Florida Senate - 2020 COMMITTEE AMENDMENT
Bill No. CS for SB 504
Ì547446?Î547446
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2020 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Rules (Perry) recommended the following:
1 Senate Amendment to Amendment (627108) (with title
2 amendment)
3
4 Between lines 4 and 5
5 insert:
6 Section 1. Paragraphs (a), (d), and (f) of subsection (2)
7 of section 255.05, Florida Statutes, are amended, and subsection
8 (12) is added to that section, to read:
9 255.05 Bond of contractor constructing public buildings;
10 form; action by claimants.—
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 time
14 within which an action to enforce any claim against a payment
15 bond must be commenced by recording in the clerk’s office a
16 notice in substantially the following form:
17
18 NOTICE OF CONTEST OF CLAIM
19 AGAINST PAYMENT BOND
20
21 To: ...(Name and address of claimant)...
22
23 You are notified that the undersigned contests your notice
24 of nonpayment, dated ............, ........, and served on the
25 undersigned on ............, ........, and that the time within
26 which you may file suit to enforce your claim is limited to 60
27 days after the date of service of this notice.
28
29 DATED on ............, .........
30
31 Signed: ...(Contractor or Attorney)...
32
33 The claim of a claimant upon whom such notice is served and who
34 fails to institute a suit to enforce his or her claim against
35 the payment bond within 60 days after service of such notice is
36 extinguished automatically. The contractor or the contractor’s
37 attorney shall serve a copy of the notice of contest on to the
38 claimant at the address shown in the notice of nonpayment or
39 most recent amendment thereto and shall certify to such service
40 on the face of the notice and record the notice.
41 2. A claimant, except a laborer, who is not in privity with
42 the contractor shall, before commencing or not later than 45
43 days after commencing to furnish labor, services, or materials
44 for the prosecution of the work, serve the contractor with a
45 written notice that he or she intends to look to the bond for
46 protection. A claimant who is not in privity with the contractor
47 and who has not received payment for furnishing his or her
48 labor, services, or materials shall serve a written notice of
49 nonpayment on the contractor and a copy of the notice on the
50 surety. The notice of nonpayment shall be under oath and served
51 during the progress of the work or thereafter but may not be
52 served earlier than 45 days after the first furnishing of labor,
53 services, or materials by the claimant or later than 90 days
54 after the final furnishing of the labor, services, or materials
55 by the claimant or, with respect to rental equipment, later than
56 90 days after the date that the rental equipment was last on the
57 job site available for use. Any notice of nonpayment served by a
58 claimant who is not in privity with the contractor which
59 includes sums for retainage must specify the portion of the
60 amount claimed for retainage. An action for the labor, services,
61 or materials may not be instituted against the contractor or the
62 surety unless the notice to the contractor and notice of
63 nonpayment have been served, if required by this section.
64 Notices required or permitted under this section must be served
65 in accordance with s. 713.18. A claimant may not waive in
66 advance his or her right to bring an action under the bond
67 against the surety. In any action brought to enforce a claim
68 against a payment bond under this section, the prevailing party
69 is entitled to recover a reasonable fee for the services of his
70 or her attorney for trial and appeal or for arbitration, in an
71 amount to be determined by the court, which fee must be taxed as
72 part of the prevailing party’s costs, as allowed in equitable
73 actions. The time periods for service of a notice of nonpayment
74 or for bringing an action against a contractor or a surety are
75 shall be measured from the last day of furnishing labor,
76 services, or materials by the claimant and may not be measured
77 by other standards, such as the issuance of a certificate of
78 occupancy or the issuance of a certificate of substantial
79 completion. The negligent inclusion or omission of any
80 information in the notice of nonpayment that has not prejudiced
81 the contractor or surety does not constitute a default that
82 operates to defeat an otherwise valid bond claim. A claimant who
83 serves a fraudulent notice of nonpayment forfeits his or her
84 rights under the bond. A notice of nonpayment is fraudulent if
85 the claimant has willfully exaggerated the amount unpaid,
86 willfully included a claim for work not performed or materials
87 not furnished for the subject improvement, or prepared the
88 notice with such willful and gross negligence as to amount to a
89 willful exaggeration. However, a minor mistake or error in a
90 notice of nonpayment, or a good faith dispute as to the amount
91 unpaid, does not constitute a willful exaggeration that operates
92 to defeat an otherwise valid claim against the bond. The service
93 of a fraudulent notice of nonpayment is a complete defense to
94 the claimant’s claim against the bond. The notice of nonpayment
95 under this subparagraph must include the following information,
96 current as of the date of the notice, and must be in
97 substantially the following form:
