Assembly Bill No. 72–Assemblymen Marvel and
Hettrick
February 6, 2001
____________
Referred to Committee on Ways and Means
SUMMARY—Makes plans, drawings, specifications and
other instruments of service prepared by design professionals for public works projects
property of State of Nevada. (BDR 28‑31)
FISCAL NOTE: Effect on Local Government: No.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along
left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to public works; making plans, drawings, specifications, maps, reports and
other instruments of service prepared by a design professional for a public
work the property of the State of Nevada; authorizing the reuse of such plans,
drawings, specifications, maps, reports and other instruments of service for
another public work; requiring that a design professional waive his right to
ownership of the copyright for the plans, drawings, specifications, maps,
reports and other instruments of service prepared for a public work; and
providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. Chapter 338
of NRS is hereby amended by adding thereto a
1-2 new section to read as
follows:
1-3 1. If a public body enters into a contract with
a design professional
1-4 for the provision of services in connection with a public work,
including,
1-5 without limitation, a contract entered into pursuant to NRS
338.1711 to
1-6 338.1727, inclusive, the plans, drawings, specifications, maps,
reports
1-7 and other instruments of service prepared pursuant to the contract
1-8 become the property of the State of Nevada. A public body may reuse
1-9 such plans, drawings, specifications, maps, reports and other
instruments
1-10 of service for another public work without paying any additional
1-11 compensation to the design professional who prepared them.
1-12 2. A contract with a design professional for the
provision of services
1-13 in connection with a public work must include a clause which
provides
1-14 that the design professional waives his right to own the copyright
for or
1-15 any common law, statutory or other reserved right in the plans,
drawings,
1-16 specifications, maps, reports and other instruments of service
prepared
2-1 pursuant to that contract. Any such contract that does not contain
such a
2-2 clause is void.
2-3 3. If a public body proposes to reuse plans,
drawings, specifications,
2-4 maps, reports and other instruments of service prepared pursuant to
a
2-5 contract with a design professional for the provision of services
in
2-6 connection with a public work for another public work, another
design
2-7 professional who is employed by or has contracted with the public
agency
2-8 may modify the plans, drawings, specifications, maps, reports and
other
2-9 instruments of service for the other public work.
2-10 4. If a public body reuses plans, drawings,
specifications, maps,
2-11 reports or other instruments of service pursuant to this section,
the
2-12 design professional who prepared the plans, drawings,
specifications,
2-13 maps, reports or other instruments of service is not liable for
injury or
2-14 damage resulting from such reuse if the design professional is not
a
2-15 party to the contract for the public work for which the plans,
drawings,
2-16 specifications, maps, reports or the instruments of service will be
reused.
2-17 Sec. 2. NRS 338.010 is hereby amended to read as follows:
2-18 338.010 As used in this
chapter:
2-19 1. “Day labor” means all
cases where public bodies, their officers,
2-20 agents or employees, hire,
supervise and pay the wages thereof directly to a
2-21 workman or workmen employed
by them on public works by the day and
2-22 not under a contract in
writing.
2-23 2. “Design professional” means a person with a professional
license
2-24 or certificate issued pursuant to chapter 623, 623A or 625 of NRS.
2-25 3. “Eligible bidder” means a person who is:
2-26 (a) Found to be a responsible and responsive contractor by a local
2-27 government which requests
bids for a public work in accordance with
2-28 paragraph (b) of subsection
1 of NRS 338.1373; or
2-29 (b) Determined by a public body which awarded a contract for a
public
2-30 work pursuant to NRS
338.1375 to 338.1389, inclusive, to be qualified to
2-31 bid on that contract
pursuant to NRS 338.1379 or was exempt from
2-32 meeting such qualifications
pursuant to NRS 338.1383.
