HB 0487 2004
1	A bill to be entitled
2	An act relating to construction services; amending s.
3	218.70, F.S.; revising a popular name; amending s. 218.72,
4	F.S.; redefining terms used in pt. VII of ch. 218, F.S.;
5	amending s. 218.735, F.S.; revising provisions relating to
6	timely payment for purchases of construction services;
7	revising deadlines for payment; providing procedures for
8	project closeout and payment of retainage; providing
9	requirements for local government construction retainage;
10	providing that s. 218.735, F.S., applies to the payment of
11	any payment request for retainage; creating s. 255.0705,
12	F.S.; providing a popular name; amending s. 255.071, F.S.;
13	revising deadlines for the payment of subcontractors, sub-
14	subcontractors, materialmen, and suppliers on construction
15	contracts for public projects; creating ss. 255.072,
16	255.073, 255.074, 255.075, 255.076, 255.077, and 255.078,
17	F.S.; providing definitions; providing for timely payment
18	for purchases of construction services by a public entity;
19	providing procedures for calculating payment due dates;
20	authorizing the collection of interest under certain
21	circumstances; providing procedures for handling improper
22	payment requests; providing for the resolution of
23	disputes; providing for payment of court costs and
24	attorney's fees; providing for project closeout and
25	payment of retainage; providing for public construction
26	retainage; providing that ss. 255.072-255.078, F.S., apply
27	to the payment of any payment request for retainage;
28	amending s. 255.05, F.S.; providing requirements for
29	certain notices of nonpayment served by a claimant who is
30	not in privity with the contractor; providing limitations
31	on a claimant's institution of certain actions against a
32	contractor or surety; providing for certain notices to the
33	claimant; creating s. 725.09, F.S.; prohibiting the
34	inclusion in a contract for the purchase of construction
35	materials or services a provision that conditions payment
36	for such materials or services on the receipt of payment
37	from any other entity; providing an effective date.
38
39	Be It Enacted by the Legislature of the State of Florida:
40
41	Section 1. Section 218.70, Florida Statutes, is amended to
42	read:
43	218.70 Popular name Short title.--This part may be cited
44	by the popular name as the "Local Government FloridaPrompt
45	Payment Act."
46	Section 2. Subsections (2), (6), and (7) of section
47	218.72, Florida Statutes, are amended to read:
48	218.72 Definitions.--As used in this part:
49	(2) "Local governmental entity" means a county or
50	municipal government, school board, school district, authority,
51	special taxing district, other political subdivision, community
52	college,or any office, board, bureau, commission, department,
53	branch, division, or institution thereof or any project
54	supported by county or municipal funds.
55	(6) "Vendor" means any person who sells goods or services,
56	sells or leases personal property, or leases real property
57	directly to a local governmental entity. The term includes any
58	person who provides waste-hauling services to residents or
59	businesses located within the boundaries of a local government
60	pursuant to a contract or local ordinance.
61	(7) "Construction services" means all labor, services, and
62	materials provided in connection with the construction,
63	alteration, repair, demolition, reconstruction, or any other
64	improvements to real property that require a license under parts
65	I and II of chapter 489.
66	Section 3. Subsection (6) of section 218.735, Florida
67	Statutes, is amended, present subsection (7) is renumbered as
68	subsection (9), and new subsections (7) and (8) are added to
69	said section, to read:
70	218.735 Timely payment for purchases of construction
71	services.--
72	(6) When a contractor receives payment from a local
73	governmental entity for labor, services, or materials furnished
74	by subcontractors and suppliers hired by the contractor, the
75	contractor shall remit payment due to those subcontractors and
76	suppliers within 10 15days after the contractor's receipt of
77	payment. When a subcontractor receives payment from a contractor
78	for labor, services, or materials furnished by subcontractors
79	and suppliers hired by the subcontractor, the subcontractor
80	shall remit payment due to those subcontractors and suppliers
81	within 10 15days after the subcontractor's receipt of payment.
82	Nothing herein shall prohibit a contractor or subcontractor from
83	disputing, pursuant to the terms of the relevant contract, all
84	or any portion of a payment alleged to be due to another party.
