Florida Senate - 2012 SENATOR AMENDMENT
Bill No. CS for SB 1202
Senate . House
Floor: 1/AD/2R .
03/09/2012 05:50 PM .
Senator Bogdanoff moved the following:
1 Senate Amendment (with title amendment)
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (b) of subsection (2) and paragraph
6 (e) of subsection (5) of section 95.11, Florida Statutes, are
7 amended to read:
8 95.11 Limitations other than for the recovery of real
9 property.—Actions other than for recovery of real property shall
10 be commenced as follows:
11 (2) WITHIN FIVE YEARS.—
12 (b) A legal or equitable action on a contract, obligation,
13 or liability founded on a written instrument, except for an
14 action to enforce a claim against a payment bond, which shall be
15 governed by the applicable provisions of paragraph (5)(e), s.
ss. 255.05(10), s. 337.18(1), or s. and 713.23(1)(e).
17 (5) WITHIN ONE YEAR.—
18 (e) Except for actions governed by s. 255.05(10), s.
19 337.18(1), or s. 713.23(1)(e), an action to enforce any claim
20 against a payment bond on which the principal is a contractor,
21 subcontractor, or sub-subcontractor as defined in s. 713.01, for
22 private work as well as public work, from the last furnishing of
23 labor, services, or materials or from the last furnishing of
24 labor, services, or materials by the contractor if the
25 contractor is the principal on a bond on the same construction
26 project, whichever is later.
27 Section 2. Subsection (1), paragraph (a) of subsection (2),
28 and subsection (6) of section 255.05, Florida Statutes, are
29 amended, and subsection (11) is added to that section, to read:
30 255.05 Bond of contractor constructing public buildings;
31 form; action by claimants materialmen.—
32 (1) (a) A Any person entering into a formal contract with
33 the state or any county, city, or political subdivision thereof,
34 or other public authority or private entity, for the
35 construction of a public building, for the prosecution and
36 completion of a public work, or for repairs upon a public
37 building or public work shall be required, before commencing the
38 work or before recommencing the work after a default or
39 abandonment, to execute, deliver to the public owner, and record
40 in the public records of the county where the improvement is
41 located, a payment and performance bond with a surety insurer
42 authorized to do business in this state as surety. A public
43 entity may not require a contractor to secure a surety bond
44 under this section from a specific agent or bonding company.
45 (a) The bond must state on its front page:
46 1. The name, principal business address, and phone number
47 of the contractor, the surety, the owner of the property being
48 improved, and, if different from the owner, the contracting
49 public entity. ;
50 2. The contract number assigned by the contracting public
51 entity. ;
52 3. The bond number assigned by the surety. and
53 4. A description of the project sufficient to identify it,
54 such as a legal description or the street address of the
55 property being improved, and a general description of the
57 (b) Before commencing the work or before recommencing the
58 work after a default or abandonment, the contractor shall
59 provide to the public entity a certified copy of the recorded
60 bond. Notwithstanding the terms of the contract or any other law
61 governing prompt payment for construction services, the public
62 entity may not make a payment to the contractor until the
63 contractor has complied with this paragraph. This paragraph
64 applies to contracts entered into on or after October 1, 2012.
65 (c) The Such bond shall be conditioned upon the
66 contractor’s performance of the construction work in the time
67 and manner prescribed in the contract and promptly making
68 payments to all persons defined in s. 713.01 who furnish labor,
69 services, or materials for the prosecution of the work provided
70 for in the contract. A Any claimant may apply to the
71 governmental entity having charge of the work for copies of the
72 contract and bond and shall thereupon be furnished with a
73 certified copy of the contract and the recorded bond. The
74 claimant shall have a cause right of action against the
75 contractor and surety for the amount due him or her, including
76 unpaid finance charges due under the claimant’s contract. Such
77 action may shall not involve the public authority in any
79 (d) When the such work is done for the state and the
80 contract is for $100,000 or less, no payment and performance
81 bond shall be required. At the discretion of the official or
82 board awarding such contract when such work is done for any
83 county, city, political subdivision, or public authority, a any
84 person entering into such a contract that which is for $200,000
85 or less may be exempted from executing the payment and
86 performance bond. When such work is done for the state, the
87 Secretary of Management Services may delegate to state agencies
88 the authority to exempt any person entering into such a contract
89 amounting to more than $100,000 but less than $200,000 from
90 executing the payment and performance bond. If an In the event
91 such exemption is granted, the officer or official is officials
92 shall not be personally liable to persons suffering loss because
93 of granting such exemption. The Department of Management
94 Services shall maintain information on the number of requests by
95 state agencies for delegation of authority to waive the bond
96 requirements by agency and project number and whether any
97 request for delegation was denied and the justification for the
99 (e) Any provision in a payment bond issued on or after
100 October 1, 2012, furnished for public work contracts as provided
101 by this subsection which further restricts the classes of
102 persons as defined in s. 713.01 protected by the bond, which
103 restricts or the venue of any proceeding relating to such bond,
104 which limits or expands the effective duration of the bond, or
105 which adds conditions precedent to the enforcement of a claim
106 against the bond beyond those provided in this section is
108 (f) (b) The Department of Management Services shall adopt
109 rules with respect to all contracts for $200,000 or less, to
111 1. Procedures for retaining up to 10 percent of each
112 request for payment submitted by a contractor and procedures for
113 determining disbursements from the amount retained on a pro rata
114 basis to laborers, materialmen, and subcontractors, as defined
115 in s. 713.01.
