

      3.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 286.6767.

      Sec. 32.  NRS 286.680 is hereby amended to read as follows:

      286.680  1.  In addition to the provisions of chapter 355 of NRS, the Board may invest and reinvest the money in its funds as provided in this section and NRS 286.682 and may employ investment counsel for that purpose. The Board may also employ investment supervisory services, trust audit services and other related investment services which it deems necessary to invest effectively and safeguard the money in the System’s funds.

      2.  No person engaged in business as a broker or dealer in securities or who has a direct pecuniary interest in any such business who receives commissions for transactions performed as agent for the board is eligible for employment as investment counsel for the Board.

      3.  The Board shall not engage investment counsel unless:

      (a) The principal business of the person selected by the Board consists of giving continuous advice as to the investment of money on the basis of the individual needs of each client;

      (b) The person and his predecessors have been continuously engaged in such a business for a period of 5 or more years;

      (c) The person is registered as an investment adviser under the laws of the United States as from time to time in effect, or is a bank or an investment management subsidiary of a bank; and

      (d) The contract between the Board and the investment counsel is of no specific duration and is voidable at any time by either party.

      4.  The Board and its individual members are not liable for investment decisions made by investment counsel if they obtain qualified investment counsel, establish proper objectives and policies for investments, and issue appropriate interim directives.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2069 (Chapter 363, SB 439)ê

 

counsel, establish proper objectives and policies for investments, and issue appropriate interim directives. Investment counsel is liable for any investment decision that is not made in accordance with the objectives and policies established by the Board and any applicable interim directives.

      5.  The expenses incurred in obtaining and reviewing services pursuant to the provisions of this section and the reimbursements to employees for their expenses incurred in connection with investment decisions must be paid out of the Public Employees’ Retirement Fund and the Police and [Fireman’s] Firefighters’ Retirement Fund in proportion to their respective assets.

      6.  The Board shall tender invitations to banks and credit unions for commercial banking and trust services, consider proposals submitted by interested banks and credit unions, and consider contracts for commercial banking and trust services at least every 5 years.

      Sec. 33.  NRS 1A.180 is hereby amended to read as follows:

      1A.180  1.  Beginning July 1, 2003, the Court Administrator shall submit to the System for deposit in the Judicial Retirement Fund on behalf of each member of the System the percentage of compensation of the member that is determined by the actuary of the System to be required to pay the normal cost incurred in making payments pursuant to subsection 5 of NRS 1A.160 and any administrative expenses of the System. Such payments must be:

      (a) Accompanied by payroll reports that include information deemed necessary by the Board to carry out its duties; and

      (b) Received by the System not later than 15 days after the calendar month for which the compensation and service credits of members of the System are reported and certified by the Court Administrator. The compensation must be reported separately for each month that it is paid.

      2.  Beginning July 1, 2003, the [Court Administrator] State of Nevada shall pay to the System for deposit in the Judicial Retirement Fund from any fund created for the purpose of paying pension benefits to justices of the Supreme Court or district judges an amount as the contribution of the State of Nevada as employer which is actuarially determined to be sufficient to provide the System with enough money to pay all benefits for which the System will be liable.

      3.  Except as otherwise provided in this subsection, the total contribution rate that is actuarially determined for members of the Judicial Retirement Plan must be adjusted on the first monthly retirement reporting period commencing on or after July 1 of each odd-numbered year based on the actuarially determined contribution rate indicated in the biennial actuarial valuation and report. The adjusted rate must be rounded to the nearest one-quarter of 1 percent. The total contribution rate must not be adjusted pursuant to this subsection if the existing rate is within one-half of 1 percent of the actuarially determined rate.

      Sec. 33.5.  NRS 1A.270 is hereby amended to read as follows:

      1A.270  1.  Each justice of the Supreme Court or district judge who is elected or appointed as a justice of the Supreme Court or a district judge on or after November 5, 2002, who takes office on or after January 1, 2003, and who previously has not served as either a justice of the Supreme Court or a district judge must receive benefits for retirement, benefits for disability and survivor benefits under the Judicial Retirement Plan, if eligible to receive such benefits under the Judicial Retirement Plan, unless he is a member of the Public Employees’ Retirement System and elects to remain a member pursuant to NRS 1A.280 if eligible to do so.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2070 (Chapter 363, SB 439)ê

 

the Public Employees’ Retirement System and elects to remain a member pursuant to NRS 1A.280 if eligible to do so.

      2.  Each justice of the Supreme Court or district judge who is elected or appointed as a justice of the Supreme Court or district judge on or after November 5, 2002, and who previously has served as either a justice of the Supreme Court or a district judge and each justice of the Supreme Court or district judge who is serving as a justice of the Supreme Court or district judge on November 5, 2002, must receive benefits for retirement, benefits for disability and survivor benefits pursuant to either:

      (a) NRS 2.060 to 2.083, inclusive, or 3.090 to 3.099, inclusive, as those sections existed on November 5, 2002, if eligible to receive such benefits under such provisions; or

      (b) The Judicial Retirement Plan, if eligible to receive such benefits under the Judicial Retirement Plan,

whichever is most beneficial to the justice or judge or his survivor, as determined by the justice or judge at the time of his retirement or the time at which he becomes disabled, or as determined by his survivor at the time of his death, unless he is a member of the Public Employees’ Retirement System and elects to remain a member pursuant to NRS 1A.280 if eligible to do so. A survivor may not change a determination that affects the survivor and which was made by a justice or judge pursuant to this section while the justice or judge was alive.

      3.  A determination made pursuant to subsection 2 is final and if a justice or judge or his survivor determines pursuant to subsection 2:

      (a) To receive benefits pursuant to the Judicial Retirement Plan, the justice, judge or survivor may not receive benefits pursuant to NRS 2.060 to 2.083, inclusive, or pursuant to NRS 3.090 to 3.099, inclusive; or

      (b) To receive benefits pursuant to NRS 2.060 to 2.083, inclusive, or pursuant to NRS 3.090 to 3.099, inclusive, the justice, judge or survivor may not receive benefits pursuant to the Judicial Retirement Plan.

      4.  No justice of the Supreme Court or district judge or survivor of a justice of the Supreme Court or district judge may receive benefits under both this chapter and:

      (a) NRS 2.060 to 2.083, inclusive; or

      (b) NRS 3.090 to 3.099, inclusive.

      5.  A justice of the Supreme Court or district judge or a survivor of a justice of the Supreme Court or district judge who is receiving retirement allowances pursuant to NRS 2.060 to 2.083, inclusive, or pursuant to NRS 3.090 to 3.099, inclusive, on January 1, 2003, is not eligible for transfer to the Judicial Retirement Plan.

      Sec. 34.  NRS 1A.310 is hereby amended to read as follows:

      1A.310  Except as otherwise required as a result of NRS 1A.410:

      1.  A member of the Judicial Retirement Plan who has 5 years of creditable service may, except as otherwise provided in subsection 2, purchase up to 5 years of service. The member must pay the full actuarial cost of the service as determined by an actuary of the System.

      2.  A justice or judge may purchase creditable service pursuant to subsection 1 only if, at the time of the purchase, he is employed in a position [whose occupant is] eligible for membership in the Judicial Retirement Plan.

      3.  A member of the Judicial Retirement Plan may use:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2071 (Chapter 363, SB 439)ê

 

      (a) All or any portion of the balance of his interest in a qualified trust pursuant to section 401(a) of the Internal Revenue Code, 26 U.S.C. § 401(a); or

      (b) The money contained in an individual retirement account or in an individual retirement annuity of a member, the entire amount of which is:

             (1) Attributable to a qualified distribution from a qualified trust pursuant to section 401(a) of the Internal Revenue Code, 26 U.S.C. § 401(a); and

             (2) Qualified as an eligible rollover distribution pursuant to section 402 of the Internal Revenue Code, 26 U.S.C. § 402,

to purchase creditable service pursuant to subsection 1.

      4.  If a member of the Judicial Retirement Plan enters into an agreement whereby he agrees to pay for the purchase of service credit in installments and he defaults on that agreement, the member is entitled to receive service credit in the proportion that the principal paid bears to the principal due under the agreement.

