Senate Bill sb0428e1
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    SB 428                                         First Engrossed
  1                      A bill to be entitled
  2         An act relating to building construction;
  3         amending s. 95.11, F.S.; providing alternative
  4         applications to a statute of limitations for
  5         certain legal or equitable actions for actions
  6         to enforce claims against payment bonds;
  7         revising a statute of limitations for actions
  8         to enforce claims against certain payment
  9         bonds; amending s. 255.05, F.S.; clarifying
10         criteria for performance of bonds; revising a
11         provision relating to notice of nonpayment for
12         certain labor, materials, or supplies; amending
13         s. 713.01, F.S.; revising certain definitions;
14         amending s. 713.02, F.S.; clarifying a
15         criterion for a proscription against certain
16         liens; amending s. 713.13, F.S.; deleting
17         authorization for certain fax numbers in
18         notices of commencement; amending s. 713.18,
19         F.S.; revising provisions relating to manner of
20         serving notices and certain instruments;
21         amending s. 713.23, F.S.; including certain
22         unpaid finance charges under a written notice
23         of nonpayment of a payment bond; amending s.
24         713.245, F.S.; providing additional bond
25         criteria for coextension of a surety's duty to
26         pay lienors with a contractor's duty to pay;
27         amending ss. 725.06, 725.08, F.S.; revising
28         indemnification and hold harmless requirements
29         for construction contracts and design
30         professional contracts; repealing s. 713.18(3),
31         F.S., relating to service of certain notices by
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    SB 428                                         First Engrossed
  1         facsimile transmission; providing effective
  2         dates. amending s. 489.13, F.S.; providing for
  3         issuance of a notice of noncompliance,
  4         imposition of an administrative fine, and
  5         assessment of reasonable investigative and
  6         legal costs of prosecution for unlicensed
  7         contracting; specifying that such remedies are
  8         not exclusive; providing for uses of fine
  9         proceeds; requiring the Department of Business
10         and Professional Regulation to create a web
11         page on its Internet website dedicated to
12         listing known information concerning unlicensed
13         contractors; providing an effective date.
14
15  Be It Enacted by the Legislature of the State of Florida:
16
17         Section 1.  Section 489.13, Florida Statutes, is
18  amended to read:
19         489.13  Unlicensed contracting; notice of
20  noncompliance; fine; authority to issue or receive a building
21  permit; web page.--
22         (1)  Any person performing an activity requiring
23  licensure under this part as a construction contractor is
24  guilty of unlicensed contracting if he or she does not hold a
25  valid active certificate or registration authorizing him or
26  her to perform such activity, regardless of whether he or she
27  holds a local construction contractor license or local
28  certificate of competency. Persons working outside the
29  geographical scope of their registration are guilty of
30  unlicensed activity for purposes of this part.
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    SB 428                                         First Engrossed
  1         (2)  For a first offense, any person who holds a state
  2  or local construction license and is found guilty of
  3  unlicensed contracting under this section shall be issued a
  4  notice of noncompliance pursuant to s. 489.131(7).
  5         (3)  Notwithstanding s. 455.228, the department may
  6  impose an administrative fine of up to $10,000 on any
  7  unlicensed person guilty of unlicensed contracting. In
  8  addition, the department may assess reasonable investigative
  9  and legal costs for prosecution of the violation against the
10  unlicensed contractor. The department may waive up to one-half
11  of any fine imposed if the unlicensed contractor complies with
12  certification or registration within 1 year after imposition
13  of the fine under this subsection.
14         (4)(a)  Any fines collected under this section shall be
15  first used to cover the investigative and legal costs of
16  prosecution.
17         (b)  Any local governing body that forwards information
18  relating to any person who is an unlicensed contractor shall
19  collect 30 percent of the fine collected, after deduction of
20  the investigative and legal costs of prosecution.
21         (c)  The balance of any fines collected under this
22  section shall be used to maintain the department's unlicensed
23  contractor website page, as specified in subsection (6), and
24  to fund the Construction Industries Recovery Fund. Nothing in
25  this paragraph shall be construed to permit recovery from the
26  Construction Industries Recovery Fund if the contractor is
27  unlicensed.