98
99 NOTICE OF NONPAYMENT
100
101 To: ...(name of contractor and address)...
102
103 ...(name of surety and address)...
104
105 The undersigned claimant notifies you that:
106 1. Claimant has furnished ...(describe labor, services, or
107 materials)... for the improvement of the real property
108 identified as ...(property description).... The corresponding
109 amount unpaid to date is $...., of which $.... is unpaid
110 retainage.
111 2. Claimant has been paid to date the amount of $.... for
112 previously furnishing ...(describe labor, services, or
113 materials)... for this improvement.
114 3. Claimant expects to furnish ...(describe labor,
115 services, or materials)... for this improvement in the future
116 (if known), and the corresponding amount expected to become due
117 is $.... (if known).
118
119 I declare that I have read the foregoing Notice of Nonpayment
120 and that the facts stated in it are true to the best of my
121 knowledge and belief.
122
123 DATED on ............, .........
124 ...(signature and address of claimant)...
125 STATE OF FLORIDA
126 COUNTY OF ........
127
128 The foregoing instrument was sworn to (or affirmed) and
129 subscribed before me by means of .... physical presence or sworn
130 to (or affirmed) by .... online notarization this....day of
131 ...., ...(year)..., by ...(name of signatory)....
132 ...(Signature of Notary Public - State of Florida)...
133 ...(Print, Type, or Stamp Commissioned Name of Notary
134 Public)...
135
136 Personally Known ........ OR Produced Identification ........
137
138 Type of Identification Produced.................................
139
140 (d) A person may not require a claimant to furnish a waiver
141 that is different from the forms in paragraphs (b) and (c) in
142 exchange for, or to induce payment of, a progress payment or
143 final payment, unless the claimant has entered into a direct
144 contract that requires the claimant to furnish a waiver that is
145 different from the forms in paragraphs (b) and (c).
146 (f) Any provisions in a waiver that are is not related to
147 the waiver of right to claim against a payment bond as provided
148 in this subsection are unenforceable, unless the claimant has
149 otherwise agreed to those provisions in the claimant’s direct
150 contract substantially similar to the forms in this subsection
151 is enforceable in accordance with its terms.
152 (12) Unless otherwise provided in this section, service of
153 any document must be made in accordance with s. 713.18.
154 Section 2. Paragraph (c) of subsection (1) of section
155 337.18, Florida Statutes, is amended, and subsection (6) is
156 added to that section, to read:
157 337.18 Surety bonds for construction or maintenance
158 contracts; requirement with respect to contract award; bond
159 requirements; defaults; damage assessments.—
160 (1)
161 (c) A claimant, except a laborer, who is not in privity
162 with the contractor shall, before commencing or not later than
163 90 days after commencing to furnish labor, materials, or
164 supplies for the prosecution of the work, furnish the contractor
165 with a notice that he or she intends to look to the bond for
166 protection. A claimant who is not in privity with the contractor
167 and who has not received payment for his or her labor,
168 materials, or supplies shall deliver to the contractor and to
169 the surety written notice of the performance of the labor or
170 delivery of the materials or supplies and of the nonpayment. The
171 notice of nonpayment may be served at any time during the
172 progress of the work or thereafter but not before 45 days after
173 the first furnishing of labor, services, or materials, and not
174 later than 90 days after the final furnishing of the labor,
175 services, or materials by the claimant or, with respect to
176 rental equipment, not later than 90 days after the date that the
177 rental equipment was last on the job site available for use. An
178 action by a claimant, except a laborer, who is not in privity
179 with the contractor for the labor, materials, or supplies may
180 not be instituted against the contractor or the surety unless
181 both notices have been given. Notices required or permitted
182 under this section may be served in any manner provided in s.
