Bill Text: GA SB184 | 2009-2010 | Regular Session | Engrossed
Bill Title: Contractor; service of notice of commencement; requirements; procedure for application of certain forms
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2009-03-17 - House Second Readers [SB184 Detail]
Download: Georgia-2009-SB184-Engrossed.html
09 LC 38 0866ERS(SCS)
Senate
Bill 184
By:
Senator Weber of the 40th
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 7 of Title 10 of the Official Code of Georgia
Annotated, relating to relative rights of creditor and surety, so as to provide
for certain requirements regarding service of a notice of commencement to a
contractor; to provide for the computation of time under certain circumstances;
to provide for a procedure for the application of certain forms; to amend
Article 1 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated,
relating to general provisions relative to contracts for public works, so as to
provide for certain requirements regarding service to a contractor; to provide
for a procedure for the application of certain forms; to amend Part 4 of Article
3 of Chapter 91 of Title 36 of the Official Code of Georgia Annotated, relating
to payment bonds, so as to provide for certain requirements regarding service to
a contractor; to provide for a procedure for the application of certain forms;
to provide for related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
2 of Chapter 7 of Title 10 of the Official Code of Georgia Annotated, relating
to relative rights of creditor and surety, is amended by revising Code Section
10-7-31, relating to rights of certain parties claiming protection under a
payment bond or security deposit and notice of commencement of work, as
follows:
"10-7-31.
(a)
Where a payment bond or security deposit is provided pursuant to a contract for
the construction of an improvement to property other than a public work, every
person entitled to claim the protection of the payment bond or security deposit
who has not been paid in full for labor or material furnished in the prosecution
of the work referred to in such bond or security deposit after the last of the
labor was done or performed by him or her or the material or equipment or
machinery was furnished or supplied by him or her for which such claim is made,
or when he or she has completed his or her subcontract for which such claim is
made, shall have the right to bring an action on such payment bond or security
deposit in accordance with the terms thereof for the amount, or the balance
thereof, unpaid at the time of the commencement of such action and to prosecute
such action to final execution and judgment for the sum or sums due him or her;
provided, however, that any person having no contractual relationship express or
implied with the contractor furnishing such payment bond or security deposit on
a project where the contractor has complied with the
Notice of
Commencement
notice of
commencement requirements in accordance
with subsection (b) of this Code section shall not have the right to bring an
action on such payment bond or security deposit in accordance with the terms
thereof unless such person gave to the contractor within 30 days from the filing
of the
Notice of
Commencement
notice of
commencement or 30 days following the
first delivery of labor, material, machinery, or equipment, whichever is later,
a written
notice to
contractor.
Notice to
Contractor setting
forth. The
notice to the contractor shall be sent by registered or certified mail or
statutory overnight delivery, to the contractor, at any place at which the
contractor maintains an office or conducts his or her business or at his or her
residence; alternatively, notice may be served in any manner in which the
sheriffs of this state are authorized by law to serve summons or process. The
notice to contractor shall set
forth:
(1)
The name, address, and telephone number of the person providing labor, material,
machinery, or equipment;
(2)
The name and address of each person at whose instance the labor, material,
machinery, or equipment are being furnished;
(3)
The name and location of the project set forth in the
Notice of
Commencement
notice of
commencement; and
(4)
A description of the labor, material, machinery, or equipment being provided
and, if known, the contract price or anticipated value of the labor, material,
machinery, or equipment to be provided or the amount claimed to be due, if
any.
(b)
Where a payment bond or security deposit is provided pursuant to a contract for
the construction of an improvement to property other than a public work, the
contractor furnishing the payment bond or security deposit shall post on the
project site and file with the clerk of the superior court of the county in
which the project is located a
Notice of
Commencement
notice of
commencement no later than 15 days after
the contractor physically commences work on the project and give a copy of the
Notice of
Commencement
notice of
commencement to any subcontractor,
materialman, or person who makes a written request of the contractor. Failure to
give a copy of the
Notice of
Commencement
notice of
commencement within ten calendar days of
receipt of the written request from the subcontractor, materialman, or person
shall render the notice to contractor requirement of subsection (a) of this Code
section inapplicable to the subcontractor, materialman, or person making the
request.
