CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  The Committee on Community Affairs offered the following:

12

13         Amendment (with title amendment) 

14  Remove from the bill:  Everything after the enacting clause

15

16  and insert in lieu thereof:

17         Section 1.  Subsections (2), (5), and (7) of section

18  218.72, Florida Statutes, are amended, and subsections (8) and

19  (9) are added to said section, to read:

20         218.72  Definitions.--As used in this part:

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

22  municipal government, school board, school district,

23  authority, special taxing district, other political

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

25  commission, department, branch, division, or institution

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

27         (5)  "Purchase" means the purchase of goods, or

28  services, or construction services, the purchase or lease of

29  personal property, or the lease of real property by a local

30  governmental entity.

31         (7)  "Construction services" means all labor, services,

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  and materials provided performed in connection with the

 2  construction, alteration, repair, demolition, reconstruction,

 3  or any other improvements to real property that require a

 4  license under parts I and II of chapter 489.

 5         (8)  "Payment request" means a contractor's written

 6  request for payment for construction services provided through

 7  a date certain.

 8         (9)  "Agent" means project architect, project engineer,

 9  or any other agency or person acting on behalf of the local

10  governmental entity.

11         Section 2.  Section 218.73, Florida Statutes, is

12  amended to read:

13         218.73  Timely payment for nonconstruction

14  services.--The time at which payment is due for a purchase

15  other than construction services by a local governmental

16  entity, except for the purchase of construction services, is

17  due must be calculated from:

18         (1)  The date on which a proper invoice is received by

19  the chief disbursement officer of the local governmental

20  entity after approval by the governing body, if required; or

21         (2)  If a proper invoice is not received by the local

22  governmental entity, the date:

23         (a)  On which delivery of personal property is accepted

24  by the local governmental entity;

25         (b)  On which services are completed;

26         (c)  On which the rental period begins; or

27         (d)  On which the local governmental entity and vendor

28  agree in a contract that provides dates relative to payment

29  periods;

30

31  whichever date is latest.

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1         Section 3.  Section 218.735, Florida Statutes, is

 2  amended to read:

 3         218.735  Timely payment for purchases of construction

 4  services.--

 5         (1)  The due date for payment for the purchase of

 6  construction services by a local governmental entity is

 7  determined as follows:

 8         (a)  If an agent the project architect or project

 9  engineer must approve the payment request or invoice prior to

10  the payment request or invoice being submitted to the local

11  governmental entity, payment is due 2520 business days after

12  the date on which the payment request or architect or engineer

13  approves the invoice and the invoice is stamped as received as

14  provided in s. 218.74(1).

15         (b)  If an agent the project architect or project

16  engineer need not approve the payment request or invoice which

17  is submitted by the contractor, payment is due 20 business

18  days after the date on which the payment request or invoice is

19  stamped as received as provided in s. 218.74(1).

20         (2)  The local governmental entity may reject the

21  payment request or invoice within 20 business days after the

22  date on which the payment request or invoice is stamped as

23  received as provided in s. 218.74(1).  The rejection must be

24  written and must specify the deficiency in the payment request

25  or invoice and the action necessary to make the payment

26  request or invoice proper.

27         (3)  If a payment request or an invoice is rejected

28  under subsection (2) or this subsection and the contractor

29  submits a corrected payment request or invoice which corrects

30  the deficiency specified in writing by the local governmental

31  entity, the corrected payment request or invoice must be paid

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  or rejected on the later of:

 2         (a)  Ten business days after the date the corrected

 3  payment request or invoice is stamped as received as provided

 4  in s. 218.74(1); or

 5         (b)  If the governing body is required by ordinance,

 6  charter, or other law to approve or reject the corrected

 7  payment request or invoice, the first business day after the

 8  next regularly scheduled meeting of the governing body held

 9  after the corrected payment request or invoice is stamped as

10  received as provided in s. 218.74(1).

11         (4)  If a dispute between the local governmental entity

12  and the contractor cannot be resolved by the procedure in

13  subsection (3), the dispute must be resolved in accordance

14  with the dispute resolution procedure prescribed in the

15  construction contract or in any applicable ordinance.  In the

16  absence of a prescribed procedure, the dispute must be

17  resolved by the procedure specified in s. 218.76(2).

18         (5)  If a local governmental entity disputes a portion

19  of a payment request or an invoice, the undisputed portion

20  shall be paid timely, in accordance with subsection (1). The

21  payment time periods provided in this section for construction

22  services purchased by a local governmental entity shall not

23  affect contractual provisions or contractual covenants of a

24  local governmental entity in effect on September 30, 1995.

