Senate Bill sb1724e2

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  1                      A bill to be entitled

  2         An act relating to construction services;

  3         amending s. 725.06, F.S.; providing conditions,

  4         limitations, and exceptions for construction

  5         contracts that limit indemnification; amending

  6         s. 218.70, F.S.; providing a short title;

  7         amending s. 218.72, F.S.; redefining terms used

  8         in part VII of ch. 218, F.S.; amending s.

  9         218.735, F.S.; revising provisions relating to

10         timely payment for purchases of construction

11         services; revising deadlines for payment;

12         providing procedures for project closeout and

13         payment of retainage; providing requirements

14         for local government construction retainage;

15         providing that ss. 218.72-218.76, F.S., apply

16         to the payment of any payment request for

17         retainage; creating s. 255.0705, F.S.;

18         providing a short title; amending s. 255.071,

19         F.S.; revising deadlines for the payment of

20         subcontractors, sub-subcontractors,

21         materialmen, and suppliers on construction

22         contracts for public projects; creating ss.

23         255.072, 255.073, 255.074, 255.075, 255.076,

24         255.077, 255.078, F.S.; providing definitions;

25         providing for timely payment for purchases of

26         construction services by a public entity;

27         providing procedures for calculating payment

28         due dates; providing procedures for handling

29         improper payment requests; providing for the

30         resolution of disputes; providing for project

31         closeout and payment of retainage; providing


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 1         for public-construction retainage; providing

 2         that ss. 255.072-255.076, F.S., apply to the

 3         payment of any payment request for retainage;

 4         amending s. 255.05, F.S.; providing

 5         requirements for certain notices of nonpayment

 6         served by a claimant who is not in privity with

 7         the contractor; providing limitations on a

 8         claimant's institution of certain actions

 9         against a contractor or surety; providing for

10         certain notices to the claimant; providing an

11         effective date.

12  

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

14  

15         Section 1.  Section 725.06, Florida Statutes, is

16  amended to read:

17         725.06  Construction contracts; limitation on

18  indemnification; agreements to insure.--

19         (1)  Except as otherwise provided in paragraphs (a),

20  (b), and (c), any portion of any agreement or contract for or

21  in connection with, or any guarantee of or in connection with,

22  any construction, alteration, repair, or demolition of a

23  building, structure, appurtenance, or appliance, including

24  moving and excavating associated therewith, between an owner

25  of real property and an architect, engineer, general

26  contractor, subcontractor, sub-subcontractor, or materialman

27  or any combination thereof wherein any party referred to

28  herein promises to have someone named an additional insured

29  under the party's insurance policy or to indemnify, defend, or

30  hold harmless another person or party the other party to the

31  agreement, contract, or guarantee for liability or for damages


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 1  to persons or property caused in whole or in part by any act,

 2  omission, or default of the person or party being indemnified

 3  indemnitee arising from the contract or its performance, shall

 4  be void and unenforceable as against public policy. However,

 5  this provisions shall not be construed to place limits on

 6  indemnity agreements that exist only between a general

 7  contractor and the owner of real property as long as unless

 8  the contract contains a monetary limitation on the extent of

 9  the indemnification that bears a reasonable commercial

10  relationship to the contract and is part of the project

11  specifications or bid documents, if any. Notwithstanding the

12  foregoing, the monetary limitation on the extent of the

13  indemnification provided to the owner of real property by any

14  party in privity of contract with such owner shall not be less

15  than $1 million per occurrence, unless otherwise agreed by the

16  parties. However, such indemnification shall not include

17  claims of, or damages resulting from, gross negligence or

18  willful, wanton, or intentional misconduct of the indemnitee

19  or its officers, directors, agents, or employees, or for

20  statutory violations or punitive damages except if, and to the

21  extent that the statutory violation or punitive damages are

22  caused by or result from the negligent acts, omissions, or

23  default of the indemnitor or any of the indemnitor's

24  contractors, subcontractors, sub-subcontractors, materialmen,

25  or agents of any tier or their respective employees.

