Bill Text: FL H0755 | 2010 | Regular Session | Introduced
Bill Title: Notices of Nonpayment
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Governmental Affairs Policy (EDCA) [H0755 Detail]
Download: Florida-2010-H0755-Introduced.html
HB 755 |
1 | |
2 | An act relating to notices of nonpayment; amending s. |
3 | 255.05, F.S.; revising requirements for a notice of |
4 | nonpayment for labor, services, or materials served by a |
5 | claimant under a contractor's bond; depriving a claimant |
6 | of rights under the bond for furnishing a false or |
7 | fraudulent notice of nonpayment; revising a prohibition |
8 | against claimant actions against a contractor or surety |
9 | under certain circumstances; amending s. 337.18, F.S.; |
10 | revising requirements for a notice of nonpayment for |
11 | labor, services, or materials served by a claimant under a |
12 | surety bond for construction or maintenance contracts; |
13 | depriving a claimant of rights under the bond for |
14 | furnishing a false or fraudulent notice of nonpayment; |
15 | revising a prohibition against claimant actions against a |
16 | contractor or surety under certain circumstances; amending |
17 | s. 713.23, F.S.; revising requirements for a notice of |
18 | nonpayment for labor, services, or materials served by a |
19 | lienor under a payment bond; depriving a lienor of rights |
20 | under the bond for furnishing a false or fraudulent notice |
21 | of nonpayment; prohibiting lienor actions against a |
22 | contractor or surety unless notice of nonpayment is given; |
23 | deleting a notice of nonpayment form; providing an |
24 | effective date. |
25 | |
26 | Be It Enacted by the Legislature of the State of Florida: |
27 | |
28 | Section 1. Paragraph (a) of subsection (2) of section |
29 | 255.05, Florida Statutes, is amended to read: |
30 | 255.05 Bond of contractor constructing public buildings; |
31 | form; action by materialmen.- |
32 | (2)(a)1. If a claimant is no longer furnishing labor, |
33 | services, or materials on a project, a contractor or the |
34 | contractor's agent or attorney may elect to shorten the |
35 | prescribed time in this paragraph within which an action to |
36 | enforce any claim against a payment bond provided pursuant to |
37 | this section may be commenced by recording in the clerk's office |
38 | a notice in substantially the following form: |
39 | |
40 | |
41 | To: ...(Name and address of claimant)... |
42 | You are notified that the undersigned contests your notice |
43 | of nonpayment, dated _______________, __________, and served on |
44 | the undersigned on _______________, __________, and that the |
45 | time within which you may file suit to enforce your claim is |
46 | limited to 60 days after the date of service of this notice. |
47 | DATED on _______________, __________. |
48 | Signed: ...(Contractor or Attorney)... |
49 | The claim of any claimant upon whom such notice is served and |
50 | who fails to institute a suit to enforce his or her claim |
51 | against the payment bond within 60 days after service of such |
52 | notice shall be extinguished automatically. The clerk shall mail |
53 | a copy of the notice of contest to the claimant at the address |
54 | shown in the notice of nonpayment or most recent amendment |
55 | thereto and shall certify to such service on the face of such |
56 | notice and record the notice. Service is complete upon mailing. |
57 | 2. A claimant, except a laborer, who is not in privity |
58 | with the contractor shall, before commencing or not later than |
59 | 45 days after commencing to furnish labor, services, or |
60 | materials for the prosecution of the work, furnish the |
61 | contractor with a written notice that he or she intends to look |
62 | to the bond for protection. A claimant who is not in privity |
63 | with the contractor and who has not received payment for his or |
64 | her labor, services, or materials shall deliver to the |
65 | contractor and to the surety written notice of the performance |
66 | of the labor or services or delivery of the materials |
67 | |
68 | be verified and may be served at any time during the progress of |
69 | the work or thereafter but not before 45 days after the |
70 | |
71 | and not later than 90 days after the |
72 | labor, services, or materials are finally furnished by the |
73 | claimant or, with respect to rental equipment, not later than 90 |
74 | days after the date that the rental equipment was last on the |
75 | job site and available for use. The notice of nonpayment shall |
76 | state, as of the date of the notice, the nature of the labor or |
77 | services performed and to be performed, if any; the materials |
78 | furnished; the materials to be furnished, if known; the amount |
79 | paid on the account to date; the amount due; and the amount to |
80 | become due, if known. In order to substantiate the amount |
81 | claimed as unpaid in the notice of nonpayment, the notice shall |
82 | also include as attachments copies of the claimant's contract or |
83 | purchase order and any amendments or change orders directed to |
84 | the contract or purchase order; invoices, pay requests, bills of |
85 | lading, delivery receipts, or similar documents, as applicable; |
86 | and a statement of account reflecting all payments requested and |
87 | received for the labor, services, or materials. Any notice of |
88 | nonpayment served by a claimant who is not in privity with the |
89 | contractor that |
90 | the portion of the amount claimed for retainage. Furnishing a |
91 | false or fraudulent notice of nonpayment deprives the claimant |
92 | of his or her rights under the bond. A claimant may not |
93 | institute an |
94 | |
95 | labor, services, or materials unless both notices have been |
96 | given in full compliance with this subparagraph. Notices |
97 | required or permitted under this section shall |
98 | accordance with s. 713.18. A claimant may not waive in advance |
99 | his or her right to bring an action under the bond against the |
100 | surety. In any action brought to enforce a claim against a |
101 | payment bond under this section, the prevailing party is |
102 | entitled to recover a reasonable fee for the services of his or |
103 | her attorney for trial and appeal or for arbitration, in an |
104 | amount to be determined by the court, which fee must be taxed as |
105 | part of the prevailing party's costs, as allowed in equitable |
106 | actions. The time periods for service of a notice of nonpayment |
107 | or for bringing an action against a contractor or a surety shall |