25         (6)  All payments due from a local governmental entity

26  and not made within the time periods period specified by this

27  section shall bear interest at the rate of 1 percent per

28  month, or the rate specified by contract, whichever is greater

29  as specified in s. 218.74(4).

30         Section 4.  Section 218.74, Florida Statutes, is

31  amended to read:

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1         218.74  Procedures for calculation of payment due

 2  dates.--

 3         (1)  Each local governmental entity shall establish

 4  procedures whereby each payment request or invoice received by

 5  the local governmental entity is marked as received on the

 6  date on which it is delivered to an agent or employee of the

 7  local governmental entity or of a facility or office of the

 8  local governmental entity.

 9         (2)  The payment due date for a local governmental

10  entity for the purchase of goods or services other than

11  construction services is 45 days after the date specified in

12  s. 218.73.  The payment due date for the purchase of

13  construction services is specified in s. 218.735.

14         (3)  If the terms under which a purchase is made allow

15  for partial deliveries and a payment request or proper invoice

16  is submitted for a partial delivery, the time for payment for

17  the partial delivery must be calculated from the time of the

18  partial delivery and the submission of the payment request or

19  invoice in the same manner as provided in s. 218.73 or s.

20  218.735.

21         (4)  All payments, other than payments for construction

22  services, due from a local governmental entity and not made

23  within the time specified by this section bear interest from

24  30 days after the due date at the rate of 1 percent per month

25  on the unpaid balance. The vendor must invoice the local

26  governmental entity for any interest accrued in order to

27  receive the interest payment.  Any overdue period of less than

28  1 month is considered as 1 month in computing interest.

29  Unpaid interest is compounded monthly.  With respect to each

30  past due payment, interest ceases to accrue after interest on

31  that payment has accrued for 12 months. For the purposes of

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  this section, the term "1 month" means a period beginning on

 2  any day of one month and ending on the same day of the

 3  following month.

 4         Section 5.  Section 218.75, Florida Statutes, is

 5  amended to read:

 6         218.75  Mandatory interest.--No contract between a

 7  local governmental entity and a vendor or a provider of

 8  construction services shall prohibit the collection of vendor

 9  from invoicing the local governmental entity for late payment

10  interest charges allowable under this part.

11         Section 6.  Section 218.76, Florida Statutes, is

12  amended to read:

13         218.76  Improper payment request or invoice; resolution

14  of disputes.--

15         (1)  In any case in which an improper payment request

16  or invoice is submitted by a vendor, the local governmental

17  entity shall, within 10 days after the improper payment

18  request or invoice is received by it, notify the vendor that

19  the payment request or invoice is improper and indicate what

20  corrective action on the part of the vendor is needed to make

21  the payment request or invoice proper.

22         (2)  In the event a dispute occurs between a vendor and

23  a local governmental entity concerning payment of a payment

24  request or an invoice, such disagreement shall be finally

25  determined by the local governmental entity as provided in

26  this section.  Each local governmental entity shall establish

27  a dispute resolution procedure to be followed by the local

28  governmental entity in cases of such disputes.  Such procedure

29  shall provide that proceedings to resolve the dispute shall be

30  commenced not later than 45 days after the date on which the

31  payment request or proper invoice was received by the local

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  governmental entity and shall be concluded by final decision

 2  of the local governmental entity not later than 60 days after

 3  the date on which the payment request or proper invoice was

 4  received by the local governmental entity.  Such procedures

 5  shall not be subject to chapter 120, and such procedures shall

 6  not constitute an administrative proceeding which prohibits a

 7  court from deciding de novo any action arising out of the

 8  dispute.  If the dispute is resolved in favor of the local

 9  governmental entity, then interest charges shall begin to

10  accrue 10 15 days after the local governmental entity's final

11  decision.  If the dispute is resolved in favor of the vendor,

12  then interest shall begin to accrue as of the original date

13  the payment became due.

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

15  218.70-218.80, the prevailing party shall be entitled to

16  recover court costs and attorney's fees at trial and on

17  appeal.

18         Section 7.  Paragraph (a) of subsection (1) and

19  paragraph (a) of subsection (2) of section 255.05, Florida

20  Statutes, are amended to read:

21         255.05  Bond of contractor constructing public

22  buildings; form; action by materialmen.--

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

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

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

26  public building, for the prosecution and completion of a

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

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

29  recommencing the work after a default or abandonment, to

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

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

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  payment and performance bond with a surety insurer authorized

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

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

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

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

 6  contracting public entity; the contract number assigned by the

 7  contracting public entity; and a description of the project

 8  sufficient to identify it, such as including, if applicable, a

 9  legal description or and the street address of the property

10  being improved, and a general description of the improvement.

