Senate Bill 1466e1

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  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; amending s.

11         713.01, F.S.; redefining amending s. 713.01,

12         F.S.; redefining the terms "improve,"

13         "improvement," "subcontractor," and

14         "sub-subcontractor" to include reference to

15         solid-waste removal; amending s. 713.06, F.S.;

16         revising provisions relating to contractor's

17         affidavit; amending s. 713.132, F.S.; revising

18         requirements pertaining to service of notice of

19         termination; amending s. 713.18, F.S.; revising

20         requirements pertaining to service of

21         documents; amending s. 713.23, F.S.; amending

22         the timeframe within which certain actions to

23         enforce a claim against the payment bond may

24         commence; providing a form; creating s.

25         713.235, F.S.; providing for waivers of right

26         to claim against a payment bond; providing

27         forms; amending s. 713.24, F.S.; revising the

28         process for transferring liens to security;

29         providing an effective date.

30

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


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

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

  3  255.05, Florida Statutes, are amended, and subsection (8) is

  4  added to that section, to read:

  5         255.05  Bond of contractor constructing public

  6  buildings; form; action by materialmen.--

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

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

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

10  public building, for the prosecution and completion of a

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

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

13  recommencing the work after a default or abandonment, to

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

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

16  payment and performance bond with a surety insurer authorized

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

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

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

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

21  contracting public entity; the contract number assigned by the

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

23  surety and must contain a description of the project

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

25  description and the street address of the property being

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

27  bond shall be conditioned that the contractor perform the

28  contract in the time and manner prescribed in the contract and

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

30  whose claims derive directly or indirectly from the

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


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  1  claimant may apply to the governmental entity having charge of

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

  3  thereupon be furnished with a certified copy of the contract

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

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

  6  including unpaid finance charges due under the claimant's

  7  contract. Such action shall not involve the public authority

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

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

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

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

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

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

14  less may be exempted from executing the payment and

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

16  director of the Department of Management Services may delegate

17  to state agencies the authority to exempt any person entering

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

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

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

21  officials shall not be personally liable to persons suffering

22  loss because of granting such exemption. The Department of

23  Management Services shall maintain information on the number

24  of requests by state agencies for delegation of authority to

25  waive the bond requirements by agency and project number and

26  whether any request for delegation was denied and the

27  justification for the denial.

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

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

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

31  prescribed time in this paragraph within which an action to


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  1  enforce any claim against a payment bond provided pursuant to

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

  3  office a notice in substantially the following form:

  4

  5         NOTICE OF CONTEST OF CLAIM AGAINST PAYMENT BOND

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

  7         You are notified that the undersigned contests your

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

  9  on the undersigned on ............, ........, and that the

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

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

12

13         DATED on ............, .........

14

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

16

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

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

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

20  notice shall be extinguished automatically. The clerk shall

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

22  address shown in the notice of nonpayment or most recent

23  amendment thereto and shall certify to such service on the

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

25  upon mailing.

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

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

28  45 days after commencing to furnish labor, materials, or

29  supplies for the prosecution of the work, furnish the

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

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


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

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

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

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

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

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

  7  45 days after the first furnishing of labor, services, or

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

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

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

11  90 days after the date that the rental equipment was last on

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

13  materials, or supplies may be instituted against the

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

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

16  retainage, must shall be instituted against the contractor or

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

18  combined payment and performance bond within after 1 year

19  after from the performance of the labor or completion of

20  delivery of the materials or supplies. An action exclusively

21  for recovery of retainage must be instituted against the

22  contractor or the surety within 1 year after the performance

23  of the labor or completion of delivery of the materials or

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

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

26  final reconciliation of quantities if no further payment is

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

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

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

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

31  claim against a payment bond under this section, the


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  1  prevailing party is entitled to recover a reasonable fee for

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

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

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

  5  costs, as allowed in equitable actions.

