December 13, 2019
Print This PagePrint This Page

  *
Session:
Bill #:
Session:
Chamber: View Search Tips
Search Term:
Year: View Search Tips
Search Term:
Senate Bill 1600

Senate Bill sb1600e1

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




    CS for SB 1600                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to prompt payment for

  3         construction services; amending s. 218.70,

  4         F.S.; providing a short title; amending s.

  5         218.72, F.S.; redefining terms used in part VII

  6         of ch. 218, F.S.; amending s. 218.735, F.S.;

  7         revising provisions relating to timely payment

  8         for purchases of construction services;

  9         revising deadlines for payment; providing

10         procedures for project closeout and payment of

11         retainage; providing requirements for local

12         government construction retainage; providing

13         that ss. 218.72-218.76, F.S., apply to the

14         payment of any payment request for retainage;

15         providing exceptions; creating s. 255.0705,

16         F.S.; providing a short title; amending s.

17         255.071, F.S.; revising deadlines for the

18         payment of subcontractors, sub-subcontractors,

19         materialmen, and suppliers on construction

20         contracts for public projects; creating ss.

21         255.072, 255.073, 255.074, 255.075, 255.076,

22         255.077, and 255.078, F.S.; providing

23         definitions; providing for timely payment for

24         purchases of construction services by a public

25         entity; providing procedures for calculating

26         payment due dates; providing procedures for

27         handling improper payment requests; providing

28         for the resolution of disputes; providing for

29         project closeout and payment of retainage;

30         providing that ss. 255.072-255.076, F.S., apply

31         to the payment of any payment request for


                                  1

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






    CS for SB 1600                                 First Engrossed



 1         retainage; providing exceptions; amending s.

 2         255.05, F.S.; making certain restrictions in

 3         bonds issued for public works projects

 4         unenforceable; providing requirements for

 5         certain notices of nonpayment served by a

 6         claimant who is not in privity with the

 7         contractor; revising the form for a public

 8         construction bond; requiring the payment

 9         provisions of all public construction bonds to

10         be construed as statutory bonds; prohibiting

11         conversion to common law bonds; deleting

12         obsolete language; deleting a requirement that

13         bond forms used by public owners reference

14         certain notice and time limitation provisions;

15         providing limitations on a claimant's

16         institution of certain actions against a

17         contractor or surety; amending s. 95.11, F.S.,

18         to conform a cross-reference; amending s.

19         713.015, F.S.; revising a direct contract

20         provision requirement; amending s. 713.02,

21         F.S.; protecting the rights of certain persons

22         to enforce certain contract, lien, or bond

23         remedies or contractual obligations under

24         certain circumstances; precluding certain

25         defenses; amending s. 713.04, F.S.; revising

26         certain final payment requirements; amending s.

27         713.08, F.S.; requiring a claim of lien to be

28         served on an owner; amending s. 713.13, F.S.;

29         clarifying use of a payment bond as a transfer

30         bond; amending s. 713.135, F.S., revising

31         certain notice of commencement and


                                  2

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






    CS for SB 1600                                 First Engrossed



 1         applicability of lien requirements for certain

 2         authorities issuing building permits; amending

 3         s. 713.24, F.S.; preserving certain lien rights

 4         when filing a transfer bond after commencing

 5         certain lien enforcement proceedings; amending

 6         s. 713.345, F.S.; increasing certain criminal

 7         penalties for misapplication of construction

 8         funds; amending s. 713.3471, F.S.; revising a

 9         notice requirement concerning the disbursement

10         of payments on construction loans; requiring

11         that the notice be provided to the owner;

12         providing for application of specified sections

13         of the act to certain contracts and projects;

14         providing an effective date.

15  

16  Be It Enacted by the Legislature of the State of Florida:

17  

18         Section 1.  Section 218.70, Florida Statutes, is

19  amended to read:

20         218.70  Popular name Short title.--This part may be

21  cited as the "Local Government Florida Prompt Payment Act."

22         Section 2.  Subsections (2), (6), and (7) of section

23  218.72, Florida Statutes, are amended, and subsection (10) is

24  added to that section, to read:

25         218.72  Definitions.--As used in this part:

26         (2)  "Local governmental entity" means a county or

27  municipal government, school board, school district,

28  authority, special taxing district, other political

29  subdivision, or any office, board, bureau, commission,

30  department, branch, division, or institution thereof or any

31  project supported by county or municipal funds.


                                  3

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






    CS for SB 1600                                 First Engrossed



 1         (6)  "Vendor" means any person who sells goods or

 2  services, sells or leases personal property, or leases real

 3  property directly to a local governmental entity. The term

 4  includes any person who provides waste-hauling services to

 5  residents or businesses located within the boundaries of a

 6  local government pursuant to a contract or local ordinance.

 7         (7)  "Construction services" means all labor, services,

 8  and materials provided in connection with the construction,

 9  alteration, repair, demolition, reconstruction, or any other

10  improvements to real property that require a license under

11  parts I and II of chapter 489.

12         (10)  "Contractor" or "provider of construction

13  services" means any person who contracts directly with a local

14  governmental entity to provide construction services.

15         Section 3.  Subsection (6) of section 218.735, Florida

16  Statutes, is amended, present subsection (7) of that section

17  is redesignated as subsection (9), and new subsections (7) and

18  (8) are added to that section, to read:

19         218.735  Timely payment for purchases of construction

20  services.--

21         (6)  When a contractor receives payment from a local

22  governmental entity for labor, services, or materials

23  furnished by subcontractors and suppliers hired by the

24  contractor, the contractor shall remit payment due to those

25  subcontractors and suppliers within 10 15 days after the

26  contractor's receipt of payment. When a subcontractor receives

27  payment from a contractor for labor, services, or materials

28  furnished by subcontractors and suppliers hired by the

29  subcontractor, the subcontractor shall remit payment due to

30  those subcontractors and suppliers within 7 15 days after the

31  subcontractor's receipt of payment. Nothing herein shall


                                  4

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






    CS for SB 1600                                 First Engrossed



 1  prohibit a contractor or subcontractor from disputing,

 2  pursuant to the terms of the relevant contract, all or any

 3  portion of a payment alleged to be due to another party. In

 4  the event of such a dispute, the contractor or subcontractor

 5  may withhold the disputed portion of any such payment if the

 6  contractor or subcontractor notifies the party whose payment

 7  is disputed, in writing, of the amount in dispute and the

 8  actions required to cure the dispute. The contractor or

 9  subcontractor must pay all undisputed amounts due within the

10  time limits imposed by this section.

11         (7)(a)  Each contract for construction services between

12  a local governmental entity and a contractor must provide for

13  the development of a list of items required to render

14  complete, satisfactory, and acceptable the construction

15  services purchased by the local governmental entity. The

16  contract must specify the process for the development of the

17  list, including responsibilities of the local governmental

18  entity and the contractor in developing and reviewing the list

19  and a reasonable time for developing the list, as follows:

20         1.  For construction projects with an estimated cost of

21  less than $10 million, within 30 calendar days after reaching

22  substantial completion of the construction services purchased

23  as defined in the contract, or, if not defined in the

24  contract, upon reaching beneficial occupancy or use; or

25         2.  For construction projects with an estimated cost of

26  $10 million or more, within 30 calendar days, unless otherwise

27  extended by contract not to exceed 60 calendar days, after

28  reaching substantial completion of the construction services

29  purchased as defined in the contract, or, if not defined in

30  the contract, upon reaching beneficial occupancy or use.

