1 | Representative Reagan offered the following: |
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3 | Amendment (with title amendment) |
4 | On page 19, line 3, through page 31, line 25, |
5 | remove: all of said lines |
6 |
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7 | and insert: |
8 | Section 13. Subsections (2) and (4) of section 255.05, |
9 | Florida Statutes, are amended, and subsection (10) is added to |
10 | said section, to read: |
11 | (2)(a)1. If a claimant is no longer furnishing labor, |
12 | services, or materials on a project, a contractor or the |
13 | contractor's agent or attorney may elect to shorten the |
14 | prescribed time in this paragraph within which an action to |
15 | enforce any claim against a payment bond provided pursuant to |
16 | this section may be commenced by recording in the clerk's office |
17 | a notice in substantially the following form: |
18 |
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19 | NOTICE OF CONTEST OF CLAIM |
20 | AGAINST PAYMENT BOND |
21 |
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22 | To: . . . (Name and address of claimant) . . . |
23 |
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24 | You are notified that the undersigned contests your notice |
25 | of nonpayment, dated ____________, ________, and served on the |
26 | undersigned on ____________, ________, and that the time within |
27 | which you may file suit to enforce your claim is limited to 60 |
28 | days after the date of service of this notice. |
29 |
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30 | DATED on ____________, ________. |
31 |
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32 | Signed: . . . (Contractor or Attorney) . . . |
33 |
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34 | The claim of any claimant upon whom such notice is served and |
35 | who fails to institute a suit to enforce his or her claim |
36 | against the payment bond within 60 days after service of such |
37 | notice shall be extinguished automatically. The clerk shall mail |
38 | a copy of the notice of contest to the claimant at the address |
39 | shown in the notice of nonpayment or most recent amendment |
40 | thereto and shall certify to such service on the face of such |
41 | notice and record the notice. Service is complete upon mailing. |
42 | 2. A claimant, except a laborer, who is not in privity |
43 | with the contractor shall, before commencing or not later than |
44 | 45 days after commencing to furnish labor, materials, or |
45 | supplies for the prosecution of the work, furnish the contractor |
46 | with a notice that he or she intends to look to the bond for |
47 | protection. A claimant who is not in privity with the contractor |
48 | and who has not received payment for his or her labor, |
49 | materials, or supplies shall deliver to the contractor and to |
50 | the surety written notice of the performance of the labor or |
51 | delivery of the materials or supplies and of the nonpayment. The |
52 | notice of nonpayment may be served at any time during the |
53 | progress of the work or thereafter but not before 45 days after |
54 | the first furnishing of labor, services, or materials, and not |
55 | later than 90 days after the final furnishing of the labor, |
56 | services, or materials by the claimant or, with respect to |
57 | rental equipment, not later than 90 days after the date that the |
58 | rental equipment was last on the job site available for use. Any |
59 | notice of nonpayment served by a claimant who is not in privity |
60 | with the contractor which includes sums for retainage must |
61 | specify the portion of the amount claimed for retainage. No |
62 | action for the labor, materials, or supplies may be instituted |
63 | against the contractor or the surety unless both notices have |
64 | been given. Notices required or permitted under this section may |
65 | be served in accordance with s. 713.18. An action, except for an |
66 | action exclusively for recovery of retainage, must be instituted |
67 | against the contractor or the surety on the payment bond or the |
68 | payment provisions of a combined payment and performance bond |
69 | within 1 year after the performance of the labor or completion |
70 | of delivery of the materials or supplies. An action exclusively |
71 | for recovery of retainage must be instituted against the |
72 | contractor or the surety within 1 year after the performance of |
73 | the labor or completion of delivery of the materials or |
74 | supplies, or within 90 days after receipt of final payment (or |
75 | the payment estimate containing the owner's final reconciliation |
76 | of quantities if no further payment is earned and due as a |
77 | result of deductive adjustments) by the contractor or surety, |
78 | whichever comes last. A claimant may not waive in advance his or |
79 | her right to bring an action under the bond against the surety. |
80 | In any action brought to enforce a claim against a payment bond |
81 | under this section, the prevailing party is entitled to recover |
82 | a reasonable fee for the services of his or her attorney for |
83 | trial and appeal or for arbitration, in an amount to be |
84 | determined by the court, which fee must be taxed as part of the |
85 | prevailing party's costs, as allowed in equitable actions. The |
86 | time periods for service of a notice of nonpayment or for |
87 | bringing an action against a contractor or a surety shall be |
88 | measured from the last day of furnishing labor, services, or |
89 | materials by the claimant and shall not be measured by other |
90 | standards, such as the issuance of a certificate of occupancy or |
91 | the issuance of a certificate of substantial completion. |
92 | (b) When a person is required to execute a waiver of his |
93 | or her right to make a claim against the payment bond in |
94 | exchange for, or to induce payment of, a progress payment, the |
95 | waiver may be in substantially the following form: |
96 |
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97 | WAIVER OF RIGHT TO CLAIM AGAINST THE PAYMENT BOND (PROGRESS |
98 | PAYMENT) |
99 |
