Bill Text: AZ HB2268 | 2016 | Fifty-second Legislature 2nd Regular | Chaptered
Bill Title: Construction contracts; bonds; notice requirements
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2016-05-12 - Chapter 237 [HB2268 Detail]
Download: Arizona-2016-HB2268-Chaptered.html
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House Engrossed |
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State of Arizona House of Representatives Fifty-second Legislature Second Regular Session 2016
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CHAPTER 237
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HOUSE BILL 2268 |
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AN ACT
Amending section 34‑223, Arizona Revised Statutes; relating to construction contracts.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 34-223, Arizona Revised Statutes, is amended to read:
34-223. Payment bond provisions
A. Every claimant who has furnished labor or material in the prosecution of the work provided for in such a contract in respect of for which a payment bond is furnished under the provisions of section 34‑222, and who has not been paid in full therefor for the labor or material for the work before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by the claimant or material was furnished or supplied by the claimant for which such the claim is made, shall have the right to sue on such the payment bond for the amount, or the balance thereof of the amount, unpaid at the time of institution of such the suit and to prosecute such the action to final judgment for the sum or sums justly due the claimant, and have execution thereon, provided however that any such claimant having who has a direct contractual relationship with a subcontractor of the contractor furnishing such the payment bond but no not a contractual relationship express or implied with such the contractor shall have has a right of action upon such on the payment bond upon on giving the contractor only the following notices:
1. A written preliminary twenty day twenty‑day notice, as provided for in section 33‑992.01, subsection C, paragraphs 1, 2, 3 and 4 and subsections E, F and H, and upon giving.
2. A written ninety‑day notice to such contractor given within ninety days from after the date on which such the claimant performed the last of the labor or furnished or supplied the last of the material for which such the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such The ninety‑day notice shall be served given by registered or certified mail, postage prepaid, in an envelope addressed any means that provides written, third‑party verification of delivery to the contractor at any place the contractor maintains an office or conducts business, or at the contractor's residence.
B. Every suit instituted under this section shall be brought in the name of the claimant, but no such suit shall be commenced after the expiration of one year from after the date on which the last of the labor was performed or materials were supplied by the person bringing this suit.
C. On written application, the contracting body and the agent in charge of its office shall furnish to anyone making written application therefor who states that it any person that states the person has supplied labor or materials for such the work, and payment therefor for the labor or materials for the work has not been made, or that it is being sued on any such the bond, or that it is the surety thereon on the bond, a certified copy of such the bond and the contract for which it the bond was given, which. The copy shall be is prima facie evidence of the contents, execution and delivery of the original. Applicants shall pay for such the certified copies such and the reasonable fees as that the contracting body or the agent in charge of its office fixes to cover the actual cost of preparation thereof of the certified copies.
Sec. 2. Legislative findings; intent
The legislature finds that in a 2015 opinion, the Arizona Court of Appeals held in Cemex Construction Materials South, LLC v. Falcone Brothers & Associates, Inc., 237 Ariz. 236 (Ct. App. 2015) that a written preliminary twenty‑day notice that sub‑subcontractors and suppliers to subcontractors are required to give as a precondition to recovering against statutory payment bonds pursuant to section 34‑223, Arizona Revised Statutes, must be sent by certified mail. The legislature also finds that the construction industry believes the Cemex decision incorrectly applied the legislature's intent in interpreting this notice requirement. It is the intent of the legislature to clarify that under section 34‑223, Arizona Revised Statutes, as amended by this act, the written preliminary twenty‑day notice may be sent by first class mail with certificate of mailing, certified or registered mail. It is also the intent of the legislature to allow for additional delivery methods for the ninety‑day notice.
APPROVED BY THE GOVERNOR MAY 12, 2016.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 12, 2016.