108 | be measured from the last day of furnishing labor, services, or |
109 | materials by the claimant and shall not be measured by other |
110 | standards, such as the issuance of a certificate of occupancy or |
111 | the issuance of a certificate of substantial completion. |
112 | Section 2. Paragraph (c) of subsection (1) of section |
113 | 337.18, Florida Statutes, is amended to read: |
114 | 337.18 Surety bonds for construction or maintenance |
115 | contracts; requirement with respect to contract award; bond |
116 | requirements; defaults; damage assessments.- |
117 | (1) |
118 | (c) A claimant, except a laborer, who is not in privity |
119 | with the contractor shall, before commencing or not later than |
120 | 90 days after commencing to furnish labor, services, or |
121 | materials |
122 | the contractor with a notice that he or she intends to look to |
123 | the bond for protection. A claimant who is not in privity with |
124 | the contractor and who has not received payment for his or her |
125 | labor, services, or materials |
126 | contractor and to the surety written notice of the performance |
127 | of the labor or services or delivery of the materials |
128 | |
129 | be verified and may be served at any time during the progress of |
130 | the work or thereafter but not before 45 days after the |
131 | |
132 | and not later than 90 days after the |
133 | labor, services, or materials are finally furnished by the |
134 | claimant or, with respect to rental equipment, not later than 90 |
135 | days after the date that the rental equipment was last on the |
136 | job site and available for use. The notice of nonpayment shall |
137 | state, as of the date of the notice, the nature of the labor or |
138 | services performed and to be performed, if any; the materials or |
139 | supplies furnished; the materials or supplies to be furnished, |
140 | if known; the amount paid on the account to date; the amount |
141 | due; and the amount to become due, if known. In order to |
142 | substantiate the amount claimed as unpaid in the notice of |
143 | nonpayment, the notice shall also include as attachments copies |
144 | of the claimant's contract or purchase order and any amendments |
145 | or change orders directed to the contract or purchase order; |
146 | invoices, pay requests, bills of lading, delivery receipts, or |
147 | similar documents, as applicable; and a statement of account |
148 | reflecting all payments requested and received for the labor, |
149 | materials, or supplies. Any notice of nonpayment served by a |
150 | claimant who is not in privity with the contractor that includes |
151 | sums for retainage must specify the portion of the amount |
152 | claimed for retainage. Furnishing a false or fraudulent notice |
153 | of nonpayment deprives the claimant of his or her rights under |
154 | the bond. |
155 | in privity with the contractor |
156 | |
157 | contractor or the surety for the labor, services, or materials |
158 | unless both notices have been given in full compliance with this |
159 | paragraph. Notices required or permitted under this section |
160 | shall |
161 | Section 3. Paragraph (d) of subsection (1) of section |
162 | 713.23, Florida Statutes, is amended to read: |
163 | 713.23 Payment bond.- |
164 | (1) |
165 | (d) In addition, a lienor is required, as a condition |
166 | precedent to recovery under the bond, to serve a written notice |
167 | of nonpayment to the contractor and the surety |
168 | |
169 | |
170 | may be served at any time during the progress of the work or |
171 | thereafter but not before 45 days after the labor, services, or |
172 | materials are first furnished and not later than 90 days after |
173 | the labor, services, or materials are finally furnished by the |
174 | lienor or, with respect to rental equipment, not later than 90 |
175 | days after the date that the rental equipment was last on the |
176 | job site and available for use. The notice of nonpayment shall |
177 | state, as of the date of the notice, the nature of the labor or |
178 | services performed and to be performed, if any; the materials |
179 | furnished; the materials to be furnished, if known; the amount |
180 | paid on the account to date; the amount due; and the amount to |
181 | become due, if known. For any lienor who is not in privity with |
182 | the contractor, in order to substantiate the amount claimed as |
183 | unpaid in the notice of nonpayment, the notice shall also |
184 | include as attachments copies of the lienor's contract or |
185 | purchase order and any amendments or change orders directed to |
186 | the contract or purchase order; invoices, pay requests, bills of |
187 | lading, delivery receipts, or similar documents, as applicable; |
188 | and a statement of account reflecting all payments requested and |
189 | received for the labor, services, or materials. Any notice of |
190 | nonpayment served by a lienor who is not in privity with the |
191 | contractor that includes sums for retainage must specify the |
192 | portion of the amount claimed for retainage. Furnishing a false |
193 | or fraudulent notice of nonpayment deprives the lienor of his or |
194 | her rights under the bond. A lienor may not institute an action |
195 | against the contractor or the surety for the labor, services, or |
196 | materials unless the notice of nonpayment has been given in full |
197 | compliance with this paragraph. A written notice satisfies this |
198 | condition precedent with respect to the payment described in the |
199 | notice of nonpayment, including unpaid finance charges due under |
200 | the lienor's contract, and with respect to any other payments |
201 | which become due to the lienor after the date of the notice of |
202 | nonpayment. The time period for serving a written notice of |
203 | nonpayment shall be measured from the last day of furnishing |
204 | labor, services, or materials by the lienor and shall not be |
205 | measured by other standards, such as the issuance of a |
206 | certificate of occupancy or the issuance of a certificate of |
207 | substantial completion. The failure of a lienor to receive |
208 | retainage sums not in excess of 10 percent of the value of |
209 | labor, services, or materials furnished by the lienor is not |
210 | considered a nonpayment requiring the service of the notice |
211 | provided under this paragraph. |
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221 | Section 4. This act shall take effect July 1, 2010. |
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