85	In the event of such a dispute, the contractor or subcontractor
86	may withhold the disputed portion of any such payment if the
87	contractor or subcontractor notifies the party whose payment is
88	disputed, in writing, of the amount in dispute and the actions
89	required to cure the dispute. The contractor or subcontractor
90	must pay all undisputed amounts due within the time limits
91	imposed by this section.
92	(7)(a) Each contract for construction services between a
93	local governmental entity and a vendor must provide for the
94	development of a list of items required to render complete,
95	satisfactory, and acceptable the construction services purchased
96	by the local government. The contract must specify the process
97	for the development of the list, including the respective
98	responsibilities of the local government and the vendor in
99	developing and reviewing the list and a reasonable timeframe for
100	developing the list as follows:
101	1. For construction projects with an estimated cost of
102	less than $10 million, within 30 days after reaching substantial
103	completion of the construction services purchased as defined in
104	the contract or, if not defined in the contract, upon reaching
105	beneficial occupancy or use; or
106	2. For construction projects with an estimated cost of $10
107	million or more, within 30 days, unless otherwise extended by
108	contract not to exceed 90 days, after reaching substantial
109	completion of the construction services purchased as defined in
110	the contract or, if not defined in the contract, upon reaching
111	beneficial occupancy or use.
112	(b) If the contract between the local governmental entity
113	and the vendor relates to the purchase of construction services
114	on more than one building or structure or involves a multiphased
115	project, the contract must provide for the development of a list
116	of items required to render complete, satisfactory, and
117	acceptable the construction services purchased for each
118	building, structure, or phase of the project in accordance with
119	the timeframes specified in subparagraph (a)1. or subparagraph
120	(a)2.
121	(c) The failure to include any corrective work or pending
122	items not yet completed on the list developed pursuant to this
123	subsection does not alter the responsibility of the vendor to
124	complete all the purchased construction services as defined in
125	the contract.
126	(d) Upon completion of all items on the list, or at such
127	other time as defined in the contract, the vendor may submit a
128	payment request for the appropriate amount of retainage. The
129	local government may withhold an amount not to exceed 150
130	percent of the total costs to complete any incomplete items on
131	the list.
132	(e) All items that require correction under the contract
133	and that are identified after the preparation and delivery of
134	the list remain the obligation of the vendor as defined by the
135	contract.
136	(f) Warranty items may not affect the final payment of
137	retainage as provided in this section or as provided in the
138	contract between the vendor and its subcontractors and
139	suppliers.
140	(g) Retainage may not be held by a local governmental
141	entity or a vendor to secure payment of insurance premiums under
142	a consolidated insurance program or series of insurance policies
143	issued to a public agency or a contractor for a project or group
144	of projects, and the final payment of retainage as provided in
145	this section may not be delayed pending a final audit by the
146	local governmental entity's or the vendor's insurance provider.
147	(h) If a local governmental entity fails to comply with
148	its responsibilities to develop the list required under
149	paragraph (a) or paragraph (b) as defined in the contract, and
150	the timeframes provided in subparagraph(a)1. or subparagraph
151	(a)2., the vendor may submit a payment request for the
152	appropriate amount of retainage. The local governmental entity
153	need not pay or process any request for payment of retainage if
154	the vendor has, in whole or in part, failed to cooperate with
155	the local government in the development of the list or failed to
156	perform its contractual responsibilities, if any, with regard to
157	the development of the list or if paragraph (8)(d) applies.