31  


                                  5

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






    CS for SB 1600                                 First Engrossed



 1         (b)  If the contract between the local governmental

 2  entity and the contractor relates to the purchase of

 3  construction services on more than one building or structure,

 4  or involves a multiphased project, the contract shall provide

 5  for the development of a list of items required to render

 6  complete, satisfactory, and acceptable all the construction

 7  services purchased pursuant to the contract for each building,

 8  structure, or phase of the project within the time limitations

 9  provided in paragraph (a).

10         (c)  The failure to include any corrective work or

11  pending items not yet completed on the list developed pursuant

12  to this subsection does not alter the responsibility of the

13  contractor to complete all the construction services purchased

14  pursuant to the contract.

15         (d)  Upon completion of all items on the list, the

16  contractor may submit a payment request for all remaining

17  retainage withheld by the local governmental entity pursuant

18  to this section. If a good-faith dispute exists as to whether

19  one or more items identified on the list have been completed

20  pursuant to the contract, the local governmental entity may

21  continue to withhold an amount not to exceed 150 percent of

22  the total costs to complete such items.

23         (e)  All items that require correction under the

24  contract and that are identified after the preparation and

25  delivery of the list remain the obligation of the contractor

26  as defined by the contract.

27         (f)  Warranty items may not affect the final payment of

28  retainage as provided in this section or as provided in the

29  contract between the contractor and its subcontractors and

30  suppliers.

31  


                                  6

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






    CS for SB 1600                                 First Engrossed



 1         (g)  Retainage may not be held by a local governmental

 2  entity or a contractor to secure payment of insurance premiums

 3  under a consolidated insurance program or series of insurance

 4  policies issued to a local governmental entity or a contractor

 5  for a project or group of projects, and the final payment of

 6  retainage as provided in this section may not be delayed

 7  pending a final audit by the local governmental entity's or

 8  contractor's insurance provider.

 9         (h)  If a local governmental entity fails to comply

10  with its responsibilities to develop the list required under

11  paragraph (a) or paragraph (b), as defined in the contract,

12  within the time limitations provided in paragraph (a), the

13  contractor may submit a payment request for all remaining

14  retainage withheld by the local governmental entity pursuant

15  to this section. The local governmental entity need not pay or

16  process any payment request for retainage if the contractor

17  has, in whole or in part, failed to cooperate with the local

18  governmental entity in the development of the list or failed

19  to perform its contractual responsibilities, if any, with

20  regard to the development of the list or if paragraph (8)(f)

21  applies.

22         (8)(a)  With regard to any contract for construction

23  services, a local governmental entity may withhold from each

24  progress payment made to the contractor an amount not

25  exceeding 10 percent of the payment as retainage to ensure the

26  satisfactory completion of the construction services purchased

27  pursuant to the contract until 50-percent completion of such

28  services.

29         (b)  After 50-percent completion of the construction

30  services purchased pursuant to the contract, the local

31  governmental entity must reduce to 5 percent the amount of


                                  7

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






    CS for SB 1600                                 First Engrossed



 1  retainage withheld from each subsequent progress payment made

 2  to the contractor. For purposes of this subsection, the term

 3  "50-percent completion" has the meaning set forth in the

 4  contract between the local governmental entity and the

 5  contractor, or, if not defined in the contract, the point at

 6  which the local governmental entity has expended 50 percent of

 7  the total cost of the construction services purchased as

 8  identified in the contract together with all costs associated

 9  with existing change orders and other additions or

10  modifications to the construction services provided for in the

11  contract. However, notwithstanding this subsection, a

12  municipality with a population of 25,000 or fewer, or a county

13  with a population of 100,000 or fewer, may withhold retainage

14  in an amount not exceeding 10 percent of each progress payment

15  made to the contractor until final completion and acceptance

16  of the project by the local governmental entity.

17         (c)  After 50-percent completion of the construction

18  services purchased pursuant to the contract, the contractor

19  may elect to withhold retainage from payments to its

20  subcontractors at a rate higher than 5 percent. The specific

21  amount to be withheld must be determined on a case-by-case

22  basis and must be based on the contractor's assessment of the

23  subcontractor's past performance, the likelihood that such

24  performance will continue, and the contractor's ability to

25  rely on other safeguards. The contractor shall notify the

26  subcontractor, in writing, of its determination to withhold

27  more than 5 percent of the progress payment and the reasons

28  for making that determination, and the contractor may not

29  request the release of such retained funds from the local

30  governmental entity.

31  


                                  8

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






    CS for SB 1600                                 First Engrossed



 1         (d)  After 50-percent completion of the construction

 2  services purchased pursuant to the contract, the contractor

 3  may present to the local governmental entity a payment request

 4  for up to one-half of the retainage held by the local

 5  governmental entity. The local governmental entity shall

 6  promptly make payment to the contractor, unless the local

 7  governmental entity has grounds, pursuant to paragraph (f),

 8  for withholding the payment of retainage. If the local

 9  governmental entity makes payment of retainage to the

10  contractor under this paragraph which is attributable to the

11  labor, services, or materials supplied by one or more

12  subcontractors or suppliers, the contractor shall timely remit

13  payment of such retainage to those subcontractors and

14  suppliers.

15         (e)  This section does not prohibit a local

16  governmental entity from withholding retainage at a rate less

17  than 10 percent of each progress payment, from incrementally

18  reducing the rate of retainage pursuant to a schedule provided

19  for in the contract, or from releasing at any point all or a

20  portion of any retainage withheld by the local governmental

21  entity which is attributable to the labor, services, or

22  materials supplied by the contractor or by one or more

23  subcontractors or suppliers. If a local governmental entity

24  makes any payment of retainage to the contractor which is

25  attributable to the labor, services, or materials supplied by

26  one or more subcontractors or suppliers, the contractor shall

27  timely remit payment of such retainage to those subcontractors

28  and suppliers.

29         (f)  This section does not require the local

30  governmental entity to pay or release any amounts that are the

31  subject of a good-faith dispute, the subject of an action


                                  9

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






    CS for SB 1600                                 First Engrossed



 1  brought pursuant to s. 255.05, or otherwise the subject of a

 2  claim or demand by the local governmental entity or

 3  contractor.

 4         (g)  The time limitations set forth in this section for

 5  payment of payment requests apply to any payment request for

 6  retainage made pursuant to this section.

 7         (h)  Paragraphs (a)-(d) do not apply to construction

 8  services purchased by a local governmental entity which are

 9  paid for, in whole or in part, with federal funds and are

10  subject to federal grantor laws and regulations or

11  requirements that are contrary to any provision of the Local

12  Government Prompt Payment Act.

13         (i)  This subsection does not apply to any construction

14  services purchased by a local governmental entity if the total

15  cost of the construction services purchased as identified in

16  the contract is $200,000 or less.

17         Section 4.  Section 255.0705, Florida Statutes, is

18  created to read:

19         255.0705  Popular name.--Sections 255.0705-255.078 may

20  be cited as the "Florida Prompt Payment Act."

