SB255_EN

Senate Bill No. 255–Committee on Government Affairs

CHAPTER..........

AN ACT relating to public works; requiring and authorizing certain terms in a contract between a design professional who is a member of a design-build team and a public body; prohibiting a public body from requiring a design professional to indemnify the public body against any liability in a contract with the design professional; providing an exception to such a prohibition; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. 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.

4. “Design professional” means [a person with a professional license

or certificate issued pursuant to chapter 623, 623A or 625 of NRS.] :

(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;

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 338.1389, inclusive, 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. “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.

7. “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; or

to chapters 616A to 617, inclusive, of NRS.

8. “Prime contractor” means a person who:

(a) Contracts to construct an entire project;

(b) Coordinates all work performed on the entire project;

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.

9. “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.

10. “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; 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.

11. “Specialty contractor” means a contractor whose operations as

such are the performance of construction work requiring special skill and

whose principal contracting business involves the use of specialized

building trades or crafts.

12. “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.

13. “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.

14. “Workman” means a skilled mechanic, skilled workman,

semiskilled mechanic, semiskilled workman or unskilled workman. The

term does not include a design professional.

Sec. 2. NRS 338.155 is hereby amended to read as follows:

338.155 1. If a public body enters into a contract with a design

professional who is not a member of a design-build team , for the

provision of services in connection with a public work, the contract:

[1.] (a) Must set forth:

[(a)] (1) The specific period within which the public body must pay the

design professional.

[(b)] (2) The specific period and manner in which the public body may

dispute a payment or portion thereof that the design professional alleges is

due.

[(c)] (3) The terms of any penalty that will be imposed upon the public

body if the public body fails to pay the design professional within the

specific period set forth in the contract pursuant to [paragraph (a).

(d)] subparagraph (1).

(4) That the prevailing party in an action to enforce the contract is

entitled to reasonable attorney’s fees and costs.

[2.] (b) May set forth the terms of any discount that the public body

will receive if the public body pays the design professional within the

specific period set forth in the contract pursuant to [paragraph (a) of

subsection 1.] subparagraph (1) of paragraph (a).

name the public body, at the cost of the public body, as an additional

insured in an insurance policy held by the design professional.

(d) Except as otherwise provided in paragraph (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 or agents of the public body.

(e) May require the design professional 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 professional or the employees or

agents of the design professional in the performance of the contract.

2. Any provision of a contract that is in violation of paragraph (d) of

subsection 1 is declared to be contrary to the public policy of this state

and is void.

Sec. 3. NRS 338.155 is hereby amended to read as follows:

338.155 1. If a public body enters into a contract with a design

professional for the provision of services in connection with a public

work, the contract:

(a) Must set forth:

(1) The specific period within which the public body must pay the

design professional.

(2) The specific period and manner in which the public body may

dispute a payment or portion thereof that the design professional alleges is

due.

(3) The terms of any penalty that will be imposed upon the public

body if the public body fails to pay the design professional within the

specific period set forth in the contract pursuant to subparagraph (1).

(4) That the prevailing party in an action to enforce the contract is

entitled to reasonable attorney’s fees and costs.

(b) May set forth the terms of any discount that the public body will

receive if the public body pays the design professional within the specific

period set forth in the contract pursuant to subparagraph (1) of

paragraph (a).