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House Bill 0889

Florida House of Representatives - 1997 HB 889 By Representative Sublette 1 A bill to be entitled 2 An act relating to liens; amending s. 255.05, 3 F.S.; including unpaid finance charges due 4 under a claimant's contract among charges which 5 may be assessed against certain contractors' 6 bonds; revising language with respect to the 7 timeframe for notice of intent to look to such 8 a bond for recovery; providing for the time 9 period for notice of nonpayment; amending s. 10 713.06, F.S.; providing for service of notice 11 of commencement rather than mailing with 12 respect to liens of persons not in privity; 13 amending s. 713.132, F.S.; providing that an 14 owner may not record a notice of termination 15 except after completion of construction; 16 amending s. 713.135, F.S.; providing that 17 certain applicants for a building permit must 18 file certain information with respect to the 19 notice of commencement; providing an effective 20 date. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. Paragraph (a) of subsection (1) and 25 subsection (2) of section 255.05, Florida Statutes, are 26 amended to read: 27 255.05 Bond of contractor constructing public 28 buildings; form; action by materialmen.-- 29 (1)(a) Any person entering into a formal contract with 30 the state or any county, city, or political subdivision 31 thereof, or other public authority, for the construction of a 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 889 534-178C-97 1 public building, for the prosecution and completion of a 2 public work, or for repairs upon a public building or public 3 work shall be required, before commencing the work, to 4 execute, deliver to the public owner, and record in the public 5 records of the county where the improvement is located, a 6 payment and performance bond with a surety insurer authorized 7 to do business in this state as surety. The bond must state 8 the name and principal business address of both the principal 9 and the surety and must contain a description of the project 10 sufficient to identify it. Such bond shall be conditioned that 11 the contractor perform the contract in the time and manner 12 prescribed in the contract and promptly make payments to all 13 persons defined in s. 713.01 whose claims derive directly or 14 indirectly from the prosecution of the work provided for in 15 the contract. Any claimant may apply to the governmental 16 entity having charge of the work for copies of the contract 17 and bond and shall thereupon be furnished with a certified 18 copy of the contract and bond. The claimant shall have a right 19 of action against the contractor and surety for the amount due 20 him or her, including unpaid finance charges due under the 21 claimant's contract. Such action shall not involve the public 22 authority in any expense. When such work is done for the 23 state and the contract is for $100,000 or less, no payment and 24 performance bond shall be required. At the discretion of the 25 official or board awarding such contract when such work is 26 done for any county, city, political subdivision, or public 27 authority, any person entering into such a contract which is 28 for $200,000 or less may be exempted from executing the 29 payment and performance bond. When such work is done for the 30 state, the director of the Department of Management Services 31 may delegate to state agencies the authority to exempt any 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 889 534-178C-97 1 person entering into such a contract amounting to more than 2 $100,000 but less than $200,000 from executing the payment and 3 performance bond. In the event such exemption is granted, the 4 officer or officials shall not be personally liable to persons 5 suffering loss because of granting such exemption. The 6 Department of Management Services shall maintain information 7 on the number of requests by state agencies for delegation of 8 authority to waive the bond requirements by agency and project 9 number and whether any request for delegation was denied and 10 the justification for the denial. 11 (2) A claimant, except a laborer, who is not in 12 privity with the contractor shall, before commencing or not 13 later than 45 days after commencing within 45 days after 14 beginning to furnish labor, materials, or supplies for the 15 prosecution of the work, furnish the contractor with a notice 16 that he or she intends to look to the bond for protection. A 17 claimant who is not in privity with the contractor and who has 18 not received payment for his or her labor, materials, or 19 supplies shall, within 90 days after performance of the labor 20 or after complete delivery of the materials or supplies or, 21 with respect to rental equipment, within 90 days after the 22 date that the rental equipment was last on the job site 23 available for use, deliver to the contractor and to the surety 24 written notice of the performance of the labor or delivery of 25 the materials or supplies and of the nonpayment. The notice 26 of nonpayment may be served at any time during the progress of 27 the work or thereafter but not later than 90 days after the 28 final furnishing of the labor, services, or materials by the 29 claimant or, with respect to rental equipment, not later than 30 90 days after the date that the rental equipment was last on 31 the job site available for use. No action for the labor, 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 889 534-178C-97 1 materials, or supplies may be instituted against the 2 contractor or the surety unless both notices have been given. 