28         (5)(2)  A local building department shall not issue a
29  building permit to any contractor, or to any person
30  representing himself or herself as a contractor, who does not
31  hold a valid active certificate or registration in the
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    SB 428                                         First Engrossed
  1  appropriate category. Possession of a local certificate of
  2  competency or local construction license is not sufficient to
  3  lawfully obtain a building permit as a construction contractor
  4  if the activity in question requires licensure under this
  5  part. Nothing in this section shall be construed as
  6  prohibiting a local building department from issuing a
  7  building permit to a locally licensed or certified contractor
  8  for an activity that does not require licensure under this
  9  part.
10         (6)  The department shall create a web page, accessible
11  through its Internet website, dedicated solely to listing any
12  known information concerning unlicensed contractors. The
13  information shall be provided in such a way that any person
14  with computer on-line capabilities can access information
15  concerning unlicensed contractors by name or by county. The
16  department shall recognize that persons found guilty of
17  unlicensed contracting do not have the same rights and
18  privileges as licensees, and the department shall not restrict
19  the quality or quantity of information on the web page
20  required by this subsection, unless otherwise required by law.
21         (7)  The remedies set forth in this section are not
22  exclusive and may be imposed in addition to the remedies set
23  forth in s. 489.127(2). In addition, nothing in this section
24  is intended to prohibit the department or any local governing
25  body from filing a civil action or seeking criminal penalties
26  against an unlicensed contractor.
27         Section 2.  Paragraph (b) of subsection (2) and
28  paragraph (e) of subsection (5) of section 95.11, Florida
29  Statutes, are amended to read:
30
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    SB 428                                         First Engrossed
  1         95.11  Limitations other than for the recovery of real
  2  property.--Actions other than for recovery of real property
  3  shall be commenced as follows:
  4         (2)  WITHIN FIVE YEARS.--
  5         (b)  A legal or equitable action on a contract,
  6  obligation, or liability founded on a written instrument,
  7  except for an action to enforce a claim against a payment
  8  bond, which shall be governed by the applicable provisions of
  9  ss. 255.05(2)(a)2. and 713.23(1)(e).
10         (5)  WITHIN ONE YEAR.--
11         (e)  An action to enforce any claim against a payment
12  bond on which the principal is a contractor, subcontractor, or
13  sub-subcontractor as defined in s. 713.01, for private work as
14  well as public work, from the last furnishing of labor,
15  services, or materials or from the last furnishing of labor,
16  services, or materials by the general contractor if the
17  general contractor is the principal on a bond on the same
18  construction project, whichever is later.
19         Section 3.  Paragraph (a) of subsection (1) and
20  paragraph (a) of subsection (2) of section 255.05, Florida
21  Statutes, are amended to read:
22         255.05  Bond of contractor constructing public
23  buildings; form; action by materialmen.--
24         (1)(a)  Any person entering into a formal contract with
25  the state or any county, city, or political subdivision
26  thereof, or other public authority, for the construction of a
27  public building, for the prosecution and completion of a
28  public work, or for repairs upon a public building or public
29  work shall be required, before commencing the work or before
30  recommencing the work after a default or abandonment, to
31  execute, deliver to the public owner, and record in the public
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    SB 428                                         First Engrossed
  1  records of the county where the improvement is located, a
  2  payment and performance bond with a surety insurer authorized
  3  to do business in this state as surety. The bond must state on
  4  its front page: the name, principal business address, and
  5  phone number of the contractor, the surety, the owner of the
  6  property being improved, and, if different from the owner, the
  7  contracting public entity; the contract number assigned by the
  8  contracting public entity; and a description of the project
  9  sufficient to identify it, such as including, if applicable, a
10  legal description or and the street address of the property
11  being improved, and a general description of the improvement.