116 2. Procedures for requiring certification from laborers,
117 materialmen, and subcontractors, as defined in s. 713.01, before
118 prior to final payment to the contractor that such laborers,
119 materialmen, and subcontractors have no claims against the
120 contractor resulting from the completion of the work provided
121 for in the contract.
123 The state is shall not be held liable to any laborer,
124 materialman, or subcontractor for any amounts greater than the
125 pro rata share as determined under this section.
126 (g) (c)1. The amount of the bond shall equal the contract
127 price, except that for a contract in excess of $250 million, if
128 the state, county, municipality, political subdivision, or other
129 public entity finds that a bond in the amount of the contract
130 price is not reasonably available, the public owner shall set
131 the amount of the bond at the largest amount reasonably
132 available, but not less than $250 million.
133 2. For construction-management or design-build contracts,
134 if the public owner does not include in the bond amount the cost
135 of design or other nonconstruction services, the bond may not be
136 conditioned on performance of such services or payment to
137 persons furnishing such services. Notwithstanding paragraphs (c)
138 and (e) paragraph (a), such a bond may exclude persons
139 furnishing such services from the classes of persons protected
140 by the bond.
141 (2)(a)1. If a claimant is no longer furnishing labor,
142 services, or materials on a project, a contractor or the
143 contractor’s agent or attorney may elect to shorten the
144 prescribed time in this paragraph within which an action to
145 enforce any claim against a payment bond must provided pursuant
146 to this section may be commenced by recording in the clerk’s
147 office a notice in substantially the following form:
149 NOTICE OF CONTEST OF CLAIM
150 AGAINST PAYMENT BOND
152 To: ...(Name and address of claimant)...
154 You are notified that the undersigned contests your notice
155 of nonpayment, dated ............, ........, and served on the
156 undersigned on ............, ........, and that the time within
157 which you may file suit to enforce your claim is limited to 60
158 days after the date of service of this notice.
160 DATED on ............, .........
162 Signed: ...(Contractor or Attorney)...
164 The claim of a any claimant upon whom such notice is served
165 and who fails to institute a suit to enforce his or her claim
166 against the payment bond within 60 days after service of such
167 notice shall be extinguished automatically. The contractor or
168 the contractor’s attorney clerk shall serve mail a copy of the
169 notice of contest to the claimant at the address shown in the
170 notice of nonpayment or most recent amendment thereto and shall
171 certify to such service on the face of the such notice and
172 record the notice. Service is complete upon mailing.
173 2. A claimant, except a laborer, who is not in privity with
174 the contractor shall, before commencing or not later than 45
175 days after commencing to furnish labor, services, or materials
176 for the prosecution of the work, furnish the contractor with a
177 written notice that he or she intends to look to the bond for
178 protection. A claimant who is not in privity with the contractor
179 and who has not received payment for his or her labor, services,
180 or materials shall deliver to the contractor and to the surety
181 written notice of the performance of the labor or delivery of
182 the materials or supplies and of the nonpayment. The notice of
183 nonpayment shall may be served at any time during the progress
184 of the work or thereafter but may not be served earlier than
185 before 45 days after the first furnishing of labor, services, or
186 materials or , and not later than 90 days after the final
187 furnishing of the labor, services, or materials by the claimant
188 or, with respect to rental equipment, not later than 90 days
189 after the date that the rental equipment was last on the job
190 site available for use. Any notice of nonpayment served by a
191 claimant who is not in privity with the contractor which
192 includes sums for retainage must specify the portion of the
193 amount claimed for retainage. An No action for the labor,
194 materials, or supplies may not be instituted against the
195 contractor or the surety unless the notice to the contractor and
196 notice of nonpayment have been served, if required by this
197 section both notices have been given. Notices required or
198 permitted under this section shall may be served in accordance
199 with s. 713.18. A claimant may not waive in advance his or her
200 right to bring an action under the bond against the surety. In
201 any action brought to enforce a claim against a payment bond
202 under this section, the prevailing party is entitled to recover
203 a reasonable fee for the services of his or her attorney for
204 trial and appeal or for arbitration, in an amount to be
205 determined by the court, which fee must be taxed as part of the
206 prevailing party’s costs, as allowed in equitable actions. The
207 time periods for service of a notice of nonpayment or for
208 bringing an action against a contractor or a surety shall be
209 measured from the last day of furnishing labor, services, or
210 materials by the claimant and may shall not be measured by other
211 standards, such as the issuance of a certificate of occupancy or
212 the issuance of a certificate of substantial completion.
213 (6) All payment bond forms used by a public owner and all
214 payment bonds executed pursuant to this section by a surety
215 shall make reference to this section by number, and shall
216 contain reference to the notice and time limitation provisions
217 in subsections subsection (2) and (10), and shall comply with
218 the requirements of paragraph (1)(a).
219 (11) When a contractor furnishes and records a payment and
220 performance bond for a public works project in accordance with
221 this section and provides the public authority with a written
222 consent from the surety regarding the project or payment in
223 question, the public authority may not condition its payment to
224 the contractor on the production of a release, waiver, or like
225 documentation from a claimant demonstrating that the claimant
226 does not have an outstanding claim against the contractor, the
227 surety, the payment bond, or the public authority for payments
228 due on labor, services, or materials furnished on the public
229 works project. The surety may, in a writing served on the public
230 authority, revoke its consent or direct that the public
231 authority withhold a specified amount from a payment, which
232 shall be effective upon receipt. This subsection applies to
233 contracts entered into on or after October 1, 2012.
