SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
CHAMBER ACTION
Senate House
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04/23/2004 05:03 PM .
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11 Senators Bennett and Sebesta moved the following amendment:
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13 Senate Amendment (with title amendment)
14 On page 19, line 22, through page 22, line 24, delete
15 those lines
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17 and insert:
18 Section 13. Section 255.05, Florida Statutes, is
19 amended to read:
20 255.05 Bond of contractor constructing public
21 buildings; form; action by materialmen.--
22 (1)(a) Any person entering into a formal contract with
23 the state or any county, city, or political subdivision
24 thereof, or other public authority, for the construction of a
25 public building, for the prosecution and completion of a
26 public work, or for repairs upon a public building or public
27 work shall be required, before commencing the work or before
28 recommencing the work after a default or abandonment, to
29 execute, deliver to the public owner, and record in the public
30 records of the county where the improvement is located, a
31 payment and performance bond with a surety insurer authorized
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 to do business in this state as surety. A public entity may
2 not require a contractor to secure a surety bond under this
3 section from a specific agent or bonding company. The bond
4 must state on its front page: the name, principal business
5 address, and phone number of the contractor, the surety, the
6 owner of the property being improved, and, if different from
7 the owner, the contracting public entity; the contract number
8 assigned by the contracting public entity; and a description
9 of the project sufficient to identify it, such as a legal
10 description or the street address of the property being
11 improved, and a general description of the improvement. Such
12 bond shall be conditioned upon the contractor's performance of
13 the construction work in the time and manner prescribed in the
14 contract and promptly making payments to all persons defined
15 in s. 713.01 who furnish labor, services, or materials for the
16 prosecution of the work provided for in the contract. Any
17 claimant may apply to the governmental entity having charge of
18 the work for copies of the contract and bond and shall
19 thereupon be furnished with a certified copy of the contract
20 and bond. The claimant shall have a right of action against
21 the contractor and surety for the amount due him or her,
22 including unpaid finance charges due under the claimant's
23 contract. Such action shall not involve the public authority
24 in any expense. When such work is done for the state and the
25 contract is for $100,000 or less, no payment and performance
26 bond shall be required. At the discretion of the official or
27 board awarding such contract when such work is done for any
28 county, city, political subdivision, or public authority, any
29 person entering into such a contract which is for $200,000 or
30 less may be exempted from executing the payment and
31 performance bond. When such work is done for the state, the
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 Secretary of the Department of Management Services may
2 delegate to state agencies the authority to exempt any person
3 entering into such a contract amounting to more than $100,000
4 but less than $200,000 from executing the payment and
5 performance bond. In the event such exemption is granted, the
6 officer or officials shall not be personally liable to persons
7 suffering loss because of granting such exemption. The
8 Department of Management Services shall maintain information
9 on the number of requests by state agencies for delegation of
10 authority to waive the bond requirements by agency and project
11 number and whether any request for delegation was denied and
12 the justification for the denial.
13 (b) The Department of Management Services shall adopt
14 rules with respect to all contracts for $200,000 or less, to
15 provide:
16 1. Procedures for retaining up to 10 percent of each
17 request for payment submitted by a contractor and procedures
18 for determining disbursements from the amount retained on a
19 pro rata basis to laborers, materialmen, and subcontractors,
20 as defined in s. 713.01.
21 2. Procedures for requiring certification from
22 laborers, materialmen, and subcontractors, as defined in s.
23 713.01, prior to final payment to the contractor that such
24 laborers, materialmen, and subcontractors have no claims
25 against the contractor resulting from the completion of the
26 work provided for in the contract.
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28 The state shall not be held liable to any laborer,
29 materialman, or subcontractor for any amounts greater than the
30 pro rata share as determined under this section.