26         (a)  Indemnification provisions in any such agreements,

27  contracts, or guarantees may not require that the indemnitor

28  indemnify the indemnitee for damages to persons or property

29  caused in whole or in part by any act, omission, or default of

30  a party other than:

31         1.(a)  The indemnitor; or


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 1         2.(b)  Any of the indemnitor's contractors,

 2  subcontractors, sub-subcontractors, materialmen, or agents of

 3  any tier or their respective employees.; or

 4         (c)  The indemnitee or its officers, directors, agents,

 5  or employees. However, such indemnification shall not include

 6  claims of, or damages resulting from, gross negligence, or

 7  willful, wanton or intentional misconduct of the indemnitee or

 8  its officers, directors, agents or employees, or for statutory

 9  violation or punitive damages except and to the extent the

10  statutory violation or punitive damages are caused by or

11  result from the acts or omissions of the indemnitor or any of

12  the indemnitor's contractors, subcontractors,

13  sub-subcontractors, materialmen, or agents of any tier or

14  their respective employees.

15         (b)(2)  A construction contract for a public agency or

16  in connection with a public agency's project may require a

17  party to that contract to indemnify and hold harmless the

18  other party to the contract, their officers and employees,

19  from liabilities, damages, losses and costs, including, but

20  not limited to, reasonable attorney's fees, to the extent

21  caused by the negligence, recklessness, or intentional

22  wrongful misconduct of the indemnifying party and persons

23  employed or utilized by the indemnifying party in the

24  performance of the construction contract.

25         (c)  Any portion of any agreement or contract for or in

26  connection with, or any guarantee of or in connection with,

27  any construction, alteration, repair, or demolition of a

28  building, structure, appurtenance, or appliance, including

29  moving and excavating associated therewith, between an entity

30  regulated by the Florida Public Service Commission and an

31  architect, engineer, general contractor, subcontractor,


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 1  sub-subcontractor, or materialman or any combination thereof

 2  wherein any party referred to herein promises to indemnify or

 3  hold harmless the other party to the agreement, contract, or

 4  guarantee for liability for damages to persons or property

 5  caused in whole or in part by any negligent act, omission, or

 6  default of the indemnitee arising from the contract or its

 7  performance shall be void and unenforceable unless the

 8  contract contains a monetary limitation on the extent of the

 9  indemnification which bears a reasonable commercial

10  relationship to the contract and is part of the project

11  specifications or bid documents, if any. Notwithstanding the

12  foregoing, the monetary limitation on the extent of the

13  indemnification provided to the owner of real property by any

14  party in privity of contract with such owner shall not be less

15  than $1 million per occurrence, unless otherwise agreed by the

16  parties. Indemnification provisions in any such agreements,

17  contracts, or guarantees may not require that the indemnitor

18  indemnify the indemnitee for damages to persons or property

19  caused in whole or in part by any act, omission, or default of

20  a party other than:

21         1.  The indemnitor;

22         2.  Any of the indemnitor's contractors,

23  subcontractors, sub-subcontractors, materialmen, or agents of

24  any tier or their respective employees; or

25         3.  The indemnitee or its officers, directors, agents,

26  or employees. However, such indemnification shall not include

27  claims of, or damages resulting from, gross negligence or

28  willful, wanton, or intentional misconduct of the indemnitee

29  or its officers, directors, agents, or employees, or for

30  statutory violation or punitive damages except if, and to the

31  extent that, the statutory violation or punitive damages are


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 1  caused by or result from the acts or omissions of the

 2  indemnitor or any of the indemnitor's contractors,

 3  subcontractors, sub-subcontractors, materialmen, or agents of

 4  any tier or their respective employees.

 5         (2)  If, as part of any agreement or contract for or in

 6  connection with, or any guarantee of or in connection with,

 7  any construction, alteration, repair, or demolition of a

 8  building, structure, appurtenance, or appliance, including

 9  moving and excavating associated with such activities, between

10  or among an architect, engineer, general contractor,

11  subcontractor, sub-subcontractor, or materialman or any

12  combination of such persons, a policy of insurance extends

13  certain coverage rights to an additional insured for liability

14  arising out of the acts, errors, or omissions of the named

15  insured, such additional insured coverage shall provide

16  liability protection only to the additional insured for the

17  imputed or vicarious liability imposed on the additional

18  insured as a direct consequence of the negligent acts or

19  omissions of the named insured.