234 Section 3. Effective upon this act becoming a law, section
235 255.0518, Florida Statutes, is created
236 to read:
237 255.0518 Public bids; bid opening.—Notwithstanding s.
238 119.071(1)(b), the state or any county or municipality thereof
239 or any department or agency of the state, county, or
240 municipality or any other public body or institution shall:
241 (1) When opening sealed bids or the portion of any sealed
242 bids that include the prices submitted that are received
243 pursuant to a competitive solicitation for construction or
244 repairs on a public building or public work, open the sealed
245 bids at a public meeting conducted in compliance with s.
247 (2) Announce at that meeting the name of each bidder and
248 the price submitted.
249 (3) Make available upon request the name of each bidder and
250 the price submitted.
251 Section 4. Paragraph (b) of subsection (2) of section
252 713.10, Florida Statutes, is amended to read:
253 713.10 Extent of liens.—
255 (b) The interest of the lessor is shall not be subject to
256 liens for improvements made by the lessee when:
257 1. The lease, or a short form or a memorandum of the lease
258 that contains the specific language in the lease prohibiting
259 such liability, is recorded in the official records of the
260 county where the premises are located before the recording of a
261 notice of commencement for improvements to the premises and the
262 terms of the lease expressly prohibit such liability; or
263 2. The terms of the lease expressly prohibit such
264 liability, and a notice advising that leases for the rental of
265 premises on a parcel of land prohibit such liability has been
266 recorded in the official records of the county in which the
267 parcel of land is located before the recording of a notice of
268 commencement for improvements to the premises, and the notice
269 includes the following:
270 a. The name of the lessor.
271 b. The legal description of the parcel of land to which the
272 notice applies.
273 c. The specific language contained in the various leases
274 prohibiting such liability.
275 d. A statement that all or a majority of the leases entered
276 into for premises on the parcel of land expressly prohibit such
278 3. The lessee is a mobile home owner who is leasing a
279 mobile home lot in a mobile home park from the lessor.
281 A notice that is consistent with subparagraph 2. effectively
282 prohibits liens for improvements made by a lessee even if other
283 leases for premises on the parcel do not expressly prohibit
284 liens or if provisions of each lease restricting the application
285 of liens are not identical.
286 Section 5. Paragraphs (d) and (e) of subsection (1) of
287 section 713.13, Florida Statutes, are amended to read:
288 713.13 Notice of commencement.—
290 (d) A notice of commencement must be in substantially the
291 following form:
293 Permit No..... Tax Folio No.....
294 NOTICE OF COMMENCEMENT
295 State of....
296 County of....
298 The undersigned hereby gives notice that improvement will be
299 made to certain real property, and in accordance with Chapter
300 713, Florida Statutes, the following information is provided in
301 this Notice of Commencement.
302 1. Description of property: ...(legal description of the
303 property, and street address if available)....
304 2. General description of improvement:.....
305 3. Owner information or Lessee information if the Lessee
306 contracted for the improvement:
307 a. Name and address:.....
308 b. Interest in property:.....
309 c. Name and address of fee simple titleholder (if different
310 from Owner listed above):.....
311 4.a. Contractor: ...(name and address)....
312 b. Contractor’s phone number:.....
313 5. Surety (if applicable, a copy of the payment bond is
315 a. Name and address:.....
316 b. Phone number:.....
317 c. Amount of bond: $.....
318 6.a. Lender: ...(name and address)....
319 b. Lender’s phone number:.....
320 7. Persons within the State of Florida designated by Owner
321 upon whom notices or other documents may be served as provided
322 by Section 713.13(1)(a)7., Florida Statutes:
323 a. Name and address:.....
324 b. Phone numbers of designated persons:.....
325 8.a. In addition to himself or herself, Owner designates
326 ............ of ............ to receive a copy of the Lienor’s
327 Notice as provided in Section 713.13(1)(b), Florida Statutes.
328 b. Phone number of person or entity designated by
330 9. Expiration date of notice of commencement (the
331 expiration date may not be before the completion of construction
332 and final payment to the contractor, but will be 1 year from the
333 date of recording unless a different date is specified).....
335 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
336 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
337 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
338 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
339 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
340 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
341 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
342 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
345 Under penalty of perjury, I declare that I have read the
346 foregoing notice of commencement and that the facts stated
347 therein are true to the best of my knowledge and belief.
349 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
350 Authorized Officer/Director/Partner/Manager)...
352 ...(Signatory’s Title/Office)...
354 The foregoing instrument was acknowledged before me this ....
355 day of ...., ...(year)..., by ...(name of person)... as ...(type
356 of authority, . . . e.g. officer, trustee, attorney in fact)...
357 for ...(name of party on behalf of whom instrument was
360 ...(Signature of Notary Public - State of Florida)...
362 ...(Print, Type, or Stamp Commissioned Name of Notary
365 Personally Known .... OR Produced Identification ....
367 Type of Identification Produced............
369 (e) A copy of any payment bond must be attached at the time
370 of recordation of the notice of commencement. The failure to
371 attach a copy of the bond to the notice of commencement when the
372 notice is recorded negates the exemption provided in s.
