August 07, 2020
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Amendment CaShTmL-423626.HTM
                                                  SENATE AMENDMENT
    Bill No. CS for CS for SB 544
    Amendment No. ___   Barcode 423626
                            CHAMBER ACTION
              Senate                               House
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 1                  8/AD/2R        .                    
       04/23/2004 05:02 PM         .                    
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11  Senators Bennett and Sebesta moved the following substitute
12  for amendment (162146):
13  
14         Senate Amendment (with title amendment) 
15         On page 19, line 22, through page 22, line 24, delete
16  those lines
17  
18  and insert:  
19         Section 13.  Section 255.05, Florida Statutes, is
20  amended to read:
21         255.05  Bond of contractor constructing public
22  buildings; form; action by materialmen.--
23         (1)(a)  Any person entering into a formal contract with
24  the state or any county, city, or political subdivision
25  thereof, or other public authority, for the construction of a
26  public building, for the prosecution and completion of a
27  public work, or for repairs upon a public building or public
28  work shall be required, before commencing the work or before
29  recommencing the work after a default or abandonment, to
30  execute, deliver to the public owner, and record in the public
31  records of the county where the improvement is located, a
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    8:52 AM   04/23/04                               s0544.go21.hh

SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 payment and performance bond with a surety insurer authorized 2 to do business in this state as surety. A public entity may 3 not require a contractor to secure a surety bond under this 4 section from a specific agent or bonding company. The bond 5 must state on its front page: the name, principal business 6 address, and phone number of the contractor, the surety, the 7 owner of the property being improved, and, if different from 8 the owner, the contracting public entity; the contract number 9 assigned by the contracting public entity; and a description 10 of the project sufficient to identify it, such as a legal 11 description or the street address of the property being 12 improved, and a general description of the improvement. Such 13 bond shall be conditioned upon the contractor's performance of 14 the construction work in the time and manner prescribed in the 15 contract and promptly making payments to all persons defined 16 in s. 713.01 who furnish labor, services, or materials for the 17 prosecution of the work provided for in the contract. Any 18 claimant may apply to the governmental entity having charge of 19 the work for copies of the contract and bond and shall 20 thereupon be furnished with a certified copy of the contract 21 and bond. The claimant shall have a right of action against 22 the contractor and surety for the amount due him or her, 23 including unpaid finance charges due under the claimant's 24 contract. Such action shall not involve the public authority 25 in any expense. When such work is done for the state and the 26 contract is for $100,000 or less, no payment and performance 27 bond shall be required. At the discretion of the official or 28 board awarding such contract when such work is done for any 29 county, city, political subdivision, or public authority, any 30 person entering into such a contract which is for $200,000 or 31 less may be exempted from executing the payment and 2 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 performance bond. When such work is done for the state, the 2 Secretary of the Department of Management Services may 3 delegate to state agencies the authority to exempt any person 4 entering into such a contract amounting to more than $100,000 5 but less than $200,000 from executing the payment and 6 performance bond. In the event such exemption is granted, the 7 officer or officials shall not be personally liable to persons 8 suffering loss because of granting such exemption. The 9 Department of Management Services shall maintain information 10 on the number of requests by state agencies for delegation of 11 authority to waive the bond requirements by agency and project 12 number and whether any request for delegation was denied and 13 the justification for the denial. 14 (b) The Department of Management Services shall adopt 15 rules with respect to all contracts for $200,000 or less, to 16 provide: 17 1. Procedures for retaining up to 10 percent of each 18 request for payment submitted by a contractor and procedures 19 for determining disbursements from the amount retained on a 20 pro rata basis to laborers, materialmen, and subcontractors, 21 as defined in s. 713.01. 