      Sec. 35.  NRS 1A.370 is hereby amended to read as follows:

      1A.370  1.  A retired justice or judge who accepts employment as a justice of the Supreme Court or district judge in any judicial capacity, including, without limitation, employment as a senior justice or senior judge of the Nevada court system, may enroll in the Judicial Retirement Plan as of the effective date of that employment. [As] Except as otherwise provided in NRS 1A.380, as of the date of enrollment:

      (a) He forfeits all retirement allowances for the duration of that employment; and

      (b) Except as otherwise required as a result of NRS 1A.400 or 1A.410, if the duration of the employment is at least 6 months, he gains additional service credit for that employment and is entitled to have a separate service retirement allowance calculated based on his compensation and service, effective upon the termination of that employment. If the duration of the employment is:

             (1) Less than 5 years, the additional allowance must be added to his original allowance and must be under the same option and designated the same beneficiary as the original allowance; or

             (2) Five years or more, the additional allowance may be under any option and designate any beneficiary in accordance with NRS 1A.430.

      2.  The original service retirement allowance of such a retired justice or judge must not be recalculated based upon the additional service credit, nor is he entitled to any of the rights of membership that were not in effect at the time of his original retirement. The accrual of service credit pursuant to this section is subject to the limits imposed by:

      (a) NRS 1A.440; and

      (b) Section 415 of the Internal Revenue Code, 26 U.S.C. § 415.

      3.  Except as otherwise required as a result of NRS 1A.400 or 1A.410, a retired justice or judge who has been receiving a retirement allowance pursuant to the Judicial Retirement Plan and who is reemployed and is enrolled in the Plan for at least 5 years may have his additional credit for service added to his previous credit for service. This additional credit for service must not apply to more than one period of employment after the original retirement.

      4.  The survivor of a deceased member of the Judicial Retirement Plan who had previously retired and was reemployed and enrolled in the Plan, who qualifies for benefits pursuant to NRS 1A.340 and 1A.530 to 1A.670, inclusive, is eligible for the benefits based on the service accrued through the second period of employment.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2072 (Chapter 363, SB 439)ê

 

who qualifies for benefits pursuant to NRS 1A.340 and 1A.530 to 1A.670, inclusive, is eligible for the benefits based on the service accrued through the second period of employment.

      Sec. 36.  NRS 1A.380 is hereby amended to read as follows:

      1A.380  1.  The provisions of subsection 1 of NRS 1A.360 do not apply to a retired justice or judge who accepts employment as a justice of the Supreme Court or district judge in a judicial capacity if:

      (a) He fills a position for which there is a critical labor shortage; and

      (b) At the time of his reemployment, he is receiving:

             (1) [An unmodified benefit;] A benefit that is not actuarially reduced pursuant to subsection 2 of NRS 1A.350; or

             (2) A benefit actuarially reduced pursuant to subsection 2 of NRS 1A.350 and has reached the required age at which he could have retired with [an unmodified benefit.] a benefit that was not actuarially reduced pursuant to subsection 2 of NRS 1A.350.

      2.  A retired justice or judge who is reemployed under the circumstances set forth in subsection 1 may reenroll in the Judicial Retirement Plan as provided in NRS 1A.370.

      3.  The Supreme Court shall designate positions in the Judicial Branch of State Government for which there are critical labor shortages. The Supreme Court shall not designate a position pursuant to this subsection as a position for which there is a critical labor shortage for a period longer than 2 years. To be redesignated as such a position, the Supreme Court must consider whether a critical labor shortage continues to exist for the position.

      Sec. 37.  NRS 1A.440 is hereby amended to read as follows:

      1A.440  Except as otherwise required as a result of NRS 1A.400 or 1A.410:

      1.  Except as otherwise provided in this subsection, a monthly service retirement allowance must be determined by multiplying a member of the Judicial Retirement Plan’s average compensation by 3.4091 percent for each year of service, except that a member of the Plan is entitled to a benefit of not more than 75 percent of his average compensation . [with his eligibility for service credit ceasing at 22 years of service.]

      2.  For the purposes of this section, “average compensation” means the average of a member of the Plan’s 36 consecutive months of highest compensation as certified by the Court Administrator.

      Sec. 38.  NRS 1A.620 is hereby amended to read as follows:

      1A.620  [An unmarried]

      1.  A member of the Judicial Retirement Plan may designate, in writing, a survivor beneficiary and one or more additional payees to receive the payments provided pursuant to NRS 1A.630, 1A.640 or 1A.650 if the member is unmarried on the date of his death.

      2.  A designation pursuant to [this section] subsection 1 must be made on a form approved by the Executive Officer of the Board. If a member has designated one or more payees in addition to the survivor beneficiary, the member must designate the percentage of the payments that the survivor beneficiary and each additional payee is entitled to receive.

      Sec. 39.  NRS 1A.630 is hereby amended to read as follows:

      1A.630  1.  [The] Except as otherwise provided in this subsection, the survivor beneficiary of a deceased member of the Judicial Retirement Plan is entitled to receive a cumulative benefit of at least $450 per month. If a member has designated one or more payees in addition to the survivor beneficiary pursuant to NRS 1A.620, the cumulative benefit paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 1A.620.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2073 (Chapter 363, SB 439)ê

 

member has designated one or more payees in addition to the survivor beneficiary pursuant to NRS 1A.620, the cumulative benefit paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 1A.620. The payments must begin on the first day of the month immediately following the death of the member and must cease on the last day of the month in which the survivor beneficiary dies.

      2.  The benefits paid pursuant to this section are in addition to any benefits paid pursuant to NRS 1A.580.

      3.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 1A.620.

      Sec. 40.  NRS 1A.640 is hereby amended to read as follows:

      1A.640  1.  [The] Except as otherwise provided in subsection 2, the survivor beneficiary of a deceased member of the Judicial Retirement Plan who had 10 or more years of creditable service is entitled to receive a monthly allowance equivalent to that provided by:

      (a) Option 3 in NRS 1A.450, if the deceased member had less than 15 years of service on the date of his death; or

      (b) Option 2 in NRS 1A.450, if the deceased member had 15 or more years of service on the date of his death.

To apply the provisions of Options 2 and 3, the deceased member shall be deemed to have retired on the date of his death immediately after having named the survivor beneficiary as beneficiary pursuant to the applicable option. This benefit must be computed without any reduction for age for the deceased member. The benefits provided by this subsection must be paid to the survivor beneficiary for the remainder of the life of the survivor beneficiary.

      2.  If the member had designated one or more payees in addition to the survivor beneficiary pursuant to NRS 1A.620, the monthly allowance to which a survivor beneficiary is entitled pursuant to subsection 1 must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 1A.620.

      3.  The survivor beneficiary may elect to receive the benefits provided by any one of the following only:

      (a) This section; or

      (b) NRS 1A.630.

      [3.] 4.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 1A.620.

      Sec. 41.  NRS 1A.650 is hereby amended to read as follows:

      1A.650  1.  [The] Except as otherwise provided in subsection 2, the survivor beneficiary of a deceased member of the Judicial Retirement Plan who was fully eligible to retire, both as to service and age, is entitled to receive a monthly allowance equivalent to that provided by Option 2 in NRS 1A.450. This section does not apply to the survivor beneficiary of a member who was eligible to retire only pursuant to subsection 2 of NRS 1A.350. For the purposes of applying the provisions of Option 2, the deceased member shall be deemed to have retired on the date of his death immediately after having named the survivor beneficiary as beneficiary pursuant to Option 2. The benefits provided by this section must be paid to the survivor beneficiary for the remainder of the life of the survivor beneficiary. The survivor beneficiary may elect to receive the benefits provided by any one of the following only:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2074 (Chapter 363, SB 439)ê

 

      (a) This section;

      (b) NRS 1A.630; or

      (c) NRS 1A.640.

      2.  If the member had designated one or more payees in addition to the survivor beneficiary pursuant to NRS 1A.620, the monthly allowance to which a survivor beneficiary is entitled pursuant to subsection 1 must be divided between the survivor beneficiary and any additional payee in the proportion designated by the member pursuant to NRS 1A.620.

      3.  As used in this section, “survivor beneficiary” means a person designated pursuant to NRS 1A.620.

      Sec. 42.  NRS 2.079 is hereby amended to read as follows:

      2.079  1.  [An unmarried] A justice of the Supreme Court may designate, in writing, a survivor beneficiary and one or more additional payees to receive the payments provided pursuant to this section if the justice is unmarried on the date of his death. A designation pursuant to this section must be made on a form approved by the Court Administrator. If the justice has designated one or more payees in addition to the survivor beneficiary, the justice must designate the percentage of the payments that the survivor beneficiary and each additional payee is entitled to receive.