373 713.02(6). However, if a payment bond under s. 713.23 exists but
374 was not attached at the time of recordation of the notice of
375 commencement, the bond may be used to transfer any recorded lien
376 of a lienor except that of the contractor by the recordation and
377 service of a notice of bond pursuant to s. 713.23(2). The notice
378 requirements of s. 713.23 apply to any claim against the bond;
379 however, the time limits for serving any required notices shall,
380 at the option of the lienor, be calculated from the dates begin
381 running from the later of the time specified in s. 713.23 or the
382 date the notice of bond is served on the lienor.
383 Section 6. Section 489.118, Florida Statutes, is reenacted
384 and amended to read:
385 489.118 Certification of registered contractors;
386 grandfathering provisions.—The board shall, upon receipt of a
387 completed application and appropriate fee, issue a certificate
388 in the appropriate category to any contractor registered under
389 this part who makes application to the board and can show that
390 he or she meets each of the following requirements:
391 (1) Currently holds a valid registered local license in one
392 of the contractor categories defined in s. 489.105(3)(a)-(q)
393 489.105 (3)(a)-(p).
394 (2) Has, for that category, passed a written examination
395 that the board finds to be substantially similar to the
396 examination required to be licensed as a certified contractor
397 under this part. For purposes of this subsection, a written,
398 proctored examination such as that produced by the National
399 Assessment Institute, Block and Associates, NAI/Block, Experior
400 Assessments, Professional Testing, Inc., or Assessment Systems,
401 Inc., shall be considered to be substantially similar to the
402 examination required to be licensed as a certified contractor.
403 The board may not impose or make any requirements regarding the
404 nature or content of these cited examinations.
405 (3) Has at least 5 years of experience as a contractor in
406 that contracting category, or as an inspector or building
407 administrator with oversight over that category, at the time of
408 application. For contractors, only time periods in which the
409 contractor license is active and the contractor is not on
410 probation shall count toward the 5 years required by this
412 (4) Has not had his or her contractor’s license revoked at
413 any time, had his or her contractor’s license suspended within
414 the last 5 years, or been assessed a fine in excess of $500
415 within the last 5 years.
416 (5) Is in compliance with the insurance and financial
417 responsibility requirements in s. 489.115(5).
419 Applicants wishing to obtain a certificate pursuant to this
420 section must make application by November 1, 2015 2005.
421 Section 7. Paragraph (f) of subsection (1) and subsection
422 (4) of section 713.132, Florida Statutes, are amended to read:
423 713.132 Notice of termination.—
424 (1) An owner may terminate the period of effectiveness of a
425 notice of commencement by executing, swearing to, and recording
426 a notice of termination that contains:
427 (f) A statement that the owner has, before recording the
428 notice of termination, served a copy of the notice of
429 termination on the contractor and on each lienor who has a
430 direct contract with the owner or who has served a notice to
431 owner given notice. The owner is not required to serve a copy of
432 the notice of termination on any lienor who has executed a
433 waiver and release of lien upon final payment in accordance with
434 s. 713.20.
435 (4) A notice of termination is effective to terminate the
436 notice of commencement at the later of 30 days after recording
437 of the notice of termination or the date stated in the notice of
438 termination as the date on which the notice of commencement is
439 terminated, if provided that the notice of termination has been
440 served pursuant to paragraph (1)(f) on the contractor and on
441 each lienor who has a direct contract with the owner or who has
442 served a notice to owner given notice.
443 Section 8. Section 713.16, Florida Statutes, is amended to
445 713.16 Demand for copy of contract and statements of
446 account; form.—
447 (1) A copy of the contract of a lienor or owner and a
448 statement of the amount due or to become due if fixed or
449 ascertainable thereon must be furnished by any party thereto,
450 upon written demand of an owner or a lienor contracting with or
451 employed by the other party to such contract. If the owner or
452 lienor refuses or neglects to furnish such copy of the contract
453 or such statement, or willfully and falsely states the amount
454 due or to become due if fixed or ascertainable under such
455 contract, any person who suffers any detriment thereby has a
456 cause of action against the person refusing or neglecting to
457 furnish the same or willfully and falsely stating the amount due
458 or to become due for his or her damages sustained thereby. The
459 information contained in such copy or statement furnished
460 pursuant to such written demand is binding upon the owner or
461 lienor furnishing it unless actual notice of any modification is
462 given to the person demanding the copy or statement before such
463 person acts in good faith in reliance on it. The person
464 demanding such documents must pay for the reproduction thereof;
465 and, if such person fails or refuses to do so, he or she is
466 entitled only to inspect such documents at reasonable times and
468 (2) The owner may serve in writing a demand of any lienor
469 for a written statement under oath of his or her account showing
470 the nature of the labor or services performed and to be
471 performed, if any, the materials furnished, the materials to be
472 furnished, if known, the amount paid on account to date, the
473 amount due, and the amount to become due, if known, as of the
474 date of the statement by the lienor. Any such demand to a lienor
475 must be served on the lienor at the address and to the attention
476 of any person who is designated to receive the demand in the
477 notice to owner served by such lienor and must include a
478 description of the property and the names of the owner, the
479 contractor, and the lienor’s customer, as set forth in the
480 lienor’s notice to owner. The failure or refusal to furnish the
481 statement does not deprive the lienor of his or her lien if the
482 demand is not served at the address of the lienor or directed to
483 the attention of the person designated to receive the demand in
484 the notice to owner. The failure or refusal to furnish the
485 statement under oath within 30 days after the demand, or the
486 furnishing of a false or fraudulent statement, deprives the
487 person so failing or refusing to furnish such statement of his
488 or her lien. If the owner serves more than one demand for
489 statement of account on a lienor and none of the information
490 regarding the account has changed since the lienor’s last
491 response to a demand, the failure or refusal to furnish such
492 statement does not deprive the lienor of his or her lien. The
493 negligent inclusion or omission of any information deprives the
494 person of his or her lien to the extent the owner can
495 demonstrate prejudice from such act or omission by the lienor.