183 713.18, and provisions for the waiver of right to claim against
184 a payment bond contained in s. 713.235 apply to all contracts
185 under this section.
186 (6) Unless otherwise provided in this section, service of
187 any document must be made in accordance with s. 713.18.
188 Section 3. Subsections (8) and (26) of section 713.01,
189 Florida Statutes, are amended to read:
190 713.01 Definitions.—As used in this part, the term:
191 (8) “Contractor” means a person other than a materialman or
192 laborer who enters into a contract with the owner of real
193 property for improving it, or who takes over from a contractor
194 as so defined the entire remaining work under such contract. The
195 term “contractor” includes an architect, landscape architect, or
196 engineer who improves real property pursuant to a design-build
197 contract authorized by s. 489.103(16). The term “contractor”
198 also includes a licensed general contractor or building
199 contractor, as those terms are defined in s. 489.105(3)(a) and
200 (b), who provides construction management services, which
201 include responsibility for scheduling and coordination in both
202 preconstruction and construction phases and for the successful,
203 timely, and economical completion of the construction project,
204 or who provides program management services, which include
205 responsibility for schedule control, cost control, and
206 coordination in providing or procuring planning, design, and
207 construction.
208 (26) “Real property” means the land that is improved and
209 the improvements thereon, including fixtures, except any such
210 property owned by the state or any county, municipality, school
211 board, or governmental agency, commission, or political
212 subdivision. The term includes a private leasehold interest that
213 is improved, and the improvements thereon, on land that is owned
214 by the state or any county, municipality, school board, or
215 governmental agency, commission, or political subdivision.
216 Section 4. Section 713.09, Florida Statutes, is amended to
217 read:
218 713.09 Single claim of lien.—A lienor may is required to
219 record only one claim of lien covering his or her entire demand
220 against the real property when the amount demanded is for labor
221 or services or material furnished for more than one improvement
222 under the same direct contract or multiple direct contracts. The
223 single claim of lien is sufficient even though the improvement
224 is for one or more improvements located on separate lots,
225 parcels, or tracts of land. If materials to be used on one or
226 more improvements on separate lots, parcels, or tracts of land
227 under one direct contract are delivered by a lienor to a place
228 designated by the person with whom the materialman contracted,
229 other than the site of the improvement, the delivery to the
230 place designated is prima facie evidence of delivery to the site
231 of the improvement and incorporation in the improvement. The
232 single claim of lien may be limited to a part of multiple lots,
233 parcels, or tracts of land and their improvements or may cover
234 all of the lots, parcels, or tracts of land and improvements. If
235 a In each claim of lien under this section is for multiple
236 direct contracts, the owner under the direct contracts contract
237 must be the same person for all lots, parcels, or tracts of land
238 against which a single claim of lien is recorded.
239 Section 5. Paragraph (b) of subsection (2) of section
240 713.10, Florida Statutes, is amended, and subsection (4) is
241 added to that section, to read:
242 713.10 Extent of liens.—
243 (2)
244 (b) The interest of the lessor is not subject to liens for
245 improvements made by the lessee when:
246 1. The lease, or a short form or a memorandum of the lease
247 that contains the specific language in the lease prohibiting
248 such liability, is recorded in the official records of the
249 county where the premises are located before the recording of a
250 notice of commencement for improvements to the premises and the
251 terms of the lease expressly prohibit such liability; or
252 2. The terms of the lease expressly prohibit such
253 liability, and a notice advising that leases for the rental of
254 premises on a parcel of land prohibit such liability has been
255 recorded in the official records of the county in which the
256 parcel of land is located before the recording of a notice of
257 commencement for improvements to the premises, and the notice
258 includes the following:
259 a. The name of the lessor.
260 b. The legal description of the parcel of land to which the
261 notice applies.
262 c. The specific language contained in the various leases
263 prohibiting such liability.
264 d. A statement that all or a majority of the leases entered
265 into for premises on the parcel of land expressly prohibit such
266 liability.