2-33 [3.] 4. “Local government” means every political
subdivision or other
2-34 entity which has the right
to levy or receive money from ad valorem or
2-35 other taxes or any mandatory
assessments, and includes, without limitation,
2-36 counties, cities, towns,
boards, school districts and other districts organized
2-37 pursuant to chapters 244A,
309, 318, 379, 474, 541, 543 and 555 of NRS,
2-38 NRS 450.550 to 450.750,
inclusive, and any agency or department of a
2-39 county or city which
prepares a budget separate from that of the parent
2-40 political subdivision.
2-41 [4.] 5. “Offense” means failing to:
2-42 (a) Pay the prevailing wage required pursuant to this chapter;
2-43 (b) Pay the contributions for unemployment compensation required
2-44 pursuant to chapter 612 of
NRS; or
2-45 (c) Provide and secure compensation for employees required pursuant
2-46 to chapters 616A to 617,
inclusive, of NRS.
2-47 [5.] 6. “Prime contractor” means a person who:
2-48 (a) Contracts to complete an entire project;
2-49 (b) Coordinates all work performed on the entire project;
3-1 (c) Uses his own work force to perform all or a part of the
construction,
3-2 repair or reconstruction of
the project; and
3-3 (d) Contracts for the services of any subcontractor or independent
3-4 contractor or is responsible
for payment to any contracted subcontractors or
3-5 independent contractors.
3-6 [6.] 7. “Public body” means the state, county, city,
town, school
3-7 district or any public
agency of this state or its political subdivisions
3-8 sponsoring or financing a
public work.
3-9 [7.] 8. “Public work” means any project for the new
construction,
3-10 repair or reconstruction of:
3-11 (a) A project financed in whole or in part from public money for:
3-12 (1) Public buildings;
3-13 (2) Jails and prisons;
3-14 (3) Public roads;
3-15 (4) Public highways;
3-16 (5) Public streets and alleys;
3-17 (6) Public utilities which are financed in whole or in part by
public
3-18 money;
3-19 (7) Publicly owned water mains and sewers;
3-20 (8) Public parks and playgrounds;
3-21 (9) Public convention facilities which are financed at least in
part
3-22 with public funds; and
3-23 (10) Any other publicly owned works and property whose cost as a
3-24 whole exceeds $20,000. Each
separate unit that is a part of a project is
3-25 included in the cost of the
project to determine whether a project meets that
3-26 threshold.
3-27 (b) A building for the University and Community College System of
3-28 Nevada of which 25 percent
or more of the costs of the building as a whole
3-29 are paid from money
appropriated by this state or from federal money.
3-30 [8.] 9. “Wages” means:
3-31 (a) The basic hourly rate of pay; and
3-32 (b) The amount of pension, health and welfare, vacation and holiday
3-33 pay, the cost of
apprenticeship training or other similar programs or other
3-34 bona fide fringe benefits
which are a benefit to the workman.
3-35 [9.] 10. “Workman” means a skilled mechanic, skilled
workman,
3-36 semiskilled mechanic,
semiskilled workman or unskilled workman. The
3-37 term does not include a [“design professional” as that term is defined in
3-38 NRS 338.155.] design professional.
3-39 Sec. 3. NRS 338.155 is hereby amended to read as follows:
3-40 338.155 [1.] If a public body enters into a contract with
a design
3-41 professional for the
provision of services in connection with a public work,
3-42 the contract:
3-43 [(a)] 1. Must set forth:
3-44 [(1)] (a) The
specific period within which the public body must pay
3-45 the design professional.
3-46 [(2)] (b) The
specific period and manner in which the public body
3-47 may dispute a payment or
portion thereof that the design professional
3-48 alleges is due.
4-1 [(3)] (c) The
terms of any penalty that will be imposed upon the
4-2 public body if the public
body fails to pay the design professional within
4-3 the specific period set
forth in the contract pursuant to [subparagraph
(1).
4-4 (4)] paragraph (a).
4-5 (d) That the prevailing party in
an action to enforce the contract is
4-6 entitled to reasonable
attorney’s fees and costs.
