Senate Bill sb2292c1

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    Florida Senate - 2002                           CS for SB 2292

    By the Committee on Governmental Oversight and Productivity;
    and Senator Geller




    302-2299-02

  1                      A bill to be entitled

  2         An act relating to sureties; amending ss.

  3         199.185, 201.23, F.S.; exempting mortgages and

  4         liens recorded to secure performance of an

  5         indemnitor to a surety from the intangible

  6         personal property tax and the excise tax on

  7         documents at time of recording; providing that

  8         those taxes become due upon exercise of rights

  9         under the mortgage or lien; providing that

10         failure to pay intangibles tax is subject to

11         criminal penalties in s. 199.282, F.S.;

12         providing that failure to pay excise taxes when

13         due is a first degree misdemeanor; amending s.

14         210.08, F.S.; providing methods other than a

15         bond for dealers, agents, or distributing

16         agents to guarantee tax payment to the Division

17         of Alcoholic Beverages and Tobacco of the

18         Department of Business and Professional

19         Regulation; amending s. 255.05, F.S.; requiring

20         public construction bonds to be the same as the

21         statutory form; revising the statutory form;

22         amending s. 713.24, F.S.; providing that

23         sureties have no liability in excess of a lien

24         transfer bond; providing an exception;

25         providing an effective date.

26  

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

28  

29         Section 1.  Subsection (9) is added to section 199.185,

30  Florida Statutes, to read:

31  

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    Florida Senate - 2002                           CS for SB 2292
    302-2299-02




  1         199.185  Property exempted from annual and

  2  non-recurring taxes.--

  3         (9)(a)  Mortgages and liens recorded to secure the

  4  performance of an indemnitor to a surety by insurance

  5  companies licensed in the State of Florida that issue surety

  6  are exempt from this chapter at the time of recording the

  7  mortgage or lien. The clerk of the court shall accept such

  8  recordings at the time of submittal and such mortgage or lien

  9  shall have a priority as of the date of recording over any

10  subsequent filings by other parties notwithstanding that the

11  enforcement of the recorded mortgage or lien on the indemnity

12  may come subsequent to the later recording and any action

13  against the indemnitor affecting said mortgage or lien shall

14  provide notice to the insurance company.

15         (b)  Upon exercise of the rights under the mortgage or

16  lien, all applicable taxes due pursuant to this chapter shall

17  become due and payable as if the mortgage or lien were

18  initially executed and recorded without this exemption.

19         (c)  Failure to pay tax at time of exercise shall not

20  affect the mortgage or lien, but any person who willfully

21  violates or fails to comply with this subsection is subject to

22  the penalties set forth in s. 199.282.

23         Section 2.  Subsection (5) is added to section 201.23,

24  Florida Statutes, to read:

25         201.23  Foreign notes and other written obligations

26  exempt.--

27         (5)  Mortgages and liens recorded to secure the

28  performance of an indemnitor to a surety by insurance

29  companies licensed in this state which issue surety are exempt

30  from this chapter at the time of recording the mortgage or

31  lien. The clerk of the court shall accept such recordings at

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    Florida Senate - 2002                           CS for SB 2292
    302-2299-02




  1  the time of submittal, and such mortgage or lien shall have a

  2  priority as of the date of recording over any subsequent

  3  filings by other parties, notwithstanding that the enforcement

  4  of the recorded mortgage or lien on the indemnity may occur

  5  after the later recording and any action against the

  6  indemnitor affecting the mortgage or lien provides notice to

  7  the insurance company. Upon exercise of the rights under the

  8  mortgage or lien, all applicable taxes due pursuant to this

  9  chapter shall become due and payable as if the mortgage or

10  lien were initially executed and recorded without this

11  exception. Failure to pay any tax at time of exercise shall

12  not affect the mortgage or lien, but any person who willfully

13  fails or refuses to pay tax due under this subsection commits

14  a misdemeanor of the first degree, punishable as provided in

15  s. 775.082 or s. 775.083.

16         Section 3.  Section 210.08, Florida Statutes, is

17  amended to read:

18         210.08  Bond for payment of taxes.--Each dealer, agent,

19  or distributing agent shall file with the division a surety

20  bond, certificate of deposit, or irrevocable letter of credit

21  acceptable to the division in the sum of $10,000 as surety for

22  the payment of all taxes; provided, however, that where in the

23  discretion of the division the amount of business done by the

24  dealer, agent, or distributing agent is of such volume that a

25  bond, certificate of deposit, or irrevocable letter of credit

26  of less than $10,000 will be adequate to secure the payment of

27  all taxes assessed as authorized by the cigarette tax law, the

28  division may accept a bond, certificate of deposit, or

29  irrevocable letter of credit in a lesser sum than $10,000, but

30  in no event shall it accept a bond, certificate of deposit, or

31  irrevocable letter of credit of less than $1,000, and it may

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    Florida Senate - 2002                           CS for SB 2292
    302-2299-02




  1  at any time in its discretion require any bond, certificate of

  2  deposit, or irrevocable letter of credit in an amount less

  3  than $10,000 to be increased not to exceed $10,000.