22 2. Procedures for requiring certification from 23 laborers, materialmen, and subcontractors, as defined in s. 24 713.01, prior to final payment to the contractor that such 25 laborers, materialmen, and subcontractors have no claims 26 against the contractor resulting from the completion of the 27 work provided for in the contract. 28 29 The state shall not be held liable to any laborer, 30 materialman, or subcontractor for any amounts greater than the 31 pro rata share as determined under this section. 3 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 (2)(a)1. If a claimant is no longer furnishing labor, 2 services, or materials on a project, a contractor or the 3 contractor's agent or attorney may elect to shorten the 4 prescribed time in this paragraph within which an action to 5 enforce any claim against a payment bond provided pursuant to 6 this section may be commenced by recording in the clerk's 7 office a notice in substantially the following form: 8 9 NOTICE OF CONTEST OF CLAIM 10 AGAINST PAYMENT BOND 11 12 To: ...(Name and address of claimant)... 13 14 You are notified that the undersigned contests your 15 notice of nonpayment, dated ............, ........, and served 16 on the undersigned on ............, ........, and that the 17 time within which you may file suit to enforce your claim is 18 limited to 60 days after the date of service of this notice. 19 20 DATED on ............, ......... 21 22 Signed:...(Contractor or Attorney)... 23 24 The claim of any claimant upon whom such notice is served and 25 who fails to institute a suit to enforce his or her claim 26 against the payment bond within 60 days after service of such 27 notice shall be extinguished automatically. The clerk shall 28 mail a copy of the notice of contest to the claimant at the 29 address shown in the notice of nonpayment or most recent 30 amendment thereto and shall certify to such service on the 31 face of such notice and record the notice. Service is complete 4 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 upon mailing. 2 2. A claimant, except a laborer, who is not in privity 3 with the contractor shall, before commencing or not later than 4 45 days after commencing to furnish labor, materials, or 5 supplies for the prosecution of the work, furnish the 6 contractor with a notice that he or she intends to look to the 7 bond for protection. A claimant who is not in privity with the 8 contractor and who has not received payment for his or her 9 labor, materials, or supplies shall deliver to the contractor 10 and to the surety written notice of the performance of the 11 labor or delivery of the materials or supplies and of the 12 nonpayment. The notice of nonpayment may be served at any time 13 during the progress of the work or thereafter but not before 14 45 days after the first furnishing of labor, services, or 15 materials, and not later than 90 days after the final 16 furnishing of the labor, services, or materials by the 17 claimant or, with respect to rental equipment, not later than 18 90 days after the date that the rental equipment was last on 19 the job site available for use. Any notice of nonpayment 20 served by a claimant who is not in privity with the contractor 21 which includes sums for retainage must specify the portion of 22 the amount claimed for retainage. No action for the labor, 23 materials, or supplies may be instituted against the 24 contractor or the surety unless both notices have been given. 25 Notices required or permitted under this section may be served 26 in accordance with s. 713.18. An action, except for an action 27 exclusively for recovery of retainage, must be instituted 28 against the contractor or the surety on the payment bond or 29 the payment provisions of a combined payment and performance 30 bond within 1 year after the performance of the labor or 31 completion of delivery of the materials or supplies. An action 5 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 exclusively for recovery of retainage must be instituted 2 against the contractor or the surety within 1 year after the 3 performance of the labor or completion of delivery of the 4 materials or supplies, or within 90 days after receipt of 5 final payment (or the payment estimate containing the owner's 6 final reconciliation of quantities if no further payment is 7 earned and due as a result of deductive adjustments) by the 8 contractor or surety, whichever comes last. A claimant may not 9 waive in advance his or her right to bring an action under the 10 bond against the surety. In any action brought to enforce a 11 claim against a payment bond under this section, the 12 prevailing party is entitled to recover a reasonable fee for 13 the services of his or her attorney for trial and appeal or 14 for arbitration, in an amount to be determined by the court, 15 which fee must be taxed as part of the prevailing party's 16 costs, as allowed in equitable actions. The time periods for 17 service of a notice of nonpayment or for bringing an action 18 against a contractor or a surety shall be measured from the 19 last day of furnishing labor, services, or materials by the 20 claimant and shall not be measured by other standards, such as 21 the issuance of a certificate of occupancy or the issuance of 22 a certificate of substantial completion. 