      2.  [If] Except as otherwise provided in this subsection, if a justice of the Supreme Court at the time of his death had retired and was then receiving a pension pursuant to the provisions of NRS 2.060, or if at the time of his death the justice had not retired but had performed sufficient service for retirement pursuant to the provisions of NRS 2.060, the survivor beneficiary designated pursuant to subsection 1, if the survivor beneficiary has attained the age of 60 years, is entitled, until his death, to receive monthly payments of $2,500 per month. If the justice had designated one or more payees in addition to the survivor beneficiary pursuant to subsection 1, the monthly payments paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the justice pursuant to subsection 1.

      3.  [If] Except as otherwise provided in this subsection, if a survivor beneficiary of a justice is not eligible to receive benefits pursuant to subsection 2, he is entitled, until his death or until he becomes eligible to receive those benefits, to receive payments equal in amount to the payment provided in subsection 1 of NRS 286.67675 for the survivor beneficiary of a deceased member of the Public Employees’ Retirement System. If the justice had designated one or more payees in addition to the survivor beneficiary pursuant to subsection 1, the payments paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the justice pursuant to subsection 1.

      4.  To obtain [these benefits,] the benefits authorized in subsection 3, the survivor beneficiary must make application to the Executive Officer of the Public Employees’ Retirement Board and furnish such information as may be required pursuant to reasonable regulations adopted for the purpose of carrying out the intent of this section.

      5.  Any person receiving a benefit pursuant to the provisions of this section is entitled to receive postretirement increases equal to those provided for persons retired pursuant to the Public Employees’ Retirement System.

      6.  It is the intent of this section that no special fund be created for the purpose of paying these benefits, and all payments made pursuant to the provisions of this section are to be made out of and charged to the Judicial Retirement Fund established pursuant to NRS 1A.160.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2075 (Chapter 363, SB 439)ê

 

provisions of this section are to be made out of and charged to the Judicial Retirement Fund established pursuant to NRS 1A.160.

      Sec. 43.  NRS 3.098 is hereby amended to read as follows:

      3.098  1.  [An unmarried] A district judge may designate, in writing, a survivor beneficiary and one or more additional payees to receive the payments provided pursuant to this section if the judge is unmarried on the date of his death. A designation pursuant to this section must be made on a form approved by the Court Administrator. If the district judge has designated one or more payees in addition to the survivor beneficiary, the district judge must designate the percentage of the payments that the survivor beneficiary and each additional payee is entitled to receive.

      2.  [If] Except as otherwise provided in this subsection, if a district judge at the time of his death had retired and was then receiving a pension pursuant to the provisions of NRS 3.090, or if at the time of his death the district judge had not retired but had performed sufficient service for retirement pursuant to the provisions of NRS 3.090, the survivor beneficiary designated pursuant to subsection 1, if the survivor beneficiary has attained the age of 60 years, is entitled, until his death, to receive monthly payments of $2,500 per month. If the district judge had designated one or more payees in addition to the survivor beneficiary pursuant to subsection 1, the monthly payments paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the district judge pursuant to subsection 1.

      3.  [If] Except as otherwise provided in this subsection, if a survivor beneficiary of a district judge is not eligible to receive benefits pursuant to subsection 2, he is entitled, until his death or until he becomes eligible to receive those benefits, to receive payments equal in amount to the payment provided in subsection 1 of NRS 286.67675 for the survivor beneficiary of a deceased member of the Public Employees’ Retirement System. If the district judge had designated one or more payees in addition to the survivor beneficiary pursuant to subsection 1, the payments paid pursuant to this subsection must be divided between the survivor beneficiary and any additional payee in the proportion designated by the district judge pursuant to subsection 1.

      4.  To obtain [these benefits,] the benefits authorized by subsection 3, the survivor beneficiary must make application to the Executive Officer of the Public Employees’ Retirement [Fund] Board and furnish such information as may be required pursuant to reasonable regulations adopted for the purpose of carrying out the intent of this section.

      5.  Any person receiving a benefit pursuant to the provisions of this section is entitled to receive postretirement increases equal to those provided for persons retired pursuant to the Public Employees’ Retirement System.

      6.  It is the intent of this section that no special fund be created for the purpose of paying these benefits, and all payments made pursuant to the provisions of this section are to be made out of and charged to the Judicial Retirement Fund established pursuant to NRS 1A.160.

      Sec. 44.  The designation of a position for which there is a critical labor shortage pursuant to NRS 1A.380 or 286.523 expires on the date on which the authority to make the designation expires.

      Sec. 45.  1.  This section and sections 1 to 26, inclusive, and 32 to 37, inclusive, and 44 of this act become effective on July 1, 2003.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2076 (Chapter 363, SB 439)ê

 

      2.  Sections 27 to 31, inclusive, and 38 to 43, inclusive, of this act become effective on January 1, 2004.

      3.  Sections 20, 21, 35 and 36 of this act expire by limitation on June 30, 2005.

________

 

CHAPTER 364, SB 173

Senate Bill No. 173–Committee on Government Affairs

 

CHAPTER 364

 

AN ACT relating to state financial administration; exempting certain licensing boards from the State Budget Act and certain provisions governing financial administration; 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 353.005 is hereby amended to read as follows:

      353.005  The provisions of this chapter do not apply to boards created [pursuant to] by the provisions of chapters 623 to 625A, inclusive, 628, 630 to 640A, inclusive, 641 to 644, inclusive, 648, 654 and 656 of NRS and NRS 590.485 and the officers and employees [thereof.] of those boards.

      Sec. 2.  NRS 353A.020 is hereby amended to read as follows:

      353A.020  1.  The Director, in consultation with the Committee and Legislative Auditor, shall adopt a uniform system of internal accounting and administrative control for agencies. The elements of the system must include, without limitation:

      (a) A plan of organization which provides for a segregation of duties appropriate to safeguard the assets of the agency;

      (b) A plan which limits access to assets of the agency to persons who need the assets to perform their assigned duties;

      (c) Procedures for authorizations and recordkeeping which effectively control accounting of assets, liabilities, revenues and expenses;

      (d) A system of practices to be followed in the performance of the duties and functions of each agency; and

      (e) An effective system of internal review.

      2.  The Director, in consultation with the Committee and Legislative Auditor, may modify the system whenever he considers it necessary.

      3.  Each agency shall develop written procedures to carry out the system of internal accounting and administrative control adopted pursuant to this section.

      4.  For the purposes of this section, “agency” does not include:

      (a) A board created by the provisions of chapters 623 to 625A, inclusive, 628, 630 to 640A, inclusive, 641 to 644, inclusive, 648, 654 and 656 of NRS [.] and NRS 590.485.

      (b) The University and Community College System of Nevada.

      (c) The Public Employees’ Retirement System.

      (d) The Housing Division of the Department of Business and Industry.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2077 (Chapter 364, SB 173)ê

 

      (e) The Colorado River Commission of Nevada.

      Sec. 3.  NRS 353A.025 is hereby amended to read as follows:

      353A.025  1.  The head of each agency shall periodically review the agency’s system of internal accounting and administrative control to determine whether it is in compliance with the uniform system of internal accounting and administrative control for agencies adopted pursuant to subsection 1 of NRS 353A.020.

      2.  On or before July 1 of each even-numbered year, the head of each agency shall report to the Director whether the agency’s system of internal accounting and administrative control is in compliance with the uniform system adopted pursuant to subsection 1 of NRS 353A.020. The reports must be made available for inspection by the members of the Legislature.

      3.  For the purposes of this section, “agency” does not include:

      (a) A board created by the provisions of chapters 623 to 625A, inclusive, 628, 630 to 640A, inclusive, 641 to 644, inclusive, 648, 654 and 656 of NRS [.] and NRS 590.485.

      (b) The University and Community College System of Nevada.

      (c) The Public Employees’ Retirement System.

      (d) The Housing Division of the Department of Business and Industry.

      (e) The Colorado River Commission of Nevada.

      4.  The Director shall, on or before the first Monday in February of each odd-numbered year, submit a report on the status of internal accounting and administrative controls in agencies to the:

      (a) Director of the Legislative Counsel Bureau for transmittal to the:

             (1) Senate Standing Committee on Finance; and

             (2) Assembly Standing Committee on Ways and Means;

      (b) Governor; and

      (c) Legislative Auditor.

      5.  The report submitted by the Director pursuant to subsection 4 must include, without limitation:

      (a) The identification of each agency that has not complied with the requirements of subsections 1 and 2;

      (b) The identification of each agency that does not have an effective method for reviewing its system of internal accounting and administrative control; and

      (c) The identification of each agency that has weaknesses in its system of internal accounting and administrative control, and the extent and types of such weaknesses.