21         Section 5.  Subsections (2) and (3) of section 255.071,

22  Florida Statutes, are amended to read:

23         255.071  Payment of subcontractors, sub-subcontractors,

24  materialmen, and suppliers on construction contracts for

25  public projects.--

26         (2)  The failure to pay any undisputed obligations for

27  such labor, services, or materials within 30 days after the

28  date the labor, services, or materials were furnished and

29  payment for such labor, services, or materials became due, or

30  within the time limitations set forth in s. 255.073(3) 30 days

31  after the date payment for such labor, services, or materials


                                  10

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






    CS for SB 1600                                 First Engrossed



 1  is received, whichever last occurs, shall entitle any person

 2  providing such labor, services, or materials to the procedures

 3  specified in subsection (3) and the remedies provided in

 4  subsection (4).

 5         (3)  Any person providing labor, services, or materials

 6  for the construction of a public building, for the prosecution

 7  and completion of a public work, or for repairs upon a public

 8  building or public work improvements to real property may file

 9  a verified complaint alleging:

10         (a)  The existence of a contract for providing such

11  labor, services, or materials to improve real property.

12         (b)  A description of the labor, services, or materials

13  provided and alleging that the labor, services, or materials

14  were provided in accordance with the contract.

15         (c)  The amount of the contract price.

16         (d)  The amount, if any, paid pursuant to the contract.

17         (e)  The amount that remains unpaid pursuant to the

18  contract and the amount thereof that is undisputed.

19         (f)  That the undisputed amount has remained due and

20  payable pursuant to the contract for more than 30 days after

21  the date the labor or services were accepted or the materials

22  were received.

23         (g)  That the person against whom the complaint was

24  filed has received payment on account of the labor, services,

25  or materials described in the complaint and, as of the date

26  the complaint was filed, has failed to make payment within the

27  time limitations set forth in s. 255.073(3) more than 30 days

28  prior to the date the complaint was filed.

29         Section 6.  Section 255.072, Florida Statutes, is

30  created to read:

31  


                                  11

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






    CS for SB 1600                                 First Engrossed



 1         255.072  Definitions.--As used in ss. 255.073-255.078,

 2  the term:

 3         (1)  "Agent" means project architect, project engineer,

 4  or any other agency or person acting on behalf of a public

 5  entity.

 6         (2)  "Construction services" means all labor, services,

 7  and materials provided in connection with the construction,

 8  alteration, repair, demolition, reconstruction, or any other

 9  improvements to real property. The term "construction

10  services" does not include contracts or work performed for the

11  Department of Transportation.

12         (3)  "Contractor" means any person who contracts

13  directly with a public entity to provide construction

14  services.

15         (4)  "Payment request" means a request for payment for

16  construction services which conforms with all statutory

17  requirements and with all requirements specified by the public

18  entity to which the payment request is submitted.

19         (5)  "Public entity" means the state, or any office,

20  board, bureau, commission, department, branch, division, or

21  institution thereof, but does not include a local governmental

22  entity as defined in s. 218.72.

23         (6)  "Purchase" means the purchase of construction

24  services.

25         Section 7.  Section 255.073, Florida Statutes, is

26  created to read:

27         255.073  Timely payment for purchases of construction

28  services.--

29         (1)  Except as otherwise provided in ss.

30  255.072-255.078, s. 215.422 governs the timely payment for

31  construction services by a public entity.


                                  12

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






    CS for SB 1600                                 First Engrossed



 1         (2)  If a public entity disputes a portion of a payment

 2  request, the undisputed portion must be timely paid.

 3         (3)  When a contractor receives payment from a public

 4  entity for labor, services, or materials furnished by

 5  subcontractors and suppliers hired by the contractor, the

 6  contractor shall remit payment due to those subcontractors and

 7  suppliers within 10 days after the contractor's receipt of

 8  payment. When a subcontractor receives payment from a

 9  contractor for labor, services, or materials furnished by

10  subcontractors and suppliers hired by the subcontractor, the

11  subcontractor shall remit payment due to those subcontractors

12  and suppliers within 7 days after the subcontractor's receipt

13  of payment. This subsection does not prohibit a contractor or

14  subcontractor from disputing, pursuant to the terms of the

15  relevant contract, all or any portion of a payment alleged to

16  be due to another party if the contractor or subcontractor

17  notifies the party whose payment is disputed, in writing, of

18  the amount in dispute and the actions required to cure the

19  dispute. The contractor or subcontractor must pay all

20  undisputed amounts due within the time limits imposed by this

21  subsection.

22         (4)  All payments due for the purchase of construction

23  services and not made within the applicable time limits shall

24  bear interest at the rate specified in s. 215.422. After July

25  1, 2005, such payments shall bear interest at the rate of 1

26  percent per month, to the extent that the Chief Financial

27  Officer's replacement project for the state's accounting and

28  cash management systems (Project ASPIRE) is operational for

29  the particular affected public entities. After January 1,

30  2006, all such payments due from public entities shall bear

31  interest at the rate of 1 percent per month.


                                  13

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






    CS for SB 1600                                 First Engrossed



 1         Section 8.  Section 255.074, Florida Statutes, is

 2  created to read:

 3         255.074  Procedures for calculation of payment due

 4  dates.--

 5         (1)  Each public entity shall establish procedures

 6  whereby each payment request received by the public entity is

 7  marked as received on the date on which it is delivered to an

 8  agent or employee of the public entity or of a facility or

 9  office of the public entity.

10         (2)  If the terms under which a purchase is made allow

11  for partial deliveries and a payment request is submitted for

12  a partial delivery, the time for payment for the partial

13  delivery must be calculated from the time of the partial

14  delivery and the submission of the payment request.

15         (3)  A public entity must submit a payment request to

16  the Chief Financial Officer for payment no more than 20 days

17  after receipt of the payment request.

18         Section 9.  Section 255.075, Florida Statutes, is

19  created to read:

20         255.075  Mandatory interest.--A contract between a

21  public entity and a contractor may not prohibit the collection

22  of late payment interest charges authorized under s.

23  255.073(4).

24         Section 10.  Section 255.076, Florida Statutes, is

25  created to read:

26         255.076  Improper payment request; resolution of

27  disputes.-- In an action to recover amounts due for

28  construction services purchased by a public entity, the court

29  shall award court costs and reasonable attorney's fees,

30  including fees incurred through any appeal, to the prevailing

31  party, if the court finds that the nonprevailing party


                                  14

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






    CS for SB 1600                                 First Engrossed



 1  withheld any portion of the payment that is the subject of the

 2  action without any reasonable basis in law or fact to dispute

 3  the prevailing party's claim to those amounts.

 4         Section 11.  Section 255.077, Florida Statutes, is

 5  created to read:

 6         255.077  Project closeout and payment of retainage.--

 7         (1)  Each contract for construction services between a

 8  public entity and a contractor must provide for the

 9  development of a list of items required to render complete,

10  satisfactory, and acceptable the construction services

11  purchased by the public entity. The contract must specify the

12  process for the development of the list, including

13  responsibilities of the public entity and the contractor in

14  developing and reviewing the list and a reasonable time for

15  developing the list, as follows:

16         1.  For construction projects with an estimated cost of

17  less than $10 million, within 30 calendar days after reaching

18  substantial completion of the construction services purchased

19  as defined in the contract, or, if not defined in the

20  contract, upon reaching beneficial occupancy or use; or

21         2.  For construction projects with an estimated cost of

22  $10 million or more, within 30 calendar days, unless otherwise

23  extended by contract not to exceed 60 calendar days, after

24  reaching substantial completion of the construction services

25  purchased as defined in the contract, or, if not defined in

26  the contract, upon reaching beneficial occupancy or use.

