HOUSE AMENDMENT
                                                   Bill No. HB 613
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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 5                                           ORIGINAL STAMP BELOW
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11  The Committee on Judicial Oversight offered the following:
12  
13         Amendment (with title amendment) 
14  remove from the bill:  everything after the enacting clause,
15  
16  and insert in lieu thereof:  
17         Section 1.  Subsection (7) of section 20.165, Florida
18  Statutes, is amended to read:
19         20.165  Department of Business and Professional
20  Regulation.--There is created a Department of Business and
21  Professional Regulation.
22         (7)  No board, with the exception of joint
23  coordinatorships and the board established in subparagraph
24  (4)(a)5., shall be transferred from its present location
25  unless authorized by the Legislature in the General
26  Appropriations Act.
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         95.11  Limitations other than for the recovery of real
31  property.--Actions other than for recovery of real property
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    File original & 9 copies    04/12/01                          
    hjo0006                     03:14 pm         00613-jo  -343015

HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 shall be commenced as follows: 2 (2) WITHIN FIVE YEARS.-- 3 (b) A legal or equitable action on a contract, 4 obligation, or liability founded on a written instrument, 5 except for an action to enforce a claim against a payment 6 bond, which shall be governed by the applicable provisions of 7 ss. 255.05(2)(a)2. and 713.23(1)(e). 8 (5) WITHIN ONE YEAR.-- 9 (e) An action to enforce any claim against a payment 10 bond on which the principal is a contractor, subcontractor, or 11 sub-subcontractor as defined in s. 713.01, for private work as 12 well as public work, from the last furnishing of labor, 13 services, or materials or from the last furnishing of labor, 14 services, or materials by the general contractor if the 15 general contractor is the principal on a bond on the same 16 construction project, whichever is later. 17 Section 3. Paragraph (a) of subsection (1) and 18 paragraph (a) of subsection (2) of section 255.05, Florida 19 Statutes, are amended to read: 20 255.05 Bond of contractor constructing public 21 buildings; form; action by materialmen.-- 22 (1)(a) Any person entering into a formal contract with 23 the state or any county, city, or political subdivision 24 thereof, or other public authority, for the construction of a 25 public building, for the prosecution and completion of a 26 public work, or for repairs upon a public building or public 27 work shall be required, before commencing the work or before 28 recommencing the work after a default or abandonment, to 29 execute, deliver to the public owner, and record in the public 30 records of the county where the improvement is located, a 31 payment and performance bond with a surety insurer authorized 2 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 to do business in this state as surety. The bond must state on 2 its front page: the name, principal business address, and 3 phone number of the contractor, the surety, the owner of the 4 property being improved, and, if different from the owner, the 5 contracting public entity; the contract number assigned by the 6 contracting public entity; and a description of the project 7 sufficient to identify it, such as including, if applicable, a 8 legal description or and the street address of the property 9 being improved, and a general description of the improvement. 10 Such bond shall be conditioned upon the contractor's 11 performance of the construction work that the contractor 12 perform the contract in the time and manner prescribed in the 13 contract and promptly make payments to all persons defined in 14 s. 713.01 who furnish labor, services, or materials for whose 15 claims derive directly or indirectly from the prosecution of 16 the work provided for in the contract. Any claimant may apply 17 to the governmental entity having charge of the work for 18 copies of the contract and bond and shall thereupon be 19 furnished with a certified copy of the contract and bond. The 20 claimant shall have a right of action against the contractor 21 and surety for the amount due him or her, including unpaid 22 finance charges due under the claimant's contract. Such action 23 shall not involve the public authority in any expense. When 24 such work is done for the state and the contract is for 25 $100,000 or less, no payment and performance bond shall be 26 required. At the discretion of the official or board awarding 27 such contract when such work is done for any county, city, 28 political subdivision, or