267 3. The lessee is a mobile home owner who is leasing a
268 mobile home lot in a mobile home park from the lessor.
269
270 A notice that is consistent with subparagraph 2. effectively
271 prohibits liens for improvements made by a lessee even if other
272 leases for premises on the parcel do not expressly prohibit
273 liens or if provisions of each lease restricting the application
274 of liens are not identical.
275 (4) The interest of the lessor is not subject to liens for
276 improvements made by the lessee when the lessee is a mobile home
277 owner who is leasing a mobile home lot in a mobile home park
278 from the lessor.
279 Section 6. Paragraphs (a) and (d) of subsection (1) of
280 section 713.13, Florida Statutes, are amended to read:
281 713.13 Notice of commencement.—
282 (1)(a) Except for an improvement that is exempt under
283 pursuant to s. 713.02(5), an owner or the owner’s authorized
284 agent before actually commencing to improve any real property,
285 or recommencing completion of any improvement after default or
286 abandonment, whether or not a project has a payment bond
287 complying with s. 713.23, shall record a notice of commencement
288 in the clerk’s office and forthwith post either a certified copy
289 thereof or a notarized statement that the notice of commencement
290 has been filed for recording along with a copy thereof. The
291 notice of commencement shall contain the following information:
292 1. A description sufficient for identification of the real
293 property to be improved. The description should include the
294 legal description of the property and also should include the
295 street address and tax folio number of the property if available
296 or, if there is no street address available, such additional
297 information as will describe the physical location of the real
298 property to be improved.
299 2. A general description of the improvement.
300 3. The name and address of the owner, the owner’s interest
301 in the site of the improvement, and the name and address of the
302 fee simple titleholder, if other than such owner.
303 4. The name and address of the lessee, if the A lessee who
304 contracts for the improvements as is an owner as defined in s.
305 713.01 under s. 713.01(23) and must be listed as the owner
306 together with a statement that the ownership interest is a
307 leasehold interest.
308 5.4. The name and address of the contractor.
309 6.5. The name and address of the surety on the payment bond
310 under s. 713.23, if any, and the amount of such bond.
311 7.6. The name and address of any person making a loan for
312 the construction of the improvements.
313 8.7. The name and address within the state of a person
314 other than himself or herself who may be designated by the owner
315 as the person upon whom notices or other documents may be served
316 under this part; and service upon the person so designated
317 constitutes service upon the owner.
318 (d) A notice of commencement must be in substantially the
319 following form:
320
321 Permit No..... Tax Folio No.....
322 NOTICE OF COMMENCEMENT
323 STATE OF FLORIDA State of....
324 COUNTY OF County of....
325
326 The undersigned hereby gives notice that improvement will be
327 made to certain real property, and in accordance with Chapter
328 713, Florida Statutes, the following information is provided in
329 this Notice of Commencement.
330 1. Description of property: ...(legal description of the
331 property, and street address if available)....
332 2. General description of improvement:.....
333 3.a. Owner: ...(name and address)....
334 b. Owner’s phone number:.....
335 c. Name and address of fee simple titleholder (if different
336 from Owner listed above):.....
337 4.a. Lessee, if the lessee contracted for the improvements:
338 ...(name and address)....
339 b. Lessee’s phone number:..... owner information or Lessee
340 information if the Lessee contracted for the improvement:
341 a. Name and address:.....
342 b. Interest in property:.....
343 c. Name and address of fee simple titleholder (if different
344 from Owner listed above):.....
345 5.a.4.a. Contractor: ...(name and address)....
346 b. Contractor’s phone number:.....
347 6.5. Surety (if applicable, a copy of the payment bond is
348 attached):
349 a. Name and address:.....
350 b. Phone number:.....
351 c. Amount of bond: $.....
352 7.a.6.a. Lender: ...(name and address)....
353 b. Lender’s phone number:.....
354 8.7. Persons within the State of Florida designated by
355 Owner upon whom notices or other documents may be served as
356 provided in by Section 713.13(1)(a)8. 713.13(1)(a)7., Florida
357 Statutes:
358 a. Name and address:.....