27         (2)  If the contract between the public entity and the

28  contractor relates to the purchase of construction services on

29  more than one building or structure, or involves a multiphased

30  project, the contract shall provide for the development of a

31  list of items required to render complete, satisfactory, and


                                  15

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






    CS for SB 1600                                 First Engrossed



 1  acceptable all the construction services purchased pursuant to

 2  the contract for each building, structure, or phase of the

 3  project within the time limitations provided in subsection

 4  (1).

 5         (3)  The failure to include any corrective work or

 6  pending items not yet completed on the list developed pursuant

 7  to subsection (1) or subsection (2) does not alter the

 8  responsibility of the contractor to complete all the

 9  construction services purchased pursuant to the contract.

10         (4)  Upon completion of all items on the list, the

11  contractor may submit a payment request for all remaining

12  retainage withheld by the public entity pursuant to s.

13  255.078. If a good-faith dispute exists as to whether one or

14  more items identified on the list have been completed pursuant

15  to the contract, the public entity may continue to withhold an

16  amount not to exceed 150 percent of the total costs to

17  complete such items.

18         (5)  All items that require correction under the

19  contract and that are identified after the preparation and

20  delivery of the list remain the obligation of the contractor

21  as defined by the contract.

22         (6)  Warranty items may not affect the final payment of

23  retainage as provided in this section or as provided in the

24  contract between the contractor and its subcontractors and

25  suppliers.

26         (7)  Retainage may not be held by a public entity or a

27  contractor to secure payment of insurance premiums under a

28  consolidated insurance program or series of insurance policies

29  issued to a public entity or a contractor for a project or

30  group of projects, and the final payment of retainage as

31  provided in this section may not be delayed pending a final


                                  16

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






    CS for SB 1600                                 First Engrossed



 1  audit by the public entity's or contractor's insurance

 2  provider.

 3         (8)  If a public entity fails to comply with its

 4  responsibilities to develop the list required under subsection

 5  (1) or subsection (2), as defined in the contract, within the

 6  time limitations provided in subsection (1), the contractor

 7  may submit a payment request for all remaining retainage

 8  withheld by the public entity pursuant to s. 255.078. The

 9  public entity need not pay or process any payment request for

10  retainage if the contractor has, in whole or in part, failed

11  to cooperate with the public entity in the development of the

12  list or failed to perform its contractual responsibilities, if

13  any, with regard to the development of the list or if s.

14  255.078(6) applies.

15         Section 12.  Section 255.078, Florida Statutes, is

16  created to read:

17         255.078  Public construction retainage.--

18         (1)  With regard to any contract for construction

19  services, a public entity may withhold from each progress

20  payment made to the contractor an amount not exceeding 10

21  percent of the payment as retainage to ensure the satisfactory

22  completion of the construction services purchased pursuant to

23  the contract until 50-percent completion of such services.

24         (2)  After 50-percent completion of the construction

25  services purchased pursuant to the contract, the public entity

26  must reduce to 5 percent the amount of retainage withheld from

27  each subsequent progress payment made to the contractor. For

28  purposes of this section, the term "50-percent completion" has

29  the meaning set forth in the contract between the public

30  entity and the contractor, or, if not defined in the contract,

31  the point at which the public entity has expended 50 percent


                                  17

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






    CS for SB 1600                                 First Engrossed



 1  of the total cost of the construction services purchased as

 2  identified in the contract together with all costs associated

 3  with existing change orders and other additions or

 4  modifications to the construction services provided for in the

 5  contract.

 6         (3)  After 50-percent completion of the construction

 7  services purchased pursuant to the contract, the contractor

 8  may elect to withhold retainage from payments to its

 9  subcontractors at a rate higher than 5 percent. The specific

10  amount to be withheld must be determined on a case-by-case

11  basis and must be based on the contractor's assessment of the

12  subcontractor's past performance, the likelihood that such

13  performance will continue, and the contractor's ability to

14  rely on other safeguards. The contractor shall notify the

15  subcontractor, in writing, of its determination to withhold

16  more than 5 percent of the progress payment and the reasons

17  for making that determination, and the contractor may not

18  request the release of such retained funds from the public

19  entity.

20         (4)  After 50-percent completion of the construction

21  services purchased pursuant to the contract, the contractor

22  may present to the public entity a payment request for up to

23  one-half of the retainage held by the public entity. The

24  public entity shall promptly make payment to the contractor,

25  unless the public entity has grounds, pursuant to subsection

26  (6), for withholding the payment of retainage. If the public

27  entity makes payment of retainage to the contractor under this

28  subsection which is attributable to the labor, services, or

29  materials supplied by one or more subcontractors or suppliers,

30  the contractor shall timely remit payment of such retainage to

31  those subcontractors and suppliers.


                                  18

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






    CS for SB 1600                                 First Engrossed



 1         (5)  Neither this section nor s. 255.077 prohibits a

 2  public entity from withholding retainage at a rate less than

 3  10 percent of each progress payment, from incrementally

 4  reducing the rate of retainage pursuant to a schedule provided

 5  for in the contract, or from releasing at any point all or a

 6  portion of any retainage withheld by the public entity which

 7  is attributable to the labor, services, or materials supplied

 8  by the contractor or by one or more subcontractors or

 9  suppliers.  If a public entity makes any payment of retainage

10  to the contractor which is attributable to the labor,

11  services, or materials supplied by one or more subcontractors

12  or suppliers, the contractor shall timely remit payment of

13  such retainage to those subcontractors and suppliers.

14         (6)  Neither this section nor s. 255.077 requires the

15  public entity to pay or release any amounts that are the

16  subject of a good-faith dispute, the subject of an action

17  brought pursuant to s. 255.05, or otherwise the subject of a

18  claim or demand by the public entity or contractor.

19         (7)  The same time limits for payment of a payment

20  request apply regardless of whether the payment request is

21  for, or includes, retainage.

22         (8)  Subsections (1)-(4) do not apply to construction

23  services purchased by a public entity which are paid for, in

24  whole or in part, with federal funds and are subject to

25  federal grantor laws and regulations or requirements that are

26  contrary to any provision of the Florida Prompt Payment Act.

27         (9)  This section does not apply to any construction

28  services purchased by a public entity if the total cost of the

29  construction services purchased as identified in the contract

30  is $200,000 or less.

