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House Bill 0889c1

Florida House of Representatives - 1997 CS/HB 889 By the Committee on Real Property & Probate and 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; providing 10 forms for waiver of rights to claim against the 11 bond for progress payments and final payments; 12 amending s. 713.06, F.S.; providing for service 13 of notice of commencement rather than mailing 14 with respect to liens of persons not in 15 privity; amending s. 713.132, F.S.; providing 16 that a notice of termination is effective under 17 certain circumstances; amending s. 713.135, 18 F.S.; providing that certain applicants for a 19 building permit must file certain information 20 with respect to the notice of commencement; 21 providing an effective date. 22 23 Be It Enacted by the Legislature of the State of Florida: 24 25 Section 1. Paragraph (a) of subsection (1) and 26 subsection (2) of section 255.05, Florida Statutes, are 27 amended to read: 28 255.05 Bond of contractor constructing public 29 buildings; form; action by materialmen.-- 30 (1)(a) Any person entering into a formal contract with 31 the state or any county, city, or political subdivision 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 thereof, or other public authority, for the construction of a 2 public building, for the prosecution and completion of a 3 public work, or for repairs upon a public building or public 4 work shall be required, before commencing the work, to 5 execute, deliver to the public owner, and record in the public 6 records of the county where the improvement is located, a 7 payment and performance bond with a surety insurer authorized 8 to do business in this state as surety. The bond must state 9 the name and principal business address of both the principal 10 and the surety and must contain a description of the project 11 sufficient to identify it. Such bond shall be conditioned that 12 the contractor perform the contract in the time and manner 13 prescribed in the contract and promptly make payments to all 14 persons defined in s. 713.01 whose claims derive directly or 15 indirectly from the prosecution of the work provided for in 16 the contract. Any claimant may apply to the governmental 17 entity having charge of the work for copies of the contract 18 and bond and shall thereupon be furnished with a certified 19 copy of the contract and bond. The claimant shall have a right 20 of action against the contractor and surety for the amount due 21 him or her, including unpaid finance charges due under the 22 claimant's contract. Such action shall not involve the public 23 authority in any expense. When such work is done for the 24 state and the contract is for $100,000 or less, no payment and 25 performance bond shall be required. At the discretion of the 26 official or board awarding such contract when such work is 27 done for any county, city, political subdivision, or public 28 authority, any person entering into such a contract which is 29 for $200,000 or less may be exempted from executing the 30 payment and performance bond. When such work is done for the 31 state, the director of the Department of Management Services 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 may delegate to state agencies the authority to exempt any 2 person entering into such a contract amounting to more than 3 $100,000 but less than $200,000 from executing the payment and 4 performance bond. In the event such exemption is granted, the 5 officer or officials shall not be personally liable to persons 6 suffering loss because of granting such exemption. The 7 Department of Management Services shall maintain information 8 on the number of requests by state agencies for delegation of 9 authority to waive the bond requirements by agency and project 10 number and whether any request for delegation was denied and 11 the justification for the denial. 12 (2)(a) A claimant, except a laborer, who is not in 13 privity with the contractor shall, before commencing or not 14 later than 45 days after commencing within 45 days after 15 beginning to furnish labor, materials, or supplies for the 16 prosecution of the work, furnish the contractor with a notice 17 that he or she intends to look to the bond for protection. A 18 claimant who is not in privity with the contractor and who has 19 not received payment for his or her labor, materials, or 20 supplies shall, within 90 days after performance of the labor 21 or after complete delivery of the materials or supplies or, 22 with respect to rental equipment, within 90 days after the 23 date that the rental equipment was last on the job site 24 available for use, deliver to the contractor and to the surety 25 written notice of the performance of the labor or delivery of 26 the materials or supplies and of the nonpayment. The notice of 27 nonpayment may be served at any time during the progress of 28 the work or thereafter but not later than 90 days after the 29 final furnishing of the labor, services, or materials by the 30 claimant or, with respect to rental equipment, not later than 31 90 days after the date that the rental equipment was last on 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 the job site available for use. No action for the labor, 2 materials, or supplies may be instituted against the 3 contractor or the surety unless both notices have been given. 4 No action shall be instituted against the contractor or the 5 surety on the payment bond or the payment provisions of a 6 combined payment and performance bond after 1 year from the 7 performance of the labor or completion of delivery of the 8 materials or supplies. A claimant may not waive in advance 9 his or her right to bring an action under the bond against the 10 surety. In any action brought to enforce a claim against a 11 payment bond under this section, the prevailing party is 12 entitled to recover a reasonable fee for the services of his 13 or her attorney for trial and appeal or for arbitration, in an 14 amount to be determined by the court, which fee must be taxed 15 as part of the prevailing party's costs, as allowed in 16 equitable actions. 