January 22, 2020
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Bill Text: HB 0487
HB 0487 2004
   
1 A bill to be entitled
2          An act relating to construction services; amending s.
3    218.70, F.S.; revising a popular name; amending s. 218.72,
4    F.S.; redefining terms used in pt. VII of ch. 218, F.S.;
5    amending s. 218.735, F.S.; revising provisions relating to
6    timely payment for purchases of construction services;
7    revising deadlines for payment; providing procedures for
8    project closeout and payment of retainage; providing
9    requirements for local government construction retainage;
10    providing that s. 218.735, F.S., applies to the payment of
11    any payment request for retainage; creating s. 255.0705,
12    F.S.; providing a popular name; amending s. 255.071, F.S.;
13    revising deadlines for the payment of subcontractors, sub-
14    subcontractors, materialmen, and suppliers on construction
15    contracts for public projects; creating ss. 255.072,
16    255.073, 255.074, 255.075, 255.076, 255.077, and 255.078,
17    F.S.; providing definitions; providing for timely payment
18    for purchases of construction services by a public entity;
19    providing procedures for calculating payment due dates;
20    authorizing the collection of interest under certain
21    circumstances; providing procedures for handling improper
22    payment requests; providing for the resolution of
23    disputes; providing for payment of court costs and
24    attorney's fees; providing for project closeout and
25    payment of retainage; providing for public construction
26    retainage; providing that ss. 255.072-255.078, F.S., apply
27    to the payment of any payment request for retainage;
28    amending s. 255.05, F.S.; providing requirements for
29    certain notices of nonpayment served by a claimant who is
30    not in privity with the contractor; providing limitations
31    on a claimant's institution of certain actions against a
32    contractor or surety; providing for certain notices to the
33    claimant; creating s. 725.09, F.S.; prohibiting the
34    inclusion in a contract for the purchase of construction
35    materials or services a provision that conditions payment
36    for such materials or services on the receipt of payment
37    from any other entity; providing an effective date.
38         
39          Be It Enacted by the Legislature of the State of Florida:
40         
41          Section 1. Section 218.70, Florida Statutes, is amended to
42    read:
43          218.70 Popular name Short title.--This part may be cited
44    by the popular name as the "Local Government FloridaPrompt
45    Payment Act."
46          Section 2. Subsections (2), (6), and (7) of section
47    218.72, Florida Statutes, are amended to read:
48          218.72 Definitions.--As used in this part:
49          (2) "Local governmental entity" means a county or
50    municipal government, school board, school district, authority,
51    special taxing district, other political subdivision, community
52    college,or any office, board, bureau, commission, department,
53    branch, division, or institution thereof or any project
54    supported by county or municipal funds.
55          (6) "Vendor" means any person who sells goods or services,
56    sells or leases personal property, or leases real property
57    directly to a local governmental entity. The term includes any
58    person who provides waste-hauling services to residents or
59    businesses located within the boundaries of a local government
60    pursuant to a contract or local ordinance.
61          (7) "Construction services" means all labor, services, and
62    materials provided in connection with the construction,
63    alteration, repair, demolition, reconstruction, or any other
64    improvements to real property that require a license under parts
65    I and II of chapter 489.
66          Section 3. Subsection (6) of section 218.735, Florida
67    Statutes, is amended, present subsection (7) is renumbered as
68    subsection (9), and new subsections (7) and (8) are added to
69    said section, to read:
70          218.735 Timely payment for purchases of construction
71    services.--
72          (6) When a contractor receives payment from a local
73    governmental entity for labor, services, or materials furnished
74    by subcontractors and suppliers hired by the contractor, the
75    contractor shall remit payment due to those subcontractors and
76    suppliers within 10 15days after the contractor's receipt of
77    payment. When a subcontractor receives payment from a contractor
78    for labor, services, or materials furnished by subcontractors
79    and suppliers hired by the subcontractor, the subcontractor
80    shall remit payment due to those subcontractors and suppliers
81    within 10 15days after the subcontractor's receipt of payment.