31  


                                  19

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






    CS for SB 1600                                 First Engrossed



 1         Section 13.  Section 255.05, Florida Statutes, is

 2  amended to read:

 3         255.05  Bond of contractor constructing public

 4  buildings; form; action by materialmen.--

 5         (1)(a)  Any person entering into a formal contract with

 6  the state or any county, city, or political subdivision

 7  thereof, or other public authority, for the construction of a

 8  public building, for the prosecution and completion of a

 9  public work, or for repairs upon a public building or public

10  work shall be required, before commencing the work or before

11  recommencing the work after a default or abandonment, to

12  execute, deliver to the public owner, and record in the public

13  records of the county where the improvement is located, a

14  payment and performance bond with a surety insurer authorized

15  to do business in this state as surety. A public entity may

16  not require a contractor to secure a surety bond under this

17  section from a specific agent or bonding company. The bond

18  must state on its front page: the name, principal business

19  address, and phone number of the contractor, the surety, the

20  owner of the property being improved, and, if different from

21  the owner, the contracting public entity; the contract number

22  assigned by the contracting public entity; and a description

23  of the project sufficient to identify it, such as a legal

24  description or the street address of the property being

25  improved, and a general description of the improvement. Such

26  bond shall be conditioned upon the contractor's performance of

27  the construction work in the time and manner prescribed in the

28  contract and promptly making payments to all persons defined

29  in s. 713.01 who furnish labor, services, or materials for the

30  prosecution of the work provided for in the contract. Any

31  claimant may apply to the governmental entity having charge of


                                  20

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






    CS for SB 1600                                 First Engrossed



 1  the work for copies of the contract and bond and shall

 2  thereupon be furnished with a certified copy of the contract

 3  and bond. The claimant shall have a right of action against

 4  the contractor and surety for the amount due him or her,

 5  including unpaid finance charges due under the claimant's

 6  contract. Such action shall not involve the public authority

 7  in any expense. When such work is done for the state and the

 8  contract is for $100,000 or less, no payment and performance

 9  bond shall be required. At the discretion of the official or

10  board awarding such contract when such work is done for any

11  county, city, political subdivision, or public authority, any

12  person entering into such a contract which is for $200,000 or

13  less may be exempted from executing the payment and

14  performance bond. When such work is done for the state, the

15  Secretary of the Department of Management Services may

16  delegate to state agencies the authority to exempt any person

17  entering into such a contract amounting to more than $100,000

18  but less than $200,000 from executing the payment and

19  performance bond. In the event such exemption is granted, the

20  officer or officials shall not be personally liable to persons

21  suffering loss because of granting such exemption. The

22  Department of Management Services shall maintain information

23  on the number of requests by state agencies for delegation of

24  authority to waive the bond requirements by agency and project

25  number and whether any request for delegation was denied and

26  the justification for the denial. Any provision in a bond

27  furnished for public work contracts as provided by this

28  subsection restricting the classes or persons protected by

29  such bond or the venue of any proceeding relating to such bond

30  is unenforceable.

31  


                                  21

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






    CS for SB 1600                                 First Engrossed



 1         (b)  The Department of Management Services shall adopt

 2  rules with respect to all contracts for $200,000 or less, to

 3  provide:

 4         1.  Procedures for retaining up to 10 percent of each

 5  request for payment submitted by a contractor and procedures

 6  for determining disbursements from the amount retained on a

 7  pro rata basis to laborers, materialmen, and subcontractors,

 8  as defined in s. 713.01.

 9         2.  Procedures for requiring certification from

10  laborers, materialmen, and subcontractors, as defined in s.

11  713.01, prior to final payment to the contractor that such

12  laborers, materialmen, and subcontractors have no claims

13  against the contractor resulting from the completion of the

14  work provided for in the contract.

15  

16  The state shall not be held liable to any laborer,

17  materialman, or subcontractor for any amounts greater than the

18  pro rata share as determined under this section.

19         (2)(a)1.  If a claimant is no longer furnishing labor,

20  services, or materials on a project, a contractor or the

21  contractor's agent or attorney may elect to shorten the

22  prescribed time in this paragraph within which an action to

23  enforce any claim against a payment bond provided pursuant to

24  this section may be commenced by recording in the clerk's

25  office a notice in substantially the following form:

26  

27                    NOTICE OF CONTEST OF CLAIM

28                       AGAINST PAYMENT BOND

29  

30  To: ...(Name and address of claimant)...

31  


                                  22

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






    CS for SB 1600                                 First Engrossed



 1         You are notified that the undersigned contests your

 2  notice of nonpayment, dated ............, ........, and served

 3  on the undersigned on ............, ........, and that the

 4  time within which you may file suit to enforce your claim is

 5  limited to 60 days after the date of service of this notice.

 6  

 7         DATED on ............, .........

 8  

 9  Signed:...(Contractor or Attorney)...

10  

11  The claim of any claimant upon whom such notice is served and

12  who fails to institute a suit to enforce his or her claim

13  against the payment bond within 60 days after service of such

14  notice shall be extinguished automatically. The clerk shall

15  mail a copy of the notice of contest to the claimant at the

16  address shown in the notice of nonpayment or most recent

17  amendment thereto and shall certify to such service on the

18  face of such notice and record the notice. Service is complete

19  upon mailing.

20         2.  A claimant, except a laborer, who is not in privity

21  with the contractor shall, before commencing or not later than

22  45 days after commencing to furnish labor, materials, or

23  supplies for the prosecution of the work, furnish the

24  contractor with a notice that he or she intends to look to the

25  bond for protection. A claimant who is not in privity with the

26  contractor and who has not received payment for his or her

27  labor, materials, or supplies shall deliver to the contractor

28  and to the surety written notice of the performance of the

29  labor or delivery of the materials or supplies and of the

30  nonpayment. The notice of nonpayment may be served at any time

31  during the progress of the work or thereafter but not before


                                  23

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






    CS for SB 1600                                 First Engrossed



 1  45 days after the first furnishing of labor, services, or

 2  materials, and not later than 90 days after the final

 3  furnishing of the labor, services, or materials by the

 4  claimant or, with respect to rental equipment, not later than

 5  90 days after the date that the rental equipment was last on

 6  the job site available for use. Any notice of nonpayment

 7  served by a claimant who is not in privity with the contractor

 8  which includes sums for retainage must specify the portion of

 9  the amount claimed for retainage. No action for the labor,

10  materials, or supplies may be instituted against the

11  contractor or the surety unless both notices have been given.

12  Notices required or permitted under this section may be served

13  in accordance with s. 713.18. An action, except for an action

14  exclusively for recovery of retainage, must be instituted

15  against the contractor or the surety on the payment bond or

16  the payment provisions of a combined payment and performance

17  bond within 1 year after the performance of the labor or

18  completion of delivery of the materials or supplies. An action

19  exclusively for recovery of retainage must be instituted

20  against the contractor or the surety within 1 year after the

21  performance of the labor or completion of delivery of the

22  materials or supplies, or within 90 days after receipt of

23  final payment (or the payment estimate containing the owner's

24  final reconciliation of quantities if no further payment is

25  earned and due as a result of deductive adjustments) by the

26  contractor or surety, whichever comes last. A claimant may not

27  waive in advance his or her right to bring an action under the

28  bond against the surety. In any action brought to enforce a

29  claim against a payment bond under this section, the

30  prevailing party is entitled to recover a reasonable fee for

31  the services of his or her attorney for trial and appeal or


                                  24

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






    CS for SB 1600                                 First Engrossed



 1  for arbitration, in an amount to be determined by the court,

 2  which fee must be taxed as part of the prevailing party's

 3  costs, as allowed in equitable actions. The time periods for

 4  service of a notice of nonpayment or for bringing an action

 5  against a contractor or a surety shall be measured from the

 6  last day of furnishing labor, services, or materials by the

 7  claimant and shall not be measured by other standards, such as

 8  the issuance of a certificate of occupancy or the issuance of

 9  a certificate of substantial completion.