31 (2)(a)1. If a claimant is no longer furnishing labor,
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 services, or materials on a project, a contractor or the
2 contractor's agent or attorney may elect to shorten the
3 prescribed time in this paragraph within which an action to
4 enforce any claim against a payment bond provided pursuant to
5 this section may be commenced by recording in the clerk's
6 office a notice in substantially the following form:
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8 NOTICE OF CONTEST OF CLAIM
9 AGAINST PAYMENT BOND
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11 To: ...(Name and address of claimant)...
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13 You are notified that the undersigned contests your
14 notice of nonpayment, dated ............, ........, and served
15 on the undersigned on ............, ........, and that the
16 time within which you may file suit to enforce your claim is
17 limited to 60 days after the date of service of this notice.
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19 DATED on ............, .........
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21 Signed:...(Contractor or Attorney)...
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23 The claim of any claimant upon whom such notice is served and
24 who fails to institute a suit to enforce his or her claim
25 against the payment bond within 60 days after service of such
26 notice shall be extinguished automatically. The clerk shall
27 mail a copy of the notice of contest to the claimant at the
28 address shown in the notice of nonpayment or most recent
29 amendment thereto and shall certify to such service on the
30 face of such notice and record the notice. Service is complete
31 upon mailing.
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 2. A claimant, except a laborer, who is not in privity
2 with the contractor shall, before commencing or not later than
3 45 days after commencing to furnish labor, materials, or
4 supplies for the prosecution of the work, furnish the
5 contractor with a notice that he or she intends to look to the
6 bond for protection. A claimant who is not in privity with the
7 contractor and who has not received payment for his or her
8 labor, materials, or supplies shall deliver to the contractor
9 and to the surety written notice of the performance of the
10 labor or delivery of the materials or supplies and of the
11 nonpayment. The notice of nonpayment may be served at any time
12 during the progress of the work or thereafter but not before
13 45 days after the first furnishing of labor, services, or
14 materials, and not later than 90 days after the final
15 furnishing of the labor, services, or materials by the
16 claimant or, with respect to rental equipment, not later than
17 90 days after the date that the rental equipment was last on
18 the job site available for use. Any notice of nonpayment
19 served by a claimant who is not in privity with the contractor
20 which includes sums for retainage must specify the portion of
21 the amount claimed for retainage. No action for the labor,
22 materials, or supplies may be instituted against the
23 contractor or the surety unless both notices have been given.
24 Notices required or permitted under this section may be served
25 in accordance with s. 713.18. An action, except for an action
26 exclusively for recovery of retainage, must be instituted
27 against the contractor or the surety on the payment bond or
28 the payment provisions of a combined payment and performance
29 bond within 1 year after the performance of the labor or
30 completion of delivery of the materials or supplies. An action
31 exclusively for recovery of retainage must be instituted
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 against the contractor or the surety within 1 year after the
2 performance of the labor or completion of delivery of the
3 materials or supplies, or within 90 days after receipt of
4 final payment (or the payment estimate containing the owner's
5 final reconciliation of quantities if no further payment is
6 earned and due as a result of deductive adjustments) by the
7 contractor or surety, whichever comes last. A claimant may not
8 waive in advance his or her right to bring an action under the
9 bond against the surety. In any action brought to enforce a
10 claim against a payment bond under this section, the
11 prevailing party is entitled to recover a reasonable fee for
12 the services of his or her attorney for trial and appeal or
13 for arbitration, in an amount to be determined by the court,
14 which fee must be taxed as part of the prevailing party's
15 costs, as allowed in equitable actions. The time periods for
16 service of a notice of nonpayment or for bringing an action
17 against a contractor or a surety shall be measured from the
18 last day of furnishing labor, services, or materials by the
19 claimant and shall not be measured by other standards, such as
20 the issuance of a certificate of occupancy or the issuance of
21 a certificate of substantial completion.