23 (b) When a person is required to execute a waiver of 24 his or her right to make a claim against the payment bond in 25 exchange for, or to induce payment of, a progress payment, the 26 waiver may be in substantially the following form: 27 28 WAIVER OF RIGHT TO CLAIM 29 AGAINST THE PAYMENT BOND 30 (PROGRESS PAYMENT) 31 6 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 The undersigned, in consideration of the sum of $...., 2 hereby waives its right to claim against the payment bond for 3 labor, services, or materials furnished through ...(insert 4 date)... to ...(insert the name of your customer)... on the 5 job of ...(insert the name of the owner)..., for improvements 6 to the following described project: 7 8 (description of project) 9 10 This waiver does not cover any retention or any labor, 11 services, or materials furnished after the date specified. 12 13 DATED ON ........, ..... 14 ...(Claimant)... 15 By:............ 16 17 (c) When a person is required to execute a waiver of 18 his or her right to make a claim against the payment bond, in 19 exchange for, or to induce payment of, the final payment, the 20 waiver may be in substantially the following form: 21 22 WAIVER OF RIGHT TO CLAIM 23 AGAINST THE PAYMENT BOND (FINAL PAYMENT) 24 25 The undersigned, in consideration of the final payment 26 in the amount of $...., hereby waives its right to claim 27 against the payment bond for labor, services, or materials 28 furnished to ...(insert the name of your customer)... on the 29 job of ...(insert the name of the owner)..., for improvements 30 to the following described project: 31 7 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 (description of project) 2 3 DATED ON ........, ..... 4 ...(Claimant)... 5 By:............ 6 7 (d) A person may not require a claimant to furnish a 8 waiver that is different from the forms in paragraphs (b) and 9 (c). 10 (e) A claimant who executes a waiver in exchange for a 11 check may condition the waiver on payment of the check. 12 (f) A waiver that is not substantially similar to the 13 forms in this subsection is enforceable in accordance with its 14 terms. 15 (3) The bond required in subsection (1) may be in 16 substantially the following form: 17 18 PUBLIC CONSTRUCTION BOND 19 20 Bond No. (enter bond number) 21 22 BY THIS BOND, We _____, as Principal and _____, a 23 corporation, as Surety, are bound to _____, herein called 24 Owner, in the sum of $_____, for payment of which we bind 25 ourselves, our heirs, personal representatives, successors, 26 and assigns, jointly and severally. 27 THE CONDITION OF THIS BOND is that if Principal: 28 1. Performs the contract dated _____, _____, between 29 Principal and Owner for construction of _____, the contract 30 being made a part of this bond by reference, at the times and 31 in the manner prescribed in the contract; and 8 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 2. Promptly makes payments to all claimants, as 2 defined in Section 255.05(1), Florida Statutes, supplying 3 Principal with labor, materials, or supplies, used directly or 4 indirectly by Principal in the prosecution of the work 5 provided for in the contract; and 6 3. Pays Owner all losses, damages, expenses, costs, 7 and attorney's fees, including appellate proceedings, that 8 Owner sustains because of a default by Principal under the 9 contract; and 10 4. Performs the guarantee of all work and materials 11 furnished under the contract for the time specified in the 12 contract, then this bond is void; otherwise it remains in full 13 force. 14 Any action instituted by a claimant under this bond for 15 payment must be in accordance with the notice and time 16 limitation provisions in Section 255.05, Florida Statutes. 17 Any changes in or under the contract documents and 18 compliance or noncompliance with any formalities connected 19 with the contract or the changes does not affect Surety's 20 obligation under this bond. 21 22 DATED ON _____, _____. 23 24 ... (Name of Principal) ... 25 By ... (As Attorney in Fact) ... 26 ... (Name of Surety) ... 27 28 (4) The payment provisions of all bonds required by 29 furnished for public work contracts described in subsection 30 (1) shall, regardless of form, be construed and deemed 31 statutory bonds furnished pursuant to this section and such 9 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 bonds shall not under any circumstances be converted into 2 common law bonds bond provisions, subject to all requirements 3 of subsection (2). 4 (5) In addition to the provisions of chapter 47, any 5 action authorized under this section may be brought in the 6 county in which the public building or public work is being 7 constructed or repaired. This subsection shall not apply to 8 an action instituted prior to May 17, 1977. 