82    Nothing herein shall prohibit a contractor or subcontractor from
83    disputing, pursuant to the terms of the relevant contract, all
84    or any portion of a payment alleged to be due to another party.
85    In the event of such a dispute, the contractor or subcontractor
86    may withhold the disputed portion of any such payment if the
87    contractor or subcontractor notifies the party whose payment is
88    disputed, in writing, of the amount in dispute and the actions
89    required to cure the dispute. The contractor or subcontractor
90    must pay all undisputed amounts due within the time limits
91    imposed by this section.
92          (7)(a) Each contract for construction services between a
93    local governmental entity and a vendor must provide for the
94    development of a list of items required to render complete,
95    satisfactory, and acceptable the construction services purchased
96    by the local government. The contract must specify the process
97    for the development of the list, including the respective
98    responsibilities of the local government and the vendor in
99    developing and reviewing the list and a reasonable timeframe for
100    developing the list as follows:
101          1. For construction projects with an estimated cost of
102    less than $10 million, within 30 days after reaching substantial
103    completion of the construction services purchased as defined in
104    the contract or, if not defined in the contract, upon reaching
105    beneficial occupancy or use; or
106          2. For construction projects with an estimated cost of $10
107    million or more, within 30 days, unless otherwise extended by
108    contract not to exceed 90 days, after reaching substantial
109    completion of the construction services purchased as defined in
110    the contract or, if not defined in the contract, upon reaching
111    beneficial occupancy or use.
112          (b) If the contract between the local governmental entity
113    and the vendor relates to the purchase of construction services
114    on more than one building or structure or involves a multiphased
115    project, the contract must provide for the development of a list
116    of items required to render complete, satisfactory, and
117    acceptable the construction services purchased for each
118    building, structure, or phase of the project in accordance with
119    the timeframes specified in subparagraph (a)1. or subparagraph
120    (a)2.
121          (c) The failure to include any corrective work or pending
122    items not yet completed on the list developed pursuant to this
123    subsection does not alter the responsibility of the vendor to
124    complete all the purchased construction services as defined in
125    the contract.
126          (d) Upon completion of all items on the list, or at such
127    other time as defined in the contract, the vendor may submit a
128    payment request for the appropriate amount of retainage. The
129    local government may withhold an amount not to exceed 150
130    percent of the total costs to complete any incomplete items on
131    the list.
132          (e) All items that require correction under the contract
133    and that are identified after the preparation and delivery of
134    the list remain the obligation of the vendor as defined by the
135    contract.
136          (f) Warranty items may not affect the final payment of
137    retainage as provided in this section or as provided in the
138    contract between the vendor and its subcontractors and
139    suppliers.
140          (g) Retainage may not be held by a local governmental
141    entity or a vendor to secure payment of insurance premiums under
142    a consolidated insurance program or series of insurance policies
143    issued to a public agency or a contractor for a project or group
144    of projects, and the final payment of retainage as provided in
145    this section may not be delayed pending a final audit by the
146    local governmental entity's or the vendor's insurance provider.
147          (h) If a local governmental entity fails to comply with
148    its responsibilities to develop the list required under
149    paragraph (a) or paragraph (b) as defined in the contract, and
150    the timeframes provided in subparagraph(a)1. or subparagraph
151    (a)2., the vendor may submit a payment request for the
152    appropriate amount of retainage. The local governmental entity
153    need not pay or process any request for payment of retainage if
154    the vendor has, in whole or in part, failed to cooperate with
155    the local government in the development of the list or failed to
156    perform its contractual responsibilities, if any, with regard to
157    the development of the list or if paragraph (8)(d) applies.