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100 | The undersigned, in consideration of the sum of $____, |
101 | hereby waives its right to claim against the payment bond for |
102 | labor, services, or materials furnished through . . . (insert |
103 | date) . . . to . . . (insert the name of your customer) . . . |
104 | on the job of . . . (insert the name of the owner) . . . , for |
105 | improvements to the following described project: |
106 |
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107 | (description of project) |
108 |
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109 | This waiver does not cover any retention or any labor, services, |
110 | or materials furnished after the date specified. |
111 |
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112 | DATED ON ________, ____. |
113 | . . . (Claimant) . . . |
114 | By:____________ |
115 |
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116 | (c) When a person is required to execute a waiver of his |
117 | or her right to make a claim against the payment bond, in |
118 | exchange for, or to induce payment of, the final payment, the |
119 | waiver may be in substantially the following form: |
120 |
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121 | WAIVER OF RIGHT TO CLAIM AGAINST THE PAYMENT BOND (FINAL |
122 | PAYMENT) |
123 |
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124 | The undersigned, in consideration of the final payment in |
125 | the amount of $____, hereby waives its right to claim against |
126 | the payment bond for labor, services, or materials furnished to |
127 | . . . (insert the name of your customer) . . . on the job of . |
128 | . . (insert the name of the owner) . . . , for improvements to |
129 | the following described project: |
130 |
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131 | (description of project) |
132 |
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133 | DATED ON ________, ____. |
134 | . . . (Claimant) . . . |
135 | By:____________ |
136 |
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137 | (d) A person may not require a claimant to furnish a |
138 | waiver that is different from the forms in paragraphs (b) and |
139 | (c). |
140 | (e) A claimant who executes a waiver in exchange for a |
141 | check may condition the waiver on payment of the check. |
142 | (f) A waiver that is not substantially similar to the |
143 | forms in this subsection is enforceable in accordance with its |
144 | terms. |
145 | (4) The payment provisions of all bonds furnished for |
146 | public work contracts described in subsection (1) shall, |
147 | regardless of form, be construed and deemed statutory bond |
148 | provisions, subject to all requirements of subsections |
149 | subsection (2) and (10). |
150 | (10) An action, except for an action for recovery of |
151 | retainage, must be instituted against the contractor or the |
152 | surety on the payment bond or the payment provisions of a |
153 | combined payment and performance bond within 1 year after the |
154 | performance of the labor or completion of delivery of the |
155 | materials or supplies. An action for recovery of retainage must |
156 | be instituted against the contractor or the surety within 1 year |
157 | after the performance of the labor or completion of delivery of |
158 | the materials or supplies, provided that such an action may not |
159 | be instituted until one of the following conditions is |
160 | satisfied: |
161 | (a) The public entity has paid out the claimant's |
162 | retainage to the contractor, and the time provided under s. |
163 | 255.073(3) for payment of that retainage to the claimant has |
164 | expired; |
165 | (b) The claimant has completed all work required under its |
166 | contract and 70 days have passed since the contractor sent its |
167 | final payment request to the public entity; or |
168 | (c) The claimant has asked the contractor, in writing, |
169 | when the contractor received payment of the claimant's retainage |
170 | or when the contractor sent its final payment request to the |
171 | public entity, and the contractor has failed to respond to this |
172 | request, in writing, within 10 days after receipt. |
173 |
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174 | If none of the conditions described in paragraph (a), paragraph |
175 | (b), or paragraph (c) is satisfied and an action for recovery of |
176 | retainage therefore cannot be instituted within the 1-year |
177 | limitation period set forth in this subsection, this limitation |
178 | period shall be extended until 120 days after one of these |
179 | conditions is satisfied. |
180 | Section 14. Paragraph (b) of subsection (2) of section |
181 | 95.11, Florida Statutes, is amended to read: |
182 | 95.11 Limitations other than for the recovery of real |
183 | property.--Actions other than for recovery of real property |
184 | shall be commenced as follows: |
185 | (2) WITHIN FIVE YEARS.-- |
186 | (b) A legal or equitable action on a contract, obligation, |
187 | or liability founded on a written instrument, except for an |
188 | action to enforce a claim against a payment bond, which shall be |
189 | governed by the applicable provisions of ss. 255.05(10) |
190 | 255.05(2)(a)2. and 713.23(1)(e). |
191 | Section 15. Neither the amendments to sections 95.11, |
192 | 218.70, 218.72, 218.735, and 255.071, Florida Statutes, and |
193 | subsection (2) of section 255.05, Florida Statutes, as provided |
194 | in this act, nor subsection (10) of section 255.05, Florida |
195 | Statutes, and section 255.078, Florida Statutes, as created by |
196 | this act, applies to any existing construction contract pending |
197 | approval by a local governmental entity or public entity, or to |
198 | any project advertised for bid by the local government entity or |
199 | public entity, on or before the effective date of this act. |
200 | ================= T I T L E A M E N D M E N T ================= |
201 | On page 2, lines 5-12, |
202 | remove: all of said lines |
203 |
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204 | and insert: contractor; providing limitations on |