      Sec. 4.  NRS 353A.045 is hereby amended to read as follows:

      353A.045  The Chief shall:

      1.  Report to the Director.

      2.  Develop long-term and annual work plans to be based on the results of periodic documented risk assessments. The annual work plan must list the agencies to which the Division will provide training and assistance and be submitted to the Director for approval. Such agencies must not include:

      (a) A board created by the provisions of chapters 623 to 625A, inclusive, 628, 630 to 640A, inclusive, 641 to 644, inclusive, 648, 654 and 656 of NRS [.] and NRS 590.485.

      (b) The University and Community College System of Nevada.

      (c) The Public Employees’ Retirement System.

      (d) The Housing Division of the Department of Business and Industry.

      (e) The Colorado River Commission of Nevada.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2078 (Chapter 364, SB 173)ê

 

      3.  Provide a copy of the approved annual work plan to the Legislative Auditor.

      4.  In consultation with the Director, prepare a plan for auditing executive branch agencies for each fiscal year and present the plan to the Committee for its review and approval. Each plan for auditing must:

      (a) State the agencies which will be audited, the proposed scope and assignment of those audits and the related resources which will be used for those audits; and

      (b) Ensure that the internal accounting, administrative controls and financial management of each agency are reviewed periodically.

      5.  Perform the audits of the programs and activities of the agencies in accordance with the plan approved pursuant to subsection 5 of NRS 353A.038 and prepare audit reports of his findings.

      6.  Review each agency that is audited pursuant to subsection 5 and advise those agencies concerning internal accounting, administrative controls and financial management.

      7.  Submit to each agency that is audited pursuant to subsection 5 analyses, appraisals and recommendations concerning:

      (a) The adequacy of the internal accounting and administrative controls of the agency; and

      (b) The efficiency and effectiveness of the management of the agency.

      8.  Report any possible abuses, illegal actions, errors, omissions and conflicts of interest of which the Division becomes aware during the performance of an audit.

      9.  Adopt the standards of the Institute of Internal Auditors for conducting and reporting on audits.

      10.  Consult with the Legislative Auditor concerning the plan for auditing and the scope of audits to avoid duplication of effort and undue disruption of the functions of agencies that are audited pursuant to subsection 5.

      11.  Appoint a Manager of Internal Controls.

      Sec. 5.  NRS 218.825 is hereby amended to read as follows:

      218.825  1.  Each of the boards [and commissions] created by the provisions of chapters 623 to 625A, inclusive, 628 , 630 to 640A, inclusive, 641 to 644, inclusive, [and 641C,] 648, 654 and 656 of NRS and NRS 590.485 shall engage the services of a certified public accountant or public accountant, or firm of either of such accountants, to audit all its fiscal records once each year for the preceding fiscal year or once every other year for the 2 preceding fiscal years. The cost of the audit must be paid by the board [or commission] audited.

      2.  A report of each such audit must be filed by the board [or commission] with the Legislative Auditor and the [director of the budget] Chief of the Budget Division of the Department of Administration on or before December 1 of each year in which an audit is conducted. All audits must be conducted in accordance with generally accepted auditing standards , and all financial statements must be prepared in accordance with generally accepted principles of accounting for special revenue funds.

      3.  The Legislative Auditor shall audit the fiscal records of any such board [or commission] whenever directed to do so by the Legislative Commission. When the Legislative Commission directs such an audit, [it] the Legislative Commission shall also determine who is to pay the cost of the audit.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2079 (Chapter 364, SB 173)ê

 

      Sec. 6.  This act becomes effective on July 1, 2003.

________

 

CHAPTER 365, SB 116

Senate Bill No. 116–Senators Nolan and Wiener

 

Joint Sponsors: Assemblywomen Leslie and Chowning

 

CHAPTER 365

 

AN ACT relating to motor vehicles; requiring that a child who is both less than 6 years of age and weighs 60 pounds or less be secured in a child restraint system when traveling in certain motor vehicles; requiring that such a system be properly installed within and attached to the motor vehicle; revising the provisions relating to the imposition of a fine or a requirement to perform community service for failing to secure a child in a child restraint system; requiring that each child who is not required to be secured in a child restraint system must be secured with a standard safety belt; 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 484.474 is hereby amended to read as follows:

      484.474  1.  Except as otherwise provided in subsection 5, any person who is transporting a child who is [under 5] less than 6 years of age and who weighs 60 pounds or less [than 40 pounds] in a motor vehicle operated in this state which is equipped to carry passengers shall secure [him] the child in a [device for restraining a] child restraint system which [has] :

      (a) Has been approved by the United States Department of Transportation [.] in accordance with the Federal Motor Vehicle Safety Standards set forth in 49 C.F.R. Part 571;

      (b) Is appropriate for the size and weight of the child; and

      (c) Is installed within and attached safely and securely to the motor vehicle:

             (1) In accordance with the instructions for installation and attachment provided by the manufacturer of the child restraint system; or

             (2) In another manner that is approved by the National Highway Traffic Safety Administration.

      2.  A person who violates the provisions of subsection 1 shall be :

      (a) Required to complete a program of training conducted by a person or agency approved by the Department of Public Safety in the installation and use of child restraint systems; and

      (b) Except as otherwise provided in this paragraph, punished by a fine of not less than [$35] $50 nor more than [$100 unless, within 14 days after the issuance of the citation for such a violation, the person presents to the court specified in the citation proof of his purchase of such a restraining device. Upon presentation of such proof, the court shall void the citation.] $500, or required to perform not less than 8 hours nor more than 50 hours of community service.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2080 (Chapter 365, SB 116)ê

 

of community service. The court may waive any amount of the fine in excess of $50 or any amount of the community service in excess of 8 hours if a person or agency approved by the Department of Public Safety certifies that the violator has:

             (1) Completed the program of training required by paragraph (a); and

             (2) Presented for inspection by the person or agency an installed child restraint system that satisfies the provisions of subsection 1.

The court shall make available a list of persons and agencies approved by the Department of Public Safety to conduct programs of training and perform inspections of child restraint systems.

      3.  For the purposes of NRS 483.473, a violation of this section is not a moving traffic violation.

      4.  A violation of this section may not be considered:

      (a) Negligence in any civil action; or

      (b) Negligence or reckless driving for the purposes of NRS 484.377.

      5.  This section does not apply:

      (a) To a person who is transporting a child in a means of public transportation, including a taxi, school bus or emergency vehicle.

      (b) When a physician determines that the use of such a [restraining device] child restraint system for the particular child would be impractical or dangerous because of such factors as the child’s weight, physical unfitness or medical condition. In this case, the person transporting the child shall carry in the vehicle the signed statement of the physician to that effect.

      6.  As used in this section, “child restraint system” means any device that is designed for use in a motor vehicle to restrain, seat or position children. The term includes, without limitation:

      (a) Booster seats and belt-positioning seats that are designed to elevate or otherwise position a child so as to allow the child to be secured with a safety belt;

      (b) Integrated child seats; and

      (c) Safety belts that are designed specifically to be adjusted to accommodate children.

      Sec. 2.  NRS 484.641 is hereby amended to read as follows:

      484.641  1.  It is unlawful to drive a passenger car manufactured after:

      (a) January 1, 1968, on a highway unless it is equipped with at least two lap-type safety belt assemblies for use in the front seating positions.

      (b) January 1, 1970, on a highway, unless it is equipped with a lap-type safety belt assembly for each permanent seating position for passengers. This requirement does not apply to the rear seats of vehicles operated by a police department or sheriff’s office.

      (c) January 1, 1970, unless it is equipped with at least two shoulder-harness-type safety belt assemblies for use in the front seating positions.

      2.  Any person driving , and any passenger [5] who:

      (a) Is 6 years of age or older ; or

      (b) Weighs more than 60 pounds, regardless of age,

who rides in the front or back seat of any vehicle described in subsection 1, having an unladen weight of less than [6,000] 10,000 pounds, on any highway, road or street in this state shall wear a safety belt if one is available for his seating position.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2081 (Chapter 365, SB 116)ê

 

      3.  A citation must be issued to any driver or to any adult passenger who fails to wear a safety belt as required by subsection 2. If the passenger is a child [5] who:

      (a) Is 6 years of age or older but [under] less than 18 years [,] of age, regardless of weight; or

      (b) Is less than 6 years of age but who weighs more than 60 pounds,

a citation must be issued to the driver for his failure to require that child to wear the safety belt, but if both the driver and that child are not wearing safety belts, only one citation may be issued to the driver for both violations. A citation may be issued pursuant to this subsection only if the violation is discovered when the vehicle is halted or its driver arrested for another alleged violation or offense. Any person who violates the provisions of subsection 2 shall be punished by a fine of not more than $25 or by a sentence to perform a certain number of hours of community service.