22 (b) When a person is required to execute a waiver of
23 his or her right to make a claim against the payment bond in
24 exchange for, or to induce payment of, a progress payment, the
25 waiver may be in substantially the following form:
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27 WAIVER OF RIGHT TO CLAIM
28 AGAINST THE PAYMENT BOND
29 (PROGRESS PAYMENT)
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31 The undersigned, in consideration of the sum of $....,
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 hereby waives its right to claim against the payment bond for
2 labor, services, or materials furnished through ...(insert
3 date)... to ...(insert the name of your customer)... on the
4 job of ...(insert the name of the owner)..., for improvements
5 to the following described project:
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7 (description of project)
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9 This waiver does not cover any retention or any labor,
10 services, or materials furnished after the date specified.
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12 DATED ON ........, .....
13 ...(Claimant)...
14 By:............
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16 (c) When a person is required to execute a waiver of
17 his or her right to make a claim against the payment bond, in
18 exchange for, or to induce payment of, the final payment, the
19 waiver may be in substantially the following form:
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21 WAIVER OF RIGHT TO CLAIM
22 AGAINST THE PAYMENT BOND (FINAL PAYMENT)
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24 The undersigned, in consideration of the final payment
25 in the amount of $...., hereby waives its right to claim
26 against the payment bond for labor, services, or materials
27 furnished to ...(insert the name of your customer)... on the
28 job of ...(insert the name of the owner)..., for improvements
29 to the following described project:
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31 (description of project)
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1
2 DATED ON ........, .....
3 ...(Claimant)...
4 By:............
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6 (d) A person may not require a claimant to furnish a
7 waiver that is different from the forms in paragraphs (b) and
8 (c).
9 (e) A claimant who executes a waiver in exchange for a
10 check may condition the waiver on payment of the check.
11 (f) A waiver that is not substantially similar to the
12 forms in this subsection is enforceable in accordance with its
13 terms.
14 (3) The bond required in subsection (1) may be in
15 substantially the following form:
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17 PUBLIC CONSTRUCTION BOND
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19 Bond No. (enter bond number)
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21 BY THIS BOND, We _____, as Principal and _____, a
22 corporation, as Surety, are bound to _____, herein called
23 Owner, in the sum of $_____, for payment of which we bind
24 ourselves, our heirs, personal representatives, successors,
25 and assigns, jointly and severally.
26 THE CONDITION OF THIS BOND is that if Principal:
27 1. Performs the contract dated _____, _____, between
28 Principal and Owner for construction of _____, the contract
29 being made a part of this bond by reference, at the times and
30 in the manner prescribed in the contract; and
31 2. Promptly makes payments to all claimants, as
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 defined in Section 255.05(1), Florida Statutes, supplying
2 Principal with labor, materials, or supplies, used directly or
3 indirectly by Principal in the prosecution of the work
4 provided for in the contract; and
5 3. Pays Owner all losses, damages, expenses, costs,
6 and attorney's fees, including appellate proceedings, that
7 Owner sustains because of a default by Principal under the
8 contract; and
9 4. Performs the guarantee of all work and materials
10 furnished under the contract for the time specified in the
11 contract, then this bond is void; otherwise it remains in full
12 force.
13 Any action instituted by a claimant under this bond for
14 payment must be in accordance with the notice and time
15 limitation provisions in Section 255.05, Florida Statutes.
16 Any changes in or under the contract documents and
17 compliance or noncompliance with any formalities connected
18 with the contract or the changes does not affect Surety's
19 obligation under this bond.
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21 DATED ON _____, _____.
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23 ... (Name of Principal) ...
24 By ... (As Attorney in Fact) ...
25 ... (Name of Surety) ...
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27 (4) The payment provisions of All bonds required by
28 furnished for public work contracts described in subsection
29 (1) shall, regardless of form, be construed and deemed
30 statutory bonds furnished pursuant to this section and such
31 bonds shall not under any circumstances be converted into
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 common law bonds bond provisions, subject to all requirements
2 of subsection (2).
3 (5) In addition to the provisions of chapter 47, any
4 action authorized under this section may be brought in the
5 county in which the public building or public work is being
6 constructed or repaired. This subsection shall not apply to
7 an action instituted prior to May 17, 1977.