158          (8)(a) In any public construction project that is subject
159    to ss. 218.72-218.78, a local governmental entity may withhold
160    an amount not exceeding 10 percent of each progress payment made
161    to the vendor until the local governmental project has reached
162    50-percent completion. After the project has reached 50-percent
163    completion, the local government must reduce to 5 percent the
164    amount of retainage withheld from each subsequent progress
165    payment made to the vendor. However, notwithstanding the
166    provisions of this subsection, a municipality with a population
167    of 25,000 or fewer, or a county with a population of 100,000 or
168    fewer, may withhold retainage in an amount not exceeding 10
169    percent of each progress payment made to the vendor until final
170    completion and acceptance of the project by the local
171    government. For purposes of this subsection, the term "50-
172    percent completion" means as defined in the contract between the
173    local governmental entity and the vendor or, if not defined in
174    the contract, the point at which the local government has
175    expended 50 percent of the total project costs identified in the
176    contract, plus all change orders and other additions issued
177    subsequent to the approval of the contract by the governing body
178    of the local government, and the level of actual project
179    construction is equivalent to such expenditure of funds.
180          (b) After the project has reached 50-percent completion,
181    the vendor may present to the local governmental entity a
182    payment request for up to one-half of the retainage amount held
183    by the local government. The local governmental entity shall
184    promptly make payment to the vendor, unless the local government
185    has grounds, pursuant to the contract or as provided in
186    paragraph (d), for withholding the payment of retainage. If the
187    local government makes payment of retainage to the vendor under
188    this paragraph, the vendor shall timely remit payment of such
189    retainage to the appropriate subcontractors and suppliers.
190          (c) After the project has reached 50-percent completion,
191    the vendor may elect to withhold retainage from payments to its
192    subcontractors at a rate higher than 5 percent. The specific
193    amount to be withheld must be determined on a case-by-case basis
194    and must be based on the vendor's assessment of the
195    subcontractor's past performance, the likelihood that such
196    performance will continue, and the vendor's ability to rely on
197    other safeguards. The vendor shall notify the subcontractor, in
198    writing, of its determination to withhold more than 5 percent of
199    the progress payment and the reasons for making that
200    determination, and the vendor may not request the release of
201    such retained funds from the local government.
202          (d) This section does not require the local government to
203    pay or release any amounts that are the subject of a good faith
204    dispute, the subject of an action brought under s. 255.05, or
205    otherwise the subject of a claim or demand by the local
206    government or vendor.
207          (e) The timeframes set forth in this section for payment
208    of payment requests apply to any payment request for retainage
209    made pursuant to this subsection.
210          Section 4. Section 255.0705, Florida Statutes, is created
211    to read:
212          255.0705 Popular name.--Sections 255.0705-255.078 may be
213    cited by the popular name the "Florida Prompt Payment Act."
214          Section 5. Subsections (2) and (3) of section 255.071,
215    Florida Statutes, are amended to read:
216          255.071 Payment of subcontractors, sub-subcontractors,
217    materialmen, and suppliers on construction contracts for public
218    projects.--
219          (2) The failure to pay any undisputed obligations for such
220    labor, services, or materials within 30 days after the date the
221    labor, services, or materials were furnished and payment for
222    such labor, services, or materials became due, or within 10 30
223    days after the date payment for such labor, services, or
224    materials is received, whichever last occurs, shall entitle any
225    person providing such labor, services, or materials to the
226    procedures specified in subsection (3) and the remedies provided
227    in subsection (4).
228          (3) Any person providing labor, services, or materials for
229    the construction of a public building, for the prosecution and
230    completion of a public work, or for repairs upon a public
231    building or public work improvements to real property may file a
232    verified complaint alleging:
233          (a) The existence of a contract for providing such labor,
234    services, or materials to improve real property.
235          (b) A description of the labor, services, or materials
236    provided and alleging that the labor, services, or materials
237    were provided in accordance with the contract.
238          (c) The amount of the contract price.
239          (d) The amount, if any, paid pursuant to the contract.
240          (e) The amount that remains unpaid pursuant to the
241    contract and the amount thereof that is undisputed.
242          (f) That the undisputed amount has remained due and
243    payable pursuant to the contract for more than 30 days after the
244    date the labor or services were accepted or the materials were
245    received.
246          (g) That the person against whom the complaint was filed
247    has received payment on account of the labor, services, or
248    materials described in the complaint more than 10 30days prior
249    to the date the complaint was filed.