12  Such bond shall be conditioned upon the contractor's
13  performance of the construction work that the contractor
14  perform the contract in the time and manner prescribed in the
15  contract and promptly make payments to all persons defined in
16  s. 713.01 who furnish labor, services, or materials for whose
17  claims derive directly or indirectly from the prosecution of
18  the work provided for in the contract. Any claimant may apply
19  to the governmental entity having charge of the work for
20  copies of the contract and bond and shall thereupon be
21  furnished with a certified copy of the contract and bond. The
22  claimant shall have a right of action against the contractor
23  and surety for the amount due him or her, including unpaid
24  finance charges due under the claimant's contract. Such action
25  shall not involve the public authority in any expense.  When
26  such work is done for the state and the contract is for
27  $100,000 or less, no payment and performance bond shall be
28  required. At the discretion of the official or board awarding
29  such contract when such work is done for any county, city,
30  political subdivision, or public authority, any person
31  entering into such a contract which is for $200,000 or less
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  1  may be exempted from executing the payment and performance
  2  bond. When such work is done for the state, the Secretary of
  3  the Department of Management Services may delegate to state
  4  agencies the authority to exempt any person entering into such
  5  a contract amounting to more than $100,000 but less than
  6  $200,000 from executing the payment and performance bond. In
  7  the event such exemption is granted, the officer or officials
  8  shall not be personally liable to persons suffering loss
  9  because of granting such exemption. The Department of
10  Management Services shall maintain information on the number
11  of requests by state agencies for delegation of authority to
12  waive the bond requirements by agency and project number and
13  whether any request for delegation was denied and the
14  justification for the denial.
15
16  The state shall not be held liable to any laborer,
17  materialman, or subcontractor for any amounts greater than the
18  pro rata share as determined under this section.
19         (2)(a)1.  If a claimant is no longer furnishing labor,
20  services, or materials on a project, a contractor or the
21  contractor's agent or attorney may elect to shorten the
22  prescribed time in this paragraph within which an action to
23  enforce any claim against a payment bond provided pursuant to
24  this section may be commenced by recording in the clerk's
25  office a notice in substantially the following form:
26
27                    NOTICE OF CONTEST OF CLAIM
28                       AGAINST PAYMENT BOND
29
30
31  To: ...(Name and address of claimant)...
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    SB 428                                         First Engrossed
  1         You are notified that the undersigned contests your
  2  notice of nonpayment, dated ............, ........, and served
  3  on the undersigned on ............, ........, and that the
  4  time within which you may file suit to enforce your claim is
  5  limited to 60 days after the date of service of this notice.
  6
  7         DATED on ............, .........
  8
  9
10  Signed:...(Contractor or Attorney)...
11
12
13  The claim of any claimant upon whom such notice is served and
14  who fails to institute a suit to enforce his or her claim
15  against the payment bond within 60 days after service of such
16  notice shall be extinguished automatically. The clerk shall
17  mail a copy of the notice of contest to the claimant at the
18  address shown in the notice of nonpayment or most recent
19  amendment thereto and shall certify to such service on the
20  face of such notice and record the notice. Service is complete
21  upon mailing.
22         2.  A claimant, except a laborer, who is not in privity
23  with the contractor shall, before commencing or not later than
24  45 days after commencing to furnish labor, materials, or
25  supplies for the prosecution of the work, furnish the
26  contractor with a notice that he or she intends to look to the
27  bond for protection. A claimant who is not in privity with the
28  contractor and who has not received payment for his or her
29  labor, materials, or supplies shall deliver to the contractor
30  and to the surety written notice of the performance of the
31  labor or delivery of the materials or supplies and of the
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    SB 428                                         First Engrossed
  1  nonpayment. The notice of nonpayment may be served at any time
  2  during the progress of the work or thereafter but not before
  3  45 days after the first furnishing of labor, services, or
  4  materials, and not later than 90 days after the final
  5  furnishing of the labor, services, or materials by the
  6  claimant or, with respect to rental equipment, not later than
  7  90 days after the date that the rental equipment was last on
  8  the job site available for use. No action for the labor,
  9  materials, or supplies may be instituted against the
10  contractor or the surety unless both notices have been given.