4-7 [(b)] 2. May set forth the terms of any
discount that the public body
4-8 will receive if the public
body pays the design professional within the
4-9 specific period set forth in
the contract pursuant to [subparagraph
(1) of]
4-10 paragraph (a) [.
4-11 2. As used in this section, “design professional” means a person with
a
4-12 professional license or certificate issued pursuant to chapter 623,
623A or
4-13 625 of NRS.] of subsection 1.
4-14 Sec. 4. NRS 623.270 is hereby amended to read as follows:
4-15 623.270 1. The board may place the holder of any
certificate of
4-16 registration issued pursuant
to this chapter on probation, reprimand him,
4-17 fine him not more than
$10,000, suspend or revoke his license, impose the
4-18 costs of investigation and
prosecution upon him or take any combination of
4-19 these disciplinary actions,
if proof satisfactory to the board is presented
4-20 that:
4-21 (a) The certificate was obtained by fraud or concealment of a
material
4-22 fact.
4-23 (b) The holder of the certificate has been found guilty by the
board or
4-24 by a court of justice of any
fraud, deceit or concealment of a material fact
4-25 in his professional
practice, or has been convicted by a court of justice of a
4-26 crime involving moral
turpitude.
4-27 (c) The holder of the certificate has been found guilty by the
board of
4-28 incompetency, negligence or
gross negligence in:
4-29 (1) The practice of architecture or residential design; or
4-30 (2) His practice as a registered interior designer.
4-31 (d) [The] Except
as otherwise provided in section 1 of this act, the
4-32 holder of a certificate has
affixed his signature or seal to plans, drawings,
4-33 specifications or other
instruments of service which have not been prepared
4-34 by him or in his office, or
under his direct supervision, or has permitted the
4-35 use of his name to assist
any person who is not a registered architect,
4-36 registered interior designer
or residential designer to evade any provision
4-37 of this chapter.
4-38 (e) The holder of a certificate has aided or abetted any
unauthorized
4-39 person to practice:
4-40 (1) Architecture or residential design; or
4-41 (2) As a registered interior designer.
4-42 (f) The holder of the certificate has violated any law, regulation
or code
4-43 of ethics pertaining to:
4-44 (1) The practice of architecture or residential design; or
4-45 (2) Practice as a registered interior designer.
4-46 (g) The holder of a certificate has failed to comply with an order
issued
4-47 by the board or has failed
to cooperate with an investigation conducted by
4-48 the board.
5-1 If discipline is imposed
pursuant to this section, the costs of the
5-2 proceeding, including
investigative costs and attorney’s fees, may be
5-3 recovered by the board.
5-4 2. The conditions for
probation imposed pursuant to subsection 1 may
5-5 include, but are not limited
to:
5-6 (a) Restriction on the scope of professional practice.
5-7 (b) Peer review.
5-8 (c) Required education or counseling.
5-9 (d) Payment of restitution to all parties who suffered harm or
loss.
5-10 (e) Payment of all costs of the administrative investigation and
5-11 prosecution.
5-12 3. As used in this section:
5-13 (a) “Gross negligence” means conduct which demonstrates a reckless
5-14 disregard of the
consequences affecting the life or property of another
5-15 person.
5-16 (b) “Incompetency” means conduct which, in:
5-17 (1) The practice of architecture or residential design; or
5-18 (2) Practice as a registered interior designer,
5-19 demonstrates a significant
lack of ability, knowledge or fitness to discharge
5-20 a professional obligation.
5-21 (c) “Negligence” means a deviation from the normal standard of
5-22 professional care exercised
generally by other members in:
5-23 (1) The profession of architecture or residential design; or
5-24 (2) Practice as a registered interior designer.
5-25 Sec. 5. NRS 623A.280 is hereby amended to read as follows:
5-26 623A.280 The following
acts, among others, constitute cause for
5-27 disciplinary action:
5-28 1. [A] Except as otherwise provided in section
1 of this act, a
5-29 certificate holder has
signed or sealed instruments of service which were
5-30 not prepared by him or under
his immediate supervision.