10         (b)  When a person is required to execute a waiver of

11  his or her right to make a claim against the payment bond in

12  exchange for, or to induce payment of, a progress payment, the

13  waiver may be in substantially the following form:

14  

15                     WAIVER OF RIGHT TO CLAIM

16                     AGAINST THE PAYMENT BOND

17                        (PROGRESS PAYMENT)

18  

19         The undersigned, in consideration of the sum of $....,

20  hereby waives its right to claim against the payment bond for

21  labor, services, or materials furnished through ...(insert

22  date)... to ...(insert the name of your customer)... on the

23  job of ...(insert the name of the owner)..., for improvements

24  to the following described project:

25  

26                     (description of project)

27  

28  This waiver does not cover any retention or any labor,

29  services, or materials furnished after the date specified.

30  

31         DATED ON ........, .....


                                  25

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






    CS for SB 1600                                 First Engrossed



 1                                                ...(Claimant)...

 2                                                 By:............

 3  

 4         (c)  When a person is required to execute a waiver of

 5  his or her right to make a claim against the payment bond, in

 6  exchange for, or to induce payment of, the final payment, the

 7  waiver may be in substantially the following form:

 8  

 9                     WAIVER OF RIGHT TO CLAIM

10             AGAINST THE PAYMENT BOND (FINAL PAYMENT)

11  

12         The undersigned, in consideration of the final payment

13  in the amount of $...., hereby waives its right to claim

14  against the payment bond for labor, services, or materials

15  furnished to ...(insert the name of your customer)... on the

16  job of ...(insert the name of the owner)..., for improvements

17  to the following described project:

18  

19                     (description of project)

20  

21         DATED ON ........, .....

22                                                ...(Claimant)...

23                                                 By:............

24  

25         (d)  A person may not require a claimant to furnish a

26  waiver that is different from the forms in paragraphs (b) and

27  (c).

28         (e)  A claimant who executes a waiver in exchange for a

29  check may condition the waiver on payment of the check.

30  

31  


                                  26

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






    CS for SB 1600                                 First Engrossed



 1         (f)  A waiver that is not substantially similar to the

 2  forms in this subsection is enforceable in accordance with its

 3  terms.

 4         (3)  The bond required in subsection (1) may be in

 5  substantially the following form:

 6  

 7                     PUBLIC CONSTRUCTION BOND

 8  

 9                                    Bond No. (enter bond number)

10  

11         BY THIS BOND, We ...., as Principal and ...., a

12  corporation, as Surety, are bound to ...., herein called

13  Owner, in the sum of $...., for payment of which we bind

14  ourselves, our heirs, personal representatives, successors,

15  and assigns, jointly and severally.

16         THE CONDITION OF THIS BOND is that if Principal:

17         1.  Performs the contract dated ...., ...., between

18  Principal and Owner for construction of ...., the contract

19  being made a part of this bond by reference, at the times and

20  in the manner prescribed in the contract; and

21         2.  Promptly makes payments to all claimants, as

22  defined in Section 255.05(1), Florida Statutes, supplying

23  Principal with labor, materials, or supplies, used directly or

24  indirectly by Principal in the prosecution of the work

25  provided for in the contract; and

26         3.  Pays Owner all losses, damages, expenses, costs,

27  and attorney's fees, including appellate proceedings, that

28  Owner sustains because of a default by Principal under the

29  contract; and

30         4.  Performs the guarantee of all work and materials

31  furnished under the contract for the time specified in the


                                  27

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






    CS for SB 1600                                 First Engrossed



 1  contract, then this bond is void; otherwise it remains in full

 2  force.

 3  

 4  Any action instituted by a claimant under this bond for

 5  payment must be in accordance with the notice and time

 6  limitation provisions in Section 255.05, Florida Statutes.

 7         Any changes in or under the contract documents and

 8  compliance or noncompliance with any formalities connected

 9  with the contract or the changes does not affect Surety's

10  obligation under this bond.

11  

12         DATED ON _____, _____.

13  

14  ...  (Name of Principal)  ...

15  By ...  (As Attorney in Fact)  ...

16  ...  (Name of Surety)  ...

17  

18         (4)  The payment provisions of all bonds required by

19  furnished for public work contracts described in subsection

20  (1) shall, regardless of form, be construed and deemed

21  statutory bonds furnished pursuant to this section and such

22  bonds shall not under any circumstances be converted into

23  common law bonds bond provisions, subject to all requirements

24  of subsection (2).

25         (5)  In addition to the provisions of chapter 47, any

26  action authorized under this section may be brought in the

27  county in which the public building or public work is being

28  constructed or repaired. This subsection shall not apply to an

29  action instituted prior to May 17, 1977.

30         (6)  All bonds executed pursuant to this section shall

31  make reference to this section by number and shall contain


                                  28

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






    CS for SB 1600                                 First Engrossed



 1  reference to the notice and time limitation provisions of this

 2  section.

 3         (6)(7)  In lieu of the bond required by this section, a

 4  contractor may file with the state, county, city, or other

 5  political authority an alternative form of security in the

 6  form of cash, a money order, a certified check, a cashier's

 7  check, an irrevocable letter of credit, or a security of a

 8  type listed in part II of chapter 625. Any such alternative

 9  form of security shall be for the same purpose and be subject

10  to the same conditions as those applicable to the bond

11  required by this section.  The determination of the value of

12  an alternative form of security shall be made by the

13  appropriate state, county, city, or other political

14  subdivision.

15         (7)(8)  When a contractor has furnished a payment bond

16  pursuant to this section, he or she may, when the state,

17  county, municipality, political subdivision, or other public

18  authority makes any payment to the contractor or directly to a

19  claimant, serve a written demand on any claimant who is not in

20  privity with the contractor for a written statement under oath

21  of his or her account showing the nature of the labor or

22  services performed and to be performed, if any; the materials

23  furnished; the materials to be furnished, if known; the amount

24  paid on account to date; the amount due; and the amount to

25  become due, if known, as of the date of the statement by the

26  claimant. Any such demand to a claimant who is not in privity

27  with the contractor must be served on the claimant at the

28  address and to the attention of any person who is designated

29  to receive the demand in the notice to contractor served by

30  the claimant. The failure or refusal to furnish the statement

31  does not deprive the claimant of his or her rights under the


                                  29

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






    CS for SB 1600                                 First Engrossed



 1  bond if the demand is not served at the address of the

 2  claimant or directed to the attention of the person designated

 3  to receive the demand in the notice to contractor. The failure

 4  to furnish the statement within 30 days after the demand, or

 5  the furnishing of a false or fraudulent statement, deprives

 6  the claimant who fails to furnish the statement, or who

 7  furnishes the false or fraudulent statement, of his or her

 8  rights under the bond. If the contractor serves more than one

 9  demand for statement of account on a claimant and none of the

10  information regarding the account has changed since the

11  claimant's last response to a demand, the failure or refusal

12  to furnish such statement does not deprive the claimant of his

13  or her rights under the bond. The negligent inclusion or

14  omission of any information deprives the claimant of his or

15  her rights under the bond to the extent that the contractor

16  can demonstrate prejudice from such act or omission by the

17  claimant. The failure to furnish a response to a demand for

18  statement of account does not affect the validity of any claim

19  on the bond being enforced in a lawsuit filed before the date

20  the demand for statement of account is received by the

21  claimant.