158	(8)(a) In any public construction project that is subject
159	to ss. 218.72-218.78, a local governmental entity may withhold
160	an amount not exceeding 10 percent of each progress payment made
161	to the vendor until the local governmental project has reached
162	50-percent completion. After the project has reached 50-percent
163	completion, the local government must reduce to 5 percent the
164	amount of retainage withheld from each subsequent progress
165	payment made to the vendor. However, notwithstanding the
166	provisions of this subsection, a municipality with a population
167	of 25,000 or fewer, or a county with a population of 100,000 or
168	fewer, may withhold retainage in an amount not exceeding 10
169	percent of each progress payment made to the vendor until final
170	completion and acceptance of the project by the local
171	government. For purposes of this subsection, the term "50-
172	percent completion" means as defined in the contract between the
173	local governmental entity and the vendor or, if not defined in
174	the contract, the point at which the local government has
175	expended 50 percent of the total project costs identified in the
176	contract, plus all change orders and other additions issued
177	subsequent to the approval of the contract by the governing body
178	of the local government, and the level of actual project
179	construction is equivalent to such expenditure of funds.
180	(b) After the project has reached 50-percent completion,
181	the vendor may present to the local governmental entity a
182	payment request for up to one-half of the retainage amount held
183	by the local government. The local governmental entity shall
184	promptly make payment to the vendor, unless the local government
185	has grounds, pursuant to the contract or as provided in
186	paragraph (d), for withholding the payment of retainage. If the
187	local government makes payment of retainage to the vendor under
188	this paragraph, the vendor shall timely remit payment of such
189	retainage to the appropriate subcontractors and suppliers.
190	(c) After the project has reached 50-percent completion,
191	the vendor may elect to withhold retainage from payments to its
192	subcontractors at a rate higher than 5 percent. The specific
193	amount to be withheld must be determined on a case-by-case basis
194	and must be based on the vendor's assessment of the
195	subcontractor's past performance, the likelihood that such
196	performance will continue, and the vendor's ability to rely on
197	other safeguards. The vendor shall notify the subcontractor, in
198	writing, of its determination to withhold more than 5 percent of
199	the progress payment and the reasons for making that
200	determination, and the vendor may not request the release of
201	such retained funds from the local government.
202	(d) This section does not require the local government to
203	pay or release any amounts that are the subject of a good faith
204	dispute, the subject of an action brought under s. 255.05, or
205	otherwise the subject of a claim or demand by the local
206	government or vendor.
207	(e) The timeframes set forth in this section for payment
208	of payment requests apply to any payment request for retainage
209	made pursuant to this subsection.
210	Section 4. Section 255.0705, Florida Statutes, is created
211	to read:
212	255.0705 Popular name.--Sections 255.0705-255.078 may be
213	cited by the popular name the "Florida Prompt Payment Act."
214	Section 5. Subsections (2) and (3) of section 255.071,
215	Florida Statutes, are amended to read:
216	255.071 Payment of subcontractors, sub-subcontractors,
217	materialmen, and suppliers on construction contracts for public
218	projects.--
219	(2) The failure to pay any undisputed obligations for such
220	labor, services, or materials within 30 days after the date the
221	labor, services, or materials were furnished and payment for
222	such labor, services, or materials became due, or within 10 30
223	days after the date payment for such labor, services, or
224	materials is received, whichever last occurs, shall entitle any
225	person providing such labor, services, or materials to the
226	procedures specified in subsection (3) and the remedies provided
227	in subsection (4).
228	(3) Any person providing labor, services, or materials for
229	the construction of a public building, for the prosecution and
230	completion of a public work, or for repairs upon a public
231	building or public work improvements to real property may file a
232	verified complaint alleging:
233	(a) The existence of a contract for providing such labor,
234	services, or materials to improve real property.
235	(b) A description of the labor, services, or materials
236	provided and alleging that the labor, services, or materials
237	were provided in accordance with the contract.
238	(c) The amount of the contract price.
239	(d) The amount, if any, paid pursuant to the contract.
240	(e) The amount that remains unpaid pursuant to the
241	contract and the amount thereof that is undisputed.
242	(f) That the undisputed amount has remained due and
243	payable pursuant to the contract for more than 30 days after the
244	date the labor or services were accepted or the materials were
245	received.
246	(g) That the person against whom the complaint was filed
247	has received payment on account of the labor, services, or
248	materials described in the complaint more than 10 30days prior
249	to the date the complaint was filed.