250          Section 6. Section 255.072, Florida Statutes, is created
251    to read:
252          255.072 Definitions.--As used in ss. 255.073-255.078, the
253    term:
254          (1) "Agent" means project architect, project engineer, or
255    any other agency or person acting on behalf of a public entity.
256          (2) "Construction services" means all labor, services, and
257    materials provided in connection with the construction,
258    alteration, repair, demolition, reconstruction, or any other
259    improvement to real property. The term "construction services"
260    does not include contracts or work performed for the Department
261    of Transportation.
262          (3) "Payment request" means an invoice or request for
263    payment for construction services which conforms with all
264    statutory requirements and with all requirements specified by
265    the public entity to which the payment request is submitted.
266          (4) "Public entity" means the state, a state university,
267    or any office, board, bureau, commission, department, branch,
268    division, or institution thereof, or any project supported by
269    state funds, but does not include a local governmental entity as
270    defined in s. 218.72.
271          (5) "Purchase" means the purchase of construction
272    services.
273          (6) "Vendor" means any person providing construction
274    services directly to a public entity.
275          Section 7. Section 255.073, Florida Statutes, is created
276    to read:
277          255.073 Timely payment for purchases of construction
278    services.--
279          (1) Except as otherwise provided in ss. 255.072-255.078,
280    s. 215.422 governs the timely payment for construction services
281    by a public entity under this act.
282          (2) If a public entity disputes a portion of a payment
283    request, the undisputed portion must be timely paid in
284    accordance with subsection (1).
285          (3) When a vendor receives payment from a public entity
286    for labor, services, or materials furnished by subcontractors
287    and suppliers hired by the vendor, the vendor shall remit
288    payment due to those subcontractors and suppliers within 10 days
289    after the vendor's receipt of payment. When a subcontractor
290    receives payment from a vendor for labor, services, or materials
291    furnished by subcontractors and suppliers hired by the
292    subcontractor, the subcontractor shall remit payment due to
293    those subcontractors and suppliers within 10 days after the
294    subcontractor's receipt of payment. This subsection does not
295    prohibit a vendor or subcontractor from disputing, pursuant to
296    the terms of the relevant contract, all or any portion of a
297    payment alleged to be due to another party. If such a dispute
298    occurs, the vendor or subcontractor may withhold the disputed
299    portion of any such payment if the vendor or subcontractor
300    notifies the party whose payment is disputed, in writing, of the
301    amount in dispute and the actions required to cure the dispute.
302    The vendor or subcontractor must pay all undisputed amounts due
303    within the time limits imposed by this section.
304          (4) All payments due under this section and not made
305    within the time periods specified by this section shall bear
306    interest at the rate of 1 percent per month, or the rate
307    specified by contract, whichever is greater.
308          Section 8. Section 255.074, Florida Statutes, is created
309    to read:
310          255.074 Procedures for calculation of payment due dates.--
311          (1) Each public entity shall establish procedures whereby
312    each payment request received by the public entity is marked as
313    received on the date on which it is delivered to an agent or
314    employee of the public entity or of a facility or office of the
315    public entity.
316          (2) If the terms under which a purchase is made allow for
317    partial deliveries and a payment request is submitted for a
318    partial delivery, the time for payment for the partial delivery
319    must be calculated from the time of the partial delivery and the
320    submission of the payment request in the same manner as provided
321    in s. 255.073.
322          (3) The public entity must submit a payment request to the
323    Chief Financial Officer for payment no more than 25 days after
324    receipt of the payment request.
325          Section 9. Section 255.075, Florida Statutes, is created
326    to read:
327          255.075 Mandatory interest.--A contract between a public
328    entity and a vendor or a provider of construction services may
329    not prohibit the collection of late payment interest charges
330    allowable under ss. 255.072-255.078.
331          Section 10. Section 255.076, Florida Statutes, is created
332    to read:
333          255.076 Improper payment request; resolution of
334    disputes.--
335          (1) If a vendor submits an improper payment request, the
336    public entity shall, within 10 days after receiving the improper
337    payment request, notify the vendor that the payment request is
338    improper and indicate what corrective action on the part of the
339    vendor is needed to make the payment request proper.