Notice of
Commencement
Notice of
commencement shall include:
(1)
The name, address, and telephone number of the contractor;
(2)
The name and location of the project being constructed and the legal description
of the property upon which the improvements are being made;
(3)
The name and address of the true owner of the property;
(4)
The name and address of the person other than the owner at whose instance the
improvements are being made, if not the true owner of the property;
(5)
The name and the address of the surety for the performance and payment bonds, if
any;
(6)
The name and address of the construction lender, if any; and
(7)
The name and address of the holder of the security deposit provided, if
any.
(c)
The failure to file a
Notice of
Commencement
notice of
commencement under subsection (b) of this
Code section shall render the
Notice to
Contractor
notice to
contractor requirements of subsection (a)
of this Code section inapplicable.
(d)
The clerk of the superior court shall file the
Notice of
Commencement
notice of
commencement provided for in this Code
section within the records of that office and maintain an index separate from
other real estate records or an index with the preliminary notices of lien
specified in subsection (a) of Code Section 44-14-361.3. Each such
Notice of
Commencement
notice of
commencement shall be indexed under the
name of the true owner and the contractor as contained in the
Notice of
Commencement
notice of
commencement."
SECTION
2.
Said
article is further amended by adding a new Code section to read as
follows:
"10-7-32.
For
purposes of this article:
(1)
The computation of time shall be determined pursuant to paragraph (3) of
subsection (d) of Code Section 1-3-1.
(2)
The provisions of Code Section 44-14-366 regarding interim waiver and release
upon payment, waiver and release upon final payment, and the affidavit of
nonpayment shall apply to payment bond rights and remedies under this article in
the same manner and to the same extent as such provisions apply to lien rights
and remedies under Code Section
44-14-366."
SECTION
3.
Article
1 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating
to general provisions regarding contracts for public works, is amended by adding
a new Code section to read as follows:
"13-10-3.
For
purposes of this article, the computation of time shall be determined pursuant
to paragraph (3) of subsection (d) of Code Section
1-3-1."
SECTION
4
Said
article is further amended in Part 4, relating to payment bonds, by revising
paragraphs (1) and (2) of subsection (a) of Code Section 13-10-63, relating to
pursuit of action by a person entitled to protection of a payment bond, as
follows:
"(1)
Any person having a direct contractual relationship with a subcontractor but no
contractual relationship, express or implied, with the contractor furnishing
such payment bond or security deposit on a public works construction project
where the contractor has not complied with the notice of commencement
requirements shall have the right of action upon the payment bond or security
deposit upon giving written notice to the contractor within 90 days from the day
on which such person did or performed the last of the labor or furnished the
last of the material or machinery or equipment for which such 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
performed or done. The notice to the contractor
may
shall
be served by registered or certified mail or statutory overnight delivery,
postage
prepaid, duly addressed to the contractor,
at any place at which the contractor maintains an office or conducts his or her
business or at his or her residence, by depositing such notice in any post
office or branch post office or any letter box under the control of the United
States Postal Service; alternatively, notice may be served in any manner in
which the sheriffs of this state are authorized by law to serve summons or
process; and
(2)
Any person having a direct contractual relationship with a subcontractor but no
contractual relationship, express or implied, with the contractor furnishing
such payment bond or security deposit on a public works construction project
where the contractor has complied with the notice of commencement requirements
in accordance with subsection (a) of Code Section 13-10-62 shall have the
right of action on the payment bond or security deposit, provided that such
person shall, within 30 days from the filing of the notice of commencement or 30
days following the first delivery of labor, material, machinery, or equipment,
whichever is later, give to the contractor a written notice
setting
forth:. The
notice to the contractor shall be sent by registered or certified mail or
statutory overnight delivery, to the contractor, at any place at which the
contractor maintains an office or conducts his or her business or at his or her
residence; alternatively, notice may be served in any manner in which the
sheriffs of this state are authorized by law to serve summons or process. The
notice to the contractor shall set
forth:
(A)
The name, address, and telephone number of the person providing labor, material,
machinery, or equipment;
(B)
The name and address of each person at whose instance the labor, material,
machinery, or equipment is being furnished;
(C)
The name and the location of the public works construction site;
and
(D)
A description of the labor, material, machinery, or equipment being provided
and, if known, the contract price or anticipated value of the labor, material,
machinery, or equipment to be provided or the amount claimed to be due, if
any."