250	Section 6. Section 255.072, Florida Statutes, is created
251	to read:
252	255.072 Definitions.--As used in ss. 255.073-255.078, the
253	term:
254	(1) "Agent" means project architect, project engineer, or
255	any other agency or person acting on behalf of a public entity.
256	(2) "Construction services" means all labor, services, and
257	materials provided in connection with the construction,
258	alteration, repair, demolition, reconstruction, or any other
259	improvement to real property. The term "construction services"
260	does not include contracts or work performed for the Department
261	of Transportation.
262	(3) "Payment request" means an invoice or request for
263	payment for construction services which conforms with all
264	statutory requirements and with all requirements specified by
265	the public entity to which the payment request is submitted.
266	(4) "Public entity" means the state, a state university,
267	or any office, board, bureau, commission, department, branch,
268	division, or institution thereof, or any project supported by
269	state funds, but does not include a local governmental entity as
270	defined in s. 218.72.
271	(5) "Purchase" means the purchase of construction
272	services.
273	(6) "Vendor" means any person providing construction
274	services directly to a public entity.
275	Section 7. Section 255.073, Florida Statutes, is created
276	to read:
277	255.073 Timely payment for purchases of construction
278	services.--
279	(1) Except as otherwise provided in ss. 255.072-255.078,
280	s. 215.422 governs the timely payment for construction services
281	by a public entity under this act.
282	(2) If a public entity disputes a portion of a payment
283	request, the undisputed portion must be timely paid in
284	accordance with subsection (1).
285	(3) When a vendor receives payment from a public entity
286	for labor, services, or materials furnished by subcontractors
287	and suppliers hired by the vendor, the vendor shall remit
288	payment due to those subcontractors and suppliers within 10 days
289	after the vendor's receipt of payment. When a subcontractor
290	receives payment from a vendor for labor, services, or materials
291	furnished by subcontractors and suppliers hired by the
292	subcontractor, the subcontractor shall remit payment due to
293	those subcontractors and suppliers within 10 days after the
294	subcontractor's receipt of payment. This subsection does not
295	prohibit a vendor or subcontractor from disputing, pursuant to
296	the terms of the relevant contract, all or any portion of a
297	payment alleged to be due to another party. If such a dispute
298	occurs, the vendor or subcontractor may withhold the disputed
299	portion of any such payment if the vendor or subcontractor
300	notifies the party whose payment is disputed, in writing, of the
301	amount in dispute and the actions required to cure the dispute.
302	The vendor or subcontractor must pay all undisputed amounts due
303	within the time limits imposed by this section.
304	(4) All payments due under this section and not made
305	within the time periods specified by this section shall bear
306	interest at the rate of 1 percent per month, or the rate
307	specified by contract, whichever is greater.
308	Section 8. Section 255.074, Florida Statutes, is created
309	to read:
310	255.074 Procedures for calculation of payment due dates.--
311	(1) Each public entity shall establish procedures whereby
312	each payment request received by the public entity is marked as
313	received on the date on which it is delivered to an agent or
314	employee of the public entity or of a facility or office of the
315	public entity.
316	(2) If the terms under which a purchase is made allow for
317	partial deliveries and a payment request is submitted for a
318	partial delivery, the time for payment for the partial delivery
319	must be calculated from the time of the partial delivery and the
320	submission of the payment request in the same manner as provided
321	in s. 255.073.
322	(3) The public entity must submit a payment request to the
323	Chief Financial Officer for payment no more than 25 days after
324	receipt of the payment request.
325	Section 9. Section 255.075, Florida Statutes, is created
326	to read:
327	255.075 Mandatory interest.--A contract between a public
328	entity and a vendor or a provider of construction services may
329	not prohibit the collection of late payment interest charges
330	allowable under ss. 255.072-255.078.
331	Section 10. Section 255.076, Florida Statutes, is created
332	to read:
333	255.076 Improper payment request; resolution of
334	disputes.--
335	(1) If a vendor submits an improper payment request, the
336	public entity shall, within 10 days after receiving the improper
337	payment request, notify the vendor that the payment request is
338	improper and indicate what corrective action on the part of the
339	vendor is needed to make the payment request proper.