359 b. Phone numbers of designated persons:.....
360 9.a.8.a. In addition to himself or herself, Owner
361 designates ............ of ............ to receive a copy of the
362 Lienor’s Notice as provided in Section 713.13(1)(b), Florida
363 Statutes.
364 b. Phone number of person or entity designated by
365 owner:.....
366 10.9. Expiration date of notice of commencement (the
367 expiration date will be 1 year after from the date of recording
368 unless a different date is specified).....
369
370 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
371 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
372 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
373 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
374 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
375 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
376 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
377 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
378 COMMENCEMENT.
379
380 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
381 Authorized Officer/Director/Partner/Manager)...
382 ...(Signatory’s Title/Office)...
383
384 The foregoing instrument was acknowledged before me by means of
385 .... physical presence or sworn to (or affirmed) by .... online
386 notarization this .... day of ...., ...(year)..., by ...(name of
387 person)... as ...(type of authority, . . . e.g. officer,
388 trustee, attorney in fact)... for ...(name of party on behalf of
389 whom instrument was executed)....
390 ...(Signature of Notary Public - State of Florida)...
391
392 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
393
394 Personally Known .... OR Produced Identification ....
395
396 Type of Identification Produced............
397 Section 7. Subsections (1), (3), and (4) of section
398 713.132, Florida Statutes, are amended to read:
399 713.132 Notice of termination.—
400 (1) An owner may terminate the period of effectiveness of a
401 notice of commencement by executing, swearing to, and recording
402 a notice of termination that contains:
403 (a) The same information as the notice of commencement;
404 (b) The official records’ recording office document book
405 and page reference numbers and recording date affixed by the
406 recording office on of the recorded notice of commencement;
407 (c) A statement of the date as of which the notice of
408 commencement is terminated, which date may not be earlier than
409 30 days after the notice of termination is recorded;
410 (d) A statement specifying that the notice applies to all
411 the real property subject to the notice of commencement or
412 specifying the portion of such real property to which it
413 applies;
414 (e) A statement that all lienors have been paid in full;
415 and
416 (f) A statement that the owner has, before recording the
417 notice of termination, served a copy of the notice of
418 termination on the contractor and on each lienor who has a
419 direct contract with the owner or who has timely served a notice
420 to owner, and a statement that the owner will serve a copy of
421 the notice of termination on each lienor who timely serves a
422 notice to owner after the notice of termination has been
423 recorded. The owner is not required to serve a copy of the
424 notice of termination on any lienor who has executed a waiver
425 and release of lien upon final payment in accordance with s.
426 713.20.
427 (3) An owner may not record a notice of termination at any
428 time after except after completion of construction, or after
429 construction ceases before completion and all lienors have been
430 paid in full or pro rata in accordance with s. 713.06(4).
431 (4) If an owner or a contractor, by fraud or collusion,
432 knowingly makes any fraudulent statement or affidavit in a
433 notice of termination or any accompanying affidavit, the owner
434 and the contractor, or either of them, as the case may be, is
435 liable to any lienor who suffers damages as a result of the
436 filing of the fraudulent notice of termination,; and any such
437 lienor has a right of action for damages occasioned thereby.
438 (5)(4) A notice of termination must be served before
439 recording on each lienor who has a direct contract with the
440 owner and on each lienor who has timely and properly served a
441 notice to owner in accordance with this part before the
442 recording of the notice of termination. A notice of termination
443 must be recorded in the official records of the county in which
444 the project is located. If properly served before recording in
445 accordance with this subsection, the notice of termination
446 terminates the period of effectiveness of the notice of
447 commencement 30 days after the notice of termination is recorded
448 in the official records is effective to terminate the notice of
449 commencement at the later of 30 days after recording of the
450 notice of termination or a later the date stated in the notice
451 of termination as the date on which the notice of commencement
452 is terminated. However, if a lienor, who began work under the
453 notice of commencement before its termination, lacks a direct
454 contract with the owner, and timely serves his or her notice to
455 owner after the notice of termination has been recorded, the
456 owner must serve a copy of the notice of termination upon such
457 lienor, and the termination of the notice of commencement as to
458 that lienor is effective 30 days after service of the notice of
459 termination if the notice of termination has been served
460 pursuant to paragraph (1)(f) on the contractor and on each
461 lienor who has a direct contract with the owner or who has
462 served a notice to owner.
463 Section 8. Section 713.18, Florida Statutes, is amended to
464 read:
465 713.18 Manner of serving documents notices and other
466 instruments.—
467 (1) Unless otherwise specifically provided by law, service
468 of any document notices, claims of lien, affidavits,
469 assignments, and other instruments permitted or required under
470 this part, s. 255.05, or s. 337.18, or copies thereof when so
471 permitted or required, unless otherwise specifically provided in
472 this part, must be made by one of the following methods:
473 (a) By hand actual delivery to the person to be served; if
474 a partnership, to one of the partners; if a corporation, to an
475 officer, director, managing agent, or business agent; or, if a
476 limited liability company, to a member or manager.
477 (b) By common carrier delivery service or by registered,
478 Global Express Guaranteed, or certified mail to the person to be
479 served, with postage or shipping paid by the sender and with
480 evidence of delivery, which may be in an electronic format.
481 (c) By posting on the site of the improvement if service as
482 provided by paragraph (a) or paragraph (b) cannot be
483 accomplished.
484 (2) Notwithstanding subsection (1), service of a notice to
485 owner or a preliminary notice to contractor under this part, s.
486 255.05, or s. 337.18, or s. 713.23 is effective as of the date
487 of mailing and the requirements for service under this section
488 have been satisfied if:
489 (a) The notice is mailed by registered, Global Express
490 Guaranteed, or certified mail, with postage prepaid, to the
491 person to be served and addressed as prescribed at any of the
492 addresses set forth in subsection (3);
493 (b) The notice is mailed within 40 days after the date the
494 lienor first furnishes labor, services, or materials; and
495 (c)1. The person who served the notice maintains a
496 registered or certified mail log that shows the registered or
497 certified mail number issued by the United States Postal
498 Service, the name and address of the person served, and the date
499 stamp of the United States Postal Service confirming the date of
500 mailing; or
501 2. The person who served the notice maintains electronic
502 tracking records approved or generated by the United States
503 Postal Service containing the postal tracking number, the name
504 and address of the person served, and verification of the date
505 of receipt by the United States Postal Service.
506 (3)(a) Notwithstanding subsection (1), service of a
507 document under an instrument pursuant to this section is
508 effective on the date of mailing or shipping and the
509 requirements for service under this section have been satisfied
510 the instrument if it:
511 1. Is sent using one of the methods provided in paragraph
512 (1)(b) to the last address shown in the notice of commencement
513 or any amendment thereto or, in the absence of a notice of
514 commencement, to the last address shown in the building permit
515 application, or, in the absence of a notice of commencement and
516 building permit application, to the last known address of the
517 person to be served, unless otherwise specifically provided in
518 this part, s. 255.05, or s. 337.18; and
519 2. Is returned as being “refused,” “moved, not
520 forwardable,” or “unclaimed,” or is otherwise not delivered or
521 deliverable through no fault of the person serving the document
522 item.
523 (b) If the address shown in the notice of commencement or
524 any amendment thereto to the notice of commencement, or, in the
525 absence of a notice of commencement, in the building permit
526 application, is incomplete for purposes of mailing or delivery,
527 the person serving the document item may complete the address
528 and properly format it according to United States Postal Service
529 addressing standards using information obtained from the
530 property appraiser or another public record without affecting
531 the validity of service under this section.
532 (4) A document notice served by a lienor on one owner or
533 one partner of a partnership owning the real property is deemed
534 served on notice to all owners and partners.
535 Section 9. Subsections (6) and (8) of section 713.20,
536 Florida Statutes, are amended to read:
537 713.20 Waiver or release of liens.—
538 (6) A person may not require a lienor to furnish a lien
539 waiver or release of lien that is different from the forms in
540 subsection (4) or subsection (5) in exchange for, or to induce
541 payment of, a progress payment or final payment, unless the
542 lienor has entered into a direct contract that requires the
543 lienor to furnish a waiver or release that is different from the
544 forms in subsection (4) or subsection (5).
