| 1 | Representative Reagan offered the following: |
| 2 |
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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 |
|
| 131 | (description of project) |
| 132 |
|
| 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 |
|
| 204 | and insert: contractor; providing limitations on |