22         (8)(9)  On any public works project for which the

23  public authority requires a performance and payment bond,

24  suits at law and in equity may be brought and maintained by

25  and against the public authority on any contract claim arising

26  from breach of an express provision or an implied covenant of

27  a written agreement or a written directive issued by the

28  public authority pursuant to the written agreement.  In any

29  such suit, the public authority and the contractor shall have

30  all of the same rights and obligations as a private person

31  under a like contract except that no liability may be based on


                                  30

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






    CS for SB 1600                                 First Engrossed



 1  an oral modification of either the written contract or written

 2  directive.  Nothing herein shall be construed to waive the

 3  sovereign immunity of the state and its political subdivisions

 4  from equitable claims and equitable remedies. The provisions

 5  of this subsection shall apply only to contracts entered into

 6  on or after July 1, 1999.

 7         (9)  An action, except an action for recovery of

 8  retainage, must be instituted against the contractor or the

 9  surety on the payment bond or the payment provisions of a

10  combined payment and performance bond within 1 year after the

11  performance of the labor or completion of delivery of the

12  materials or supplies. An action for recovery of retainage

13  must be instituted against the contractor or the surety within

14  1 year after the performance of the labor or completion of

15  delivery of the materials or supplies, provided that such an

16  action may not be instituted until one of the following

17  conditions is satisfied:

18         (a)  The public entity has paid out the claimant's

19  retainage to the contractor, and the time provided under s.

20  255.073(3) for payment of that retainage to the claimant has

21  expired;

22         (b)  The claimant has completed all work required under

23  its contract and 70 days have passed since the contractor sent

24  its final payment request to the public entity; or

25         (c)  The claimant has asked the contractor, in writing,

26  when the contractor received payment of the claimant's

27  retainage or when the contractor sent its final payment

28  request to the public entity, and the contractor has failed to

29  respond to this request, in writing, within 10 days after

30  receipt.

31  


                                  31

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






    CS for SB 1600                                 First Engrossed



 1  If none of the conditions described in paragraph (a),

 2  paragraph (b), or paragraph (c) is satisfied and an action for

 3  recovery of retainage therefore cannot be instituted within

 4  the 1-year limitation period set forth in this subsection,

 5  this limitation period shall be extended until 120 days after

 6  one of these conditions is satisfied.

 7         Section 14.  Paragraph (b) of subsection (2) of section

 8  95.11, Florida Statutes, is amended to read:

 9         95.11  Limitations other than for the recovery of real

10  property.--Actions other than for recovery of real property

11  shall be commenced as follows:

12         (2)  WITHIN FIVE YEARS.--

13         (b)  A legal or equitable action on a contract,

14  obligation, or liability founded on a written instrument,

15  except for an action to enforce a claim against a payment

16  bond, which shall be governed by the applicable provisions of

17  ss. 255.05(9) 255.05(2)(a)2. and 713.23(1)(e).

18         Section 15.  Section 713.015, Florida Statutes, is

19  amended to read:

20         713.015  Mandatory provisions for direct

21  contracts.--Any direct contract between an owner and a

22  contractor, related to improvements to real property

23  consisting of single or multiple family dwellings up to and

24  including four units, must contain the following provision

25  printed in capital letters no less than the same size

26  18-point, capitalized, boldfaced type used in the body of the

27  contract:

28  

29  ACCORDING TO FLORIDA'S CONSTRUCTION LIEN LAW (SECTIONS

30  713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR

31  PROPERTY OR PROVIDE MATERIALS AND ARE NOT PAID IN FULL HAVE A


                                  32

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






    CS for SB 1600                                 First Engrossed



 1  RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR

 2  PROPERTY. THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR

 3  CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS,

 4  SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS OR NEGLECTS TO MAKE

 5  OTHER LEGALLY REQUIRED PAYMENTS, THE PEOPLE WHO ARE OWED MONEY

 6  MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE PAID

 7  YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR CONTRACTOR,

 8  YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR PROPERTY. THIS

 9  MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE SOLD AGAINST

10  YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER SERVICES THAT

11  YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED TO PAY.

12  FLORIDA'S CONSTRUCTION LIEN LAW IS COMPLEX AND IT IS

13  RECOMMENDED THAT WHENEVER A SPECIFIC PROBLEM ARISES, YOU

14  CONSULT AN ATTORNEY.

15         Section 16.  Subsection (7) of section 713.02, Florida

16  Statutes, is amended to read:

17         713.02  Types of lienors and exemptions.--

18         (7)  Notwithstanding any other provision of this part,

19  no lien shall exist in favor of any contractor, subcontractor,

20  or sub-subcontractor who is unlicensed as provided in s.

21  489.128 or s. 489.532. Notwithstanding any other provision of

22  this part, if a contract is rendered unenforceable by an

23  unlicensed contractor, subcontractor, or sub-subcontractor

24  pursuant to s. 489.128 or s. 489.532, such unenforceability

25  shall not affect the rights of any other persons to enforce

26  contract, lien, or bond remedies and shall not affect the

27  obligations of a surety that has provided a bond on behalf of

28  the unlicensed contractor, subcontractor, or

29  sub-subcontractor. It shall not be a defense to any claim on a

30  bond or indemnity agreement that the principal or indemnitor

31  is unlicensed as provided in s. 489.128 or s. 489.532.


                                  33

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






    CS for SB 1600                                 First Engrossed



 1         Section 17.  Subsection (3) of section 713.04, Florida

 2  Statutes, is amended, and subsection (4) is added to that

 3  section, to read:

 4         713.04  Subdivision improvements.--

 5         (3)  The owner shall not pay any money on account of a

 6  direct contract before actual furnishing of labor and services

 7  or materials for subdivision improvements. Any such The

 8  payment not complying with such requirement shall not qualify

 9  as a proper payment under this chapter section.

10         (4)  The owner shall make final payment on account of a

11  direct contract only after the contractor complies with s.

12  713.06(3)(d). Any such payment not complying with such

13  requirement shall not qualify as a proper payment under this

14  chapter.

15         Section 18.  Paragraph (c) of subsection (4) of section

16  713.08, Florida Statutes, is amended to read:

17         713.08  Claim of lien.--

18         (4)

19         (c)  The claim of lien shall be served on the owner.

20  Failure to serve any claim of lien in the manner provided in

21  s. 713.18 before recording or within 15 days after recording

22  shall render the claim of lien voidable to the extent that the

23  failure or delay is shown to have been prejudicial to any

24  person entitled to rely on the service.

25         Section 19.  Paragraph (e) of subsection (1) of section

26  713.13, Florida Statutes, is amended to read:

27         713.13  Notice of commencement.--

28         (1)

29         (e)  A copy of any bond must be attached at the time of

30  recordation of the notice of commencement. The failure to

31  attach a copy of the bond to the notice of commencement when


                                  34

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






    CS for SB 1600                                 First Engrossed



 1  the notice is recorded negates the exemption provided in s.

 2  713.02(6). However, if such a bond exists but is not recorded,

 3  the bond may be used as a transfer bond pursuant to s. 713.24.

 4  The bond shall be deemed a transfer bond under s. 713.24 for

 5  all purposes at the time of recordation of the notice of bond

 6  and the clerk's mailing as provided in s. 713.23(2). The

 7  notice requirements of s. 713.23 apply to any claim against

 8  the bond; however, the time limits for serving the notice

 9  shall run from the latter of the time specified in s. 713.23

10  or the date the notice of bond is served on the lienor.