545 (8) Any provisions in a lien waiver or lien release that
546 are is not related to the waiver or release of lien rights as
547 provided in this section are unenforceable, unless the lienor
548 has otherwise agreed to those provisions in the lienor’s direct
549 contract substantially similar to the forms in subsections (4)
550 and (5) is enforceable in accordance with the terms of the lien
551 waiver or lien release.
552 Section 10. Paragraph (d) of subsection (1) of section
553 713.23, Florida Statutes, is amended to read:
554 713.23 Payment bond.—
555 (1)
556 (d) In addition, a lienor who has not received payment for
557 furnishing his or her labor, services, or materials must, as a
558 condition precedent to recovery under the bond, serve a written
559 notice of nonpayment on to the contractor and a copy of the
560 notice on the surety. The notice must be under oath and served
561 during the progress of the work or thereafter, but may not be
562 served later than 90 days after the final furnishing of labor,
563 services, or materials by the lienor, or, with respect to rental
564 equipment, later than 90 days after the date the rental
565 equipment was on the job site and available for use. A notice of
566 nonpayment that includes sums for retainage must specify the
567 portion of the amount claimed for retainage. The required notice
568 satisfies this condition precedent with respect to the payment
569 described in the notice of nonpayment, including unpaid finance
570 charges due under the lienor’s contract, and with respect to any
571 other payments which become due to the lienor after the date of
572 the notice of nonpayment. The time period for serving a notice
573 of nonpayment is shall be measured from the last day of
574 furnishing labor, services, or materials by the lienor and may
575 not be measured by other standards, such as the issuance of a
576 certificate of occupancy or the issuance of a certificate of
577 substantial completion. The failure of a lienor to receive
578 retainage sums not in excess of 10 percent of the value of
579 labor, services, or materials furnished by the lienor is not
580 considered a nonpayment requiring the service of the notice
581 provided under this paragraph. If the payment bond is not
582 recorded before commencement of construction, the time period
583 for the lienor to serve a notice of nonpayment may at the option
584 of the lienor be calculated from the date specified in this
585 section or the date the lienor is served a copy of the bond.
586 However, the limitation period for commencement of an action on
587 the payment bond as established in paragraph (e) may not be
588 expanded. The negligent inclusion or omission of any information
589 in the notice of nonpayment that has not prejudiced the
590 contractor or surety does not constitute a default that operates
591 to defeat an otherwise valid bond claim. A lienor who serves a
592 fraudulent notice of nonpayment forfeits his or her rights under
593 the bond. A notice of nonpayment is fraudulent if the lienor has
594 willfully exaggerated the amount unpaid, willfully included a
595 claim for work not performed or materials not furnished for the
596 subject improvement, or prepared the notice with such willful
597 and gross negligence as to amount to a willful exaggeration.
598 However, a minor mistake or error in a notice of nonpayment, or
599 a good faith dispute as to the amount unpaid, does not
600 constitute a willful exaggeration that operates to defeat an
601 otherwise valid claim against the bond. The service of a
602 fraudulent notice of nonpayment is a complete defense to the
603 lienor’s claim against the bond. The notice under this paragraph
604 must include the following information, current as of the date
605 of the notice, and must be in substantially the following form:
606
607 NOTICE OF NONPAYMENT
608
609 To ...(name of contractor and address)...
610 ...(name of surety and address)...
611
612 The undersigned lienor notifies you that:
613 1. The lienor has furnished ...(describe labor, services,
614 or materials)... for the improvement of the real property
615 identified as ...(property description).... The corresponding
616 amount unpaid to date is $...., of which $.... is unpaid
617 retainage.
618 2. The lienor has been paid to date the amount of $.... for
619 previously furnishing ...(describe labor, services, or
620 materials)... for this improvement.
621 3. The lienor expects to furnish ...(describe labor,
622 services, or materials)... for this improvement in the future
623 (if known), and the corresponding amount expected to become due
624 is $.... (if known).