8 (6) All bonds executed pursuant to this section shall
9 make reference to this section by number and shall contain
10 reference to the notice and time limitation provisions of this
11 section.
12 (6) (7) In lieu of the bond required by this section,
13 a contractor may file with the state, county, city, or other
14 political authority an alternative form of security in the
15 form of cash, a money order, a certified check, a cashier's
16 check, an irrevocable letter of credit, or a security of a
17 type listed in part II of chapter 625. Any such alternative
18 form of security shall be for the same purpose and be subject
19 to the same conditions as those applicable to the bond
20 required by this section. The determination of the value of
21 an alternative form of security shall be made by the
22 appropriate state, county, city, or other political
23 subdivision.
24 (7) (8) When a contractor has furnished a payment bond
25 pursuant to this section, he or she may, when the state,
26 county, municipality, political subdivision, or other public
27 authority makes any payment to the contractor or directly to a
28 claimant, serve a written demand on any claimant who is not in
29 privity with the contractor for a written statement under oath
30 of his or her account showing the nature of the labor or
31 services performed and to be performed, if any; the materials
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 furnished; the materials to be furnished, if known; the amount
2 paid on account to date; the amount due; and the amount to
3 become due, if known, as of the date of the statement by the
4 claimant. Any such demand to a claimant who is not in privity
5 with the contractor must be served on the claimant at the
6 address and to the attention of any person who is designated
7 to receive the demand in the notice to contractor served by
8 the claimant. The failure or refusal to furnish the statement
9 does not deprive the claimant of his or her rights under the
10 bond if the demand is not served at the address of the
11 claimant or directed to the attention of the person designated
12 to receive the demand in the notice to contractor. The failure
13 to furnish the statement within 30 days after the demand, or
14 the furnishing of a false or fraudulent statement, deprives
15 the claimant who fails to furnish the statement, or who
16 furnishes the false or fraudulent statement, of his or her
17 rights under the bond. If the contractor serves more than one
18 demand for statement of account on a claimant and none of the
19 information regarding the account has changed since the
20 claimant's last response to a demand, the failure or refusal
21 to furnish such statement does not deprive the claimant of his
22 or her rights under the bond. The negligent inclusion or
23 omission of any information deprives the claimant of his or
24 her rights under the bond to the extent that the contractor
25 can demonstrate prejudice from such act or omission by the
26 claimant. The failure to furnish a response to a demand for
27 statement of account does not affect the validity of any claim
28 on the bond being enforced in a lawsuit filed before the date
29 the demand for statement of account is received by the
30 claimant.
31 (8) (9) On any public works project for which the
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 public authority requires a performance and payment bond,
2 suits at law and in equity may be brought and maintained by
3 and against the public authority on any contract claim arising
4 from breach of an express provision or an implied covenant of
5 a written agreement or a written directive issued by the
6 public authority pursuant to the written agreement. In any
7 such suit, the public authority and the contractor shall have
8 all of the same rights and obligations as a private person
9 under a like contract except that no liability may be based on
10 an oral modification of either the written contract or written
11 directive. Nothing herein shall be construed to waive the
12 sovereign immunity of the state and its political subdivisions
13 from equitable claims and equitable remedies. The provisions
14 of this subsection shall apply only to contracts entered into
15 on or after July 1, 1999.
16 (9) An action, except an action for recovery of
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18 (Redesignate subsequent sections.)
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21 ================ T I T L E A M E N D M E N T ===============
22 And the title is amended as follows:
23 On page 2, line 5, after the semicolon
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25 insert:
26 revising the form for a public construction
27 bond; requiring all public construction bonds
28 to be construed as statutory bonds; prohibiting
29 conversion to common law bonds; deleting a
30 requirement that bond forms used by public
31 owners reference certain notice and time
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SENATE AMENDMENT
Bill No. CS for CS for SB 544
Amendment No. ___ Barcode 162146
1 limitation provisions;
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