      4.  A violation of subsection 2:

      (a) Is not a moving traffic violation under NRS 483.473.

      (b) May not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484.377.

      (c) May not be considered as misuse or abuse of a product or as causation in any action brought to recover damages for injury to a person or property resulting from the manufacture, distribution, sale or use of a product.

      5.  The Department shall exempt those types of motor vehicles or seating positions from the requirements of subsection 1 when compliance would be impractical.

      6.  The provisions of subsections 2 and 3 do not apply:

      (a) To a driver or passenger who possesses a written statement by a physician certifying that he is unable to wear a safety belt for medical or physical reasons;

      (b) If the vehicle is not required by federal law to be equipped with safety belts;

      (c) To an employee of the United States Postal Service while delivering mail in the rural areas of this state;

      (d) If the vehicle is stopping frequently, the speed of that vehicle does not exceed 15 miles per hour between stops and the driver or passenger is frequently leaving the vehicle or delivering property from the vehicle; or

      (e) To a passenger riding in a means of public transportation, including a taxi, school bus or emergency vehicle.

      7.  It is unlawful for any person to distribute, have for sale, offer for sale or sell any safety belt or shoulder harness assembly for use in a motor vehicle unless it meets current minimum standards and specifications of the United States Department of Transportation.

      Sec. 3.  This act becomes effective on June 1, 2004.

________

 


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2082ê

 

CHAPTER 366, AB 13

Assembly Bill No. 13–Committee on Judiciary

 

CHAPTER 366

 

AN ACT relating to criminal procedure; eliminating the panel of judges that conducts the penalty hearing in certain cases in which the death penalty is sought; requiring district attorneys to submit certain information to the Supreme Court concerning cases involving homicide; requiring the Supreme Court to prepare and submit an annual report providing a summary and analysis of that information to the Legislature; 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 175.552 is hereby amended to read as follows:

      175.552  1.  Except as otherwise provided in subsection 2, in every case in which there is a finding that a defendant is guilty of murder of the first degree, whether or not the death penalty is sought, the court shall conduct a separate penalty hearing. The separate penalty hearing must be conducted as follows:

      (a) If the finding is made by a jury, the separate penalty hearing must be conducted in the trial court before the trial jury, as soon as practicable.

      (b) If the finding is made upon a plea of guilty or guilty but mentally ill or a trial without a jury and the death penalty is sought, the separate penalty hearing must be conducted before a [panel of three district judges,] jury impaneled for that purpose, as soon as practicable.

      (c) If the finding is made upon a plea of guilty or guilty but mentally ill or a trial without a jury and the death penalty is not sought, the separate penalty hearing must be conducted before the judge who conducted the trial or who accepted the plea, as soon as practicable.

      2.  In a case in which the death penalty is not sought, the parties may by stipulation waive the separate penalty hearing required in subsection 1. When stipulating to such a waiver, the parties may also include an agreement to have the sentence, if any, imposed by the trial judge. Any stipulation pursuant to this subsection must be in writing and signed by the defendant, his attorney, if any, and the prosecuting attorney.

      3.  In the hearing, evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible. Evidence may be offered to refute hearsay matters. No evidence which was secured in violation of the Constitution of the United States or the Constitution of the State of Nevada may be introduced. The State may introduce evidence of additional aggravating circumstances as set forth in NRS 200.033, other than the aggravated nature of the offense itself, only if it has been disclosed to the defendant before the commencement of the penalty hearing.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2083 (Chapter 366, AB 13)ê

 

      4.  In a case in which the death penalty is not sought, the jury or the trial judge shall determine whether the defendant should be sentenced to life with the possibility of parole or life without the possibility of parole.

      Sec. 2.  NRS 175.554 is hereby amended to read as follows:

      175.554  In cases in which the death penalty is sought:

      1.  [If the penalty hearing is conducted before a jury, the] The court shall instruct the jury at the end of the penalty hearing, and shall include in its instructions the aggravating circumstances alleged by the prosecution upon which evidence has been presented during the trial or at the hearing. The court shall also instruct the jury as to the mitigating circumstances alleged by the defense upon which evidence has been presented during the trial or at the hearing.

      2.  The jury [or the panel of judges] shall determine:

      (a) Whether an aggravating circumstance or circumstances are found to exist;

      (b) Whether a mitigating circumstance or circumstances are found to exist; and

      (c) Based upon these findings, whether the defendant should be sentenced to imprisonment for a definite term of 50 years, life imprisonment with the possibility of parole, life imprisonment without the possibility of parole or death.

      3.  The jury [or the panel of judges] may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.

      4.  If a jury [or a panel of judges] imposes a sentence of death, [the court shall enter its finding in the record, or] the jury shall render a written verdict signed by the foreman. The [finding or] verdict must designate the aggravating circumstance or circumstances which were found beyond a reasonable doubt, and must state that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.

      Sec. 3.  NRS 175.556 is hereby amended to read as follows:

      175.556  1.  In a case in which the death penalty is sought, if a jury is unable to reach a unanimous verdict upon the sentence to be imposed, [the Supreme Court shall appoint two district judges from judicial districts other than the district in which the plea is made, who shall with] the district judge who conducted the trial [, or his successor in office, conduct the required penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence accordingly. A sentence of death may be given only by unanimous vote of the three judges, but any other sentence may be given by the vote of a majority.] or accepted the plea of guilty shall sentence the defendant to life imprisonment without the possibility of parole or impanel a new jury to determine the sentence.

      2.  In a case in which the death penalty is not sought, if a jury is unable to reach a unanimous verdict upon the sentence to be imposed, the trial judge shall impose the sentence.

      Sec. 4.  NRS 176.495 is hereby amended to read as follows:

      176.495  1.  If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction was had must, upon the application of the Attorney General or the district attorney of the county in which the conviction was had, cause another warrant to be drawn, signed by the judge and attested by the clerk under the seal of the court, and delivered to the Director of the Department of Corrections.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2084 (Chapter 366, AB 13)ê

 

drawn, signed by the judge and attested by the clerk under the seal of the court, and delivered to the Director of the Department of Corrections.

      2.  The warrant must state the conviction and judgment and appoint a week, the first day being Monday and the last day being Sunday, within which the judgment is to be executed. The first day of that week must be not less than 15 days nor more than 30 days after the date of the warrant. The Director shall execute a sentence of death within the week the judgment is to be executed, as designated by the district court. The Director may execute the judgment at any time during that week if a stay of execution is not entered by a court of appropriate jurisdiction.

      [3.  Where sentence was imposed by a district court composed of three judges, the district judge before whom the confession or plea was made, or his successor in office, shall designate the week of execution, the first day being Monday and the last day being Sunday, and sign the warrant.]

      Sec. 5.  NRS 177.055 is hereby amended to read as follows:

      177.055  1.  When upon a plea of not guilty a judgment of death is entered, an appeal is deemed automatically taken by the defendant without any action by him or his counsel, unless the defendant or his counsel affirmatively waives the appeal within 30 days after the rendition of the judgment.

      2.  Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be reviewed on the record by the Supreme Court, which shall consider, in a single proceeding if an appeal is taken:

      (a) Any errors enumerated by way of appeal;

      (b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;

      (c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and

      (d) Whether the sentence of death is excessive, considering both the crime and the defendant.

      3.  The Supreme Court, when reviewing a death sentence, may:

      (a) Affirm the sentence of death;

      (b) Set the sentence aside and remand the case for a new penalty hearing [:

             (1) If the original penalty hearing was before a jury,] before a newly impaneled jury; or

             [(2) If the original penalty hearing was before a panel of judges, before a panel of three district judges which must consist, insofar as possible, of the members of the original panel; or]

      (c) Set aside the sentence of death and impose the sentence of imprisonment for life without possibility of parole.

      Sec. 6.  Chapter 178 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  The district attorney for each county shall prepare and submit a report to the Supreme Court not later than February 1 of each year concerning each case filed during the previous calendar year that included a charge for murder or voluntary manslaughter. The district attorney shall exclude from the report any charge for manslaughter that resulted from a death in an accident or collision involving a motor vehicle.