3 No action shall be instituted against the contractor or the 4 surety on the payment bond or the payment provisions of a 5 combined payment and performance bond after 1 year from the 6 performance of the labor or completion of delivery of the 7 materials or supplies. A claimant may not waive in advance 8 his or her right to bring an action under the bond against the 9 surety. In any action brought to enforce a claim against a 10 payment bond under this section, the prevailing party is 11 entitled to recover a reasonable fee for the services of his 12 or her attorney for trial and appeal or for arbitration, in an 13 amount to be determined by the court, which fee must be taxed 14 as part of the prevailing party's costs, as allowed in 15 equitable actions. 16 Section 2. Paragraphs (b) and (d) of subsection (2) of 17 section 713.06, Florida Statutes, 1996 Supplement, are amended 18 to read: 19 713.06 Liens of persons not in privity; proper 20 payments.-- 21 (2) 22 (b) If the owner, in his notice of commencement, has 23 designated a person in addition to himself to receive a copy 24 of such lienor's notice, as provided in s. 713.13(1)(b), the 25 lienor shall serve mail a copy of his notice on to the person 26 so designated. The failure by the lienor to serve mail such 27 copy, however, does not invalidate an otherwise valid lien. 28 (d) A notice to an owner served on a lender must be in 29 writing, must be served in accordance with s. 713.18, and 30 shall be addressed and delivered to the lender by certified 31 mail, return receipt requested, to the persons designated, if 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 889 534-178C-97 1 any, and to the place and address designated in the notice of 2 commencement. Any lender who, after receiving a notice 3 provided under this subsection, pays a contractor on behalf of 4 the owner for an improvement shall make proper payments as 5 provided in paragraph (3)(c) as to each such notice received 6 by the lender. The failure of a lender to comply with this 7 paragraph renders the lender liable to the owner for all 8 damages sustained by the owner as a result of that failure. 9 This paragraph does not give any person other than an owner a 10 claim or right of action against a lender for the failure of 11 the lender to comply with this paragraph. Further, this 12 paragraph does not prohibit a lender from disbursing 13 construction funds at any time directly to the owner, in which 14 event the lender has no obligation to make proper payments 15 under this paragraph. 16 Section 3. Subsection (3) of section 713.132, Florida 17 Statutes, is amended to read: 18 713.132 Notice of termination.-- 19 (3) An owner may not record a notice of termination 20 except after completion of construction, or after construction 21 ceases before completion and all lienors have been paid in 22 full or pro rata in accordance with s. 713.06(4). If an owner 23 or a contractor, by fraud or collusion, knowingly makes any 24 fraudulent statement or affidavit in a notice of termination 25 or any accompanying affidavit, the owner and the contractor, 26 or either of them, as the case may be, is liable to any lienor 27 who suffers damages as a result of the filing of the 28 fraudulent notice of termination; and any such lienor has a 29 right of action for damages occasioned thereby. 30 31 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 889 534-178C-97 1 Section 4. Paragraph (d) of subsection (1) of section 2 713.135, Florida Statutes, 1996 Supplement, is amended to 3 read: 4 713.135 Notice of commencement and applicability of 5 lien.-- 6 (1) When any person applies for a building permit, the 7 authority issuing such permit shall: 8 (d) Furnish to the applicant two or more copies of a 9 form of notice of commencement conforming with s. 713.13. 10 Each The applicant who has a direct contract with the owner in 11 an amount greater than $2,500 shall file with the issuing 12 authority prior to the first inspection either a certified 13 copy of the recorded notice of commencement or a notarized 14 statement that the notice of commencement has been filed for 15 recording, along with a copy thereof. In the absence of the 16 filing of a certified copy of the recorded notice of 17 commencement, the issuing authority shall not perform or 18 approve subsequent inspections until the applicant files by 19 mail, facsimile, hand delivery, or any other means such 20 certified copy with the issuing authority. Nothing herein 21 shall be interpreted as requiring or encouraging the recording 22 of a notice of commencement prior to the issuance of a 23 building permit. 24 Section 5. This act shall take effect October 1, 1997. 25 26 27 28 29 30 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 889 534-178C-97 1 ***************************************** 2 HOUSE SUMMARY 3 Provides, with respect to the bond of a contractor 4 constructing public buildings, that the claimant against the contractor may include unpaid finance charges due 5 under the claimant's contract in a claim against the contractor. Revises language with respect to the time 6 period to notify the contractor that a person intends to look to the bond for protection. 7 8 Revises language with respect to liens to: 1. Provide for service, rather than mailing, of 9 certain copies of the notice of commencement. 2. Provide for service of the notice to owner. 10 3. Provide that an owner may not record a notice of termination except after completion of construction. 11 12 See bill for details. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 7