496 The failure to furnish a response to a demand for statement of
497 account does not affect the validity of any claim of lien being
498 enforced through a foreclosure case filed before prior to the
499 date the demand for statement is received by the lienor.
500 (3) A request for sworn statement of account must be in
501 substantially the following form:
503 REQUEST FOR SWORN STATEMENT OF ACCOUNT
505 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT,
506 SIGNED UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
507 STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
509 To: ...(Lienor’s name and address)...
511 The undersigned hereby demands a written statement under
512 oath of his or her account showing the nature of the labor or
513 services performed and to be performed, if any, the materials
514 furnished, the materials to be furnished, if known, the amount
515 paid on account to date, the amount due, and the amount to
516 become due, if known, as of the date of the statement for the
517 improvement of real property identified as ...(property
520 ...(name of contractor)...
522 ...(name of the lienor’s customer, as set forth in the
523 lienor’s Notice to Owner, if such notice has been served)...
525 ...(signature and address of owner)...
526 ...(date of request for sworn statement of account)...
528 (4) When a contractor has furnished a payment bond pursuant
529 to s. 713.23, he or she may, when an owner makes any payment to
530 the contractor or directly to a lienor, serve a written demand
531 on any other lienor for a written statement under oath of his or
532 her account showing the nature of the labor or services
533 performed and to be performed, if any, the materials furnished,
534 the materials to be furnished, if known, the amount paid on
535 account to date, the amount due, and the amount to become due,
536 if known, as of the date of the statement by the lienor. Any
537 such demand to a lienor must be served on the lienor at the
538 address and to the attention of any person who is designated to
539 receive the demand in the notice to contractor served by such
540 lienor. The demand must include a description of the property
541 and the names of the owner, the contractor, and the lienor’s
542 customer, as set forth in the lienor’s notice to contractor. The
543 failure or refusal to furnish the statement does not deprive the
544 lienor of his or her rights under the bond if the demand is not
545 served at the address of the lienor or directed to the attention
546 of the person designated to receive the demand in the notice to
547 contractor. The failure to furnish the statement within 30 days
548 after the demand, or the furnishing of a false or fraudulent
549 statement, deprives the person who fails to furnish the
550 statement, or who furnishes the false or fraudulent statement,
551 of his or her rights under the bond. If the contractor serves
552 more than one demand for statement of account on a lienor and
553 none of the information regarding the account has changed since
554 the lienor’s last response to a demand, the failure or refusal
555 to furnish such statement does not deprive the lienor of his or
556 her rights under the bond. The negligent inclusion or omission
557 of any information deprives the person of his or her rights
558 under the bond to the extent the contractor can demonstrate
559 prejudice from such act or omission by the lienor. The failure
560 to furnish a response to a demand for statement of account does
561 not affect the validity of any claim on the bond being enforced
562 in a lawsuit filed prior to the date the demand for statement of
563 account is received by the lienor.
564 (5)(a) Any lienor who is perfecting a claim of lien has
565 recorded a claim of lien may serve with the claim of lien or
566 thereafter a make written demand on the owner for a written
567 statement under oath showing:
568 1. The amount of the direct contract under which the lien
569 was recorded;
570 2. The dates and amounts paid or to be paid by or on behalf
571 of the owner for all improvements described in the direct
573 3. The reasonable estimated costs of completing the direct
574 contract under which the lien was claimed pursuant to the scope
575 of the direct contract; and
576 4. If known, the actual cost of completion.
577 (b) Any owner who does not provide the statement within 30
578 days after demand, or who provides a false or fraudulent
579 statement, is not a prevailing party for purposes of an award of
580 attorney attorney’s fees under s. 713.29. The written demand
581 must include the following warning in conspicuous type in
582 substantially the following form:
584 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT
585 WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL
586 RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY
587 ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING
588 THIS STATEMENT.
589 (6) Any written demand served on the owner must include a
590 description of the property and the names of the contractor and
591 the lienor’s customer, as set forth in the lienor’s notice to
593 (7) (6) For purposes of this section, the term “information”
594 means the nature and quantity of the labor, services, and
595 materials furnished or to be furnished by a lienor and the
596 amount paid, the amount due, and the amount to become due on the
597 lienor’s account.
598 Section 9. Section 713.18, Florida Statutes, is amended to
600 713.18 Manner of serving notices and other instruments.—
601 (1) Service of notices, claims of lien, affidavits,
602 assignments, and other instruments permitted or required under
603 this part, or copies thereof when so permitted or required,
604 unless otherwise specifically provided in this part, must be
605 made by one of the following methods:
606 (a) By actual delivery to the person to be served; if a
607 partnership, to one of the partners; if a corporation, to an
608 officer, director, managing agent, or business agent; or, if a
609 limited liability company, to a member or manager.