340          (2) If a dispute occurs between a vendor and a public
341    entity concerning payment of a payment request, the dispute must
342    be resolved as provided in this section. Each public entity
343    shall establish a dispute resolution procedure to be followed by
344    the public entity if such a dispute occurs. The procedure must
345    provide that proceedings to resolve the dispute must commence
346    not later than 45 days after the date on which the public entity
347    received the payment request and must conclude by final decision
348    of the public entity not later than 60 days after the date on
349    which the public entity received the payment request. Such
350    procedures are not subject to chapter 120 and do not constitute
351    an administrative proceeding that prohibits a court from
352    deciding de novo any action arising out of the dispute. If the
353    dispute is resolved in favor of the public entity, interest
354    charges begin to accrue 15 days after the public entity's final
355    decision. If the dispute is resolved in favor of the vendor,
356    interest begins to accrue as of the original date the payment
357    became due.
358          (3) In an action to recover amounts due under ss. 255.072-
359    255.078, the court shall award court costs and reasonable
360    attorney's fees, including fees incurred through any appeal, to
361    the prevailing party if the court finds that the nonprevailing
362    party withheld any portion of the payment that is the subject of
363    the action without any reasonable basis in law or fact to
364    dispute the prevailing party's claim to those amounts.
365          Section 11. Section 255.077, Florida Statutes, is created
366    to read:
367          255.077 Project closeout and payment of retainage.--
368          (1) Each contract for construction services between a
369    public entity and a vendor must provide for the development of a
370    list of items required to render complete, satisfactory, and
371    acceptable the construction services purchased by the public
372    entity. The contract must specify the process for the
373    development of the list, including the respective
374    responsibilities of the public entity and the vendor in
375    developing and reviewing the list. The list must be developed
376    within 30 days after substantial completion of the construction
377    services purchased as defined in the contract or, if not defined
378    in the contract, within 30 days after beneficial occupancy or
379    use of the project.
380          (2) If the contract between the public entity and the
381    vendor relates to the purchase of construction services on more
382    than one building or structure or involves a multiphased
383    project, the contract must provide for the development of a list
384    of items required to render complete, satisfactory, and
385    acceptable the construction services purchased for each
386    building, structure, or phase of the project. Each list must be
387    developed within 30 days after substantial completion of the
388    construction services purchased as defined in the contract for
389    each building, structure, or phase of the project or, if not
390    defined in the contract, within 30 days after beneficial
391    occupancy or use of each building, structure, or phase of the
392    project.
393          (3) The failure to include any corrective work or pending
394    items not yet completed on the list developed under this section
395    does not alter the responsibility of the vendor to complete all
396    the purchased construction services as defined in the contract.
397          (4) Upon completion of all items on the list, or at such
398    other time as defined in the contract, the vendor may submit a
399    payment request for the appropriate amount of retainage. The
400    public entity may withhold an amount not to exceed 150 percent
401    of the total costs to complete any incomplete items on the list.
402          (5) All items that require correction under the contract
403    and that are identified after the preparation and delivery of
404    the list remain the obligation of the vendor as defined by the
405    contract.
406          (6) Warranty items may not affect the final payment of
407    retainage as provided in this section or as provided in the
408    contract between the vendor and its subcontractors and
409    suppliers.
410          (7) Retainage may not be held by a public entity or a
411    vendor to secure payment of insurance premiums under a
412    consolidated insurance program or series of insurance policies
413    issued to a public agency or a contractor for a project or group
414    of projects, and the final payment of retainage as provided in
415    this section may not be delayed pending a final audit by the
416    public entity's or the vendor's insurance provider.
417          (8) If a public entity fails to comply with its
418    responsibilities to develop the list required under subsection
419    (1) or subsection (2), the vendor may submit a payment request
420    for the appropriate amount of retainage. The public entity need
421    not pay or process any request for payment of retainage if the
422    vendor has, in whole or in part, failed to cooperate with the
423    public entity in the development of the list or failed to
424    perform its contractual responsibilities, if any, with regard to
425    the development of the list.
