October 17, 2019
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_h0755__
HB 755

1
A bill to be entitled
2An act relating to notices of nonpayment; amending s.
3255.05, F.S.; revising requirements for a notice of
4nonpayment for labor, services, or materials served by a
5claimant under a contractor's bond; depriving a claimant
6of rights under the bond for furnishing a false or
7fraudulent notice of nonpayment; revising a prohibition
8against claimant actions against a contractor or surety
9under certain circumstances; amending s. 337.18, F.S.;
10revising requirements for a notice of nonpayment for
11labor, services, or materials served by a claimant under a
12surety bond for construction or maintenance contracts;
13depriving a claimant of rights under the bond for
14furnishing a false or fraudulent notice of nonpayment;
15revising a prohibition against claimant actions against a
16contractor or surety under certain circumstances; amending
17s. 713.23, F.S.; revising requirements for a notice of
18nonpayment for labor, services, or materials served by a
19lienor under a payment bond; depriving a lienor of rights
20under the bond for furnishing a false or fraudulent notice
21of nonpayment; prohibiting lienor actions against a
22contractor or surety unless notice of nonpayment is given;
23deleting a notice of nonpayment form; providing an
24effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Paragraph (a) of subsection (2) of section
29255.05, Florida Statutes, is amended to read:
30     255.05  Bond of contractor constructing public buildings;
31form; action by materialmen.-
32     (2)(a)1.  If a claimant is no longer furnishing labor,
33services, or materials on a project, a contractor or the
34contractor's agent or attorney may elect to shorten the
35prescribed time in this paragraph within which an action to
36enforce any claim against a payment bond provided pursuant to
37this section may be commenced by recording in the clerk's office
38a notice in substantially the following form:
39
NOTICE OF CONTEST OF CLAIM
40
AGAINST PAYMENT BOND
41To: ...(Name and address of claimant)...
42     You are notified that the undersigned contests your notice
43of nonpayment, dated _______________, __________, and served on
44the undersigned on _______________, __________, and that the
45time within which you may file suit to enforce your claim is
46limited to 60 days after the date of service of this notice.
47     DATED on _______________, __________.
48Signed: ...(Contractor or Attorney)...
49The claim of any claimant upon whom such notice is served and
50who fails to institute a suit to enforce his or her claim
51against the payment bond within 60 days after service of such
52notice shall be extinguished automatically. The clerk shall mail
53a copy of the notice of contest to the claimant at the address
54shown in the notice of nonpayment or most recent amendment
55thereto and shall certify to such service on the face of such
56notice and record the notice. Service is complete upon mailing.
57     2.  A claimant, except a laborer, who is not in privity
58with the contractor shall, before commencing or not later than
5945 days after commencing to furnish labor, services, or
60materials for the prosecution of the work, furnish the
61contractor with a written notice that he or she intends to look
62to the bond for protection. A claimant who is not in privity
63with the contractor and who has not received payment for his or
64her labor, services, or materials shall deliver to the
65contractor and to the surety written notice of the performance
66of the labor or services or delivery of the materials or
67supplies and of the nonpayment. The notice of nonpayment shall
68be verified and may be served at any time during the progress of
69the work or thereafter but not before 45 days after the first
70furnishing of labor, services, or materials are first furnished,
71and not later than 90 days after the final furnishing of the
72labor, services, or materials are finally furnished by the
73claimant or, with respect to rental equipment, not later than 90
74days after the date that the rental equipment was last on the
75job site and available for use. The notice of nonpayment shall
76state, as of the date of the notice, the nature of the labor or
77services performed and to be performed, if any; the materials
78furnished; the materials to be furnished, if known; the amount
79paid on the account to date; the amount due; and the amount to
80become due, if known. In order to substantiate the amount
81claimed as unpaid in the notice of nonpayment, the notice shall
82also include as attachments copies of the claimant's contract or
83purchase order and any amendments or change orders directed to
84the contract or purchase order; invoices, pay requests, bills of
85lading, delivery receipts, or similar documents, as applicable;
86and a statement of account reflecting all payments requested and
87received for the labor, services, or materials. Any notice of
88nonpayment served by a claimant who is not in privity with the
89contractor that which includes sums for retainage must specify
90the portion of the amount claimed for retainage. Furnishing a
91false or fraudulent notice of nonpayment deprives the claimant
92of his or her rights under the bond. A claimant may not
93institute an No action for the labor, materials, or supplies may
94be instituted against the contractor or the surety for the
95labor, services, or materials unless both notices have been
96given in full compliance with this subparagraph. Notices
97required or permitted under this section shall may be served in
98accordance with s. 713.18. A claimant may not waive in advance
99his or her right to bring an action under the bond against the
100surety. In any action brought to enforce a claim against a
101payment bond under this section, the prevailing party is
102entitled to recover a reasonable fee for the services of his or
103her attorney for trial and appeal or for arbitration, in an
104amount to be determined by the court, which fee must be taxed as
105part of the prevailing party's costs, as allowed in equitable
106actions. The time periods for service of a notice of nonpayment
107or for bringing an action against a contractor or a surety shall
108be measured from the last day of furnishing labor, services, or
109materials by the claimant and shall not be measured by other
110standards, such as the issuance of a certificate of occupancy or
111the issuance of a certificate of substantial completion.