11  Such bond shall be conditioned solely upon the contractor's

12  performance of the construction work that the contractor

13  perform the contract in the time and manner prescribed in the

14  contract and the contractor's prompt payment promptly make

15  payments to all persons defined in s. 713.01 who furnished

16  labor, services, or materials for whose claims derive directly

17  or indirectly from the prosecution of the work provided for in

18  the contract. Any claimant may apply to the governmental

19  entity having charge of the work for copies of the contract

20  and bond and shall thereupon be furnished with a certified

21  copy of the contract and bond. The claimant shall have a right

22  of action against the contractor and surety for the amount due

23  him or her, including unpaid finance charges due under the

24  claimant's contract. Such action shall not involve the public

25  authority in any expense.  When such work is done for the

26  state and the contract is for $100,000 or less, no payment and

27  performance bond shall be required. At the discretion of the

28  official or board awarding such contract when such work is

29  done for any county, city, political subdivision, or public

30  authority, any person entering into such a contract which is

31  for $200,000 or less may be exempted from executing the

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  payment and performance bond. When such work is done for the

 2  state, the Secretary of the Department of Management Services

 3  may delegate to state agencies the authority to exempt any

 4  person entering into such a contract amounting to more than

 5  $100,000 but less than $200,000 from executing the payment and

 6  performance bond. In the event such exemption is granted, the

 7  officer or officials shall not be personally liable to persons

 8  suffering loss because of granting such exemption. The

 9  Department of Management Services shall maintain information

10  on the number of requests by state agencies for delegation of

11  authority to waive the bond requirements by agency and project

12  number and whether any request for delegation was denied and

13  the justification for the denial.

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

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

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

17  prescribed time in this paragraph within which an action to

18  enforce any claim against a payment bond provided pursuant to

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

20  office a notice in substantially the following form:

21

22                    NOTICE OF CONTEST OF CLAIM

23                       AGAINST PAYMENT BOND

24

25

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

27         You are notified that the undersigned contests your

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

29  on the undersigned on ............, ........, and that the

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

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

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1

 2         DATED on ............, .........

 3

 4

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

 6

 7

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

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

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

11  notice shall be extinguished automatically. The clerk shall

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

13  address shown in the notice of nonpayment or most recent

14  amendment thereto and shall certify to such service on the

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

16  upon mailing.

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

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

19  45 days after commencing to furnish labor, materials, or

20  supplies for the prosecution of the work, furnish the

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

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

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

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

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

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

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

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

29  45 days after the first furnishing of labor, services, or

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

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

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





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

 2  90 days after the date that the rental equipment was last on

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

 4  materials, or supplies may be instituted against the

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

 6  Notices required or permitted under this section may be served

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

 8  exclusively for recovery of retainage, must be instituted

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

10  the payment provisions of a combined payment and performance

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

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

13  exclusively for recovery of retainage must be instituted

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

15  performance of the labor or completion of delivery of the

16  materials or supplies, or within 90 days after the

17  contractor's receipt of final payment (or the payment estimate

18  containing the owner's final reconciliation of quantities if

19  no further payment is earned and due as a result of deductive

20  adjustments) by the contractor or surety, whichever comes

21  last. A claimant may not waive in advance his or her right to

22  bring an action under the bond against the surety. In any

23  action brought to enforce a claim against a payment bond under

24  this section, the prevailing party is entitled to recover a

25  reasonable fee for the services of his or her attorney for

26  trial and appeal or for arbitration, in an amount to be

27  determined by the court, which fee must be taxed as part of

28  the prevailing party's costs, as allowed in equitable actions.

29  The time periods for service of a notice of nonpayment or for

30  bringing an action against a contractor or a surety shall be

31  measured from the last day of furnishing labor, services, or

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  materials by the claimant and shall not be measured by other

 2  standards, such as the issuance of a certificate of occupancy

 3  or the issuance of a certificate of substantial completion.

 4         Section 8.  Effective upon this act becoming a law, the

 5  Office of Program Policy Analysis and Government

 6  Accountability (OPPAGA), in consultation with the Legislative

 7  Committee on Intergovernmental Relations, shall:

 8         (1)  Conduct a study of construction retainage methods

 9  for public and private construction within the state of

10  Florida.  OPPAGA shall examine all relevant information,

11  including, but not limited to the following:

12         (a)  Information from various state and local

13  governmental entities, public universities and community

14  colleges within the state of Florida.