  4         Section 4.  Subsection (3) of section 255.05, Florida

  5  Statutes, is amended to read:

  6         255.05  Bond of contractor constructing public

  7  buildings; form; action by materialmen.--

  8         (3)  The bond required in subsection (1) shall be in

  9  the following form, and any deviation of the bond required by

10  the public owner or furnished by the contractor shall be

11  disregarded may be in substantially the following form:

12  

13                     PUBLIC CONSTRUCTION BOND

14  

15         BY THIS BOND, We .... enter name principal business

16  address, and telephone number of contractor , as Principal and

17   enter name, principal business address, and telephone number

18  of surety ...., a corporation, authorized to do business in

19  Florida as a surety insurer, as Surety, are bound to ....

20   enter name, principal business address, and telephone number

21  of public owner , herein called Owner, in the sum of

22  $.... enter contract amount as penal sum of bond , for payment

23  of which we bind ourselves, our heirs, personal

24  representatives, successors, and assigns, jointly and

25  severally.

26  

27         WHEREAS, Principal has entered into a contract with

28  Owner for .... enter description of project sufficient to

29  identify it such as a legal description of property, the

30  street address of property, and a general description of the

31  improvement to be constructed , which is Owner's Contract No.

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    Florida Senate - 2002                           CS for SB 2292
    302-2299-02




  1  .... enter contract number  belonging to .... enter name,

  2  principal business address, and telephone number of owner of

  3  property if different from the contract public entity 

  4  (hereinafter the Project); and

  5  

  6         WHEREAS, this Bond is given to meet the requirements of

  7  Section 255.05, Florida Statutes, which shall control the

  8  respective rights and obligations of the Principal, Surety,

  9  Owner, and any claimant.

10  

11         NOW, THEREFORE, THE CONDITION OF THIS BOND is that if

12  Principal:

13         1.  Performs the contract dated ...., ....,  enter date

14  of contract  between Principal and Owner for construction of

15  the Project ...., the contract being made a part of this bond

16  by reference, at the times and in the manner prescribed in the

17  contract; and

18         2.  Promptly makes payments to all claimants, as

19  defined in Section 255.05(1), Florida Statutes, supplying

20  Principal with labor, materials, or supplies, used directly or

21  indirectly by Principal in the prosecution of the work

22  provided for in the contract; and

23         3.  Pays Owner all losses, damages, expenses, costs,

24  and attorney's fees, including appellate proceedings, that

25  Owner sustains because of a default by Principal under the

26  contract; and

27         4.  Performs the guarantee of all work and materials

28  furnished under the contract for the time specified in the

29  contract, then this bond is void; otherwise it remains in full

30  force.

31  

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    Florida Senate - 2002                           CS for SB 2292
    302-2299-02




  1         Any changes in or under the contract documents and

  2  compliance or noncompliance with any formalities connected

  3  with the contract or the changes does not affect Surety's

  4  obligation under this bond.

  5  

  6         DATED ON ...., .....

  7                                            ...(Date of Bond)...

  8                                       ...(Name of Principal)...

  9                       By ...(As Authorized Attorney in Fact)...

10                                          ...(Name of Surety)...

11  

12         Section 5.  Subsection (3) of section 713.24, Florida

13  Statutes, is amended to read:

14         713.24  Transfer of liens to security.--

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

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

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

18  the circuit court of the county where such security is

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

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

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

22  discharge thereof, or any other matter affecting the said

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

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

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

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

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

28  bond. However, the surety has no liability in excess of the

29  lien transfer bond filed with the clerk unless it provides a

30  new or amended bond.

31         Section 6.  This act shall take effect July 1, 2002.

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    Florida Senate - 2002                           CS for SB 2292
    302-2299-02




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 2292

  3                                 

  4  Provides that intangibles and documentation stamp taxes do not
    have to be paid by insurance companies that record mortgages
  5  and liens to secure the performance of an indemnitor unless
    the insurance company exercises its rights under the mortgages
  6  or liens. Requires use of the model public construction bond
    form contained in s. 255.05, F.S. Removes the bill's
  7  provisions concerning notices of commencement.

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