610 (b) By common carrier delivery service or sending the same
611 by registered, Global Express Guaranteed, or certified mail,
612 with postage or shipping paid by the sender and prepaid, or by
613 overnight or second-day delivery with evidence of delivery,
614 which may be in an electronic format.
615 (c) If the method specified in paragraph (a) or paragraph
616 (b) cannot be accomplished, By posting on the site of the
617 improvement if service as provided by paragraph (a) or paragraph
618 (b) cannot be accomplished premises.
619 (2) Notwithstanding subsection (1), service of if a notice
620 to owner or , a preliminary notice to contractor under s. 255.05,
621 s. 337.18, or s. 713.23 , or a preliminary notice under s. 255.05
622 is mailed by registered or certified mail with postage prepaid
623 to the person to be served at any of the addresses set forth in
624 subsection (3) within 40 days after the date the lienor first
625 furnishes labor, services, or materials, service of that notice
626 is effective as of the date of mailing if:
627 (a) The notice is mailed by registered, Global Express
628 Guaranteed, or certified mail, with postage prepaid, to the
629 person to be served at any of the addresses set forth in
630 subsection (3);
631 (b) The notice is mailed within 40 days after the date the
632 lienor first furnishes labor, services, or materials; and
633 (c)1. The person who served the notice maintains a
634 registered or certified mail log that shows the registered or
635 certified mail number issued by the United States Postal
636 Service, the name and address of the person served, and the date
637 stamp of the United States Postal Service confirming the date of
638 mailing; or if
639 2. The person who served the notice maintains electronic
640 tracking records generated by through use of the United States
641 Postal Service Confirm service or a similar service containing
642 the postal tracking number, the name and address of the person
643 served, and verification of the date of receipt by the United
644 States Postal Service.
645 (3)(a) Service of If an instrument served pursuant to this
646 section is effective on the date of mailing the instrument if
648 1. Is sent to the last address shown in the notice of
649 commencement or any amendment thereto or, in the absence of a
650 notice of commencement, to the last address shown in the
651 building permit application, or to the last known address of the
652 person to be served; and , is not received, but
653 2. Is returned as being “refused,” “moved, not
654 forwardable,” or “unclaimed,” or is otherwise not delivered or
655 deliverable through no fault of the person serving the item ,
656 then service is effective on the date the instrument was sent.
657 (b) If the address shown in the notice of commencement or
658 any amendment to the notice of commencement, or, in the absence
659 of a notice of commencement, in the building permit application,
660 is incomplete for purposes of mailing or delivery, the person
661 serving the item may complete the address and properly format it
662 according to United States Postal Service addressing standards
663 using information obtained from the property appraiser or
664 another public record without affecting the validity of service
665 under this section.
666 (4) A notice served by a lienor on one owner or one partner
667 of a partnership owning the real property If the real property
668 is owned by more than one person or a partnership, a lienor may
669 serve any notices or other papers under this part on any one of
670 such owners or partners, and such notice is deemed notice to all
671 owners and partners.
672 Section 10. Section 713.22, Florida Statutes, is amended to
674 713.22 Duration of lien.—
675 (1) A No lien provided by this part does not shall continue
676 for a longer period than 1 year after the claim of lien has been
677 recorded or 1 year after the recording of an amended claim of
678 lien that shows a later date of final furnishing of labor,
679 services, or materials, unless within that time an action to
680 enforce the lien is commenced in a court of competent
681 jurisdiction. A lien that has been continued beyond the 1-year
682 period The continuation of the lien effected by the commencement
683 of an the action is shall not enforceable be good against
684 creditors or subsequent purchasers for a valuable consideration
685 and without notice, unless a notice of lis pendens is recorded.
686 (2) An owner or the owner’s agent or attorney may elect to
687 shorten the time prescribed in subsection (1) within which to
688 commence an action to enforce any claim of lien or claim against
689 a bond or other security under s. 713.23 or s. 713.24 by
690 recording in the clerk’s office a notice in substantially the
691 following form:
693 NOTICE OF CONTEST OF LIEN
695 To: ...(Name and address of lienor)...
697 You are notified that the undersigned contests the claim of lien
698 filed by you on ...., ...(year)..., and recorded in .... Book
699 ...., Page ...., of the public records of .... County, Florida,
700 and that the time within which you may file suit to enforce your
701 lien is limited to 60 days from the date of service of this
702 notice. This .... day of ...., ...(year)....
704 Signed: ...(Owner or Attorney)...
706 The lien of any lienor upon whom such notice is served and who
707 fails to institute a suit to enforce his or her lien within 60
708 days after service of such notice shall be extinguished
709 automatically. The clerk shall serve, in accordance with s.
710 713.18, mail a copy of the notice of contest to the lien
711 claimant at the address shown in the claim of lien or most
712 recent amendment thereto and shall certify to such service and
713 the date of service on the face of the such notice and record
714 the notice. Service shall be deemed complete upon mailing.
