HB 755

1	A bill to be entitled
2	An act relating to notices of nonpayment; amending s.
3	255.05, F.S.; revising requirements for a notice of
4	nonpayment for labor, services, or materials served by a
5	claimant under a contractor's bond; depriving a claimant
6	of rights under the bond for furnishing a false or
7	fraudulent notice of nonpayment; revising a prohibition
8	against claimant actions against a contractor or surety
9	under certain circumstances; amending s. 337.18, F.S.;
10	revising requirements for a notice of nonpayment for
11	labor, services, or materials served by a claimant under a
12	surety bond for construction or maintenance contracts;
13	depriving a claimant of rights under the bond for
14	furnishing a false or fraudulent notice of nonpayment;
15	revising a prohibition against claimant actions against a
16	contractor or surety under certain circumstances; amending
17	s. 713.23, F.S.; revising requirements for a notice of
18	nonpayment for labor, services, or materials served by a
19	lienor under a payment bond; depriving a lienor of rights
20	under the bond for furnishing a false or fraudulent notice
21	of nonpayment; prohibiting lienor actions against a
22	contractor or surety unless notice of nonpayment is given;
23	deleting a notice of nonpayment form; providing an
24	effective date.
25
26	Be It Enacted by the Legislature of the State of Florida:
27
28	Section 1.  Paragraph (a) of subsection (2) of section
29	255.05, Florida Statutes, is amended to read:
30	255.05  Bond of contractor constructing public buildings;
31	form; action by materialmen.-
32	(2)(a)1.  If a claimant is no longer furnishing labor,
33	services, or materials on a project, a contractor or the
34	contractor's agent or attorney may elect to shorten the
35	prescribed time in this paragraph within which an action to
36	enforce any claim against a payment bond provided pursuant to
37	this section may be commenced by recording in the clerk's office
38	a notice in substantially the following form:
39	NOTICE OF CONTEST OF CLAIM
40	AGAINST PAYMENT BOND
41	To: ...(Name and address of claimant)...
42	You are notified that the undersigned contests your notice
43	of nonpayment, dated _______________, __________, and served on
44	the undersigned on _______________, __________, and that the
45	time within which you may file suit to enforce your claim is
46	limited to 60 days after the date of service of this notice.
47	DATED on _______________, __________.
48	Signed: ...(Contractor or Attorney)...
49	The claim of any claimant upon whom such notice is served and
50	who fails to institute a suit to enforce his or her claim
51	against the payment bond within 60 days after service of such
52	notice shall be extinguished automatically. The clerk shall mail
53	a copy of the notice of contest to the claimant at the address
54	shown in the notice of nonpayment or most recent amendment
55	thereto and shall certify to such service on the face of such
56	notice and record the notice. Service is complete upon mailing.
57	2.  A claimant, except a laborer, who is not in privity
58	with the contractor shall, before commencing or not later than
59	45 days after commencing to furnish labor, services, or
60	materials for the prosecution of the work, furnish the
61	contractor with a written notice that he or she intends to look
62	to the bond for protection. A claimant who is not in privity
63	with the contractor and who has not received payment for his or
64	her labor, services, or materials shall deliver to the
65	contractor and to the surety written notice of the performance
66	of the labor or services or delivery of the materials or
67	supplies and of the nonpayment. The notice of nonpayment shall
68	be verified and may be served at any time during the progress of
69	the work or thereafter but not before 45 days after the first
70	furnishing of labor, services, or materials are first furnished,
71	and not later than 90 days after the final furnishing of the
72	labor, services, or materials are finally furnished by the
73	claimant or, with respect to rental equipment, not later than 90
74	days after the date that the rental equipment was last on the
75	job site and available for use. The notice of nonpayment shall
76	state, as of the date of the notice, the nature of the labor or
77	services performed and to be performed, if any; the materials
78	furnished; the materials to be furnished, if known; the amount
79	paid on the account to date; the amount due; and the amount to
80	become due, if known. In order to substantiate the amount
81	claimed as unpaid in the notice of nonpayment, the notice shall
82	also include as attachments copies of the claimant's contract or
83	purchase order and any amendments or change orders directed to
84	the contract or purchase order; invoices, pay requests, bills of
85	lading, delivery receipts, or similar documents, as applicable;
86	and a statement of account reflecting all payments requested and
87	received for the labor, services, or materials. Any notice of
88	nonpayment served by a claimant who is not in privity with the
89	contractor that which includes sums for retainage must specify
90	the portion of the amount claimed for retainage. Furnishing a
91	false or fraudulent notice of nonpayment deprives the claimant
92	of his or her rights under the bond. A claimant may not
93	institute an No action for the labor, materials, or supplies may
94	be instituted against the contractor or the surety for the
95	labor, services, or materials unless both notices have been
96	given in full compliance with this subparagraph. Notices
97	required or permitted under this section shall may be served in
98	accordance with s. 713.18. A claimant may not waive in advance
99	his or her right to bring an action under the bond against the
100	surety. In any action brought to enforce a claim against a
101	payment bond under this section, the prevailing party is
102	entitled to recover a reasonable fee for the services of his or
103	her attorney for trial and appeal or for arbitration, in an
104	amount to be determined by the court, which fee must be taxed as
105	part of the prevailing party's costs, as allowed in equitable
106	actions. The time periods for service of a notice of nonpayment
107	or for bringing an action against a contractor or a surety shall
108	be measured from the last day of furnishing labor, services, or
109	materials by the claimant and shall not be measured by other
110	standards, such as the issuance of a certificate of occupancy or
111	the issuance of a certificate of substantial completion.