20         (3)  If a written contract requires a subcontractor,

21  sub-subcontractor, or materialman to provide a policy of

22  insurance or a certificate of insurance to a general

23  contractor or subcontractor, extending specific coverage

24  rights to an additional insured:

25         (a)  The general contractor or subcontractor may at any

26  point prior to the date the subcontractor, sub-subcontractor,

27  or materialman commences work or delivers material to the

28  project accept or reject the policy as being nonconforming;

29         (b)  If the policy is not rejected, the general

30  contractor or subcontractor shall be deemed to have accepted

31  the policy; and


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 1         (c)  The general contractor or subcontractor may not

 2  use the lack of conforming insurance as a reason to reject

 3  work already completed by a subcontractor or

 4  sub-subcontractor, or material already supplied by the

 5  materialman, or withhold payment to the subcontractor,

 6  sub-subcontractor, or materialman for work already completed

 7  or material already supplied Except as specifically provided

 8  in subsection (2), a construction contract for a public agency

 9  or in connection with a public agency's project may not

10  require one party to indemnify, defend, or hold harmless the

11  other party, its employees, officers, directors, or agents

12  from any liability, damage, loss, claim, action, or

13  proceeding, and any such contract provision is void as against

14  public policy of this state.

15         (4)  This section does not affect any contracts,

16  agreements, or guarantees entered into before the effective

17  date of this section or any renewals thereof.

18         Section 2.  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 3.  Subsections (2), (6), and (7) of section

23  218.72, Florida Statutes, are amended to read:

24         218.72  Definitions.--As used in this part:

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

26  municipal government, school board, school district,

27  authority, special taxing district, other political

28  subdivision, community college, or any office, board, bureau,

29  commission, department, branch, division, or institution

30  thereof or any project supported by county or municipal funds.

31  


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 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 government 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         Section 4.  Subsection (6) of section 218.735, Florida

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

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

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

16         218.735  Timely payment for purchases of construction

17  services.--

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

19  governmental entity for labor, services, or materials

20  furnished by subcontractors and suppliers hired by the

21  contractor, the contractor shall remit payment due to those

22  subcontractors and suppliers within 10 15 days after the

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

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

25  furnished by subcontractors and suppliers hired by the

26  subcontractor, the subcontractor shall remit payment due to

27  those subcontractors and suppliers within 10 15 days after the

28  subcontractor's receipt of payment. Nothing herein shall

29  prohibit a contractor or subcontractor from disputing,

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

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


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

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

 3  contractor or subcontractor notifies the party whose payment

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

 5  actions required to cure the dispute. The contractor or

 6  subcontractor must pay all undisputed amounts due within the

 7  time limits imposed by this section.

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

 9  a local government entity and vendor must provide for the

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

11  satisfactory, and acceptable the construction services

12  purchased by the local government. The contract must specify

13  the process for the development of the list, including

14  responsibilities of the local government and vendor in

15  developing and reviewing the list and a reasonable time for

16  developing such list as follows:

17         1.  For construction projects with an estimated cost

18  less than $10 million, within 30 days after reaching

19  substantial completion of the construction services purchased

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

21  contract, upon reaching beneficial occupancy or use; or

22         2.  For construction projects with an estimated cost of

23  $10 million or more, within 30 days, unless otherwise extended

24  by contract not to exceed 90 days, after reaching substantial

25  completion of the construction services purchased as defined

26  in the contract, or, if not defined in the contract, upon

27  reaching beneficial occupancy or use.

28         (b)  If the contract between the local government

29  entity and vendor relates to the purchase of construction

30  services on more than one building or structure, or involves a

31  multiphased project, the contract shall provide for the


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

 2  satisfactory, and acceptable the construction services

 3  purchased for each building, structure, or phase of the

 4  project in accordance with the timeframes specified in

 5  subparagraph (a)1. or subparagraph (a)2.

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

 7  pending items not yet completed on the list developed pursuant

 8  to this subsection shall not alter the responsibility of the

 9  vendor to complete all the purchased construction services as

10  defined in the contract.

11         (d)  Upon completion of all items on the list, or such

12  other time defined in the contract, the vendor may submit a

13  payment request for the appropriate amount of retainage. The

14  local government may withhold an amount not to exceed 150

15  percent of the total costs to complete any incomplete items on

16  the list.

17         (e)  All items that require correction under the

18  contract and that are identified after the preparation and

19  delivery of the list shall remain the obligation of the vendor

20  as defined by the contract.

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

22  retainage as provided in this section or as may be provided in

23  the contract between the vendor and its subcontractors and

24  suppliers.

25         (g)  If a local government entity fails to comply with

26  its responsibilities to develop the list required under

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

28  and the timeframes provided in subparagraph (a)1. or

29  subparagraph (a)2., the vendor may submit a payment request

30  for the appropriate amount of retainage. The local government

31  entity shall not be required to pay or process any request for


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 1  payment of retainage if the vendor has, in whole or in part,

 2  failed to cooperate with the local government in the

 3  development of the list; failed to perform its contractual

 4  responsibilities, if any, with regard to the development of

 5  the list; or if paragraph (8)(d) applies.

 6         (8)(a)  In any public construction project, a local

 7  government entity may withhold an amount not exceeding 10

 8  percent of each progress payment made to the vendor until the

 9  local government project has reached 50-percent completion.

10  After reaching 50-percent completion, the local government

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

12  each subsequent progress payment made to the vendor. However,

13  notwithstanding the provisions of this subsection, a

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

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

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

17  made to the vendor until final completion and acceptance of

18  the project by the local government. For purposes of this

19  subsection, the term "50-percent completion" means as defined

20  in the contract between the local government entity and the

21  vendor, or, if not defined in the contract, the point at which

22  the local government has expended 50 percent of the total

23  project costs identified in the contract, plus all change

24  orders and other additions issued subsequent to the approval

25  of the contract by the governing body of the local government,

26  and the level of actual project construction is equivalent to

27  such expenditure of funds.

28         (b)  After 50-percent completion, the vendor may

29  present to the local government entity a payment request for

30  up to one-half of the retainage amount held by the local

31  government. The local government entity shall promptly make


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 1  payment to the vendor, unless the local government has

 2  grounds, pursuant to the contract or as provided in paragraph

 3  (d), for withholding the payment of retainage. If the local

 4  government makes payment of retainage to the vendor under this

 5  paragraph, the vendor shall timely remit payment of such

 6  retainage to the appropriate subcontractors and suppliers.

 7         (c)  After 50-percent completion, the vendor may elect

 8  to withhold retainage from payments to its subcontractors at a

 9  rate higher than 5 percent. The specific amount to be withheld

10  must be determined on a case-by-case basis and must be based

11  on the vendor's assessment of the subcontractor's past

12  performance, the likelihood that such performance will

13  continue, and the vendor's ability to rely on other

14  safeguards. The vendor shall notify the subcontractor, in

15  writing, of its determination to withhold more than 5 percent

16  of the progress payment and the reasons for making that

17  determination, and the vendor may not request the release of

18  such retained funds from the local government.

19         (d)  Nothing in this section requires the local

20  government to pay or release any amounts that are the subject

21  of a good-faith dispute, the subject of an action brought

22  pursuant to s. 255.05, or otherwise the subject of a claim or

23  demand by the local government or vendor.

24         (e)  The timeframes set forth in this section for

25  payment of payment requests apply to any payment request for

26  retainage made pursuant to this subsection.

27         Section 5.  Section 255.0705, Florida Statutes, is

28  created to read:

29         255.0705  Short title.--Sections 255.0705-255.078 may

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

31  


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 1         Section 6.  Subsections (2) and (3) of section 255.071,

 2  Florida Statutes, are amended to read:

 3         255.071  Payment of subcontractors, sub-subcontractors,

 4  materialmen, and suppliers on construction contracts for

 5  public projects.--

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

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

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

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

10  within 10 30 days after the date payment for such labor,

11  services, or materials is received, whichever last occurs,

12  shall entitle any person providing such labor, services, or

13  materials to the procedures specified in subsection (3) and

14  the remedies provided in subsection (4).

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

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

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

18  building or public work improvements to real property may file

19  a verified complaint alleging:

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

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

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

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

24  were provided in accordance with the contract.

25         (c)  The amount of the contract price.

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

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

28  contract and the amount thereof that is undisputed.

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

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

31  


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

 2  were received.

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

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

 5  or materials described in the complaint more than 10 30 days

 6  prior to the date the complaint was filed.

 7         Section 7.  Section 255.072, Florida Statutes, is

 8  created to read:

 9         255.072  Definitions.--As used in ss. 255.073-255.078,

10  the term:

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

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

13  entity.

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

15  and materials provided in connection with the construction,

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

17  improvements to real property. The term "construction

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

19  Department of Transportation.

20         (3)  "Payment request" means an invoice or request for

21  payment for construction services which conforms with all

22  statutory requirements and with all requirements specified by

23  the public entity to which the payment request is submitted.

24         (4)  "Public entity" means the state, a state

25  university, or any office, board, bureau, commission,

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

27  project supported by state funds, but does not include a local

28  government entity as defined in s. 218.72.

29         (5)  "Purchase" means the purchase of construction

30  services.

31  


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 1         (6)  "Vendor" means any person providing construction

 2  services directly to a public entity.

 3         Section 8.  Section 255.073, Florida Statutes, is

 4  created to read:

 5         255.073  Timely payment for purchases of construction

 6  services.--

 7         (1)  Except as otherwise provided in ss.

 8  255.072-255.078, s. 215.422 governs the timely payment for

 9  construction services by a public entity under this act.

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

11  request, the undisputed portion must be timely paid, in

12  accordance with subsection (1).

13         (3)  When a vendor receives payment from a public

14  entity for labor, services, or materials furnished by

15  subcontractors and suppliers hired by the vendor, the vendor

16  shall remit payment due to those subcontractors and suppliers

17  within 10 days after the vendor's receipt of payment. When a

18  subcontractor receives payment from a vendor for labor,

19  services, or materials furnished by subcontractors and

20  suppliers hired by the subcontractor, the subcontractor shall

21  remit payment due to those subcontractors and suppliers within

22  10 days after the subcontractor's receipt of payment. This

23  subsection does not prohibit a vendor or subcontractor from

24  disputing, pursuant to the terms of the relevant contract, all

25  or any portion of a payment alleged to be due to another

26  party. If such a dispute occurs, the vendor or subcontractor

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

28  vendor or subcontractor notifies the party whose payment is

29  disputed, in writing, of the amount in dispute and the actions

30  required to cure the dispute. The vendor or subcontractor must

31  


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 1  pay all undisputed amounts due within the time limits imposed

 2  by this section.

 3         (4)  All payments due under this section and not made

 4  within the time periods specified by this section shall bear

 5  interest at the rate of 1 percent per month, or the rate

 6  specified by contract, whichever is greater.

 7         Section 9.  Section 255.074, Florida Statutes, is

 8  created to read:

 9         255.074  Procedures for calculation of payment due

10  dates.--

11         (1)  Each public entity shall establish procedures

12  whereby each payment request received by the public entity is

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

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

15  office of the public entity.

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

17  for partial deliveries and a payment request is submitted for

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

19  delivery must be calculated from the time of the partial

20  delivery and the submission of the payment request in the same

21  manner as provided in s. 255.073.

22         (3)  The public entity must submit a payment request to

23  the Chief Financial Officer for payment no more than 25 days

24  after receipt of the payment request.

25         Section 10.  Section 255.075, Florida Statutes, is

26  created to read:

27         255.075  Mandatory interest.--A contract between a

28  public entity and a vendor or a provider of construction

29  services may not prohibit the collection of late payment

30  interest charges allowable under ss. 255.072-255.078.

31  


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 1         Section 11.  Section 255.076, Florida Statutes, is

 2  created to read:

 3         255.076  Improper payment request; resolution of

 4  disputes.--

 5         (1)  If a vendor submits an improper payment request,

 6  the public entity shall, within 10 days after receiving the

 7  improper payment request, notify the vendor that the payment

 8  request is improper and indicate what corrective action on the

 9  part of the vendor is needed to make the payment request

10  proper.

11         (2)  If a dispute occurs between a vendor and a public

12  entity concerning payment of a payment request, the dispute

13  must be resolved as provided in this section. Each public

14  entity shall establish a dispute resolution procedure to be

15  followed by the public entity if such a dispute occurs. The

16  procedure must provide that proceedings to resolve the dispute

17  must commence not later than 45 days after the date on which

18  the public entity received the payment request and must

19  conclude by final decision of the public entity not later than

20  60 days after the date on which the public entity received the

21  payment request. Such procedures are not subject to chapter

22  120 and do not constitute an administrative proceeding that

23  prohibits a court from deciding de novo any action arising out

24  of the dispute. If the dispute is resolved in favor of the

25  public entity, interest charges begin to accrue 15 days after

26  the public entity's final decision. If the dispute is resolved

27  in favor of the vendor, interest begins to accrue as of the

28  original date the payment became due.

29         (3)  In an action to recover amounts due under ss.

30  255.072-255.078, the court shall award court costs and

31  reasonable attorney's fees, including fees incurred through


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    CS for CS for SB 1724                         Second Engrossed



 1  any appeal, to the prevailing party, if the court finds that

 2  the nonprevailing party withheld any portion of the payment

 3  that is the subject of the action without any reasonable basis

 4  in law or fact to dispute the prevailing party's claim to

 5  those amounts.

 6         Section 12.  Section 255.077, Florida Statutes, is

 7  created to read:

 8         255.077  Project closeout and payment of retainage.--

 9         (1)  A public entity must present to the vendor a final

10  punch list of all items required to render complete,

11  satisfactory, and acceptable the construction services

12  purchased, within 30 days after the earliest of the following:

13         (a)  Issuance of a temporary or final certificate of

14  occupancy, if applicable;

15         (b)  Substantial completion of the construction

16  services purchased, as defined in the contract; or

17         (c)  Beneficial occupancy or use of the structure,

18  building, facility, or improvement that is the subject of the

19  construction services purchased, as defined in the contract.

20         (2)  If the purchase relates to construction services

21  on more than one building or structure, the public entity

22  shall prepare a final punch list for each building or

23  structure. The public entity must present to the vendor a

24  final punch list with regard to each building or structure

25  within 30 days after the earliest of the following:

26         (a)  Issuance of a temporary or final certificate of

27  occupancy on the particular building or structure, if

28  applicable;

29         (b)  Substantial completion of the particular building

30  or structure, as defined in the contract; or

31  


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    CS for CS for SB 1724                         Second Engrossed



 1         (c)  Beneficial occupancy or use of the particular

 2  structure, building, facility, or improvement, as defined in

 3  the contract.

 4  

 5  Unless the contract provides otherwise, the public entity

 6  shall pay out retainage to the vendor based upon the value of

 7  the construction services rendered with regard to that

 8  structure, building, facility, or improvement as compared to

 9  the total value of the purchase.

10         (3)  Upon completion of all items on the final punch

11  list or within 30 days after issuance of the punch list,

12  whichever occurs sooner, the vendor shall submit a payment

13  request for the appropriate amount of retainage. The owner may

14  withhold up to 150 percent of the cost to complete any

15  incomplete final punchlist items. Thereafter, ss.

16  255.072-255.076 apply to the payment of any payment request

17  for retainage.

18         (4)  If the public entity fails to present to the

19  vendor a final punch list within the time periods provided in

20  subsection (1) or subsection (2), the project is considered to

21  be complete and the vendor shall submit a payment request for

22  the appropriate amount of retainage. Thereafter, ss.

23  255.072-255.076 apply to the payment of any payment request

24  for retainage.

25         (5)  All items that require correction under the

26  contract which are identified subsequent to preparation and

27  delivery of the final punch list must be considered warranty

28  items or make-good items, and such items have no effect on the

29  final payment of retainage provided in this section.

30         Section 13.  Section 255.078, Florida Statutes, is

31  created to read:


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 1         255.078  Public construction retainage.--

 2         (1)  From the commencement of a public construction

 3  project that is subject to ss. 255.072-255.078 until

 4  50-percent of the contract value has been earned, a public

 5  entity may not withhold as retainage more than 10 percent of

 6  each progress payment to the vendor. When 50-percent of the

 7  contract value has been earned, the vendor may submit a

 8  payment request to the public entity for up to one-half of the

 9  retainage withheld up to that time.

10         (2)  After 50-percent of the contract value has been

11  earned, the public entity may not withhold as retainage more

12  than 5 percent of each progress payment to the vendor.

13  However, the vendor may withhold retainage from payments to

14  its subcontractors at a rate higher than 5 percent. The

15  specific amount to be withheld must be determined on a

16  case-by-case basis and must be based on the vendor's

17  assessment of the subcontractor's past performance, the

18  likelihood that such performance will continue, and the

19  vendor's ability to rely on other safeguards. The vendor shall

20  notify the subcontractor, in writing, of its determination to

21  withhold more than 5 percent of the progress payment and the

22  reasons for making that determination.

23         (3)  This section does not require the payment or

24  release of amounts that are the subject of a good-faith

25  dispute.

26         (4)  Sections 255.072-255.076 apply to the payment of

27  any payment request for retainage.

28         Section 14.  Paragraph (a) of subsection (2) is

29  amended, and subsections (10) and (11) are added to section

30  255.05, Florida Statutes, to read:

31  


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    CS for CS for SB 1724                         Second Engrossed



 1         255.05  Bond of contractor constructing public

 2  buildings; form; action by materialmen.--

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

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

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

 6  prescribed time in this paragraph within which an action to

 7  enforce any claim against a payment bond provided pursuant to

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

 9  office a notice in substantially the following form:

10  

11                    NOTICE OF CONTEST OF CLAIM

12                       AGAINST PAYMENT BOND

13  

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

15  

16         You are notified that the undersigned contests your

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

18  on the undersigned on ............, ........, and that the

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

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

21  

22         DATED on ............, .........

23  

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

25  

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

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

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

29  notice shall be extinguished automatically. The clerk shall

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

31  address shown in the notice of nonpayment or most recent


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    CS for CS for SB 1724                         Second Engrossed



 1  amendment thereto and shall certify to such service on the

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

 3  upon mailing.

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

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

 6  45 days after commencing to furnish labor, materials, or

 7  supplies for the prosecution of the work, furnish the

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

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

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

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

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

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

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

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

16  45 days after the first furnishing of labor, services, or

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

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

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

20  90 days after the date that the rental equipment was last on

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

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

23  which includes sums for retainage must specify the portion of

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

25  materials, or supplies may be instituted against the

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

27  Notices required or permitted under this section may be served

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

29  exclusively for recovery of retainage, must be instituted

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

31  the payment provisions of a combined payment and performance


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    CS for CS for SB 1724                         Second Engrossed



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

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

 3  exclusively for recovery of retainage must be instituted

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

 5  performance of the labor or completion of delivery of the

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

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

 8  final reconciliation of quantities if no further payment is

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

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

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

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

13  claim against a payment bond under this section, the

14  prevailing party is entitled to recover a reasonable fee for

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

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

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

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

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

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

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

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

23  the issuance of a certificate of occupancy or the issuance of

24  a certificate of substantial completion.

25         (10)  Notwithstanding any other provision of law to the

26  contrary, a claimant may not institute an action for the sole

27  purpose of recovery of retainage against the contractor or

28  against the surety issuing a payment or performance bond

29  pursuant to this section until:

30         (a)  The public entity has paid out that retainage to

31  the contractor and the time provided under ss. 218.70-218.76


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    CS for CS for SB 1724                         Second Engrossed



 1  or ss. 255.072-255.078 for payment of that retainage to the

 2  claimant has expired;

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

 4  its contract and 90 days have passed since the owner's receipt

 5  of the contractor's last payment request; or

 6         (c)  The claimant has made the written request to the

 7  owner provided in subsection (11) and has not timely received

 8  the requested information from the owner.

 9         (11)  An owner shall furnish in writing to a claimant

10  who has provided labor, services, or materials to a project,

11  within 5 business days after receipt of a written request from

12  that claimant, the following information:

13         (a)  The dates of all payment requests received by the

14  owner from the contractor.

15         (b)  The dates of all payments made by the owner to the

16  contractor.

17         (c)  Whether the owner has received the contractor's

18  final payment request and, if so, the date the final payment

19  request was submitted by the contractor to the owner.

20         Section 15.  This act shall take effect July 1, 2003.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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