340	(2) If a dispute occurs between a vendor and a public
341	entity concerning payment of a payment request, the dispute must
342	be resolved as provided in this section. Each public entity
343	shall establish a dispute resolution procedure to be followed by
344	the public entity if such a dispute occurs. The procedure must
345	provide that proceedings to resolve the dispute must commence
346	not later than 45 days after the date on which the public entity
347	received the payment request and must conclude by final decision
348	of the public entity not later than 60 days after the date on
349	which the public entity received the payment request. Such
350	procedures are not subject to chapter 120 and do not constitute
351	an administrative proceeding that prohibits a court from
352	deciding de novo any action arising out of the dispute. If the
353	dispute is resolved in favor of the public entity, interest
354	charges begin to accrue 15 days after the public entity's final
355	decision. If the dispute is resolved in favor of the vendor,
356	interest begins to accrue as of the original date the payment
357	became due.
358	(3) In an action to recover amounts due under ss. 255.072-
359	255.078, the court shall award court costs and reasonable
360	attorney's fees, including fees incurred through any appeal, to
361	the prevailing party if the court finds that the nonprevailing
362	party withheld any portion of the payment that is the subject of
363	the action without any reasonable basis in law or fact to
364	dispute the prevailing party's claim to those amounts.
365	Section 11. Section 255.077, Florida Statutes, is created
366	to read:
367	255.077 Project closeout and payment of retainage.--
368	(1) Each contract for construction services between a
369	public entity and a vendor must provide for the development of a
370	list of items required to render complete, satisfactory, and
371	acceptable the construction services purchased by the public
372	entity. The contract must specify the process for the
373	development of the list, including the respective
374	responsibilities of the public entity and the vendor in
375	developing and reviewing the list. The list must be developed
376	within 30 days after substantial completion of the construction
377	services purchased as defined in the contract or, if not defined
378	in the contract, within 30 days after beneficial occupancy or
379	use of the project.
380	(2) If the contract between the public entity and the
381	vendor relates to the purchase of construction services on more
382	than one building or structure or involves a multiphased
383	project, the contract must provide for the development of a list
384	of items required to render complete, satisfactory, and
385	acceptable the construction services purchased for each
386	building, structure, or phase of the project. Each list must be
387	developed within 30 days after substantial completion of the
388	construction services purchased as defined in the contract for
389	each building, structure, or phase of the project or, if not
390	defined in the contract, within 30 days after beneficial
391	occupancy or use of each building, structure, or phase of the
392	project.
393	(3) The failure to include any corrective work or pending
394	items not yet completed on the list developed under this section
395	does not alter the responsibility of the vendor to complete all
396	the purchased construction services as defined in the contract.
397	(4) Upon completion of all items on the list, or at such
398	other time as defined in the contract, the vendor may submit a
399	payment request for the appropriate amount of retainage. The
400	public entity may withhold an amount not to exceed 150 percent
401	of the total costs to complete any incomplete items on the list.
402	(5) All items that require correction under the contract
403	and that are identified after the preparation and delivery of
404	the list remain the obligation of the vendor as defined by the
405	contract.
406	(6) Warranty items may not affect the final payment of
407	retainage as provided in this section or as provided in the
408	contract between the vendor and its subcontractors and
409	suppliers.
410	(7) Retainage may not be held by a public entity or a
411	vendor to secure payment of insurance premiums under a
412	consolidated insurance program or series of insurance policies
413	issued to a public agency or a contractor for a project or group
414	of projects, and the final payment of retainage as provided in
415	this section may not be delayed pending a final audit by the
416	public entity's or the vendor's insurance provider.
417	(8) If a public entity fails to comply with its
418	responsibilities to develop the list required under subsection
419	(1) or subsection (2), the vendor may submit a payment request
420	for the appropriate amount of retainage. The public entity need
421	not pay or process any request for payment of retainage if the
422	vendor has, in whole or in part, failed to cooperate with the
423	public entity in the development of the list or failed to
424	perform its contractual responsibilities, if any, with regard to
425	the development of the list.