public authority, any person 29 entering into such a contract which is for $200,000 or less 30 may be exempted from executing the payment and performance 31 bond. When such work is done for the state, the Secretary of 3 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 the Department of Management Services may delegate to state 2 agencies the authority to exempt any person entering into such 3 a contract amounting to more than $100,000 but less than 4 $200,000 from executing the payment and performance bond. In 5 the event such exemption is granted, the officer or officials 6 shall not be personally liable to persons suffering loss 7 because of granting such exemption. The Department of 8 Management Services shall maintain information on the number 9 of requests by state agencies for delegation of authority to 10 waive the bond requirements by agency and project number and 11 whether any request for delegation was denied and the 12 justification for the denial. 13 14 The state shall not be held liable to any laborer, 15 materialman, or subcontractor for any amounts greater than the 16 pro rata share as determined under this section. 17 (2)(a)1. If a claimant is no longer furnishing labor, 18 services, or materials on a project, a contractor or the 19 contractor's agent or attorney may elect to shorten the 20 prescribed time in this paragraph within which an action to 21 enforce any claim against a payment bond provided pursuant to 22 this section may be commenced by recording in the clerk's 23 office a notice in substantially the following form: 24 25 NOTICE OF CONTEST OF CLAIM 26 AGAINST PAYMENT BOND 27 28 29 To: ...(Name and address of claimant)... 30 You are notified that the undersigned contests your 31 notice of nonpayment, dated ............, ........, and served 4 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 on the undersigned on ............, ........, and that the 2 time within which you may file suit to enforce your claim is 3 limited to 60 days after the date of service of this notice. 4 5 DATED on ............, ......... 6 7 8 Signed:...(Contractor or Attorney)... 9 10 11 The claim of any claimant upon whom such notice is served and 12 who fails to institute a suit to enforce his or her claim 13 against the payment bond within 60 days after service of such 14 notice shall be extinguished automatically. The clerk shall 15 mail a copy of the notice of contest to the claimant at the 16 address shown in the notice of nonpayment or most recent 17 amendment thereto and shall certify to such service on the 18 face of such notice and record the notice. Service is complete 19 upon mailing. 20 2. A claimant, except a laborer, who is not in privity 21 with the contractor shall, before commencing or not later than 22 45 days after commencing to furnish labor, materials, or 23 supplies for the prosecution of the work, furnish the 24 contractor with a notice that he or she intends to look to the 25 bond for protection. A claimant who is not in privity with the 26 contractor and who has not received payment for his or her 27 labor, materials, or supplies shall deliver to the contractor 28 and to the surety written notice of the performance of the 29 labor or delivery of the materials or supplies and of the 30 nonpayment. The notice of nonpayment may be served at any time 31 during the progress of the work or thereafter but not before 5 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 45 days after the first furnishing of labor, services, or 2 materials, and not later than 90 days after the final 3 furnishing of the labor, services, or materials by the 4 claimant or, with respect to rental equipment, not later than 5 90 days after the date that the rental equipment was last on 6 the job site available for use. No action for the labor, 7 materials, or supplies may be instituted against the 8 contractor or the surety unless both notices have been given. 9 Notices required or permitted under this section may be served 10 in accordance with s. 713.18. An action, except for an action 11 exclusively for recovery of retainage, must be instituted 12 against the contractor or the surety on the payment bond or 13 the payment provisions of a combined payment and performance 14 bond within 1 year after the performance of the labor or 15 completion of delivery of the materials or supplies. An action 16 exclusively for recovery of retainage must be instituted 17 against the contractor or the surety within 1 year after the 18 performance of the labor or completion of delivery of the 19 materials or supplies, or within 90 days after the 20 contractor's receipt of final payment (or the payment estimate 21 containing the owner's final reconciliation of quantities if 22 no further payment is earned and due as a result of deductive 23 adjustments) by the contractor or surety, whichever comes 24 last. A claimant may not waive in advance his or her right to 25 bring an action under the bond against the surety. In any 26 action brought to enforce a claim against a payment bond under 27 this section, the prevailing party is entitled to recover a 28 reasonable fee for the services of his or her attorney for 29 trial and appeal or for arbitration, in an amount to be 30 determined by the court, which fee must be taxed as part of 31 the prevailing party's costs, as allowed in equitable actions. 