11  Notices required or permitted under this section may be served
12  in accordance with s. 713.18. An action, except for an action
13  exclusively for recovery of retainage, must be instituted
14  against the contractor or the surety on the payment bond or
15  the payment provisions of a combined payment and performance
16  bond within 1 year after the performance of the labor or
17  completion of delivery of the materials or supplies. An action
18  exclusively for recovery of retainage must be instituted
19  against the contractor or the surety within 1 year after the
20  performance of the labor or completion of delivery of the
21  materials or supplies, or within 90 days after the
22  contractor's receipt of final payment (or the payment estimate
23  containing the owner's final reconciliation of quantities if
24  no further payment is earned and due as a result of deductive
25  adjustments) by the contractor or surety, whichever comes
26  last. A claimant may not waive in advance his or her right to
27  bring an action under the bond against the surety. In any
28  action brought to enforce a claim against a payment bond under
29  this section, the prevailing party is entitled to recover a
30  reasonable fee for the services of his or her attorney for
31  trial and appeal or for arbitration, in an amount to be
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    SB 428                                         First Engrossed
  1  determined by the court, which fee must be taxed as part of
  2  the prevailing party's costs, as allowed in equitable actions.
  3  The time periods for service of a notice of nonpayment or for
  4  bringing an action against a contractor or a surety shall be
  5  measured from the last day of furnishing labor, services, or
  6  materials by the claimant and shall not be measured by other
  7  standards, such as the issuance of a certificate of occupancy
  8  or the issuance of a certificate of substantial completion.
  9         Section 4.  Subsections (26) and (27) of section
10  713.01, Florida Statutes, are amended to read:
11         713.01  Definitions.--As used in this part, the term:
12         (26)  "Subcontractor" means a person other than a
13  materialman or laborer who enters into a contract with a
14  contractor for the performance of any part of such
15  contractor's contract, including the removal of solid waste
16  from the real property. The term includes a temporary help
17  firm as defined in s. 443.101.
18         (27)  "Sub-subcontractor" means a person other than a
19  materialman or laborer who enters into a contract with a
20  subcontractor for the performance of any part of such
21  subcontractor's contract, including the removal of solid waste
22  from the real property. The term includes a temporary help
23  firm as defined in s. 443.101.
24         Section 5.  Subsection (7) of section 713.02, Florida
25  Statutes, is amended to read:
26         713.02  Types of lienors and exemptions.--
27         (7)  Notwithstanding any other provision of this part,
28  no lien shall exist in favor of any contractor, subcontractor,
29  or sub-subcontractor unless such contractor, subcontractor, or
30  sub-subcontractor is licensed, if required to be licensed, as
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    SB 428                                         First Engrossed
  1  a contractor pursuant to the laws of the jurisdiction within
  2  which she or he is doing business.
  3         Section 6.  Effective July 1, 2002, paragraph (d) of
  4  subsection (1) of section 713.13, Florida Statutes, is amended
  5  to read:
  6         713.13  Notice of commencement.--
  7         (1)
  8         (d)  A notice of commencement must be in substantially
  9  the following form:
10
11  Permit No.....                               Tax Folio No.....
12                      NOTICE OF COMMENCEMENT
13  State of....
14  County of....
15
16  The undersigned hereby gives notice that improvement will be
17  made to certain real property, and in accordance with Chapter
18  713, Florida Statutes, the following information is provided
19  in this Notice of Commencement.
20         1.  Description of property:  ...(legal description of
21  the property, and street address if available)....
22         2.  General description of improvement:.....
23         3.  Owner information:.....
24         a.  Name and address:.....
25         b.  Interest in property:.....
26         c.  Name and address of fee simple titleholder (if
27  other than Owner):.....
28         4.a.  Contractor:  ...(name and address)....
29         b.a.  Contractor's phone number:.....
30         b.  Fax number:....(optional, if service by fax is
31  acceptable).
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    SB 428                                         First Engrossed
  1         5.  Surety
  2         a.  Name and address:.....
  3         b.  Phone number:.....
  4         c.  Fax number:....(optional, if service by fax is
  5  acceptable).
  6         c.d.  Amount of bond: $.....
  7         6.a.  Lender:  ...(name and address)....