17 (b) When a person is required to execute a waiver of 18 his or her right to make a claim against the payment bond in 19 exchange for, or to induce payment of, a progress payment, the 20 waiver may be in substantially the following form: 21 WAIVER OF RIGHT TO CLAIM 22 AGAINST THE PAYMENT BOND (PROGRESS PAYMENT) 23 The undersigned, in consideration of the sum of $...., 24 hereby waives its right to claim against the payment bond for 25 labor, services, or materials furnished through ...(insert 26 date)... to ...(insert the name of your customer)... on the 27 job of ...(insert the name of the owner)..., for improvements 28 to the following described project: 29 (description of project) 30 This waiver does not cover any retention or labor, services, 31 or materials furnished after the date specified. 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 DATED ON ........, 19.... 2 ...(Claimant)... 3 By:............ 4 (c) When a person is required to execute a waiver of 5 his or her right to make a claim against the payment bond, in 6 exchange for, or to induce payment of, the final payment, the 7 waiver may be in substantially the following form: 8 WAIVER OF RIGHT TO CLAIM 9 AGAINST THE PAYMENT BOND (FINAL PAYMENT) 10 The undersigned, in consideration of the final payment 11 in the amount of $...., hereby waives its right to claim 12 against the payment bond for labor, services, or materials 13 furnished to ...(insert the name of your customer)... on the 14 job of ...(insert the name of the owner)..., for improvements 15 to the following described project: 16 (description of project) 17 DATED ON ........, 19.... 18 ...(Claimant)... 19 By:............ 20 (d) A person may not require a claimant to furnish a 21 waiver that is different from the forms in paragraphs (b) and 22 (c) of this subsection. 23 (e) A claimant who executes a waiver in exchange for a 24 check may condition the waiver on payment of the check. 25 (f) A waiver that is not substantially similar to the 26 forms in this subsection is enforceable in accordance with its 27 terms. 28 Section 2. Paragraphs (b) and (d) of subsection (2) of 29 section 713.06, Florida Statutes, 1996 Supplement, are amended 30 to read: 31 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 713.06 Liens of persons not in privity; proper 2 payments.-- 3 (2) 4 (b) If the owner, in his notice of commencement, has 5 designated a person in addition to himself to receive a copy 6 of such lienor's notice, as provided in s. 713.13(1)(b), the 7 lienor shall serve mail a copy of his notice on to the person 8 so designated. The failure by the lienor to serve mail such 9 copy, however, does not invalidate an otherwise valid lien. 10 (d) A notice to an owner served on a lender must be in 11 writing, must be served in accordance with s. 713.18, and 12 shall be addressed and delivered to the lender by certified 13 mail, return receipt requested, to the persons designated, if 14 any, and to the place and address designated in the notice of 15 commencement. Any lender who, after receiving a notice 16 provided under this subsection, pays a contractor on behalf of 17 the owner for an improvement shall make proper payments as 18 provided in paragraph (3)(c) as to each such notice received 19 by the lender. The failure of a lender to comply with this 20 paragraph renders the lender liable to the owner for all 21 damages sustained by the owner as a result of that failure. 22 This paragraph does not give any person other than an owner a 23 claim or right of action against a lender for the failure of 24 the lender to comply with this paragraph. Further, this 25 paragraph does not prohibit a lender from disbursing 26 construction funds at any time directly to the owner, in which 27 event the lender has no obligation to make proper payments 28 under this paragraph. 29 Section 3. Subsection (4) of section 713.132, Florida 30 Statutes, is amended to read: 31 713.132 Notice of termination.-- 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 (4) A notice of termination is effective to terminate 2 the notice of commencement at the later of 30 days after 3 recording of the notice of termination or the date stated in 4 the notice of termination as the date on which the notice of 5 commencement is terminated, provided that the notice of 6 termination has been served pursuant to subsection (1)(f) on 7 the contractor and on each lienor who has given notice. 8 Section 4. Paragraph (d) of subsection (1) of section 9 713.135, Florida Statutes, 1996 Supplement, is amended to 10 read: 11 713.135 Notice of commencement and applicability of 12 lien.-- 13 (1) When any person applies for a building permit, the 14 authority issuing such permit shall: 15 (d) Furnish to the applicant two or more copies of a 16 form of notice of commencement conforming with s. 713.13. If 17 the direct contract is greater than $2,500, the applicant 18 shall file with the issuing authority prior to the first 19 inspection either a certified copy of the recorded notice of 20 commencement or a notarized statement that the notice of 21 commencement has been filed for recording, along with a copy 22 thereof. In the absence of the filing of a certified copy of 23 the recorded notice of commencement, the issuing authority 24 shall not perform or approve subsequent inspections until the 25 applicant files by mail, facsimile, hand delivery, or any 26 other means such certified copy with the issuing authority. 27 Nothing herein shall be interpreted as requiring or 28 encouraging the recording of a notice of commencement prior to 29 the issuance of a building permit. If a local government 30 requires a separate permit or inspection for installation of 31 temporary electrical service or other temporary utility 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 889 605-105-97 1 service, land clearing, or other preliminary site work, such 2 permits may be issued and such inspections may be conducted 3 without providing the issuing authority with a certified copy 4 of a recorded notice of commencement or a notarized statement 5 regarding a recorded notice of commencement. 6 Section 5. This act shall take effect October 1, 1997. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 8