6 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 The time periods for service of a notice of nonpayment or for 2 bringing an action against a contractor or a surety shall be 3 measured from the last day of furnishing labor, services, or 4 materials by the claimant and shall not be measured by other 5 standards, such as the issuance of a certificate of occupancy 6 or the issuance of a certificate of substantial completion. 7 Section 4. Subsections (26) and (27) of section 8 713.01, Florida Statutes, are amended to read: 9 713.01 Definitions.--As used in this part, the term: 10 (26) "Subcontractor" means a person other than a 11 materialman or laborer who enters into a contract with a 12 contractor for the performance of any part of such 13 contractor's contract, including the removal of solid waste 14 from the real property. The term includes a temporary help 15 firm as defined in s. 443.101. 16 (27) "Sub-subcontractor" means a person other than a 17 materialman or laborer who enters into a contract with a 18 subcontractor for the performance of any part of such 19 subcontractor's contract, including the removal of solid waste 20 from the real property. The term includes a temporary help 21 firm as defined in s. 443.101. 22 Section 5. Subsection (7) of section 713.02, Florida 23 Statutes, is amended to read: 24 713.02 Types of lienors and exemptions.-- 25 (7) Notwithstanding any other provision of this part, 26 no lien shall exist in favor of any contractor, subcontractor, 27 or sub-subcontractor unless such contractor, subcontractor, or 28 sub-subcontractor is licensed, if required to be licensed, as 29 a contractor pursuant to the laws of the jurisdiction within 30 which she or he is doing business. 31 Section 6. Effective July 1, 2002, paragraph (d) of 7 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 subsection (1) of section 713.13, Florida Statutes, is amended 2 to read: 3 713.13 Notice of commencement.-- 4 (1) 5 (d) A notice of commencement must be in substantially 6 the following form: 7 8 Permit No..... Tax Folio No..... 9 NOTICE OF COMMENCEMENT 10 State of.... 11 County of.... 12 13 The undersigned hereby gives notice that improvement will be 14 made to certain real property, and in accordance with Chapter 15 713, Florida Statutes, the following information is provided 16 in this Notice of Commencement. 17 1. Description of property: ...(legal description of 18 the property, and street address if available).... 19 2. General description of improvement:..... 20 3. Owner information:..... 21 a. Name and address:..... 22 b. Interest in property:..... 23 c. Name and address of fee simple titleholder (if 24 other than Owner):..... 25 4.a. Contractor: ...(name and address).... 26 b.a. Contractor's phone number:..... 27 b. Fax number:....(optional, if service by fax is 28 acceptable). 29 5. Surety 30 a. Name and address:..... 31 b. Phone number:..... 8 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 c. Fax number:....(optional, if service by fax is 2 acceptable). 3 c.d. Amount of bond: $..... 4 6.a. Lender: ...(name and address).... 5 b.a. Lender's phone number:..... 6 b. Fax number:....(optional, if service by fax is 7 acceptable). 8 7.a. Persons within the State of Florida designated by 9 Owner upon whom notices or other documents may be served as 10 provided by Section 713.13(1)(a)7., Florida Statutes: 11 ...(name and address).... 12 b.a. Phone numbers of designated persons number:..... 13 b. Fax number:....(optional, if service by fax is 14 acceptable). 15 8.a. In addition to himself or herself, Owner 16 designates ............ of ............ to receive a copy of 17 the Lienor's Notice as provided in Section 713.13(1)(b), 18 Florida Statutes. 19 b.a. Phone number of person or entity designated by 20 owner:..... 21 b. Fax number:....(optional, if service by fax is 22 acceptable). 23 9. Expiration date of notice of commencement (the 24 expiration date is 1 year from the date of recording unless a 25 different date is specified)..... 26 27 ...(Signature of Owner)... 28 29 Sworn to (or affirmed) and subscribed before me this 30 .... day of ...., ...(year)..., by ...(name of person making 31 statement).... 9 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 2 ...(Signature of Notary Public - State of Florida)... 3 ...(Print, Type, or Stamp Commissioned Name of Notary 4 Public)... 5 6 Personally Known .... OR Produced Identification .... 7 8 Type of Identification Produced............ 