  8         b.a.  Lender's phone number:.....
  9         b.  Fax number:....(optional, if service by fax is
10  acceptable).
11         7.a.  Persons within the State of Florida designated by
12  Owner upon whom notices or other documents may be served as
13  provided by Section 713.13(1)(a)7., Florida Statutes:
14  ...(name and address)....
15         b.a.  Phone numbers of designated persons number:.....
16         b.  Fax number:....(optional, if service by fax is
17  acceptable).
18         8.a.  In addition to himself or herself, Owner
19  designates ............ of ............ to receive a copy of
20  the Lienor's Notice as provided in Section 713.13(1)(b),
21  Florida Statutes.
22         b.a.  Phone number of person or entity designated by
23  owner:.....
24         b.  Fax number:....(optional, if service by fax is
25  acceptable).
26         9.  Expiration date of notice of commencement (the
27  expiration date is 1 year from the date of recording unless a
28  different date is specified).....
29
30                                      ...(Signature of Owner)...
31
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    SB 428                                         First Engrossed
  1         Sworn to (or affirmed) and subscribed before me this
  2  .... day of ...., ...(year)..., by ...(name of person making
  3  statement)....
  4
  5           ...(Signature of Notary Public - State of Florida)...
  6           ...(Print, Type, or Stamp Commissioned Name of Notary
  7  Public)...
  8
  9         Personally Known .... OR Produced Identification ....
10
11         Type of Identification Produced............
12
13         Section 7.  Subsections (1) and (2) of section 713.18,
14  Florida Statutes, are amended to read:
15         713.18  Manner of serving notices and other
16  instruments.--
17         (1)  Service of notices, claims of lien, affidavits,
18  assignments, and other instruments permitted or required under
19  this part, or copies thereof when so permitted or required,
20  unless otherwise specifically provided in this part, must be
21  made by one of the following methods:
22         (a)  By actual delivery to the person to be served; or,
23  if a partnership, to one of the partners; or, if a
24  corporation, to an officer, director, managing agent, or
25  business agent thereof.
26         (b)  By sending mailing the same, postage prepaid, by
27  registered or certified mail, with postage prepaid, or by
28  overnight or second-day delivery with to the person to be
29  served at her or his last known address and evidence of
30  delivery.
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    SB 428                                         First Engrossed
  1         1.  If a notice to owner, or a notice to contractor
  2  under s. 713.23, or a preliminary notice under s. 255.05 is
  3  mailed by registered or certified mail with postage prepaid to
  4  the person to be served at any of the addresses set forth in
  5  subparagraph 2. pursuant to this paragraph within 40 days
  6  after the date the lienor first furnishes labor, services, or
  7  materials, service of that notice is effective as of the date
  8  of mailing if the person who served the notice maintains a
  9  registered or certified mail log that shows the date the
10  notice was served, the registered or certified mail number
11  issued by the United States Postal Service, the name and
12  address of the person served, and the date stamp of the United
13  States Postal Service confirming the date of mailing.
14         2.  If an instrument served pursuant to this section
15  paragraph to the last address shown in the notice of
16  commencement or any amendment thereto or, in the absence of a
17  notice of commencement, to the last address shown in the
18  building permit application, or to the last known address of
19  the person to be served, is not received, but is returned by
20  the United States Postal Service as being "refused," "moved,
21  not forwardable," or "unclaimed," or is otherwise not
22  delivered or deliverable through no fault of the person
23  serving the item, then service is effective on the date the
24  notice was sent as of the date of mailing.
25         (c)  If none neither of the foregoing methods can be
26  accomplished, by posting on the premises.
27         (2)  If the real property is owned by more than one
28  person or a partnership, a lienor may serve any notices or
29  other papers under this part on any one of such owners or
30  partners, and such notice is deemed notice to all owners and
31  partners.