426          Section 12. Section 255.078, Florida Statutes, is created
427    to read:
428          255.078 Public construction retainage.--
429          (1) In any public construction project that is subject to
430    ss. 255.072-255.078, a public entity may withhold an amount not
431    exceeding 10 percent of each progress payment made to the vendor
432    until the project has reached 50-percent completion. After the
433    project has reached 50-percent completion, the public entity
434    must reduce to 5 percent the amount of retainage withheld from
435    each subsequent progress payment made to the vendor. As used in
436    this section, the term "50-percent completion" means as defined
437    in the contract between the public entity and the vendor or, if
438    not defined in the contract, the point at which the public
439    entity has expended 50 percent of the amount of the total
440    project costs identified in the contract, plus all change orders
441    and other additions issued after the approval of the contract by
442    the public entity, and the level of actual project construction
443    is equivalent to such expenditure of funds.
444          (2) After the project has reached 50-percent completion,
445    the vendor may present to the public entity a payment request
446    for up to one-half of the retainage amount held by the public
447    entity. The public entity shall promptly make payment to the
448    vendor unless the public entity has grounds, under the contract
449    or as provided in subsection (4), for withholding the payment of
450    retainage. If the public entity makes payment of retainage to
451    the vendor under this subsection, the vendor shall timely remit
452    payment of such retainage to the appropriate subcontractors and
453    suppliers.
454          (3) After the project has reached 50-percent completion,
455    the vendor may elect to withhold retainage from payments to its
456    subcontractors at a rate higher than 5 percent. The specific
457    amount to be withheld must be determined on a case-by-case basis
458    and must be based on the vendor's assessment of the
459    subcontractor's past performance, the likelihood that such
460    performance will continue, and the vendor's ability to rely on
461    other safeguards. The vendor shall notify the subcontractor, in
462    writing, of its determination to withhold more than 5 percent of
463    the progress payment and the reasons for making that
464    determination, and the vendor may not request the release of
465    such withheld funds from the public entity.
466          (4) This section does not require the public entity to pay
467    or release any amounts that are the subject of a good faith
468    dispute, the subject of an action brought under s. 255.05, or
469    otherwise the subject of a claim or demand by the public entity
470    or vendor.
471          (5) The timeframes set forth in ss. 255.072-255.078 for
472    payment of payment requests apply to any payment request for
473    retainage made pursuant to this section.
474          Section 13. Paragraph (a) of subsection (2) of section
475    255.05, Florida Statutes, is amended, and subsections (10) and
476    (11) are added to said section, to read:
477          255.05 Bond of contractor constructing public buildings;
478    form; action by materialmen.--
479          (2)(a)1. If a claimant is no longer furnishing labor,
480    services, or materials on a project, a contractor or the
481    contractor's agent or attorney may elect to shorten the
482    prescribed time in this paragraph within which an action to
483    enforce any claim against a payment bond provided pursuant to
484    this section may be commenced by recording in the clerk's office
485    a notice in substantially the following form:
486         
487 NOTICE OF CONTEST OF CLAIM
488 AGAINST PAYMENT BOND
489         
490          To: . . . (Name and address of claimant) . . .
491         
492          You are notified that the undersigned contests your notice
493    of nonpayment, dated ____________, ________, and served on the
494    undersigned on ____________, ________, and that the time within
495    which you may file suit to enforce your claim is limited to 60
496    days after the date of service of this notice.
497         
498          DATED on ____________, ________.
499         
500         
501          Signed: . . . (Contractor or Attorney) . . .
502         
503          The claim of any claimant upon whom such notice is served and
504    who fails to institute a suit to enforce his or her claim
505    against the payment bond within 60 days after service of such
506    notice shall be extinguished automatically. The clerk shall mail
507    a copy of the notice of contest to the claimant at the address
508    shown in the notice of nonpayment or most recent amendment
509    thereto and shall certify to such service on the face of such
510    notice and record the notice. Service is complete upon mailing.