9 10 Section 7. Subsections (1) and (2) of section 713.18, 11 Florida Statutes, are amended to read: 12 713.18 Manner of serving notices and other 13 instruments.-- 14 (1) Service of notices, claims of lien, affidavits, 15 assignments, and other instruments permitted or required under 16 this part, or copies thereof when so permitted or required, 17 unless otherwise specifically provided in this part, must be 18 made by one of the following methods: 19 (a) By actual delivery to the person to be served; or, 20 if a partnership, to one of the partners; or, if a 21 corporation, to an officer, director, managing agent, or 22 business agent thereof. 23 (b) By sending mailing the same, postage prepaid, by 24 registered or certified mail, with postage prepaid, or by 25 overnight or second-day delivery with to the person to be 26 served at her or his last known address and evidence of 27 delivery. 28 1. If a notice to owner, or a notice to contractor 29 under s. 713.23, or a preliminary notice under s. 255.05 is 30 mailed by registered or certified mail with postage prepaid to 31 the person to be served at any of the addresses set forth in 10 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 subparagraph 2. pursuant to this paragraph within 40 days 2 after the date the lienor first furnishes labor, services, or 3 materials, service of that notice is effective as of the date 4 of mailing if the person who served the notice maintains a 5 registered or certified mail log that shows the date the 6 notice was served, the registered or certified mail number 7 issued by the United States Postal Service, the name and 8 address of the person served, and the date stamp of the United 9 States Postal Service confirming the date of mailing. 10 2. If an instrument served pursuant to this section 11 paragraph to the last address shown in the notice of 12 commencement or any amendment thereto or, in the absence of a 13 notice of commencement, to the last address shown in the 14 building permit application, or to the last known address of 15 the person to be served, is not received, but is returned by 16 the United States Postal Service as being "refused," "moved, 17 not forwardable," or "unclaimed," or is otherwise not 18 delivered or deliverable through no fault of the person 19 serving the item, then service is effective on the date the 20 notice was sent as of the date of mailing. 21 (c) If none neither of the foregoing methods can be 22 accomplished, by posting on the premises. 23 (2) If the real property is owned by more than one 24 person or a partnership, a lienor may serve any notices or 25 other papers under this part on any one of such owners or 26 partners, and such notice is deemed notice to all owners and 27 partners. 28 Section 8. Paragraph (d) of subsection (1) of section 29 713.23, Florida Statutes, is amended to read: 30 713.23 Payment bond.-- 31 (1) 11 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 (d) In addition, a lienor is required, as a condition 2 precedent to recovery under the bond, to serve a written 3 notice of nonpayment to the contractor and the surety not 4 later than 90 days after the final furnishing of labor, 5 services, or materials by the lienor. A written notice 6 satisfies this condition precedent with respect to the payment 7 described in the notice of nonpayment, including unpaid 8 finance charges due under the lienor's contract, and with 9 respect to any other payments which become due to the lienor 10 after the date of the notice of nonpayment. The time period 11 for serving a written notice of nonpayment shall be measured 12 from the last day of furnishing labor, services, or materials 13 by the lienor and shall not be measured by other standards, 14 such as the issuance of a certificate of occupancy or the 15 issuance of a certificate of substantial completion. The 16 failure of a lienor to receive retainage sums not in excess of 17 10 percent of the value of labor, services, or materials 18 furnished by the lienor is not considered a nonpayment 19 requiring the service of the notice provided under this 20 paragraph. The notice under this paragraph may be in 21 substantially the following form: 22 23 NOTICE OF NONPAYMENT 24 25 To ...(name of contractor and address)... 26 27 ...(name of surety and address)... 28 29 The undersigned notifies you that he or she has furnished 30 ...(describe labor, services, or materials)... for the 31 improvement of the real property identified as ...(property 12 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 description).... The amount now due and unpaid is $..... 2 3 ...(signature and address of lienor)... 4 5 Section 9. Subsection (1) of section 713.245, Florida 6 Statutes, is amended to read: 7 713.245 Conditional payment bond.