9 (6) All bonds executed pursuant to this section shall 10 make reference to this section by number and shall contain 11 reference to the notice and time limitation provisions of this 12 section. 13 (6) (7) In lieu of the bond required by this section, 14 a contractor may file with the state, county, city, or other 15 political authority an alternative form of security in the 16 form of cash, a money order, a certified check, a cashier's 17 check, an irrevocable letter of credit, or a security of a 18 type listed in part II of chapter 625. Any such alternative 19 form of security shall be for the same purpose and be subject 20 to the same conditions as those applicable to the bond 21 required by this section. The determination of the value of 22 an alternative form of security shall be made by the 23 appropriate state, county, city, or other political 24 subdivision. 25 (7) (8) When a contractor has furnished a payment bond 26 pursuant to this section, he or she may, when the state, 27 county, municipality, political subdivision, or other public 28 authority makes any payment to the contractor or directly to a 29 claimant, serve a written demand on any claimant who is not in 30 privity with the contractor for a written statement under oath 31 of his or her account showing the nature of the labor or 10 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 services performed and to be performed, if any; the materials 2 furnished; the materials to be furnished, if known; the amount 3 paid on account to date; the amount due; and the amount to 4 become due, if known, as of the date of the statement by the 5 claimant. Any such demand to a claimant who is not in privity 6 with the contractor must be served on the claimant at the 7 address and to the attention of any person who is designated 8 to receive the demand in the notice to contractor served by 9 the claimant. The failure or refusal to furnish the statement 10 does not deprive the claimant of his or her rights under the 11 bond if the demand is not served at the address of the 12 claimant or directed to the attention of the person designated 13 to receive the demand in the notice to contractor. The failure 14 to furnish the statement within 30 days after the demand, or 15 the furnishing of a false or fraudulent statement, deprives 16 the claimant who fails to furnish the statement, or who 17 furnishes the false or fraudulent statement, of his or her 18 rights under the bond. If the contractor serves more than one 19 demand for statement of account on a claimant and none of the 20 information regarding the account has changed since the 21 claimant's last response to a demand, the failure or refusal 22 to furnish such statement does not deprive the claimant of his 23 or her rights under the bond. The negligent inclusion or 24 omission of any information deprives the claimant of his or 25 her rights under the bond to the extent that the contractor 26 can demonstrate prejudice from such act or omission by the 27 claimant. The failure to furnish a response to a demand for 28 statement of account does not affect the validity of any claim 29 on the bond being enforced in a lawsuit filed before the date 30 the demand for statement of account is received by the 31 claimant. 11 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 (8) (9) On any public works project for which the 2 public authority requires a performance and payment bond, 3 suits at law and in equity may be brought and maintained by 4 and against the public authority on any contract claim arising 5 from breach of an express provision or an implied covenant of 6 a written agreement or a written directive issued by the 7 public authority pursuant to the written agreement. In any 8 such suit, the public authority and the contractor shall have 9 all of the same rights and obligations as a private person 10 under a like contract except that no liability may be based on 11 an oral modification of either the written contract or written 12 directive. Nothing herein shall be construed to waive the 13 sovereign immunity of the state and its political subdivisions 14 from equitable claims and equitable remedies. The provisions 15 of this subsection shall apply only to contracts entered into 16 on or after July 1, 1999. 17 (9) An action, except an action for recovery of 18 19 (Redesignate subsequent sections.) 20 21 22 ================ T I T L E A M E N D M E N T =============== 23 And the title is amended as follows: 24 On page 2, line 5, after the semicolon 25 26 insert: 27 revising the form for a public construction 28 bond; requiring the payment provisions of all 29 public construction bonds to be construed as 30 statutory bonds; prohibiting conversion to 31 common law bonds; deleting a requirement that 12 8:52 AM 04/23/04 s0544.go21.hh
SENATE AMENDMENT Bill No. CS for CS for SB 544 Amendment No. ___ Barcode 423626 1 bond forms used by public owners reference 2 certain notice and time limitation provisions; 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 13 8:52 AM 04/23/04 s0544.go21.hh
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