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

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

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

  9  waiver may be in substantially the following form:

10

11                     WAIVER OF RIGHT TO CLAIM

12                     AGAINST THE PAYMENT BOND

13                        (PROGRESS PAYMENT)

14

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

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

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

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

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

20  to the following described project:

21

22                     (description of project)

23

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

25  services, or materials furnished after the date specified.

26

27         DATED ON ........, 19....

28                                                ...(Claimant)...

29                                                 By:............

30

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 claimant who is not in

27  privity with the contractor for a written statement under oath

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

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

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

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


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

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

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

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

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

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

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

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

  9  claimant or directed to the attention of the person designated

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

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

12  the furnishing of a false or fraudulent statement, deprives

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

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

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

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

17  information regarding the account has changed since the

18  claimants last response to a demand, the failure or refusal to

19  furnish such statement does not deprive the claimant of his or

20  her rights under the bond. The negligent inclusion or omission

21  of any information deprives the claimant of his or her rights

22  under the bond to the extent that the contractor can

23  demonstrate prejudice from such act or omission by the

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

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

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

27  the demand for statement of account is received by the

28  claimant.

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

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

31         713.01  Definitions.--As used in this part, the term:


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

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

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

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

  5  purposes, or perform any labor or services upon the

  6  improvements, including the furnishing of carpet or rugs or

  7  appliances that are permanently affixed to the real property

  8  and final construction cleanup to prepare a structure for

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

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

11  landscaping purposes, including the furnishing of trees,

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

13  property, or in equipping any improvement with fixtures or

14  permanent apparatus or provide any solid-waste collection or

15  disposal on the site of the improvement.

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

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

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

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

20  permanent benefit.

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

22  materialman or laborer who enters into a contract with a

23  contractor for the performance of any part of such

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

25  from the real property.

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

27  materialman or laborer who enters into a contract with a

28  subcontractor for the performance of any part of such

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

30  from the real property.

31


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

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

  3  Statutes, are amended to read:

  4         713.06  Liens of persons not in privity; proper

  5  payments.--

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

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

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

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

10  description sufficient for identification of the real

11  property, and the nature of the services or materials

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

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

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

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

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

17  the contractor as a prerequisite to perfecting a lien under

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

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

20  subcontractor if the materialman knows the name and address of

21  the subcontractor. The notice must be served before

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

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

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

25  final payment after the contractor has furnished the affidavit

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

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

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

29  the notice any priority over other lienors in the same

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

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


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

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

  3  or encumbrance on the real property nor actual or constructive

  4  notice of any of them.

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

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

  7  manner:

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

  9  becomes due the contractor:

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

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

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

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

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

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

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

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

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

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

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

21  information in the affidavit which has not prejudiced the

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

23  otherwise valid lien. The contractor shall execute the

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

25  instituting an action as a prerequisite to the institution of

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

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

28  is terminated for a reason other than completion and

29  regardless of whether the contractor has any lienors working

30  under him or her or not.

31


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

  2  subsection recites any outstanding bills for labor, services,

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

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

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

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

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

  8  deduct the amounts so paid from the balance due the

  9  contractor. Lienors listed in said affidavit not giving

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

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

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

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

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

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

16  all lienors listed in the affidavit and entitled to payment

17  from the owner under this part and other lienors giving

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

19  as the contractor has furnished him or her with the

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

21  difference within 10 days from delivery of the affidavit or

22  notice from the owner to the contractor to furnish the

23  affidavit, the owner shall determine the amount due each

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

25  her on a direct contract in accordance with the procedure

26  established by subsection (4).

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

28  contractor's affidavit given under this paragraph in making

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

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

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


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

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

  3  thereupon be discharged of any further responsibility under

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

  5  the contractor.

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

  7  the direct contract that shall not be disbursed until the

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

  9  furnished to the owner.

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

11  and the owner fails to withhold as required by subparagraph

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

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

14  time the contractor furnishes his or her affidavit.