11         Section 20.  Paragraph (b) of subsection (1) and

12  subsection (4) of section 713.135, Florida Statutes, are

13  amended, and paragraph (e) is added to subsection (1) of that

14  section, to read:

15         713.135  Notice of commencement and applicability of

16  lien.--

17         (1)  When any person applies for a building permit, the

18  authority issuing such permit shall:

19         (b)  Provide the applicant and the owner of the real

20  property upon which improvements are to be constructed with a

21  printed statement stating that the right, title, and interest

22  of the person who has contracted for the improvement may be

23  subject to attachment under the Construction Lien Law. The

24  Department of Business and Professional Regulation shall

25  furnish, for distribution, the statement described in this

26  paragraph, and the statement must be a summary of the

27  Construction Lien Law and must include an explanation of the

28  provisions of the Construction Lien Law relating to the

29  recording, and the posting of copies, of notices of

30  commencement and a statement encouraging the owner to record a

31  notice of commencement and post a copy of the notice of


                                  35

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






    CS for SB 1600                                 First Engrossed



 1  commencement in accordance with s. 713.13. The statement must

 2  also contain an explanation of the owner's rights if a lienor

 3  fails to furnish the owner with a notice as provided in s.

 4  713.06(2) and an explanation of the owner's rights as provided

 5  in s. 713.22. The authority that issues the building permit

 6  must obtain from the Department of Business and Professional

 7  Regulation the statement required by this paragraph and must

 8  mail, deliver by electronic mail or other electronic format or

 9  facsimile, or personally deliver that statement to the owner

10  or, in the case in which the owner is required to personally

11  appear to obtain the permit, provide that statement to any

12  owner making improvements to real property consisting of a

13  single or multiple family dwelling up to and including four

14  units. However, the failure by the authorities to provide the

15  summary does not subject the issuing authority to liability.

16         (e)  Nothing in this subsection shall be construed to

17  require a notice of commencement to be recorded as a condition

18  to the issuance of a building permit.

19         (4)  The several boards of county commissioners,

20  municipal councils, or other similar bodies may by ordinance

21  or resolution establish reasonable fees for furnishing copies

22  of the forms and the printed statement provided in paragraphs

23  (1)(b) and paragraph (1)(d) in an amount not to exceed $5 to

24  be paid by the applicant for each permit in addition to all

25  other costs of the permit; however, no forms or statement need

26  be furnished, mailed, or otherwise provided to, nor may such

27  additional fee be obtained from, applicants for permits in

28  those cases in which the owner of a legal or equitable

29  interest (including that of ownership of stock of a corporate

30  landowner) of the real property to be improved is engaged in

31  the business of construction of buildings for sale to others


                                  36

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






    CS for SB 1600                                 First Engrossed



 1  and intends to make the improvements authorized by the permit

 2  on the property and upon completion will offer the improved

 3  real property for sale.

 4         Section 21.  Subsection (4) of section 713.24, Florida

 5  Statutes, is amended to read:

 6         713.24  Transfer of liens to security.--

 7         (4)  If a proceeding to enforce a transferred lien is

 8  not commenced within the time specified in s. 713.22 or if it

 9  appears that the transferred lien has been satisfied of

10  record, the clerk shall return said security upon request of

11  the person depositing or filing the same, or the insurer. If a

12  proceeding to enforce a lien is commenced in a court of

13  competent jurisdiction within the time specified in s. 713.22

14  and, subsequent to the expiration of the proceeding, the lien

15  is transferred pursuant to s. 713.24, an action commenced to

16  recover against the security shall be deemed to have been

17  brought as of the date of filing the action to enforce the

18  lien.

19         Section 22.  Paragraph (b) of subsection (1) of section

20  713.345, Florida Statutes, is amended to read:

21         713.345  Moneys received for real property

22  improvements; penalty for misapplication.--

23         (1)

24         (b)  Any person who knowingly and intentionally fails

25  to comply with paragraph (a) is guilty of misapplication of

26  construction funds, punishable as follows:

27         1.  If the amount of payments misapplied has an

28  aggregate value of $100,000 or more, the violator is guilty of

29  a felony of the first degree, punishable as provided in s.

30  775.082, s. 775.083, or s. 775.084.

31  


                                  37

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






    CS for SB 1600                                 First Engrossed



 1         2.  If the amount of payments misapplied has an

 2  aggregate value of $20,000 or more but less than $100,000, the

 3  violator is guilty of a felony of the second degree,

 4  punishable as provided in s. 775.082, s. 775.083, or s.

 5  775.084.

 6         3.  If the amount of payments misapplied has an

 7  aggregate value of less than $20,000, the violator is guilty

 8  of a felony of the third degree, punishable as provided in s.

 9  775.082, s. 775.083, or s. 775.084.

10         Section 23.  Subsection (1) of section 713.3471,

11  Florida Statutes, is amended to read:

12         713.3471  Lender responsibilities with construction

13  loans.--

14         (1)  Prior to a lender making the first any loan

15  disbursement on any construction loan secured by residential

16  property directly to the owner, which for purposes of this

17  section means an individual owner only, or jointly to the

18  owner and any other party, the lender shall give the following

19  written notice to the owner borrowers in bold type larger than

20  any other type on the page:

21  

22                             WARNING!

23  

24         YOUR LENDER IS MAKING A LOAN DISBURSEMENT

25         DIRECTLY TO YOU AS THE OWNER BORROWER, OR

26         JOINTLY TO YOU AND ANOTHER PARTY. TO PROTECT

27         YOURSELF FROM HAVING TO PAY TWICE FOR THE SAME

28         LABOR, SERVICES, OR MATERIALS USED IN MAKING

29         THE IMPROVEMENTS TO YOUR PROPERTY, BE SURE THAT

30         YOU REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN

31         RELEASES FROM EACH LIENOR WHO HAS SENT YOU A


                                  38

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






    CS for SB 1600                                 First Engrossed



 1         NOTICE TO OWNER EACH TIME YOU MAKE A PAYMENT TO

 2         YOUR CONTRACTOR.

 3         Section 24.  Neither the amendments to sections 95.11,

 4  218.70, 218.72, 218.735, and 255.071, Florida Statutes, and

 5  subsection (2) of section 255.05, Florida Statutes, as

 6  provided in this act, nor subsection (9) of section 255.05,

 7  Florida Statutes, and section 255.078, Florida Statutes, as

 8  created by this act, applies to any existing construction

 9  contract pending approval by a local governmental entity or

10  public entity, or to any project advertised for bid by the

11  local government entity or public entity, on or before the

12  effective date of this act. The amendments to subsections (3),

13  (4), and (6) of section 255.05, Florida Statutes, as provided

14  in this act, apply to public construction bonds issued for

15  contracts entered into on or after the effective date of this

16  act.

17         Section 25.  This act shall take effect October 1,

18  2004.

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


                                  39

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

Site Map
Session:   Bills ·   Calendars ·   Bound Journals ·   Citator ·   Search ·   Appropriations ·   Redistricting ·   Bill Information Reports
Committee Publications
Historical Information
Statutes:   Introduction ·   View Statutes ·   Search Statutes
Flsenate.gov
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes.    Copyright © 2000-2019 State of Florida.     Privacy Statement     Contact Us     Get Acrobat Reader