AB401_EN

Assembly Bill No. 401–Assemblymen Hardy, Grady, Brown, Andonov, Beers, Christensen, Geddes, Gibbons, Goicoechea, Griffin, Gustavson, Hettrick, Mabey, McClain and Weber

CHAPTER..........

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.

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.

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.

(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;

(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;

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.

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.

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.

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.

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:

(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

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.

(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.

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.

(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: