Senate Bill 1466c1

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    Florida Senate - 1998                           CS for SB 1466

    By the Committee on Judiciary and Senator Dudley





    308-2082-98

  1                      A bill to be entitled

  2         An act relating to liens; amending s. 255.05,

  3         F.S.; revising provisions pertaining to the

  4         bond of a contractor constructing public

  5         buildings; providing for revised time periods

  6         for certain claims; revising forms for waiver

  7         of right to claim against bond; providing for

  8         written statements to the contractor with

  9         respect to the nature of labor or services

10         performed in certain circumstances; providing

11         for the maintenance of actions in law and in

12         equity for breach of contract on public works

13         projects; amending s. 713.01, F.S.; redefining

14         the terms "improve," "improvement,"

15         "subcontractor," and "sub-subcontractor" to

16         include reference to solid-waste removal;

17         amending s. 713.06, F.S.; revising provisions

18         relating to contractor's affidavit; amending s.

19         713.132, F.S.; revising requirements pertaining

20         to service of notice of termination; amending

21         s. 713.18, F.S.; revising requirements

22         pertaining to service of documents; amending s.

23         713.23, F.S.; amending the timeframe within

24         which certain actions to enforce a claim

25         against the payment bond may commence;

26         providing a form; creating s. 713.235, F.S.;

27         providing for waivers of right to claim against

28         a payment bond; providing forms; amending s.

29         713.24, F.S.; revising the process for

30         transferring liens to security; providing an

31         effective date.

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

  2

  3         Section 1.  Paragraph (a) of subsection (1) and

  4  paragraphs (a), (b), and (c) of subsection (2) of section

  5  255.05, Florida Statutes, are amended, and subsections (8) and

  6  (9) are added to that section, to read:

  7         255.05  Bond of contractor constructing public

  8  buildings; form; action by materialmen.--

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

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

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

12  public building, for the prosecution and completion of a

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

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

15  recommencing the work after a default or abandonment, to

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

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

18  payment and performance bond with a surety insurer authorized

19  to do business in this state as surety. The bond must state on

20  its front page: the name, and principal business address, and

21  phone number of the contractor, the surety, the owner of the

22  property being improved, and, if different from the owner, the

23  contracting public entity; the contract number assigned by the

24  contracting public entity; and of both the principal and the

25  surety and must contain a description of the project

26  sufficient to identify it, including, if applicable, a legal

27  description and the street address of the property being

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

29  bond shall be conditioned that the contractor perform the

30  contract in the time and manner prescribed in the contract and

31  promptly make payments to all persons defined in s. 713.01

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    Florida Senate - 1998                           CS for SB 1466
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  1  whose claims derive directly or indirectly from the

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

  3  claimant may apply to the governmental entity having charge of

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

  5  thereupon be furnished with a certified copy of the contract

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

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

  8  including unpaid finance charges due under the claimant's

  9  contract. Such action shall not involve the public authority

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

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

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

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

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

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

16  less may be exempted from executing the payment and

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

18  director of the Department of Management Services may delegate

19  to state agencies the authority to exempt any person entering

20  into such a contract amounting to more than $100,000 but less

21  than $200,000 from executing the payment and performance bond.

22  In the event such exemption is granted, the officer or

23  officials shall not be personally liable to persons suffering

24  loss because of granting such exemption. The Department of

25  Management Services shall maintain information on the number

26  of requests by state agencies for delegation of authority to

27  waive the bond requirements by agency and project number and

28  whether any request for delegation was denied and the

29  justification for the denial.

30         (2)(a)1.  A contractor or the contractor's agent or

31  attorney may elect to shorten the prescribed time in this

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  1  paragraph within which an action to enforce any claim against

  2  a payment bond provided pursuant to this section may be

  3  commenced by recording in the clerk's office a notice in

  4  substantially the following form:

  5

  6         NOTICE OF CONTEST OF CLAIM AGAINST PAYMENT BOND

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

  8         You are notified that the undersigned contests your

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

10  on the undersigned on ............, ........, and that the

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

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

13

14         DATED on ............, .........

15

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

17

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

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

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

21  notice shall be extinguished automatically. The clerk shall

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

23  address shown in the notice of nonpayment or most recent

24  amendment thereto and shall certify to such service on the

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

26  upon mailing.

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

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

29  45 days after commencing to furnish labor, materials, or

30  supplies for the prosecution of the work, furnish the

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

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

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

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

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

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

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

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

  8  45 days after the first furnishing of labor, services, or

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

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

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

12  90 days after the date that the rental equipment was last on

13  the job site available for use. No action for the labor,

14  materials, or supplies may be instituted against the

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

16  An No action, except for an action exclusively for recovery of

17  retainage, must shall be instituted against the contractor or

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

19  combined payment and performance bond within after 1 year

20  after from the performance of the labor or completion of

21  delivery of the materials or supplies. An action exclusively

22  for recovery of retainage must be instituted against the

23  contractor or the surety within 1 year after the performance

24  of the labor or completion of delivery of the materials or

25  supplies, or within 90 days after the contractor's receipt of

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

27  final reconciliation of quantities if no further payment is

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

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

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

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

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  1  claim against a payment bond under this section, the

  2  prevailing party is entitled to recover a reasonable fee for

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

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

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

  6  costs, as allowed in equitable actions.

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

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

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

10  waiver may be in substantially the following form:

11

12                     WAIVER OF RIGHT TO CLAIM

13                     AGAINST THE PAYMENT BOND

14                        (PROGRESS PAYMENT)

15

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

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

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

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

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

21  to the following described project:

22

23                     (description of project)

24

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

26  services, or materials furnished after the date specified.

27

28         DATED ON ........, 19....

29                                                ...(Claimant)...

30                                                 By:............

31

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

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

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

  4  waiver may be in substantially the following form:

  5

  6                     WAIVER OF RIGHT TO CLAIM

  7             AGAINST THE PAYMENT BOND (FINAL PAYMENT)

  8

  9         The undersigned, in consideration of the final payment

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

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

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

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

14  to the following described project:

15

16                     (description of project)

17

18         DATED ON ........, 19....

19                                                ...(Claimant)...

20                                                 By:............

21

22         (8)  When a contractor has furnished a payment bond

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

24  county, municipality, political subdivision, or other public

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

26  claimant, serve a written demand on any other claimant for a

27  written statement under oath of his or her account showing the

28  nature of the labor or services performed and to be performed,

29  if any; the materials furnished; the materials to be

30  furnished, if known; the amount paid on account to date; the

31  amount due; and the amount to become due, if known, as of the

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    Florida Senate - 1998                           CS for SB 1466
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  1  date of the statement by the claimant. Any such demand to a

  2  claimant must be served on the claimant at the address and to

  3  the attention of any person who is designated to receive the

  4  demand in the notice to contractor served by the claimant. The

  5  failure or refusal to furnish the statement does not deprive

  6  the claimant of his or her rights under the bond if the demand

  7  is not served at the address of the claimant or directed to

  8  the attention of the person designated to receive the demand

  9  in the notice to contractor. The failure to furnish the

10  statement within 30 days after the demand, or the furnishing

11  of a false or fraudulent statement, deprives the claimant who

12  fails to furnish the statement, or who furnishes the false or

13  fraudulent statement, of his or her rights under the bond. If

14  the contractor serves more than one demand for statement of

15  account on a claimant and none of the information regarding

16  the account has changed since the claimants last response to a

17  demand, the failure or refusal to furnish such statement does

18  not deprive the claimant of his or her rights under the bond.

19  The negligent inclusion or omission of any information

20  deprives the claimant of his or her rights under the bond to

21  the extent that the contractor can demonstrate prejudice from

22  such act or omission by the claimant. The failure to furnish a

23  response to a demand for statement of account does not affect

24  the validity of any claim on the bond being enforced in a

25  lawsuit filed before the date the demand for statement of

26  account is received by the claimant.

27         (9)  On any public works project on which the public

28  authority requires a performance and payment bond, suits at

29  law and in equity may be brought and maintained by and against

30  the public authority on any contract claim arising from breach

31  of an express or implied provision of a written agreement or a

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  1  written directive issued by the public authority pursuant to

  2  the written agreement. In any such suit, the public authority

  3  and the contractor shall have all of the same rights,

  4  obligations, remedies, and defenses as a private person under

  5  a like contract, except that no liability may be based on an

  6  oral modification of the written contract or written

  7  directive. Notwithstanding anything to the contrary contained

  8  herein, no employee or agent of the public authority may be

  9  held personally liable to an extent greater than that pursuant

10  to s. 768.28, and no suit sounding in tort shall be maintained

11  against the public authority.

12         Section 2.  Subsections (12), (13), (26), and (27) of

13  section 713.01, Florida Statutes, are amended to read:

14         713.01  Definitions.--As used in this part, the term:

15         (12)  "Improve" means build, erect, place, make, alter,

16  remove, repair, or demolish any improvement over, upon,

17  connected with, or beneath the surface of real property, or

18  excavate any land, or furnish materials for any of these

19  purposes, or perform any labor or services upon the

20  improvements, including the furnishing of carpet or rugs or

21  appliances that are permanently affixed to the real property

22  and final construction cleanup to prepare a structure for

23  occupancy; or perform any labor or services or furnish any

24  materials in grading, seeding, sodding, or planting for

25  landscaping purposes, including the furnishing of trees,

26  shrubs, bushes, or plants that are planted on the real

27  property, or in equipping any improvement with fixtures or

28  permanent apparatus or provide any solid-waste collection or

29  disposal on the site of the improvement.

30         (13)  "Improvement" means any building, structure,

31  construction, demolition, excavation, solid-waste removal,

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  1  landscaping, or any part thereof existing, built, erected,

  2  placed, made, or done on land or other real property for its

  3  permanent benefit.

  4         (26)  "Subcontractor" means a person other than a

  5  materialman or laborer who enters into a contract with a

  6  contractor for the performance of any part of such

  7  contractor's contract, including the removal of solid waste

  8  from the real property.

  9         (27)  "Sub-subcontractor" means a person other than a

10  materialman or laborer who enters into a contract with a

11  subcontractor for the performance of any part of such

12  subcontractor's contract, including the removal of solid waste

13  from the real property.

14         Section 3.  Paragraph (a) of subsection (2), and

15  paragraph (d) of subsection (3) of section 713.06, Florida

16  Statutes, are amended to read:

17         713.06  Liens of persons not in privity; proper

18  payments.--

19         (2)(a)  All lienors under this section, except

20  laborers, as a prerequisite to perfecting a lien under this

21  chapter and recording a claim of lien, must serve a notice on

22  the owner setting forth the lienor's name and address, a

23  description sufficient for identification of the real

24  property, and the nature of the services or materials

25  furnished or to be furnished. A sub-subcontractor or a

26  materialman to a subcontractor must serve a copy of the notice

27  on the contractor as a prerequisite to perfecting a lien under

28  this chapter and recording a claim of lien. A materialman to a

29  sub-subcontractor must serve a copy of the notice to owner on

30  the contractor as a prerequisite to perfecting a lien under

31  this chapter and recording a claim of lien. A materialman to a

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  1  sub-subcontractor shall serve the notice to owner on the

  2  subcontractor if the materialman knows the name and address of

  3  the subcontractor. The notice must be served before

  4  commencing, or not later than 45 days after commencing, to

  5  furnish his or her labor, services, or materials, but, in any

  6  event, before the date of the owner's disbursement of the

  7  final payment after the contractor has furnished the affidavit

  8  under subparagraph (3)(d)1. The notice must be served

  9  regardless of the method of payments by the owner, whether

10  proper or improper, and does not give to the lienor serving

11  the notice any priority over other lienors in the same

12  category; and the failure to serve the notice, or to timely

13  serve it, is a complete defense to enforcement of a lien by

14  any person. The serving of the notice does not dispense with

15  recording the claim of lien. The notice is not a lien, cloud,

16  or encumbrance on the real property nor actual or constructive

17  notice of any of them.

18         (3)  The owner may make proper payments on the direct

19  contract as to lienors under this section, in the following

20  manner:

21         (d)  When the final payment under a direct contract

22  becomes due the contractor:

23         1.  The contractor shall give to the owner an affidavit

24  stating, if that be the fact, that all lienors under his or

25  her direct contract who have timely served a notice to owner

26  on the owner and the contractor have been paid in full or, if

27  the fact be otherwise, showing the name of each such lienor

28  who has not been paid in full and the amount due or to become

29  due each for labor, services, or materials furnished.  The

30  contractor shall have no lien or right of action against the

31  owner for labor, services, or materials furnished under the

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  1  direct contract while in default for not giving the owner the

  2  affidavit; however, the negligent inclusion or omission of any

  3  information in the affidavit which has not prejudiced the

  4  owner does not constitute a default that operates to defeat an

  5  otherwise valid lien. The contractor shall execute the

  6  affidavit and deliver it to the owner at least 5 days before

  7  instituting an action as a prerequisite to the institution of

  8  any action to enforce his or her lien under this chapter, even

  9  if the final payment has not become due because the contract

10  is terminated for a reason other than completion and

11  regardless of whether the contractor has any lienors working

12  under him or her or not.

13         2.  If the contractor's affidavit required in this

14  subsection recites any outstanding bills for labor, services,

15  or materials, the owner may, after giving the contractor at

16  least 10 days' written notice, pay such bills in full direct

17  to the person or firm to which they are due, if the balance

18  due on a direct contract at the time the affidavit is given is

19  sufficient to pay them and lienors giving notice, and shall

20  deduct the amounts so paid from the balance due the

21  contractor. Lienors listed in said affidavit not giving

22  notice, whose 45-day notice time has not expired, shall be

23  paid in full or pro rata, as appropriate, from any balance

24  then remaining due the contractor; but no lienor whose notice

25  time has expired shall be paid by the owner or by any other

26  person except the person with whom that lienor has a contract.

27         3.  If the balance due is not sufficient to pay in full

28  all lienors listed in the affidavit and entitled to payment

29  from the owner under this part and other lienors giving

30  notice, the owner shall pay no money to anyone until such time

31  as the contractor has furnished him or her with the

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  1  difference; however, if the contractor fails to furnish the

  2  difference within 10 days from delivery of the affidavit or

  3  notice from the owner to the contractor to furnish the

  4  affidavit, the owner shall determine the amount due each

  5  lienor and shall disburse to them the amounts due from him or

  6  her on a direct contract in accordance with the procedure

  7  established by subsection (4).

  8         4.  The owner shall have the right to rely on the

  9  contractor's affidavit given under this paragraph in making

10  the final payment, unless there are lienors giving notice who

11  are not listed in the affidavit.  If there are lienors giving

12  notice who are not so listed, the owner may pay such lienors

13  and any persons listed in the affidavit that are entitled to

14  be paid by the owner under subparagraph (d)2. and shall

15  thereupon be discharged of any further responsibility under

16  the direct contract, except for any balance that may be due to

17  the contractor.

18         5.  The owner shall retain the final payment due under

19  the direct contract that shall not be disbursed until the

20  contractor's affidavit under subparagraph (d)1. has been

21  furnished to the owner.

22         6.  When final payment has become due to the contractor

23  and the owner fails to withhold as required by subparagraph

24  (d)5., the property improved shall be subject to the full

25  amount of all valid liens of which the owner has notice at the

26  time the contractor furnishes his or her affidavit.

27         Section 4.  Subsection (1) of section 713.132, Florida

28  Statutes, is amended to read:

29         713.132  Notice of termination.--

30

31

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  1         (1)  An owner may terminate the period of effectiveness

  2  of a notice of commencement by executing, swearing to, and

  3  recording a notice of termination that contains:

  4         (a)  The same information as the notice of

  5  commencement;

  6         (b)  The recording office document book and page

  7  reference numbers and date of the notice of commencement;

  8         (c)  A statement of the date as of which the notice of

  9  commencement is terminated, which date may not be earlier than

10  30 days after the notice of termination is recorded;

11         (d)  A statement specifying that the notice applies to

12  all the real property subject to the notice of commencement or

13  specifying the portion of such real property to which it

14  applies;

15         (e)  A statement that all lienors have been paid in

16  full; and

17         (f)  A statement that the owner has, before recording

18  the notice of termination, served a copy of the notice of

19  termination on the contractor and on each lienor who has given

20  notice. The owner is not required to serve a copy of the

21  notice of termination on any lienor who has executed a waiver

22  and release of lien upon final payment in accordance with s.

23  713.20.

24         Section 5.  Section 713.18, Florida Statutes, is

25  amended to read:

26         713.18  Manner of serving notices and other

27  instruments.--

28         (1)  Service of notices, claims of lien, affidavits,

29  assignments, and other instruments permitted or required under

30  this part, or copies thereof when so permitted or required,

31

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  1  unless otherwise specifically provided in this part, must be

  2  made by one of the following methods:

  3         (a)  By actual delivery to the person to be served; or,

  4  if a partnership, to one of the partners; or, if a

  5  corporation, to an officer, director, managing agent, or

  6  business agent thereof.

  7         (b)  By mailing the same, postage prepaid, by

  8  registered or certified mail to the person to be served at her

  9  or his last known address and evidence of delivery. If a

10  notice to owner is mailed pursuant to this paragraph within 40

11  days after the date the lienor first furnishes labor,

12  services, or materials, service of that notice is effective as

13  of the date of mailing if the person who served the notice

14  maintains a registered or certified mail log that shows the

15  date the notice was served, the registered or certified mail

16  number issued by the United States Postal Service, the name

17  and address of the person served, and the date stamp of the

18  United States Postal Service confirming the date of mailing.

19  If an instrument served pursuant to this paragraph by this

20  method to the last address shown in the notice of commencement

21  or any amendment thereto or, in the absence of a notice of

22  commencement, to the last address shown in the building permit

23  application is not received, but is returned by the United

24  States Postal Service as being "refused," "moved, not

25  forwardable," or "unclaimed," or is otherwise not delivered or

26  deliverable through no fault of the person serving the item,

27  then service is effective as of the date of mailing.

28         (c)  If neither of the foregoing methods can be

29  accomplished, by posting on the premises.

30         (2)  If the real property is owned by more than one

31  person, a lienor may serve any notices or other papers under

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  1  this part on any one of such owners, and such notice is deemed

  2  notice to all owners.

  3         (3)  Service of notices or copies thereof, permitted or

  4  required under this part, may be made by facsimile

  5  transmission when the person being served has listed that

  6  person's facsimile phone number in the Notice of Commencement.

  7  The owner must be served with the Notice to Owner in the

  8  manner specified in subsection (2) of this section.  The

  9  lienor's facsimile confirmation sheet with the correct

10  facsimile phone number shall be proof of the date and time the

11  notice was served.

12         Section 6.  Paragraph (e) of subsection (1) of section

13  713.23, Florida Statutes, is amended to read:

14         713.23  Payment bond.--

15         (1)

16         (e)  No action for the labor or materials or supplies

17  may be instituted or prosecuted against the contractor or

18  surety unless both notices have been given.  No action shall

19  be instituted or prosecuted against the contractor or against

20  the surety on the bond under this section after 1 year from

21  the performance of the labor or completion of delivery of the

22  materials and supplies. A contractor or the contractor's agent

23  or attorney may elect to shorten the prescribed time within

24  which an action to enforce any claim against a payment bond

25  provided pursuant to this section or s. 713.245 may be

26  commenced by recording in the clerk's office a notice in

27  substantially the following form:

28         NOTICE OF CONTEST OF CLAIM AGAINST PAYMENT BOND

29

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

31

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  1         You are notified that the undersigned contests your

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

  3  undersigned on ........, ...., and that the time within which

  4  you may file suit to enforce your claim is limited to 60 days

  5  from the date of service of this notice.

  6

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

  8

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

10

11  The claim of any lienor 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 lienor 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         Section 7.  Section 713.235, Florida Statutes, is

21  created to read:

22         713.235  Waivers of right to claim against payment

23  bond; forms.--

24         (1)  When a person is required to execute a waiver of

25  his or her right to make a claim against a payment bond

26  provided pursuant to s. 713.23 or s. 713.245, in exchange for,

27  or to induce payment of, a progress payment, the waiver may be

28  in substantially the following form:

29                     WAIVER OF RIGHT TO CLAIM

30                     AGAINST THE PAYMENT BOND

31                        (PROGRESS PAYMENT)

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  1         The undersigned, in consideration of the sum of

  2  $.......... hereby waives its right to claim against the

  3  payment bond for labor, services, or materials furnished

  4  through ... (insert date)..., to ... (insert the name of your

  5  customer)... on the job of ... (insert the name of the

  6  owner)..., for improvements to the following described

  7  project:

  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                                     .......(Lienor)............

15                                     By:........................

16

17         (2)  When a person is required to execute a waiver of

18  his or her right to make a claim against a payment bond

19  provided pursuant to s. 713.23 or s. 713.245, in exchange for,

20  or to induce payment of, the final payment, the waiver may be

21  in substantially the following form:

22                     WAIVER OF RIGHT TO CLAIM

23             AGAINST THE PAYMENT BOND (FINAL PAYMENT)

24         The undersigned, in consideration of the final payment

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

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

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

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

29  to the following described project:

30

31                     (description of project)

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  1

  2  DATED on ........

  3                                         .......(Lienor)........

  4                                         By:....................

  5         (3)  A person may not require a claimant to furnish a

  6  waiver that is different from the forms in subsections (1) and

  7  (2).

  8         (4)  A person who executes a waiver in exchange for a

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

10         (5)  A waiver that is not substantially similar to the

11  forms in this section is enforceable in accordance with its

12  terms.

13         Section 8.  Section 713.24, Florida Statutes, is

14  amended to read:

15         713.24  Transfer of liens to security.--

16         (1)  Any lien claimed under this part may be

17  transferred, by any person having an interest in the real

18  property upon which the lien is imposed or the contract under

19  which the lien is claimed, from such real property to other

20  security by either:

21         (a)  Depositing in the clerk's office a sum of money,

22  or

23         (b)  Filing in the clerk's office a bond executed as

24  surety by a surety insurer licensed to do business in this

25  state,

26

27  either to be in an amount equal to the amount demanded in such

28  claim of lien, plus interest thereon at the legal rate for 3

29  years, plus $1,000 or 25 percent of the amount demanded in the

30  claim of lien, whichever is greater, $500 to apply on any

31  attorney's fees and court costs that which may be taxed in any

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  1  proceeding to enforce said lien. Such deposit or bond shall be

  2  conditioned to pay any judgment or decree which may be

  3  rendered for the satisfaction of the lien for which such claim

  4  of lien was recorded.  Upon making such deposit or filing such

  5  bond, the clerk shall make and record a certificate showing

  6  the transfer of the lien from the real property to the

  7  security and shall mail a copy thereof by registered or

  8  certified mail to the lienor named in the claim of lien so

  9  transferred, at the address stated therein.  Upon filing the

10  certificate of transfer, the real property shall thereupon be

11  released from the lien claimed, and such lien shall be

12  transferred to said security. In the absence of allegations of

13  privity between the lienor and the owner, and subject to any

14  order of the court increasing the amount required for the lien

15  transfer deposit or bond, no other judgment or decree to pay

16  money may be entered by the court against the owner. The clerk

17  shall be entitled to a fee for making and serving the

18  certificate, in the sum of $10.  If the transaction involves

19  the transfer of multiple liens, an additional charge of $5 for

20  each additional lien shall be charged.  For recording the

21  certificate and approving the bond, the clerk shall receive

22  her or his usual statutory service charges as prescribed in s.

23  28.24. Any number of liens may be transferred to one such

24  security.

25         (2)  Any excess of the security over the aggregate

26  amount of any judgments or decrees rendered plus costs

27  actually taxed shall be repaid to the party filing the same or

28  her or his successor in interest. Any deposit of money shall

29  be considered as paid into court and shall be subject to the

30  provisions of law relative to payments of money into court and

31  the disposition of same.

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  1         (3)  Any party having an interest in such security or

  2  the property from which the lien was transferred may at any

  3  time, and any number of times, file a complaint in chancery in

  4  the circuit court of the county where such security is

  5  deposited, or file a motion in a pending action to enforce a

  6  lien, for an order to require additional security, reduction

  7  of security, change or substitution of sureties, payment of

  8  discharge thereof, or any other matter affecting said

  9  security. If the court finds that the amount of the deposit or

10  bond in excess of the amount claimed in the claim of lien is

11  insufficient to pay the lienor's attorney's fees and court

12  costs incurred in the action to enforce the lien, the court

13  must increase the amount of the cash deposit or lien transfer

14  bond.

15         (4)  If a no proceeding to enforce a transferred lien

16  is not shall be commenced within the time specified in s.

17  713.22 or if it appears that the transferred lien has been

18  satisfied of record, the clerk shall return said security upon

19  request of the person depositing or filing the same, or the

20  insurer.

21         Section 9.  This act shall take effect July 1, 1998.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1466

  3

  4  The Committee Substitute for Senate Bill 1466:

  5  -    Provides that on any public works project on which a
         performance bond is required, suits may be brought at law
  6       or in equity by or against the public authority on any
         contract claim arising from breach of an express or
  7       implied provision of a written agreement or a written
         directive issued by the public authority pursuant to the
  8       written agreement. In such a suit, the public authority
         and the contractor have all of the same rights,
  9       obligations, remedies, and defenses as a private person
         under a like contract, except that no liability may be
10       based on an oral modification of the written contract or
         written directive.
11
    -    Includes the collection or disposal of solid waste in the
12       construction lien law as an improvement to the real
         property.
13
    -    Deletes provisions entitling a contractor who furnishes a
14       bond and follows the proper payment procedure set forth
         in s. 713.06, F.S., to the proper payment defenses for
15       the property owner set forth in that section.

16  -    Deletes provisions allowing a contractor to demand a
         statement of accounts from lienors.
17
    -    Provides for attorney's fees in actions to enforce a lien
18       which has been transferred to other security and requires
         a monetary deposit or bond to secure payment of such
19       fees.

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