15         (b)  Information from the Federal government and other

16  states who have addressed construction payment or retainage

17  issues, including states that are of comparable size to the

18  state of Florida or that have a comparable amount of public or

19  private construction activity as the state of Florida.

20         (c)  Information from public and private owners,

21  general contractors, subcontractors, material suppliers,

22  construction managers, design-build professionals, architects

23  and engineers.

24         (d)  Information from lenders and surety companies who

25  are involved in public and private construction.

26         (2)  Draw conclusions and make recommendations, as

27  appropriate, with regard to the following issues:

28         (a)  Whether the state should adopt new laws or modify

29  existing laws to address the specific issues set forth below,

30  and whether any existing statutes will require modification or

31  repeal.

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1         (b)  The positive and negative impacts of the current

 2  systems of retainage being utilized throughout the state of

 3  Florida as applied to public sector and private sector

 4  construction contracts, and as between owners and contractors,

 5  between contractors and subcontractors, and between

 6  subcontractors and sub-subcontractors.

 7         (c)  Whether the traditional 10 percent retainage

 8  practice in construction is equitable and whether there are

 9  viable alternatives to this practice.

10         (d)  What may be an appropriate percentage of retainage

11  to be held on all construction projects.

12         (e)  What the purposes of retainage are for

13  construction projects.

14         (f)  Whether it is appropriate to hold all retainage

15  until the end of a construction project or whether periodic

16  release of retainage or release of retainage for specific

17  divisions of work on a construction project is appropriate and

18  reasonably manageable.

19         (g)  What protections are currently in place for owners

20  to insure that construction projects are progressing in a

21  satisfactory manner, including, but not limited to, project

22  management techniques, periodic inspections, services of

23  project architects and engineers, and whether those

24  protections are being adequately and properly utilized.

25         (h)  What protections are currently in place or could

26  be adopted for owners, contractors, and subcontractors through

27  the utilization of construction payment and performance bonds.

28         (i)  Whether the documentation required for

29  construction projects contributes to delays in progress

30  payments, final payments and release of retainage, whether

31  such requirements could be simplified and/or standardized to

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1  streamline the process, and whether it is appropriate for the

 2  Legislature to address this issue.

 3         (j)  Whether the Legislature should limit the

 4  percentage of retainage that can be held on public and/or

 5  private construction projects.

 6         (k)  Whether the Legislature should provide for

 7  periodic release of retainage on public and/or private

 8  construction projects.

 9         (l)  Whether the Legislature should establish

10  requirements and time limits for owners and contractors to

11  release final payment and retainage on all construction

12  projects.

13         (3)  OPPAGA shall present a report of its findings and

14  recommendations to the President of the Senate, the Speaker of

15  the House of Representatives, minority leaders of the Senate

16  and House of Representatives, and chairs of the House Business

17  Regulation & Consumer Affairs Committee and the Senate

18  Regulated Industries Committee by January 1, 2001.

19         Section 9.  Except as otherwise specifically provided

20  in this act, this act shall take effect July 1, 2000, and

21  shall apply to construction contracts entered into on or after

22  the effective date.

23

24

25  ================ T I T L E   A M E N D M E N T ===============

26  And the title is amended as follows:

27  remove from the title of the bill:  Everything before the

28  enacting clause

29

30  and insert in lieu thereof:

31                  A bill to be entitled

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 715

    Amendment No. 1 (for drafter's use only)





 1         An act relating to prompt payment and retainage

 2         reform; amending s. 218.72, F.S.; redefining

 3         the terms "local government entity,"

 4         "purchase," and "construction services" and

 5         defining the terms "payment request" and

 6         "agent" for the purpose of the Florida Prompt

 7         Payment Act; amending s. 218.73, F.S.;

 8         providing for timely payment for

 9         nonconstruction services; amending s. 218.735,

10         F.S.; revising language with respect to timely

11         payment for purchases of construction services;

12         amending s. 218.74, F.S.; revising language

13         with respect to procedures for calculation of

14         payment due dates; amending s. 218.75, F.S.;

15         revising language with respect to mandatory

16         interest; amending s. 218.76, F.S.; revising

17         language with respect to improper invoices and

18         resolution of disputes; providing for the

19         recovery of court costs and attorney's fees

20         under certain circumstances; amending s.

21         255.05, F.S.; revising language with respect to

22         the bond of a contractor constructing public

23         buildings; requiring the Office of Program

24         Policy Analysis and Government Accountability,

25         in consultation with the Legislative Committee

26         on Intergovernmental Relations, to conduct a

27         study of construction retainage methods;

28         specifying areas to be examined; requiring

29         study conclusions and recommendations;

30         requiring a report; providing an effective

31         dates.

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