426	Section 12. Section 255.078, Florida Statutes, is created
427	to read:
428	255.078 Public construction retainage.--
429	(1) In any public construction project that is subject to
430	ss. 255.072-255.078, a public entity may withhold an amount not
431	exceeding 10 percent of each progress payment made to the vendor
432	until the project has reached 50-percent completion. After the
433	project has reached 50-percent completion, the public entity
434	must reduce to 5 percent the amount of retainage withheld from
435	each subsequent progress payment made to the vendor. As used in
436	this section, the term "50-percent completion" means as defined
437	in the contract between the public entity and the vendor or, if
438	not defined in the contract, the point at which the public
439	entity has expended 50 percent of the amount of the total
440	project costs identified in the contract, plus all change orders
441	and other additions issued after the approval of the contract by
442	the public entity, and the level of actual project construction
443	is equivalent to such expenditure of funds.
444	(2) After the project has reached 50-percent completion,
445	the vendor may present to the public entity a payment request
446	for up to one-half of the retainage amount held by the public
447	entity. The public entity shall promptly make payment to the
448	vendor unless the public entity has grounds, under the contract
449	or as provided in subsection (4), for withholding the payment of
450	retainage. If the public entity makes payment of retainage to
451	the vendor under this subsection, the vendor shall timely remit
452	payment of such retainage to the appropriate subcontractors and
453	suppliers.
454	(3) After the project has reached 50-percent completion,
455	the vendor may elect to withhold retainage from payments to its
456	subcontractors at a rate higher than 5 percent. The specific
457	amount to be withheld must be determined on a case-by-case basis
458	and must be based on the vendor's assessment of the
459	subcontractor's past performance, the likelihood that such
460	performance will continue, and the vendor's ability to rely on
461	other safeguards. The vendor shall notify the subcontractor, in
462	writing, of its determination to withhold more than 5 percent of
463	the progress payment and the reasons for making that
464	determination, and the vendor may not request the release of
465	such withheld funds from the public entity.
466	(4) This section does not require the public entity to pay
467	or release any amounts that are the subject of a good faith
468	dispute, the subject of an action brought under s. 255.05, or
469	otherwise the subject of a claim or demand by the public entity
470	or vendor.
471	(5) The timeframes set forth in ss. 255.072-255.078 for
472	payment of payment requests apply to any payment request for
473	retainage made pursuant to this section.
474	Section 13. Paragraph (a) of subsection (2) of section
475	255.05, Florida Statutes, is amended, and subsections (10) and
476	(11) are added to said section, to read:
477	255.05 Bond of contractor constructing public buildings;
478	form; action by materialmen.--
479	(2)(a)1. If a claimant is no longer furnishing labor,
480	services, or materials on a project, a contractor or the
481	contractor's agent or attorney may elect to shorten the
482	prescribed time in this paragraph within which an action to
483	enforce any claim against a payment bond provided pursuant to
484	this section may be commenced by recording in the clerk's office
485	a notice in substantially the following form:
486
487	NOTICE OF CONTEST OF CLAIM
488	AGAINST PAYMENT BOND
489
490	To: . . . (Name and address of claimant) . . .
491
492	You are notified that the undersigned contests your notice
493	of nonpayment, dated ____________, ________, and served on the
494	undersigned on ____________, ________, and that the time within
495	which you may file suit to enforce your claim is limited to 60
496	days after the date of service of this notice.
497
498	DATED on ____________, ________.
499
500
501	Signed: . . . (Contractor or Attorney) . . .
502
503	The claim of any claimant upon whom such notice is served and
504	who fails to institute a suit to enforce his or her claim
505	against the payment bond within 60 days after service of such
506	notice shall be extinguished automatically. The clerk shall mail
507	a copy of the notice of contest to the claimant at the address
508	shown in the notice of nonpayment or most recent amendment
509	thereto and shall certify to such service on the face of such
510	notice and record the notice. Service is complete upon mailing.