-- 8 (1) Notwithstanding any provisions of ss. 713.23 and 9 713.24 to the contrary, if the contractor's written 10 contractual obligation to pay lienors is expressly conditioned 11 upon and limited to the payments made by the owner to the 12 contractor, the duty of the surety to pay lienors will be 13 coextensive with the duty of the contractor to pay, if the 14 following provisions are complied with: 15 (a) The bond is listed in the notice of commencement 16 for the project as a conditional payment bond and is recorded 17 together with the notice of commencement for the project prior 18 to commencement of the project. 19 (b) The words "conditional payment bond" are contained 20 in the title of the bond at the top of the front page. 21 (c) The bond contains on the front page, in at least 22 10-point type, the statement: THIS BOND ONLY COVERS CLAIMS OF 23 SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO 24 THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR, 25 SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS. THIS BOND 26 DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING 27 A CLAIM OF LIEN ON THIS PROJECT. 28 Section 10. Subsection (1) of section 725.06, Florida 29 Statutes, is amended to read: 30 725.06 Construction contracts; limitation on 31 indemnification.-- 13 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 (1) A construction contract may require a party to 2 that contract to indemnify and hold harmless the other party 3 to the contract, their officers, directors, agents, and 4 employees, from liabilities, damages, losses and costs, 5 including, but not limited to, reasonable attorney's fees, to 6 the extent caused by the negligence, recklessness, or 7 intentional wrongful misconduct of the indemnifying party and 8 persons employed or utilized by the indemnifying party in the 9 performance of the construction contract. 10 Section 11. Subsection (1) of section 725.08, Florida 11 Statutes, is amended to read: 12 725.08 Design professional contracts; limitation in 13 indemnification.-- 14 (1) Notwithstanding the provisions of s. 725.06, If a 15 design professional provides professional services to or for a 16 public agency, the agency may require in a professional 17 services contract with the design professional that the design 18 professional indemnify and hold harmless the agency, and its 19 officers and employees, from liabilities, damages, losses, and 20 costs, including, but not limited to, reasonable attorneys' 21 fees, to the extent caused by the negligence, recklessness, or 22 intentionally wrongful conduct of the design professional and 23 other persons employed or utilized by the design professional 24 in the performance of the contract. 25 Section 12. Effective July 1, 2002, subsection (3) of 26 section 713.18, Florida Statutes, is repealed. 27 Section 13. Except as otherwise provided herein, this 28 act shall take effect July 1, 2001. 29 30 31 14 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 ================ T I T L E A M E N D M E N T =============== 2 And the title is amended as follows: 3 On page 1, lines 2-19, 4 remove from the title of the bill: all of said lines, 5 6 and insert in lieu thereof: 7 An act relating to building construction; 8 amending s. 20.165, F.S.; revising a 9 proscription of certain transfers of certain 10 entities; amending s. 95.11, F.S.; providing 11 alternative applications to a statute of 12 limitations for certain legal or equitable 13 actions for actions to enforce claims against 14 payment bonds; revising a statute of 15 limitations for actions to enforce claims 16 against certain payment bonds; amending s. 17 255.05, F.S.; clarifying criteria for 18 performance of bonds; revising a provision 19 relating to notice of nonpayment for certain 20 labor, materials, or supplies; amending s. 21 713.01, F.S.; revising certain definitions; 22 amending s. 713.02, F.S.; clarifying a 23 criterion for a proscription against certain 24 liens; amending s. 713.13, F.S.; deleting 25 authorization for certain fax numbers in 26 notices of commencement; amending s. 713.18, 27 F.S.; revising provisions relating to manner of 28 serving notices and certain instruments; 29 amending s. 713.23, F.S.; including certain 30 unpaid finance charges under a written notice 31 of nonpayment of a payment bond; amending s. 15 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015
HOUSE AMENDMENT Bill No. HB 613 Amendment No. ___ (for drafter's use only) 1 713.245, F.S.; providing additional bond 2 criteria for coextension of a surety's duty to 3 pay lienors with a contractor's duty to pay; 4 amending ss. 725.06 and 725.08, F.S.; revising 5 indemnification and hold harmless requirements 6 for construction contracts and design 7 professional contracts; repealing s. 713.18(3), 8 F.S., relating to service of certain notices by 9 facsimile transmission; providing effective 10 dates. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 16 File original & 9 copies 04/12/01 hjo0006 03:14 pm 00613-jo -343015