      2.  The report required pursuant to subsection 1 must include, without limitation:

      (a) The age, gender and race of the defendant;


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2085 (Chapter 366, AB 13)ê

 

      (b) The age, gender and race of any codefendant or other person charged or suspected of having participated in the homicide and in any alleged related offense;

      (c) The age, gender and race of the victim of the homicide and any alleged related offense;

      (d) The date of the homicide and of any alleged related offense;

      (e) The date of filing of the information or indictment;

      (f) The name of each court in which the case was prosecuted;

      (g) Whether or not the prosecutor filed a notice of intent to seek the death penalty and, if so, when the prosecutor filed the notice;

      (h) The final disposition of the case and whether or not the case was tried before a jury;

      (i) The race, ethnicity and gender of each member of the jury, if the case was tried by a jury; and

      (j) The identity of:

             (1) Each prosecuting attorney who participated in the decision to file the initial charges against the defendant;

             (2) Each prosecuting attorney who participated in the decision to offer or accept a plea, if applicable;

             (3) Each prosecuting attorney who participated in the decision to seek the death penalty, if applicable; and

             (4) Each person outside the office of the district attorney who was consulted in determining whether to seek the death penalty or to accept or reject a plea, if any.

      3.  If all the information required pursuant to subsection 1 cannot be provided because the case is still in progress, an additional report must be filed with the Supreme Court each time a subsequent report is filed until all the information, to the extent available, has been provided.

      Sec. 7.  Chapter 2 of NRS is hereby amended by adding thereto a new section to read as follows:

      Not later than March 1 of each odd-numbered year, the Supreme Court shall prepare and submit to the Director of the Legislative Counsel Bureau for distribution to each regular session of the Legislature a report of the information submitted to the Supreme Court by the district attorneys during the preceding biennium pursuant to section 6 of this act.

      Sec. 8.  NRS 175.558 and 175.562 are hereby repealed.

      Sec. 9.  This act becomes effective upon passage and approval.

________

 


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2086ê

 

CHAPTER 367, AB 542

Assembly Bill No. 542–Committee on Elections, Procedures, and Ethics

 

CHAPTER 367

 

AN ACT relating to the Legislature; making various changes relating to the operation of the Legislature and the Legislative Counsel Bureau; 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 218 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  To the extent practicable, the Legislative Counsel shall cause each bill or joint resolution introduced in the Legislature to include a digest. The digest must be printed on the bill immediately following the title of the bill.

      2.  The digest must be drafted by the Legislative Counsel in plain English and include a concise and clear summary of any existing laws directly related to the legislation and a summary of how the legislation adds to, changes or repeals such existing laws. To the extent practicable, if either house amends a bill or joint resolution, the Legislative Counsel shall cause the digest to be revised as necessary to reflect the adoption of the amendment. The digest is not subject to amendment by the Legislature.

      Sec. 1.5.  NRS 218.2405 is hereby amended to read as follows:

      218.2405  1.  Except as otherwise provided by specific statute , joint rule or concurrent resolution of the Legislature, the Legislative Counsel shall honor:

      (a) The number of requests for the drafting of a bill or resolution for a regular session of the Legislature only as provided in NRS 218.240 to 218.255, inclusive.

      (b) [A request for the drafting of a bill or resolution for a regular session of the Legislature only if the request is received by the Legislative Counsel on or before December 15 preceding the commencement of that session.

      (c)] A request for the drafting of a bill or resolution for any session of the Legislature which is submitted by a state agency, board or department, a local government, the judiciary or another authorized nonlegislative requester only if the request is in a subject related to the function of the requester.

      2.  The Legislative Counsel shall not:

      (a) Assign a number to a request for the drafting of a bill or resolution for any session of the Legislature to establish the priority of the request until sufficient detail has been received to allow complete drafting of the legislative measure.

      (b) Honor a request to change the subject matter of a request for the drafting of a bill or resolution for any session of the Legislature after it has been submitted for drafting.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2087 (Chapter 367, AB 542)ê

 

      (c) Honor a request for the drafting of a bill or resolution for any session of the Legislature which has been combined in violation of Section 17 of Article 4 of the Nevada Constitution.

      Sec. 2.  NRS 218.2415 is hereby amended to read as follows:

      218.2415  1.  An association of elected officials may directly request the Legislative Counsel and the Legal Division of the Legislative Counsel Bureau to prepare no more than 5 legislative measures for a regular legislative session.

      2.  An association of counties or cities may directly request the Legislative Counsel and the Legal Division of the Legislative Counsel Bureau to prepare no more than 20 legislative measures for a regular legislative session.

      3.  A request for the drafting of a legislative measure pursuant to this section must be submitted to the Legislative Counsel on or before September 1 preceding the commencement of a regular session of the Legislature.

      Sec. 3.  NRS 218.2423 is hereby amended to read as follows:

      218.2423  1.  Each:

      (a) Incumbent Assemblyman may request the drafting of not more than 5 legislative measures submitted to the Legislative Counsel on or before September 1 preceding the commencement of a regular session of the Legislature and not more than 5 legislative measures submitted to the Legislative Counsel after September 1 but on or before December 15 preceding the commencement of a regular session of the Legislature.

      (b) Incumbent Senator may request the drafting of not more than 10 legislative measures submitted to the Legislative Counsel on or before September 1 preceding the commencement of a regular session of the Legislature and not more than 10 legislative measures submitted to the Legislative Counsel after September 1 but on or before December 15 preceding the commencement of a regular session of the Legislature.

      (c) Newly elected Assemblyman may request the drafting of not more than 5 legislative measures submitted to the Legislative Counsel on or before December 15 preceding the commencement of a regular session of the Legislature.

      (d) Newly elected Senator may request the drafting of not more than 10 legislative measures submitted to the Legislative Counsel on or before December 15 preceding the commencement of a regular session of the Legislature.

      2.  In addition to the number authorized pursuant to subsection 1:

      (a) The chairman of each standing committee of the immediately preceding regular legislative session, or a person designated in the place of the chairman by the Speaker of the Assembly or the Majority Leader of the Senate, as the case may be, may request before the date of the general election preceding the commencement of the next regular legislative session the drafting of not more than 1 legislative measure for introduction by the committee in a subject within the jurisdiction of the committee for every 15 legislative measures that were referred to the respective standing committee during the immediately preceding regular legislative session.

      (b) A person designated after a general election as a chairman of a standing committee for the next regular legislative session, or a person designated in the place of a chairman by the person designated as the Speaker of the Assembly or the Majority Leader of the Senate for the next regular legislative session, may request on or before December 15 preceding the commencement of the next regular legislative session the drafting of the remaining number of the legislative measures allowed for the respective standing committee that were not requested by the previous chairman or designee.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2088 (Chapter 367, AB 542)ê

 

regular legislative session, may request on or before December 15 preceding the commencement of the next regular legislative session the drafting of the remaining number of the legislative measures allowed for the respective standing committee that were not requested by the previous chairman or designee.

      Sec. 4.  NRS 218.2426 is hereby amended to read as follows:

      218.2426  1.  In addition to the number authorized pursuant to NRS 218.2423:

      (a) The Speaker of the Assembly and the Majority Leader of the Senate may each request before [or during a] the date of the general election preceding the commencement of the next regular legislative session, without limitation, the drafting of not more than 15 legislative measures for that session.

      (b) The Minority Leader of the Assembly and the Minority Leader of the Senate may each request before [or during a] the date of the general election preceding the commencement of the next regular legislative session, without limitation, the drafting of not more than 10 legislative measures for that session.

      (c) A person designated after a general election as the Speaker of the Assembly, the Majority Leader of the Senate, the Minority Leader of the Assembly or the Minority Leader of the Senate for the next regular legislative session may request before the commencement of the next regular legislative session the drafting of the remaining number of the legislative measures allowed for the respective officer that were not requested by the previous officer.

      2.  The Legislative Counsel, the Secretary of the Senate and the Chief Clerk of the Assembly may request before or during a regular legislative session, without limitation, the drafting of as many legislative measures as are necessary or convenient for the proper exercise of their duties.

      Sec. 5.  NRS 218.2723 is hereby amended to read as follows:

      218.2723  1.  Before a vote is taken by a committee of the Assembly or the Senate on any bill or joint resolution which [reduces] the Legislative Counsel, in consultation with the Fiscal Analysis Division, determines may reduce the revenues or [increases] increase the expenditures of a local government , [or any bill which increases or newly provides for a term of imprisonment in a county or city jail or detention facility, or makes release on probation therefrom less likely,] the Fiscal Analysis Division shall prepare a fiscal note [after consultation with the appropriate local governments or their representatives.] pursuant to NRS 218.272 to 218.2758, inclusive.

      2.  Before preparing a fiscal note pursuant to this section, the Fiscal Analysis Division shall:

      (a) Provide to the appropriate local governments a copy of the bill or joint resolution for which the fiscal note is required; and

      (b) Request that the local governments review the bill or joint resolution and, if required, prepare a fiscal note pursuant to the provisions of subsection 2 of NRS 218.2752.