5-31 2. A certificate holder has
permitted the use of his signature or seal by
5-32 another person to evade the
provisions of this chapter or any regulation
5-33 adopted by the board.
5-34 3. A certificate holder has
not signed, sealed or dated instruments of
5-35 service prepared by the
certificate holder.
5-36 4. A certificate holder
impersonates a landscape architect of the same
5-37 or similar name.
5-38 5. A certificate holder is
practicing under an assumed, fictitious or
5-39 corporate name.
5-40 6. A certificate holder is
practicing landscape architecture in violation
5-41 of the provisions of this
chapter or any regulation adopted by the board.
5-42 7. A certificate holder has
obtained his certificate by fraud or
5-43 misrepresentation.
5-44 8. A certificate holder is
guilty of fraud or deceit in the practice of
5-45 landscape architecture.
5-46 9. A certificate holder is
guilty of negligence, willful misconduct or
5-47 gross incompetence.
5-48 10. A certificate holder is
convicted of, or enters a plea of nolo
5-49 contendere to:
6-1 (a) Any felony; or
6-2 (b) Any crime, an essential element of which is dishonesty, or
which is
6-3 directly related to the
practice of landscape architecture.
6-4 11. A certificate holder is
guilty of aiding or abetting any person in the
6-5 violation of the provisions
of this chapter or any regulation adopted by the
6-6 board.
6-7 12. A person is practicing
as a landscape architect with a certificate
6-8 which has expired or has
been suspended or revoked.
6-9 13. A certificate holder is
disciplined by an agency of another state or
6-10 foreign country which
regulates the practice of landscape architecture and
6-11 at least one of the grounds
for the disciplinary action taken is a ground for
6-12 disciplinary action pursuant
to this chapter.
6-13 Sec. 6. NRS 625.565 is hereby amended to read as follows:
6-14 625.565 1. A professional land surveyor may practice
land surveying
6-15 and prepare:
6-16 (a) Maps, plats, reports and descriptions; and
6-17 (b) Grading and drainage plans for residential subdivisions
containing
6-18 four lots or less,
6-19 or other documentary
evidence in connection therewith.
6-20 2. [It] Except as otherwise provided in section
1 of this act, it is
6-21 unlawful for a professional
land surveyor to sign or stamp any map, plat,
6-22 report, description, grading
and drainage plan or other document relating to
6-23 land surveying which was not
prepared by him or for which he did not
6-24 have responsible charge of
the work.
6-25 3. [It] Except as otherwise provided in section 1 of this act, it
is
6-26 unlawful for a professional
engineer to sign or stamp any plans,
6-27 specifications or reports
that were not prepared by him or for which he did
6-28 not have responsible charge
of the work.
6-29 4. It is unlawful for any
person to impress any documents with the
6-30 stamp of a professional
engineer or professional land surveyor after the
6-31 license of the professional
engineer or professional land surveyor named on
6-32 the stamp has expired or has
been suspended or revoked, unless his license
6-33 has been renewed or
reissued.
6-34 5. It is unlawful for any
person to impress any documents with the
6-35 stamp of a professional
engineer or professional land surveyor after the
6-36 professional engineer or
professional land surveyor has retired from the
6-37 practice of professional
engineering or land surveying.
6-38 6. The board shall, by
regulation, prescribe additional requirements
6-39 relating to the signing and
stamping of documents produced by a
6-40 professional engineer or a
professional land surveyor.
6-41 7. A person who violates
any of the provisions of this section is guilty
6-42 of a gross misdemeanor.
6-43 Sec. 7. Section 1 of this act does not apply to contracts between a
6-44 public body and a design
professional for the provision of services in
6-45 connection with a public
work entered into before October 1, 2001.
6-46 Sec. 8. 1. This section and
sections 1 and 4 to 7, inclusive, of this act
6-47 become effective on October
1, 2001.
7-1 2. Sections 2 and 3 of this
act become effective at 12:01 a.m. on
7-2 October 1, 2003.
7-3 H