House Bill hb1491

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    Florida House of Representatives - 2002                HB 1491

        By Representative Bennett






  1                      A bill to be entitled

  2         An act relating to retainage; amending s.

  3         255.071, F.S.; revising provisions relating to

  4         payment of contractors, subcontractors,

  5         sub-subcontractors, materialmen, and suppliers

  6         on construction contracts for public projects;

  7         providing for retainage of a percentage of

  8         payment under specified circumstances;

  9         requiring amounts retained to be held in

10         interest-bearing escrow accounts; providing an

11         exception; providing an effective date.

12

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

14

15         Section 1.  Section 255.071, Florida Statutes, is

16  amended to read:

17         255.071  Payment of contractors, subcontractors,

18  sub-subcontractors, materialmen, and suppliers on construction

19  contracts for public projects.--

20         (1)  Any person, firm, or corporation who receives a

21  payment from the state or any county, city, or political

22  subdivision of the state, or other public authority, for the

23  construction of a public building, for the prosecution and

24  completion of a public work, or for repairs upon a public

25  building or public work shall pay, in accordance with the

26  contract terms, the undisputed contract obligations for labor,

27  services, or materials provided on account of such

28  improvements.

29         (2)  The failure to pay any undisputed obligations for

30  such labor, services, or materials within 30 days after the

31  date the labor, services, or materials were furnished and

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    Florida House of Representatives - 2002                HB 1491

    750-126-02






  1  payment for such labor, services, or materials became due, or

  2  within 30 days after the date payment for such labor,

  3  services, or materials is received, whichever last occurs,

  4  shall entitle any person providing such labor, services, or

  5  materials to the procedures specified in subsection (3) and

  6  the remedies provided in subsection (4).

  7         (3)  Any person providing labor, services, or materials

  8  for the construction of a public building, for the prosecution

  9  and completion of a public work, or for repairs upon a public

10  building or public work improvements to real property may file

11  a verified complaint alleging:

12         (a)  The existence of a contract for providing such

13  labor, services, or materials to improve real property.

14         (b)  A description of the labor, services, or materials

15  provided and alleging that the labor, services, or materials

16  were provided in accordance with the contract.

17         (c)  The amount of the contract price.

18         (d)  The amount, if any, paid pursuant to the contract.

19         (e)  The amount that remains unpaid pursuant to the

20  contract and the amount thereof that is undisputed.

21         (f)  That the undisputed amount has remained due and

22  payable pursuant to the contract for more than 30 days after

23  the date the labor or services were accepted or the materials

24  were received.

25         (g)  That the person against whom the complaint was

26  filed has received payment on account of the labor, services,

27  or materials described in the complaint more than 30 days

28  prior to the date the complaint was filed.

29         (4)  After service of the complaint, the court shall

30  conduct an evidentiary hearing on the complaint, upon not less

31  than 15 days' written notice. The person providing labor,

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    Florida House of Representatives - 2002                HB 1491

    750-126-02






  1  services, or materials is entitled to the following remedies

  2  to the extent of the undisputed amount due for labor or

  3  services performed or materials supplied, and upon proof of

  4  each allegation in the complaint:

  5         (a)  An accounting of the use of any such payment from

  6  the person who received such payment.

  7         (b)  A temporary injunction against the person who

  8  received the payment, subject to the bond requirements

  9  specified in the Florida Rules of Civil Procedure.

10         (c)  Prejudgment attachment against the person who

11  received the payment, in accordance with each of the

12  requirements of chapter 76.

13         (d)  Such other legal or equitable remedies as may be

14  appropriate in accordance with the requirements of the law.

15         (5)  The remedies specified in subsection (4) must be

16  granted without regard to any other remedy at law and without

17  regard to whether or not irreparable damage has occurred or

18  will occur.

19         (6)  The remedies specified in subsection (4) do not

20  apply:

21         (a)  To the extent of a bona fide dispute regarding any

22  portion of the contract price.

23         (b)  In the event the plaintiff has committed a

24  material breach of the contract which would relieve the

25  defendant from the obligations under the contract.

26         (7)  The prevailing party in any proceeding under this

27  section is entitled to recover costs, including a reasonable

28  attorney's fee, at trial and on appeal.

29         (8)  The provisions of this section shall also apply to

30  any contract between a subcontractor and a sub-subcontractor

31  or supplier and any contract between a sub-subcontractor and

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    Florida House of Representatives - 2002                HB 1491

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  1  supplier on any project for the construction of a public

  2  building, for the prosecution and completion of a public work,

  3  or for repairs upon a public building or public work.

  4         (9)  When satisfactory progress has not been achieved

  5  by a contractor or subcontractor during any period for which a

  6  progress payment is to be made, a percentage of the progress

  7  payment may be retained. Retainage shall not be used as a

  8  substitute for good contract management and the contracting

  9  parties shall not withhold funds without cause. Determinations

10  to retain a percentage of the progress payment and the

11  specific amount to be withheld shall be made by the

12  contracting parties on a case-by-case basis, based on an

13  assessment of past performance and the likelihood that such

14  performance will continue. The amount of retainage withheld

15  shall not exceed 10 percent of the approved estimated amount

16  in accordance with the terms of the contract and may be

17  adjusted as the contract approaches completion to recognize

18  better than expected performance, the ability to rely on

19  alternative safeguards, and other factors. Upon completion of

20  all contract requirements, retained amounts shall be paid

21  promptly.

22         (10)  Any amounts retained pursuant to subsection (9)

23  shall be held in an interest-bearing escrow account insured by

24  the Federal Deposit Insurance Corporation, with interest

25  accruing for the benefit of the contractors and subcontractors

26  whose money is retained, to be distributed on a pro rata basis

27  upon release. An owner, contractor, or subcontractor who fails

28  to deposit funds pursuant to this subsection within 5 business

29  days after making each progress payment shall pay to each

30  contractor, subcontractor, or sub-subcontractor interest at

31  the rate specified in s. 55.03 or the rate specified by

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    Florida House of Representatives - 2002                HB 1491

    750-126-02






  1  contract, whichever is greater, and an additional penalty of

  2  1.5 percent per month.

  3         (11)  Notwithstanding the other provisions of this

  4  section and other applicable law, no retainage shall be

  5  withheld from a contractor or subcontractor who provides a

  6  payment and performance bond in the amount of its contract.

  7         Section 2.  This act shall take effect July 1, 2002.

  8

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10                          HOUSE SUMMARY

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      Revises provisions relating to payment of contractors,
12    subcontractors, sub-subcontractors, materialmen, and
      suppliers on construction contracts for public projects.
13    Provides for retainage of a percentage of payment under
      specified circumstances. Requires amounts retained to be
14    held in interest-bearing escrow accounts and provides an
      exception.
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