      3.  Except as otherwise provided in this subsection, a fiscal note is not required if the only impact on a local government is that a bill or joint resolution increases or newly provides for a term of imprisonment in a county or city jail or detention facility, or makes release on probation therefrom less likely. The Fiscal Analysis Division shall prepare a fiscal note for a bill or joint resolution for which a fiscal note is not otherwise required pursuant to this subsection if, within 8 working days after the bill or joint resolution is introduced:


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2089 (Chapter 367, AB 542)ê

 

note for a bill or joint resolution for which a fiscal note is not otherwise required pursuant to this subsection if, within 8 working days after the bill or joint resolution is introduced:

      (a) A local government prepares a fiscal note for the bill or joint resolution and submits it to the Fiscal Analysis Division; and

      (b) The fiscal note complies with requirements set forth in NRS 218.2751.

      Sec. 6.  NRS 218.275 is hereby amended to read as follows:

      218.275  1.  The name of the agency preparing the fiscal note must appear on the fiscal note with the [signature] name of the official of the agency who is primarily responsible for preparing the note.

      2.  The Department of Administration shall review the fiscal notes prepared by the agencies before such notes are returned to the Legislature. If the Department of Administration disagrees with a fiscal note prepared by the agency, it may submit a supplementary fiscal note for the bill or joint resolution.

      Sec. 6.5.  NRS 218.2751 is hereby amended to read as follows:

      218.2751  The fiscal note must be factual and concise in nature, and must provide a reliable estimate of the dollar amount of effect the bill or joint resolution will have. If the agency or local government concludes that no dollar amount can be estimated, the note must so state with reasons for such a conclusion.

      Sec. 7.  NRS 218.2752 is hereby amended to read as follows:

      218.2752  1.  Whenever a bill or joint resolution is submitted to an agency for a fiscal note, the agency shall prepare the note and return it to the Fiscal Analysis Division within 5 working days. The Fiscal Analysis Division may extend the period for not more than 10 additional working days if the matter requires extended research.

      2.  Whenever a bill or joint resolution is submitted to a local government for a fiscal note, the local government shall:

      (a) Review the provisions of the bill or joint resolution to determine whether the bill or joint resolution reduces the revenues or increases the expenditures of the local government; and

      (b) If the local government determines that the bill or joint resolution reduces the revenues or increases the expenditures of the local government, prepare a fiscal note for that bill or resolution and return it to the Fiscal Analysis Division within 8 working days.

      Sec. 8.  NRS 218.2753 is hereby amended to read as follows:

      218.2753  1.  Agencies and local governments may use the bills and joint resolutions submitted to them for official purposes only. A person shall not copy or otherwise disseminate information concerning any bill or joint resolution submitted to him which has not been introduced in the Legislature without the consent of the requester.

      2.  Any person who knowingly disseminates information in violation of this section is guilty of a misdemeanor.

      Sec. 9.  NRS 218.2754 is hereby amended to read as follows:

      218.2754  1.  The summary of each bill or joint resolution introduced in the Legislature must include the statement:

      (a) “Fiscal Note: Effect on Local Government: [Yes,”] May have Fiscal Impact,”

“Fiscal Note: Effect on Local Government: No,”“Fiscal Note: Effect on Local Government: [Contains Appropriation included in Executive Budget,” or


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2090 (Chapter 367, AB 542)ê

 

“Fiscal Note: Effect on Local Government: [Contains Appropriation included in Executive Budget,” or

“Fiscal Note: Effect on Local Government: Contains Appropriation not included in Executive Budget,”] Increases or Newly Provides for Term of Imprisonment in County or City Jail or Detention Facility,”

whichever is appropriate; and

      (b) “Effect on the State: Yes,”

             “Effect on the State: No,”

             “Effect on the State: Contains Appropriation included in Executive Budget,”

             “Effect on the State: Executive Budget,” or

“Effect on the State: Contains Appropriation not included in Executive Budget,”

whichever is appropriate.

      2.  The Legislative Counsel shall consult the Fiscal Analysis Division to secure the appropriate information for summaries of bills and joint resolutions.

      3.  If an amendment adds an appropriation to a bill that previously did not include an appropriation or removes all appropriations from a bill that previously included one or more appropriations, the Legislative Counsel shall change the summary of the bill to reflect the inclusion or removal.

      Sec. 10.  NRS 218.2755 is hereby amended to read as follows:

      218.2755  After a bill or joint resolution has been drafted, the Fiscal Analysis Division shall inform the requester that a fiscal note is required when the draft is submitted to the requester for review. If the requester so directs, the Fiscal Analysis Division shall promptly determine the agency or local government to which the bill or joint resolution should be submitted and shall submit it for a fiscal note. If the requester is a Legislator and desires to introduce the bill or joint resolution without a fiscal note, he may do so, but when the bill is introduced, the Fiscal Analysis Division shall promptly determine the agency or local government to which the bill or joint resolution is to be submitted and shall forward it to the agency or local government to obtain the fiscal note.

      Sec. 11.  NRS 218.2756 is hereby amended to read as follows:

      218.2756  1.  [The original, signed copy of a fiscal note that is obtained before a bill or joint resolution is introduced must be retained by the Fiscal Analysis Division to be used as printer’s copy after the bill or joint resolution is introduced.

      2.  If the fiscal note is obtained after the bill or joint resolution has been introduced, the Fiscal Analysis Division shall forward a signed copy to the Superintendent of the State Printing Division of the Department of Administration for the purposes of printing.

      3.  The original fiscal note must be retained by the Fiscal Analysis Division.

      4.  The] As soon as practicable after a fiscal note is received from an agency, the Fiscal Analysis Division shall send a copy of the fiscal note to the chairman of the standing committee or committees to which the bill or joint resolution has been referred. The Fiscal Analysis Division shall retain the original fiscal note.

      2.  Upon expiration of the period prescribed in paragraph (b) of subsection 2 of NRS 218.2752, the Fiscal Analysis Division shall prepare a single consolidated fiscal note into which any information submitted by a local government regarding a bill or joint resolution must be incorporated.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2091 (Chapter 367, AB 542)ê

 

single consolidated fiscal note into which any information submitted by a local government regarding a bill or joint resolution must be incorporated. If, upon the expiration of that period, the Fiscal Analysis Division determines that no local governments have submitted information regarding the fiscal impact of a bill or joint resolution, the Fiscal Analysis Division shall prepare a fiscal note indicating that local governments have reported no decreases in revenues or increases in expenditures resulting from the bill or joint resolution. The Fiscal Analysis Division shall send to the chairman of the standing committee or committees to which the bill or joint resolution has been referred a copy of a fiscal note prepared pursuant to this subsection. The Fiscal Analysis Division shall retain the original fiscal note and any fiscal notes submitted by local governments for the bill or resolution.

      3.  If a local government wishes to submit a fiscal note for a bill or joint resolution after the expiration of the period prescribed in paragraph (b) of subsection 2 of NRS 218.2752, the local government must submit the fiscal note to the chairman of the committee or committees to which the bill or joint resolution has been referred, and a copy of the fiscal note to the Fiscal Analysis Division. The Fiscal Analysis Division shall retain the copy of the fiscal note provided by the local government.

      Sec. 12.  NRS 218.277 is hereby amended to read as follows:

      218.277  1.  Any member of the next succeeding regular session of the Legislature may request the Legislative Counsel to prefile any legislative bill or joint resolution that was requested by that Legislator for introduction in the next succeeding regular session of the Legislature.

      2.  A person designated as a chairman of a standing committee for the next succeeding regular session of the Legislature may request the Legislative Counsel to prefile on behalf of the committee any legislative bill or joint resolution within the jurisdiction of the committee for introduction in the next succeeding regular session of the Legislature.

      3.  Such bills and joint resolutions must be in such final and correct form for introduction in the Legislature as required by the Nevada Constitution and this chapter.

      [3.] 4.  The Legislative Counsel shall not prefile a bill or joint resolution requested by:

      (a) A member of the Legislature who is not a candidate for reelection until after the general election immediately preceding the regular session of the Legislature.

      (b) A member of the Legislature who is elected or reelected to his office at the general election immediately preceding the regular session of the Legislature until he is determined to have received the highest number of votes pursuant to the canvass of votes required by NRS 293.395.

      Sec. 13.  NRS 218.480 is hereby amended to read as follows:

      218.480  1.  At the end of each session of the Legislature, [100 copies of] the journals must be printed, indexed and bound in book form in the same style as those of the 1927 session of the Legislature. The journal of each house must be bound separately.