511	2. A claimant, except a laborer, who is not in privity
512	with the contractor shall, before commencing or not later than
513	45 days after commencing to furnish labor, materials, or
514	supplies for the prosecution of the work, furnish the contractor
515	with a notice that he or she intends to look to the bond for
516	protection. A claimant who is not in privity with the contractor
517	and who has not received payment for his or her labor,
518	materials, or supplies shall deliver to the contractor and to
519	the surety written notice of the performance of the labor or
520	delivery of the materials or supplies and of the nonpayment. The
521	notice of nonpayment may be served at any time during the
522	progress of the work or thereafter but not before 45 days after
523	the first furnishing of labor, services, or materials, and not
524	later than 90 days after the final furnishing of the labor,
525	services, or materials by the claimant or, with respect to
526	rental equipment, not later than 90 days after the date that the
527	rental equipment was last on the job site available for use. Any
528	notice of nonpayment served by a claimant who is not in privity
529	with the contractor which includes sums for retainage must
530	specify the portion of the amount claimed for retainage.No
531	action for the labor, materials, or supplies may be instituted
532	against the contractor or the surety unless both notices have
533	been given. Notices required or permitted under this section may
534	be served in accordance with s. 713.18. An action, except for an
535	action exclusively for recovery of retainage, must be instituted
536	against the contractor or the surety on the payment bond or the
537	payment provisions of a combined payment and performance bond
538	within 1 year after the performance of the labor or completion
539	of delivery of the materials or supplies. An action exclusively
540	for recovery of retainage must be instituted against the
541	contractor or the surety within 1 year after the performance of
542	the labor or completion of delivery of the materials or
543	supplies, or within 90 days after receipt of final payment (or
544	the payment estimate containing the owner's final reconciliation
545	of quantities if no further payment is earned and due as a
546	result of deductive adjustments) by the contractor or surety,
547	whichever comes last. A claimant may not waive in advance his or
548	her right to bring an action under the bond against the surety.
549	In any action brought to enforce a claim against a payment bond
550	under this section, the prevailing party is entitled to recover
551	a reasonable fee for the services of his or her attorney for
552	trial and appeal or for arbitration, in an amount to be
553	determined by the court, which fee must be taxed as part of the
554	prevailing party's costs, as allowed in equitable actions. The
555	time periods for service of a notice of nonpayment or for
556	bringing an action against a contractor or a surety shall be
557	measured from the last day of furnishing labor, services, or
558	materials by the claimant and shall not be measured by other
559	standards, such as the issuance of a certificate of occupancy or
560	the issuance of a certificate of substantial completion.
561	(10) Notwithstanding any other provision of law to the
562	contrary, a claimant may not institute an action for the sole
563	purpose of recovery of retainage against the contractor or
564	against the surety issuing a payment or performance bond
565	pursuant to this section until:
566	(a) The public entity has paid out that retainage to the
567	contractor and the time provided under ss. 218.70-218.76 or ss.
568	255.072-255.078 for payment of that retainage to the claimant
569	has expired;
570	(b) The claimant has completed all work required under its
571	contract and 90 days have passed since the owner's receipt of
572	the contractor's last payment request; or
573	(c) The claimant has made the written request to the owner
574	as provided in subsection (11) and has not timely received the
575	requested information from the owner.
576	(11) An owner shall furnish in writing to a claimant who
577	has provided labor, services, or materials to a project, within
578	5 business days after receipt of a written request from that
579	claimant, the following information:
580	(a) The dates of all payment requests received by the
581	owner from the contractor.
582	(b) The dates of all payments made by the owner to the
583	contractor.
584	(c) Whether the owner has received the contractor's final
585	payment request and, if so, the date the final payment request
586	was submitted by the contractor to the owner.
587	Section 14. Section 725.09, Florida Statutes, is created
588	to read:
589	725.09 Construction contracts; contingent payment
590	provisions.--An entity may not enter into a contract for the
591	purchase of construction materials or services which conditions
592	payment for such materials or services on the receipt of payment
593	from any other entity. Any such conditional payment provision is
594	void as a violation of the public policy of this state.
595	Section 15. This act shall take effect July 1, 2004.