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

16  Statutes, is amended to read:

17         713.132  Notice of termination.--

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

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

20  recording a notice of termination that contains:

21         (a)  The same information as the notice of

22  commencement;

23         (b)  The recording office document book and page

24  reference numbers and date of the notice of commencement;

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

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

27  30 days after the notice of termination is recorded;

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

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

30  specifying the portion of such real property to which it

31  applies;


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

  2  full; and

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

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

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

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

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

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

  9  713.20.

10         Section 5.  Section 713.18, Florida Statutes, is

11  amended to read:

12         713.18  Manner of serving notices and other

13  instruments.--

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

15  assignments, and other instruments permitted or required under

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

17  unless otherwise specifically provided in this part, must be

18  made by one of the following methods:

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

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

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

22  business agent thereof.

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

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

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

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

27  days after the date the lienor first furnishes labor,

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

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

30  maintains a registered or certified mail log that shows the

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


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

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

  3  United States Postal Service confirming the date of mailing.

  4  If an instrument served pursuant to this paragraph by this

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

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

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

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

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

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

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

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

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

14  accomplished, by posting on the premises.

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

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

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

18  notice to all owners.

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

20  required under this part, may be made by facsimile

21  transmission when the person being served has listed that

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

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

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

25  lienor's facsimile confirmation sheet with the correct

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

27  notice was served.

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

29  713.23, Florida Statutes, is amended to read:

30         713.23  Payment bond.--

31         (1)


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

  2  may be instituted or prosecuted against the contractor or

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

  4  be instituted or prosecuted against the contractor or against

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

  6  the performance of the labor or completion of delivery of the

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

  8  or attorney may elect to shorten the prescribed time within

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

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

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

12  substantially the following form:

13         NOTICE OF CONTEST OF CLAIM AGAINST PAYMENT BOND

14

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

16         You are notified that the undersigned contests your

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

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

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

20  from the date of service of this notice.

21

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

23

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

25

26  The claim of any lienor 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 lienor at the

31  address shown in the notice of nonpayment or most recent


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  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         Section 7.  Section 713.235, Florida Statutes, is

  5  created to read:

  6         713.235  Waivers of right to claim against payment

  7  bond; forms.--

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

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

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

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

12  in substantially the following form:

13                     WAIVER OF RIGHT TO CLAIM

14                     AGAINST THE PAYMENT BOND

15                        (PROGRESS PAYMENT)

16         The undersigned, in consideration of the sum of

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

18  payment bond for labor, services, or materials furnished

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

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

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

22  project:

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 ............

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

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

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    CS for SB 1466                                 First Engrossed



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

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

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

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

  5  in substantially the following form:

  6                     WAIVER OF RIGHT TO CLAIM

  7             AGAINST THE PAYMENT BOND (FINAL PAYMENT)

  8         The undersigned, in consideration of the final payment

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

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

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

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

13  to the following described project:

14

15                     (description of project)

16

17  DATED on ........

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

19                                         By:....................

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

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

22  (2).

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

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

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

26  forms in this section is enforceable in accordance with its

27  terms.

28         Section 8.  Section 713.24, Florida Statutes, is

29  amended to read:

30         713.24  Transfer of liens to security.--

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    CS for SB 1466                                 First Engrossed



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

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

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

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

  5  security by either:

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

  7  or

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

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

10  state,

11

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

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

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

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

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

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

18  conditioned to pay any judgment or decree which may be

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

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

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

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

23  security and shall mail a copy thereof by registered or

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

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

26  certificate of transfer, the real property shall thereupon be

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

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

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

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

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


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    CS for SB 1466                                 First Engrossed



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

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

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

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

  5  each additional lien shall be charged.  For recording the

  6  certificate and approving the bond, the clerk shall receive

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

  8  28.24. Any number of liens may be transferred to one such

  9  security.

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

11  amount of any judgments or decrees rendered plus costs

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

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

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

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

16  the disposition of same.

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

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

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

20  the circuit court of the county where such security is

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

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

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

24  discharge thereof, or any other matter affecting said

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

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

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

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

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

30  bond.

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    CS for SB 1466                                 First Engrossed



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

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

  3  713.22 or if it appears that the transferred lien has been

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

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

  6  insurer.

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

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