SECTION
4.
Said
article is further amended in Part 4, relating to payment bonds, by adding a new
Code section to read as follows:
"13-10-66.
The
provisions of Code Section 44-14-366 regarding interim waiver and release upon
payment, waiver and release upon final payment, and the affidavit of nonpayment
shall apply to payment bond rights and remedies under this part in the same
manner and to the same extent as such provisions apply to lien rights and
remedies under Code Section 44-14-366; provided, however, that no additional
rights to a lien on public property shall be granted pursuant to this
part."
SECTION
5.
Part
4 of Article 3 of Chapter 91 of Title 36 of the Official Code of Georgia
Annotated, relating to payment bonds, is amended by revising paragraphs (1) and
(2) of subsection (a) of Code Section 36-91-93, relating to rights of person
protected by payment bond or security deposit, as follows:
"(1)
Any person having a direct contractual relationship with a subcontractor but no
contractual relationship, express or implied, with the contractor furnishing
such payment bond or security deposit on a public works construction project
where the contractor has not complied with the notice of commencement
requirements shall have the right of action upon the payment bond or security
deposit upon giving written notice to the contractor within 90 days from the day
on which such person did or performed the last of the labor or furnished the
last of the material or machinery or equipment for which such 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
performed or done. The notice to the contractor
may
shall
be served by registered or certified
mail,
postage prepaid, or statutory overnight
delivery,
duly
addressed to the contractor, at any place
at which the contractor maintains an office or conducts his or her business or
at his or her residence, by depositing such notice in any post office or branch
post office or any letter box under the control of the United States Postal
Service; alternatively, notice may be served in any manner in which the sheriffs
of this state are authorized by law to serve summons or process;
and
(2)
Any person having a direct contractual relationship with a subcontractor but no
contractual relationship, express or implied, with the contractor furnishing
such payment bond or security deposit on a public works construction project
where the contractor has complied with the notice of commencement requirements
in accordance with subsection (a) of Code Section 36-91-92 shall have the
right of action on the payment bond or security deposit, provided that such
person shall, within 30 days from the filing of the notice of commencement or 30
days following the first delivery of labor, material, machinery, or equipment,
whichever is later, give to the contractor a written notice
setting
forth:
The notice to
the contractor shall be sent by registered or certified mail or statutory
overnight delivery, to the contractor, at any place at which the contractor
maintains an office or conducts his or her business or at his or her residence;
alternatively, notice may be served in any manner in which the sheriffs of this
state are authorized by law to serve summons or process. The notice to the
contractor shall set forth:
(A)
The name, address, and telephone number of the person providing labor, material,
machinery, or equipment;
(B)
The name and address of each person at whose instance the labor, material,
machinery, or equipment is being furnished;
(C)
The name and the location of the public works construction site;
and
(D)
A description of the labor, material, machinery, or equipment being provided
and, if known, the contract price or anticipated value of the labor, material,
machinery, or equipment to be provided or the amount claimed to be due, if
any."
SECTION
6.
Said
part is further amended by adding two new Code sections to read as
follows:
"36-91-96.
The
provisions of Code Section 44-14-366 regarding interim waiver and release upon
payment, waiver and release upon final payment, and the affidavit of nonpayment
shall apply to payment bond rights and remedies under this part in the same
manner and to the same extent as such provisions apply to lien rights and
remedies under Code Section 44-14-366; provided, however, that no additional
rights to a lien on public property shall be granted pursuant to this
part.
36-91-97.
For
purposes of this article, the computation of time shall be determined pursuant
to paragraph (3) of subsection (d) of Code Section
1-3-1."
SECTION
7.
All
laws and parts of laws in conflict with this Act are repealed.