112     Section 2.  Paragraph (c) of subsection (1) of section
113337.18, Florida Statutes, is amended to read:
114     337.18  Surety bonds for construction or maintenance
115contracts; requirement with respect to contract award; bond
116requirements; defaults; damage assessments.-
117     (1)
118     (c)  A claimant, except a laborer, who is not in privity
119with the contractor shall, before commencing or not later than
12090 days after commencing to furnish labor, services, or
121materials, or supplies for the prosecution of the work, furnish
122the contractor with a notice that he or she intends to look to
123the bond for protection. A claimant who is not in privity with
124the contractor and who has not received payment for his or her
125labor, services, or materials, or supplies shall deliver to the
126contractor and to the surety written notice of the performance
127of the labor or services or delivery of the materials or
128supplies and of the nonpayment. The notice of nonpayment shall
129be verified and may be served at any time during the progress of
130the work or thereafter but not before 45 days after the first
131furnishing of labor, services, or materials are first furnished,
132and not later than 90 days after the final furnishing of the
133labor, services, or materials are finally furnished by the
134claimant or, with respect to rental equipment, not later than 90
135days after the date that the rental equipment was last on the
136job site and available for use. The notice of nonpayment shall
137state, as of the date of the notice, the nature of the labor or
138services performed and to be performed, if any; the materials or
139supplies furnished; the materials or supplies to be furnished,
140if known; the amount paid on the account to date; the amount
141due; and the amount to become due, if known. In order to
142substantiate the amount claimed as unpaid in the notice of
143nonpayment, the notice shall also include as attachments copies
144of the claimant's contract or purchase order and any amendments
145or change orders directed to the contract or purchase order;
146invoices, pay requests, bills of lading, delivery receipts, or
147similar documents, as applicable; and a statement of account
148reflecting all payments requested and received for the labor,
149materials, or supplies. Any notice of nonpayment served by a
150claimant who is not in privity with the contractor that includes
151sums for retainage must specify the portion of the amount
152claimed for retainage. Furnishing a false or fraudulent notice
153of nonpayment deprives the claimant of his or her rights under
154the bond. An action by A claimant, except a laborer, who is not
155in privity with the contractor for the labor, materials, or
156supplies may not institute an action be instituted against the
157contractor or the surety for the labor, services, or materials
158unless both notices have been given in full compliance with this
159paragraph. Notices required or permitted under this section
160shall may be served in any manner provided in s. 713.18.
161     Section 3.  Paragraph (d) of subsection (1) of section
162713.23, Florida Statutes, is amended to read:
163     713.23  Payment bond.-
164     (1)
165     (d)  In addition, a lienor is required, as a condition
166precedent to recovery under the bond, to serve a written notice
167of nonpayment to the contractor and the surety not later than 90
168days after the final furnishing of labor, services, or materials
169by the lienor. The notice of nonpayment shall be verified and
170may be served at any time during the progress of the work or
171thereafter but not before 45 days after the labor, services, or
172materials are first furnished and not later than 90 days after
173the labor, services, or materials are finally furnished by the
174lienor or, with respect to rental equipment, not later than 90
175days after the date that the rental equipment was last on the
176job site and available for use. The notice of nonpayment shall
177state, as of the date of the notice, the nature of the labor or
178services performed and to be performed, if any; the materials
179furnished; the materials to be furnished, if known; the amount
180paid on the account to date; the amount due; and the amount to
181become due, if known. For any lienor who is not in privity with
182the contractor, in order to substantiate the amount claimed as
183unpaid in the notice of nonpayment, the notice shall also
184include as attachments copies of the lienor's contract or
185purchase order and any amendments or change orders directed to
186the contract or purchase order; invoices, pay requests, bills of
187lading, delivery receipts, or similar documents, as applicable;
188and a statement of account reflecting all payments requested and
189received for the labor, services, or materials. Any notice of
190nonpayment served by a lienor who is not in privity with the
191contractor that includes sums for retainage must specify the
192portion of the amount claimed for retainage. Furnishing a false
193or fraudulent notice of nonpayment deprives the lienor of his or
194her rights under the bond. A lienor may not institute an action
195against the contractor or the surety for the labor, services, or
196materials unless the notice of nonpayment has been given in full
197compliance with this paragraph. A written notice satisfies this
198condition precedent with respect to the payment described in the
199notice of nonpayment, including unpaid finance charges due under
200the lienor's contract, and with respect to any other payments
201which become due to the lienor after the date of the notice of
202nonpayment. The time period for serving a written notice of
203nonpayment shall be measured from the last day of furnishing
204labor, services, or materials by the lienor and shall not be
205measured by other standards, such as the issuance of a
206certificate of occupancy or the issuance of a certificate of
207substantial completion. The failure of a lienor to receive
208retainage sums not in excess of 10 percent of the value of
209labor, services, or materials furnished by the lienor is not
210considered a nonpayment requiring the service of the notice
211provided under this paragraph. The notice under this paragraph
212may be in substantially the following form:
213
NOTICE OF NONPAYMENT
214To ...(name of contractor and address)...
215...(name of surety and address)...
216The undersigned notifies you that he or she has furnished
217...(describe labor, services, or materials)... for the
218improvement of the real property identified as ...(property
219description).... The amount now due and unpaid is $_____.
220...(signature and address of lienor)...
221     Section 4.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.
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