715 Section 11. Paragraphs (c), (d), (e), and (f) of subsection
716 (1) and subsections (2) and (4) of section 713.23, Florida
717 Statutes, are amended to read:
718 713.23 Payment bond.—
720 (c) Either Before beginning or within 45 days after
721 beginning to furnish labor, materials, or supplies, a lienor who
722 is not in privity with the contractor, except a laborer, shall
723 serve the contractor with notice in writing that the lienor will
724 look to the contractor’s bond for protection on the work. If a
725 notice of commencement with the attached bond is not recorded
726 before commencement of construction, or a reference to the bond
727 is not given in the notice of commencement, and in either case
728 if the lienor not in privity with the contractor is not
729 otherwise notified in writing of the existence of the bond, the
730 lienor not in privity with the contractor may, in the
731 alternative, elect to serve the notice to the contractor up to
732 shall have 45 days after from the date the lienor is served with
733 a copy notified of the existence of the bond within which to
734 serve the notice. A notice to owner pursuant to s. 713.06 that
735 has been timely served on the contractor satisfies the
736 requirements of this paragraph. However, the limitation period
737 for commencement of an action on the payment bond as established
738 in paragraph (e) may not be expanded. The notice may be in
739 substantially the following form and may be combined with a
740 notice to owner given under s. 713.06 and, if so, may be
741 entitled “NOTICE TO OWNER/NOTICE TO CONTRACTOR:
743 NOTICE TO CONTRACTOR
745 To ...(name and address of contractor)...
747 The undersigned hereby informs you that he or she has
748 furnished or is furnishing services or materials as follows:
750 ...(general description of services or materials)... for
751 the improvement of the real property identified as ...(property
752 description)... under an order given by ...(lienor’s
755 This notice is to inform you that the undersigned intends
756 to look to the contractor’s bond to secure payment for the
757 furnishing of materials or services for the improvement of the
758 real property.
760 ...(name of lienor)...
761 ...(signature of lienor or lienor’s representative)...
763 ...(lienor’s address)...
765 The undersigned notifies you that he or she has furnished
766 or is furnishing ...(services or materials)... for the
767 improvement of the real property identified as ...(property
768 description)... owned by ...(owner’s name and address)... under
769 an order given by .... and that the undersigned will look to the
770 contractor’s bond for protection on the work.
772 ...(Lienor’s signature and address)...
774 (d) In addition, a lienor is required, as a condition
775 precedent to recovery under the bond, to serve a written notice
776 of nonpayment to the contractor and the surety not later than 90
777 days after the final furnishing of labor, services, or materials
778 by the lienor. A written notice satisfies this condition
779 precedent with respect to the payment described in the notice of
780 nonpayment, including unpaid finance charges due under the
781 lienor’s contract, and with respect to any other payments which
782 become due to the lienor after the date of the notice of
783 nonpayment. The time period for serving a written notice of
784 nonpayment shall be measured from the last day of furnishing
785 labor, services, or materials by the lienor and shall not be
786 measured by other standards, such as the issuance of a
787 certificate of occupancy or the issuance of a certificate of
788 substantial completion. The failure of a lienor to receive
789 retainage sums not in excess of 10 percent of the value of
790 labor, services, or materials furnished by the lienor is not
791 considered a nonpayment requiring the service of the notice
792 provided under this paragraph. If the payment bond is not
793 recorded before commencement of construction, the time period
794 for the lienor to serve a notice of nonpayment may at the option
795 of the lienor be calculated from the date specified in this
796 section or the date the lienor is served a copy of the bond.
797 However, the limitation period for commencement of an action on
798 the payment bond as established in paragraph (e) may not be
799 expanded. The notice under this paragraph may be in
800 substantially the following form:
802 NOTICE OF NONPAYMENT
804 To ...(name of contractor and address)...
806 ...(name of surety and address)...
808 The undersigned notifies you that he or she has furnished
809 ...(describe labor, services, or materials)... for the
810 improvement of the real property identified as ...(property
811 description).... The amount now due and unpaid is $.....
813 ...(signature and address of lienor)...
815 (e) An No action for the labor or materials or supplies may
816 not be instituted or prosecuted against the contractor or surety
817 unless both notices have been given, if required by this
818 section. An No action may not shall be instituted or prosecuted
819 against the contractor or against the surety on the bond under
820 this section after 1 year from the performance of the labor or
821 completion of delivery of the materials and supplies. The time
822 period for bringing an action against the contractor or surety
823 on the bond shall be measured from the last day of furnishing
824 labor, services, or materials by the lienor. The time period and
825 may shall not be measured by other standards, such as the
826 issuance of a certificate of occupancy or the issuance of a
827 certificate of substantial completion. A contractor or the
828 contractor’s agent or attorney may elect to shorten the
829 prescribed time within which an action to enforce any claim
830 against a payment bond provided under this section or s. 713.245
831 must may be commenced at any time after a notice of nonpayment,
832 if required, has been served for the claim by recording in the
833 clerk’s office a notice in substantially the following form:
835 NOTICE OF CONTEST OF CLAIM
836 AGAINST PAYMENT BOND
838 To: ...(Name and address of lienor)...
840 You are notified that the undersigned contests your notice
841 of nonpayment, dated ...., ...., and served on the undersigned
842 on ...., ...., and that the time within which you may file suit
843 to enforce your claim is limited to 60 days from the date of
844 service of this notice.
846 DATED on ...., .....
848 Signed: ...(Contractor or Attorney)...
850 The claim of any lienor upon whom the notice is served and who
851 fails to institute a suit to enforce his or her claim against
852 the payment bond within 60 days after service of the notice
853 shall be extinguished automatically. The contractor or the
854 contractor’s attorney clerk shall serve mail a copy of the
855 notice of contest to the lienor at the address shown in the
856 notice of nonpayment or most recent amendment thereto and shall
857 certify to such service on the face of the notice and record the
858 notice. Service is complete upon mailing.