625
626 I declare that I have read the foregoing Notice of Nonpayment
627 and that the facts stated in it are true to the best of my
628 knowledge and belief.
629
630 DATED on ............, .........
631 ...(signature and address of lienor)...
632 STATE OF FLORIDA
633 COUNTY OF........
634
635 The foregoing instrument was sworn to (or affirmed) and
636 subscribed before me by means of .... physical presence or sworn
637 to (or affirmed) by .... online notarization this .... day of
638 ...., ...(year)..., by ...(name of signatory)....
639 ...(Signature of Notary Public - State of Florida)...
640 ...(Print, Type, or Stamp Commissioned Name of Notary
641 Public)...
642 Personally Known ........ OR Produced Identification ........
643
644 Type of Identification Produced.................................
645
646 Section 11. Subsections (3) and (5) of section 713.235,
647 Florida Statutes, are amended to read:
648 713.235 Waivers of right to claim against payment bond;
649 forms.—
650 (3) A person may not require a claimant to furnish a waiver
651 that is different from the forms in subsections (1) and (2) in
652 exchange for, or to induce payment of, a progress payment or
653 final payment, unless the claimant has entered into a direct
654 contract that requires the claimant to furnish a waiver that is
655 different from the forms in subsections (1) and (2).
656 (5) Any provisions in a waiver that are is not related to
657 the waiver of the right to claim against the payment bond as
658 provided in this section are unenforceable, unless the claimant
659 has otherwise agreed to those provisions in the claimant’s
660 direct contract substantially similar to the forms in this
661 section is enforceable in accordance with its terms.
662 Section 12. Section 713.29, Florida Statutes, is amended to
663 read:
664 713.29 Attorney Attorney’s fees.—In any action brought to
665 enforce a lien, including a lien that has been transferred to
666 security, or to enforce a claim against a bond under this part,
667 the prevailing party is entitled to recover a reasonable fee for
668 the services of her or his attorney for trial and appeal or for
669 arbitration, in an amount to be determined by the court, which
670 fee must be taxed as part of the prevailing party’s costs, as
671 allowed in equitable actions.
672
673 ================= T I T L E A M E N D M E N T ================
674 And the title is amended as follows:
675 Delete lines 383 - 384
676 and insert:
677 An act relating to construction; amending s. 255.05,
678 F.S.; requiring that a copy of a notice of nonpayment
679 be served on the surety; prohibiting a person from
680 requiring a claimant to furnish a certain waiver in
681 exchange for or to induce certain payments; providing
682 that specified provisions in certain waivers are
683 unenforceable; providing an exception; revising the
684 process for notarizing a notice of nonpayment;
685 requiring service of documents to be made in a
686 specified manner; amending s. 337.18, F.S.; providing
687 that certain waivers apply to certain contracts;
688 requiring service of documents to be made in a
689 specified manner; amending s. 713.01, F.S.; revising
690 definitions; amending s. 713.09, F.S.; authorizing a
691 lienor to record one claim of lien for multiple direct
692 contracts; amending s. 713.10, F.S.; revising the
693 extent of certain liens; amending s. 713.13, F.S.;
694 revising information to be included in a notice of
695 commencement; revising the process for notarizing a
696 notice of commencement; amending s. 713.132, F.S.;
697 revising requirements for a notice of termination;
698 amending s. 713.18, F.S.; requiring service of
699 documents relating to construction bonds to be made in
700 a specified manner; making technical changes; amending
701 ss. 713.20 and 713.235, F.S.; prohibiting a person
702 from requiring a lienor to furnish a certain waiver or
703 release in exchange for or to induce certain payments;
704 providing that specified provisions in certain waivers
705 or releases are unenforceable; providing an exception;
706 amending s. 713.23, F.S.; requiring that a copy of a
707 notice of nonpayment be served on the surety; revising
708 the process for notarizing a notice of nonpayment
709 under a payment bond; amending s. 713.29, F.S.;
710 authorizing attorney fees in actions to enforce a lien
711 that has been transferred to security; amending s.
712 218.80, F.S.; revising