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    SB 428                                         First Engrossed
  1         Section 8.  Paragraph (d) of subsection (1) of section
  2  713.23, Florida Statutes, is amended to read:
  3         713.23  Payment bond.--
  4         (1)
  5         (d)  In addition, a lienor is required, as a condition
  6  precedent to recovery under the bond, to serve a written
  7  notice of nonpayment to the contractor and the surety not
  8  later than 90 days after the final furnishing of labor,
  9  services, or materials by the lienor.  A written notice
10  satisfies this condition precedent with respect to the payment
11  described in the notice of nonpayment, including unpaid
12  finance charges due under the lienor's contract, and with
13  respect to any other payments which become due to the lienor
14  after the date of the notice of nonpayment. The time period
15  for serving a written notice of nonpayment shall be measured
16  from the last day of furnishing labor, services, or materials
17  by the lienor and shall not be measured by other standards,
18  such as the issuance of a certificate of occupancy or the
19  issuance of a certificate of substantial completion. The
20  failure of a lienor to receive retainage sums not in excess of
21  10 percent of the value of labor, services, or materials
22  furnished by the lienor is not considered a nonpayment
23  requiring the service of the notice provided under this
24  paragraph. The notice under this paragraph may be in
25  substantially the following form:
26
27                       NOTICE OF NONPAYMENT
28
29  To ...(name of contractor and address)...
30
31  ...(name of surety and address)...
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  1
  2  The undersigned notifies you that he or she has furnished
  3  ...(describe labor, services, or materials)... for the
  4  improvement of the real property identified as ...(property
  5  description)....  The amount now due and unpaid is $.....
  6
  7                         ...(signature and address of lienor)...
  8
  9         Section 9.  Subsection (1) of section 713.245, Florida
10  Statutes, is amended to read:
11         713.245  Conditional payment bond.--
12         (1)  Notwithstanding any provisions of ss. 713.23 and
13  713.24 to the contrary, if the contractor's written
14  contractual obligation to pay lienors is expressly conditioned
15  upon and limited to the payments made by the owner to the
16  contractor, the duty of the surety to pay lienors will be
17  coextensive with the duty of the contractor to pay, if the
18  following provisions are complied with:
19         (a)  The bond is listed in the notice of commencement
20  for the project as a conditional payment bond and is recorded
21  together with the notice of commencement for the project prior
22  to commencement of the project.
23         (b)  The words "conditional payment bond" are contained
24  in the title of the bond at the top of the front page.
25         (c)  The bond contains on the front page, in at least
26  10-point type, the statement:  THIS BOND ONLY COVERS CLAIMS OF
27  SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO
28  THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR,
29  SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS.  THIS BOND
30  DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING
31  A CLAIM OF LIEN ON THIS PROJECT.
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  1         Section 10.  Subsection (1) of section 725.06, Florida
  2  Statutes, is amended to read:
  3         725.06  Construction contracts; limitation on
  4  indemnification.--
  5         (1)  A construction contract may require a party to
  6  that contract to indemnify and hold harmless the other party
  7  to the contract, their officers, directors, agents, and
  8  employees, from liabilities, damages, losses and costs,
  9  including, but not limited to, reasonable attorney's fees, to
10  the extent caused by the negligence, recklessness, or
11  intentional wrongful misconduct of the indemnifying party and
12  persons employed or utilized by the indemnifying party in the
13  performance of the construction contract.
14         Section 11.  Subsection (1) of section 725.08, Florida
15  Statutes, is amended to read:
16         725.08  Design professional contracts; limitation in
17  indemnification.--
18         (1)  Notwithstanding the provisions of s. 725.06, If a
19  design professional provides professional services to or for a
20  public agency, the agency may require in a professional
21  services contract with the design professional that the design
22  professional indemnify and hold harmless the agency, and its
23  officers and employees, from liabilities, damages, losses, and
24  costs, including, but not limited to, reasonable attorneys'
25  fees, to the extent caused by the negligence, recklessness, or
26  intentionally wrongful conduct of the design professional and
27  other persons employed or utilized by the design professional
28  in the performance of the contract.
29         Section 12.  Effective July 1, 2002, subsection (3) of
30  section 713.18, Florida Statutes, is repealed.
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    SB 428                                         First Engrossed
  1         Section 13.  Except as otherwise expressly provided in
  2  this act, this act shall take effect July 1, 2001.
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