859 (f) A Any lienor has a direct right of action on the bond
860 against the surety. Any provision in a payment bond issued on or
861 after October 1, 2012, which further restricts A bond must not
862 contain any provisions restricting the classes of persons who
863 are protected by the payment bond, which restricts thereby or
864 the venue of any proceeding relating to such payment bond, which
865 limits or expands the effective duration of the payment bond, or
866 which adds conditions precedent to the enforcement of a claim
867 against a payment bond beyond those provided in this part is
868 unenforceable. The surety is not entitled to the defense of pro
869 tanto discharge as against any lienor because of changes or
870 modifications in the contract to which the surety is not a
871 party; but the liability of the surety may not be increased
872 beyond the penal sum of the bond. A lienor may not waive in
873 advance his or her right to bring an action under the bond
874 against the surety.
875 (2) The bond shall secure every lien under the direct
876 contract accruing subsequent to its execution and delivery,
877 except that of the contractor. Every claim of lien, except that
878 of the contractor, filed subsequent to execution and delivery of
879 the bond shall be transferred to it with the same effect as
880 liens transferred under s. 713.24. Record notice of the transfer
881 shall be effected by the contractor, or any person having an
882 interest in the property against which the claim of lien has
883 been asserted, by recording in the clerk’s office a notice, with
884 the bond attached, in substantially the following form:
886 NOTICE OF BOND
888 To ...(Name and Address of Lienor)...
890 You are notified that the claim of lien filed by you on
891 ...., ...., and recorded in Official Records Book .... at page
892 .... of the public records of .... County, Florida, is secured
893 by a bond, a copy being attached.
895 Signed: ...(Name of person recording notice)...
897 The notice shall be verified. The person recording the notice of
898 bond clerk shall serve mail a copy of the notice with a copy of
899 the bond to the lienor at the address shown in the claim of
900 lien, or the most recent amendment to it; shall certify to the
901 service on the face of the notice; and shall record the notice.
902 The clerk shall receive the same fee as prescribed in s.
903 713.24 (1) for certifying to a transfer of lien.
904 (4) The provisions of s. 713.24(3) shall apply to bonds
905 under this section except when those provisions conflict with
906 this section.
907 Section 12. Except as otherwise expressly provided in this
908 act, this act shall take effect October 1, 2012.
911 ================= T I T L E A M E N D M E N T ================
912 And the title is amended as follows:
913 Delete everything before the enacting clause
914 and insert:
915 A bill to be entitled
916 An act relating to construction contracting; amending
917 s. 95.11, F.S.; adding a cross-reference; amending s.
918 255.05, F.S.; requiring that the bond number be stated
919 on the first page of the bond; providing that a public
920 entity may not make payment to the contractor unless
921 the public entity has received a certified copy of the
922 bond; providing that a provision in a payment bond
923 furnished for a public works contract that limits or
924 expands the effective duration of the bond or adds
925 conditions precedent is unenforceable; requiring a
926 contractor, or the contractor’s attorney, to serve
927 rather than mail a notice of contest of claim against
928 the payment bond; providing prerequisites for
929 commencement of an action against a payment bond;
930 requiring payment bond forms to reference specified
931 notice and time limitation provisions; providing that
932 payment to a contractor who has furnished a payment
933 bond on a public works project may not be conditioned
934 upon production of certain documents if the surety has
935 given written consent; providing for the surety to
936 withhold or revoke consent; creating s. 255.0518,
937 F.S.; requiring that the state, a county, a
938 municipality, or any other public body or institution
939 open sealed bids received in response to a competitive
940 solicitation at a public meeting, announce the name of
941 each bidder and the price submitted, and make
942 available upon request the names of bidders and
943 submitted prices; amending s. 713.10, F.S.; providing
944 that a specified notice concerning a lessor’s
945 liability for liens for improvements made by the
946 lessee prohibits liens even if other leases do not
947 expressly prohibit liens or if certain other
948 provisions are not identical; amending s. 713.13,
949 F.S.; revising a notice form to clarify that the
950 notice of commencement expires 1 year after the date
951 of recording; removing a clause relating to perjury;
952 providing additional time for service when a notice of
953 commencement is not recorded with a copy of the bond
954 attached; reenacting and amending s. 489.118, F.S.;
955 reviving certain grandfathering provisions and setting
956 a new deadline by which certain registered contractors
957 may apply for certification; amending s. 713.132,
958 F.S.; requiring notice of termination to be served on
959 lienors in privity with the owner; amending s. 713.16,
960 F.S.; revising requirements for demands for a copy of
961 a construction contract and a statement of account;
962 authorizing a lienor to make certain written demands
963 to an owner for certain written statements; providing
964 requirements for such written demands; amending s.
965 713.18, F.S.; providing additional methods by which
966 certain items may be served; revising provisions
967 relating to when service of specified items is
968 effective; specifying requirements for certain written
969 instruments under certain circumstances; amending s.
970 713.22, F.S.; requiring that the clerk serve rather
971 than mail a notice of contest of lien; amending s.
972 713.23, F.S.; revising the contents of a notice to
973 contractor; requiring that a contractor serve rather
974 than mail a notice of contest of claim against the
975 payment bond and a notice of bond; clarifying the
976 attachment of the bond to the notice; providing that a
977 provision in a payment bond that limits or expands the
978 effective duration of the bond or adds conditions
979 precedent is unenforceable; clarifying applicability
980 of certain provisions; providing effective dates.