511          2. A claimant, except a laborer, who is not in privity
512    with the contractor shall, before commencing or not later than
513    45 days after commencing to furnish labor, materials, or
514    supplies for the prosecution of the work, furnish the contractor
515    with a notice that he or she intends to look to the bond for
516    protection. A claimant who is not in privity with the contractor
517    and who has not received payment for his or her labor,
518    materials, or supplies shall deliver to the contractor and to
519    the surety written notice of the performance of the labor or
520    delivery of the materials or supplies and of the nonpayment. The
521    notice of nonpayment may be served at any time during the
522    progress of the work or thereafter but not before 45 days after
523    the first furnishing of labor, services, or materials, and not
524    later than 90 days after the final furnishing of the labor,
525    services, or materials by the claimant or, with respect to
526    rental equipment, not later than 90 days after the date that the
527    rental equipment was last on the job site available for use. Any
528    notice of nonpayment served by a claimant who is not in privity
529    with the contractor which includes sums for retainage must
530    specify the portion of the amount claimed for retainage.No
531    action for the labor, materials, or supplies may be instituted
532    against the contractor or the surety unless both notices have
533    been given. Notices required or permitted under this section may
534    be served in accordance with s. 713.18. An action, except for an
535    action exclusively for recovery of retainage, must be instituted
536    against the contractor or the surety on the payment bond or the
537    payment provisions of a combined payment and performance bond
538    within 1 year after the performance of the labor or completion
539    of delivery of the materials or supplies. An action exclusively
540    for recovery of retainage must be instituted against the
541    contractor or the surety within 1 year after the performance of
542    the labor or completion of delivery of the materials or
543    supplies, or within 90 days after receipt of final payment (or
544    the payment estimate containing the owner's final reconciliation
545    of quantities if no further payment is earned and due as a
546    result of deductive adjustments) by the contractor or surety,
547    whichever comes last. A claimant may not waive in advance his or
548    her right to bring an action under the bond against the surety.
549    In any action brought to enforce a claim against a payment bond
550    under this section, the prevailing party is entitled to recover
551    a reasonable fee for the services of his or her attorney for
552    trial and appeal or for arbitration, in an amount to be
553    determined by the court, which fee must be taxed as part of the
554    prevailing party's costs, as allowed in equitable actions. The
555    time periods for service of a notice of nonpayment or for
556    bringing an action against a contractor or a surety shall be
557    measured from the last day of furnishing labor, services, or
558    materials by the claimant and shall not be measured by other
559    standards, such as the issuance of a certificate of occupancy or
560    the issuance of a certificate of substantial completion.
561          (10) Notwithstanding any other provision of law to the
562    contrary, a claimant may not institute an action for the sole
563    purpose of recovery of retainage against the contractor or
564    against the surety issuing a payment or performance bond
565    pursuant to this section until:
566          (a) The public entity has paid out that retainage to the
567    contractor and the time provided under ss. 218.70-218.76 or ss.
568    255.072-255.078 for payment of that retainage to the claimant
569    has expired;
570          (b) The claimant has completed all work required under its
571    contract and 90 days have passed since the owner's receipt of
572    the contractor's last payment request; or
573          (c) The claimant has made the written request to the owner
574    as provided in subsection (11) and has not timely received the
575    requested information from the owner.
576          (11) An owner shall furnish in writing to a claimant who
577    has provided labor, services, or materials to a project, within
578    5 business days after receipt of a written request from that
579    claimant, the following information:
580          (a) The dates of all payment requests received by the
581    owner from the contractor.
582          (b) The dates of all payments made by the owner to the
583    contractor.
584          (c) Whether the owner has received the contractor's final
585    payment request and, if so, the date the final payment request
586    was submitted by the contractor to the owner.
587          Section 14. Section 725.09, Florida Statutes, is created
588    to read:
589          725.09 Construction contracts; contingent payment
590    provisions.--An entity may not enter into a contract for the
591    purchase of construction materials or services which conditions
592    payment for such materials or services on the receipt of payment
593    from any other entity. Any such conditional payment provision is
594    void as a violation of the public policy of this state.
595          Section 15. This act shall take effect July 1, 2004.
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