      2.  The Secretary of the Senate and the Chief Clerk of the Assembly shall direct the compilation of the journal indexes, for their respective houses and shall deliver the completed journal indexes to the Superintendent.

      3.  The bound volumes must be delivered to the Legislative Counsel Bureau and constitute the journals of the Senate and the Assembly.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2092 (Chapter 367, AB 542)ê

 

      4.  Each member of the Legislature of which such journals are the record is entitled to one copy of the Senate Journal and one copy of the Assembly Journal.

      Sec. 14.  NRS 218.642 is hereby amended to read as follows:

      218.642  A petty cash account of the Legislative Counsel Bureau is hereby created [for] :

      1.  For each building in which offices of employees of the Legislative Counsel Bureau are located ; and

      2.  In any division approved for the sale of souvenirs pursuant to NRS 218.6845,

in the sum of not more than $1,000 each for the minor expenses of the Legislative Counsel Bureau. Each account must be kept in the custody of an employee designated by the Director of the Legislative Counsel Bureau and must be replenished periodically from the Legislative Fund upon approval of expenditures and submission of vouchers or other documents to indicate payment.

      Sec. 15.  NRS 218.647 is hereby amended to read as follows:

      218.647  1.  The Legislative Counsel Bureau shall compile and publish a Legislative Manual containing information concerning the Legislature and [the offices, departments, institutions and agencies of the state government and] other information appropriate for Legislators.

      2.  The costs of compilation and publication shall be paid from the Legislative Fund.

      Sec. 16.  NRS 218.683 is hereby amended to read as follows:

      218.683  1.  The Director of the Legislative Counsel Bureau, as executive head of the Legislative Counsel Bureau, shall direct and supervise all its administrative and technical activities. The fiscal analysts, Legislative Auditor, Research Director and Legislative Counsel shall perform the respective duties assigned to them by law under the administrative supervision of the Director.

      2.  The Director of the Legislative Counsel Bureau shall, consistent with the budget approved by the Legislative Commission and within the limits of legislative appropriations and other available funds, employ and fix the salaries of or contract for the services of such professional, technical, clerical and operational personnel and consultants as the execution of his duties and the operation of the Legislative Counsel Bureau may require.

      3.  All of the personnel of the Legislative Counsel Bureau are exempt from the provisions of chapter 284 of NRS. They are entitled to such leaves of absence as the Legislative Commission shall prescribe.

      [4.  The Director shall serve as the Nevada Legislative Federal-State Coordinator.]

      Sec. 17.  NRS 218.934 is hereby amended to read as follows:

      218.934  The Director may:

      1.  Prepare and publish such reports concerning lobbying activities as he deems appropriate.

      2.  Release to the public the name of any lobbyist who fails to file any activity report within 14 days after the date it is required to be filed.

      3.  Revoke the registration of any lobbyist who fails to file any activity report within 30 days after the date it is required to be filed [.] or fails to file two or more activity reports within the time required.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2093 (Chapter 367, AB 542)ê

 

      Sec. 17.5.  NRS 218.940 is hereby amended to read as follows:

      218.940  1.  [Any] Except as otherwise provided in this subsection, a registrant who files an activity report after the time provided in NRS 218.926 shall pay to the Director a fee for late filing of $10 for each day that it was late, but the Director may reduce or waive this fee upon a finding of just cause. The Legislative Commission may by regulation exempt a classification of lobbyist from the fee for late filing.

      2.  An activity report with respect to which a late filing fee has been paid by the registrant or waived by the Director shall be deemed timely filed, and the late filing is not a public offense.

      Sec. 18.  NRS 220.120 is hereby amended to read as follows:

      220.120  1.  In preparing the annotations and keeping Nevada Revised Statutes current, the Legislative Counsel is authorized:

      (a) To adopt such system of numbering as he deems practical.

      (b) To cause the revision to be published in a number of volumes deemed convenient.

      (c) To cause the volumes to be bound in loose-leaf binders of good, and so far as possible, permanent quality.

      2.  The pages of Nevada Revised Statutes must conform in size and printing style to the pages of the Statutes of Nevada, and roman style type must be used.

      3.  The Legislative Counsel shall classify and arrange the entire body of statute laws in logical order throughout the volumes, the arrangement to be such as will enable subjects of a kindred nature to be placed under one general head, with necessary cross references.

      4.  Notes of decisions of the Supreme Court, historical references and other material must be printed and arranged in such manner as the Legislative Counsel finds will promote the usefulness thereof.

      5.  The Legislative Counsel in keeping Nevada Revised Statutes current shall not alter the sense, meaning or effect of any legislative act, but may renumber sections and parts of sections thereof, change the wording of headnotes, rearrange sections, change reference numbers or words to agree with renumbered chapters or sections, substitute the word “chapter” for “article” and the like, substitute figures for written words and vice versa, change capitalization for the purpose of uniformity , correct inaccurate references to the titles of officers, the names of departments or other agencies of the State, local governments, or the Federal Government, and such other name changes as are necessary to be consistent with the laws of this state and correct manifest clerical or typographical errors.

      6.  The Legislative Counsel may create new titles, chapters and sections of Nevada Revised Statutes, or otherwise revise the title, chapter and sectional organization of Nevada Revised Statutes, all as may be required from time to time, to effectuate the orderly and logical arrangement of the statutes. Any new titles, chapters, sections and organizational revisions have the same force and effect as the 58 titles originally enacted and designated as the Nevada Revised Statutes pursuant to chapter 2, Statutes of Nevada 1957.

      7.  The Legislative Counsel shall assign NRS numbers to such new permanent and general laws enacted at any legislative session.

      8.  The Legislative Counsel shall resolve all nonsubstantive conflicts between multiple laws enacted at any legislative session as if made by a single enactment. If multiple amendments to a single section of NRS are made during a legislative session, such amendments are all effective and must be compiled in a manner that is consistent with the intent of the Legislature as determined by the Legislative Counsel.


…………………………………………………………………………………………………………………

ê2003 Statutes of Nevada, Page 2094 (Chapter 367, AB 542)ê

 

must be compiled in a manner that is consistent with the intent of the Legislature as determined by the Legislative Counsel.

      9.  The Legislative Counsel shall substitute the name of any agency, officer or instrumentality of the State or of a political subdivision whose name is changed by law or to which powers, duties and responsibilities have been transferred by law, for the name which the agency, officer or instrumentality previously used or which was previously vested with the same powers and charged with the same duties and responsibilities.

      Sec. 19.  The preliminary chapter of NRS is hereby amended by adding thereto a new section to read as follows:

      The provisions of any law or statute which is reenacted, amended or revised, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new enactments. If any provision of a law is repealed and in substance reenacted, a reference in any other law to the repealed provision shall be deemed to be a reference to the reenacted provision.

      Sec. 20.  NRS 0.025 is hereby amended to read as follows:

      0.025  1.  Except as otherwise expressly provided in a particular statute or required by the context:

      (a) “May” confers a right, privilege or power. The term “is entitled” confers a private right.

      (b) “May not” or “no * * * may” abridges or removes a right, privilege or power.

      (c) “Must” expresses a requirement when:

             (1) The subject is a thing, whether the verb is active or passive.

             (2) The subject is a natural person and:

                   (I) The verb is in the passive voice; or

                   (II) Only a condition precedent and not a duty is imposed.

      (d) “Shall” imposes a duty to act.

      (e) “Shall be deemed” or “shall be considered” creates a legal fiction.

      (f) “Shall not” imposes a prohibition against acting.

      2.  Except as otherwise required by the context, text of a statute that:

      (a) Follows subsections, paragraphs, subparagraphs or sub-subparagraphs that are introduced by a colon;

      (b) Is not designated as a separate subsection, paragraph, subparagraph or sub-subparagraph; and

      (c) Begins flush to the left margin rather than immediately following the material at the end of the final subsection, paragraph, subparagraph or sub-subparagraph,

Êapplies to the section as a whole, in the case of subsections, or to the subdivision preceding the colon as a whole rather than solely to the subdivision that the text follows. The symbol “Ê” in bills and in Nevada Revised Statutes indicates the beginning of such text.

      Sec. 21.  NRS 286.495 is hereby amended to read as follows:

      286.495  Except as provided in NRS 286.470, 286.475 and 286.501, members shall be credited with service on the basis of days, months or years actually worked by a member, except that:

      1.  Intermittent service shall be credited to a member on the basis of 1 day of service for each 8 hours worked, and portions of a day shall be prorated.

 

Link to Page 2095