112	Section 2.  Paragraph (c) of subsection (1) of section
113	337.18, Florida Statutes, is amended to read:
114	337.18  Surety bonds for construction or maintenance
115	contracts; requirement with respect to contract award; bond
116	requirements; defaults; damage assessments.-
117	(1)
118	(c)  A claimant, except a laborer, who is not in privity
119	with the contractor shall, before commencing or not later than
120	90 days after commencing to furnish labor, services, or
121	materials, or supplies for the prosecution of the work, furnish
122	the contractor with a notice that he or she intends to look to
123	the bond for protection. A claimant who is not in privity with
124	the contractor and who has not received payment for his or her
125	labor, services, or materials, or supplies shall deliver to the
126	contractor and to the surety written notice of the performance
127	of the labor or services or delivery of the materials or
128	supplies and of the nonpayment. The notice of nonpayment shall
129	be verified and may be served at any time during the progress of
130	the work or thereafter but not before 45 days after the first
131	furnishing of labor, services, or materials are first furnished,
132	and not later than 90 days after the final furnishing of the
133	labor, services, or materials are finally furnished by the
134	claimant or, with respect to rental equipment, not later than 90
135	days after the date that the rental equipment was last on the
136	job site and available for use. The notice of nonpayment shall
137	state, as of the date of the notice, the nature of the labor or
138	services performed and to be performed, if any; the materials or
139	supplies furnished; the materials or supplies to be furnished,
140	if known; the amount paid on the account to date; the amount
141	due; and the amount to become due, if known. In order to
142	substantiate the amount claimed as unpaid in the notice of
143	nonpayment, the notice shall also include as attachments copies
144	of the claimant's contract or purchase order and any amendments
145	or change orders directed to the contract or purchase order;
146	invoices, pay requests, bills of lading, delivery receipts, or
147	similar documents, as applicable; and a statement of account
148	reflecting all payments requested and received for the labor,
149	materials, or supplies. Any notice of nonpayment served by a
150	claimant who is not in privity with the contractor that includes
151	sums for retainage must specify the portion of the amount
152	claimed for retainage. Furnishing a false or fraudulent notice
153	of nonpayment deprives the claimant of his or her rights under
154	the bond. An action by A claimant, except a laborer, who is not
155	in privity with the contractor for the labor, materials, or
156	supplies may not institute an action be instituted against the
157	contractor or the surety for the labor, services, or materials
158	unless both notices have been given in full compliance with this
159	paragraph. Notices required or permitted under this section
160	shall may be served in any manner provided in s. 713.18.
161	Section 3.  Paragraph (d) of subsection (1) of section
162	713.23, Florida Statutes, is amended to read:
163	713.23  Payment bond.-
164	(1)
165	(d)  In addition, a lienor is required, as a condition
166	precedent to recovery under the bond, to serve a written notice
167	of nonpayment to the contractor and the surety not later than 90
168	days after the final furnishing of labor, services, or materials
169	by the lienor. The notice of nonpayment shall be verified and
170	may be served at any time during the progress of the work or
171	thereafter but not before 45 days after the labor, services, or
172	materials are first furnished and not later than 90 days after
173	the labor, services, or materials are finally furnished by the
174	lienor or, with respect to rental equipment, not later than 90
175	days after the date that the rental equipment was last on the
176	job site and available for use. The notice of nonpayment shall
177	state, as of the date of the notice, the nature of the labor or
178	services performed and to be performed, if any; the materials
179	furnished; the materials to be furnished, if known; the amount
180	paid on the account to date; the amount due; and the amount to
181	become due, if known. For any lienor who is not in privity with
182	the contractor, in order to substantiate the amount claimed as
183	unpaid in the notice of nonpayment, the notice shall also
184	include as attachments copies of the lienor's contract or
185	purchase order and any amendments or change orders directed to
186	the contract or purchase order; invoices, pay requests, bills of
187	lading, delivery receipts, or similar documents, as applicable;
188	and a statement of account reflecting all payments requested and
189	received for the labor, services, or materials. Any notice of
190	nonpayment served by a lienor who is not in privity with the
191	contractor that includes sums for retainage must specify the
192	portion of the amount claimed for retainage. Furnishing a false
193	or fraudulent notice of nonpayment deprives the lienor of his or
194	her rights under the bond. A lienor may not institute an action
195	against the contractor or the surety for the labor, services, or
196	materials unless the notice of nonpayment has been given in full
197	compliance with this paragraph. A written notice satisfies this
198	condition precedent with respect to the payment described in the
199	notice of nonpayment, including unpaid finance charges due under
200	the lienor's contract, and with respect to any other payments
201	which become due to the lienor after the date of the notice of
202	nonpayment. The time period for serving a written notice of
203	nonpayment shall be measured from the last day of furnishing
204	labor, services, or materials by the lienor and shall not be
205	measured by other standards, such as the issuance of a
206	certificate of occupancy or the issuance of a certificate of
207	substantial completion. The failure of a lienor to receive
208	retainage sums not in excess of 10 percent of the value of
209	labor, services, or materials furnished by the lienor is not
210	considered a nonpayment requiring the service of the notice
211	provided under this paragraph. The notice under this paragraph
212	may be in substantially the following form:
213	NOTICE OF NONPAYMENT
214	To ...(name of contractor and address)...
215	...(name of surety and address)...
216	The undersigned notifies you that he or she has furnished
217	...(describe labor, services, or materials)... for the
218	improvement of the real property identified as ...(property
219	description).... The amount now due and unpaid is $_____.
220	...(signature and address of lienor)...
221	Section 4.  This act shall take effect July 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.