SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
                            CHAMBER ACTION
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11  Senator Bennett moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         On page 2, line 7, through
15            page 4, line 11, delete those lines
16  
17  and insert:  
18         Section 1.  Section 218.70, Florida Statutes, is
19  amended to read:
20         218.70  Popular name Short title.--This part may be
21  cited as the "Local Government Florida Prompt Payment Act."
22         Section 2.  Subsections (2), (6), and (7) of section
23  218.72, Florida Statutes, are amended, and subsection (10) is
24  added to that section, to read:
25         218.72  Definitions.--As used in this part:
26         (2)  "Local governmental entity" means a county or
27  municipal government, school board, school district,
28  authority, special taxing district, other political
29  subdivision, or any office, board, bureau, commission,
30  department, branch, division, or institution thereof or any
31  project supported by county or municipal funds.
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         (6)  "Vendor" means any person who sells goods or
 2  services, sells or leases personal property, or leases real
 3  property directly to a local governmental entity. The term
 4  includes any person who provides waste-hauling services to
 5  residents or businesses located within the boundaries of a
 6  local government pursuant to a contract or local ordinance.
 7         (7)  "Construction services" means all labor, services,
 8  and materials provided in connection with the construction,
 9  alteration, repair, demolition, reconstruction, or any other
10  improvements to real property that require a license under
11  parts I and II of chapter 489.
12         (10)  "Contractor" or "provider of construction
13  services" means any person who contracts directly with a local
14  governmental entity to provide construction services.
15         Section 3.  Subsection (6) of section 218.735, Florida
16  Statutes, is amended, present subsection (7) of that section
17  is redesignated as subsection (9), and new subsections (7) and
18  (8) are added to that section, to read:
19         218.735  Timely payment for purchases of construction
20  services.--
21         (6)  When a contractor receives payment from a local
22  governmental entity for labor, services, or materials
23  furnished by subcontractors and suppliers hired by the
24  contractor, the contractor shall remit payment due to those
25  subcontractors and suppliers within 10 15 days after the
26  contractor's receipt of payment. When a subcontractor receives
27  payment from a contractor for labor, services, or materials
28  furnished by subcontractors and suppliers hired by the
29  subcontractor, the subcontractor shall remit payment due to
30  those subcontractors and suppliers within 7 15 days after the
31  subcontractor's receipt of payment. Nothing herein shall
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  prohibit a contractor or subcontractor from disputing,
 2  pursuant to the terms of the relevant contract, all or any
 3  portion of a payment alleged to be due to another party. In
 4  the event of such a dispute, the contractor or subcontractor
 5  may withhold the disputed portion of any such payment if the
 6  contractor or subcontractor notifies the party whose payment
 7  is disputed, in writing, of the amount in dispute and the
 8  actions required to cure the dispute. The contractor or
 9  subcontractor must pay all undisputed amounts due within the
10  time limits imposed by this section.
11         (7)(a)  Each contract for construction services between
12  a local governmental entity and a contractor must provide for
13  the development of a list of items required to render
14  complete, satisfactory, and acceptable the construction
15  services purchased by the local governmental entity. The
16  contract must specify the process for the development of the
17  list, including responsibilities of the local governmental
18  entity and the contractor in developing and reviewing the list
19  and a reasonable time for developing the list, as follows:
20         1.  For construction projects with an estimated cost of
21  less than $10 million, within 30 calendar days after reaching
22  substantial completion of the construction services purchased
23  as defined in the contract, or, if not defined in the
24  contract, upon reaching beneficial occupancy or use; or
25         2.  For construction projects with an estimated cost of
26  $10 million or more, within 30 calendar days, unless otherwise
27  extended by contract not to exceed 60 calendar days, after
28  reaching substantial completion of the construction services
29  purchased as defined in the contract, or, if not defined in
30  the contract, upon reaching beneficial occupancy or use.
31         (b)  If the contract between the local governmental
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  entity and the contractor relates to the purchase of
 2  construction services on more than one building or structure,
 3  or involves a multiphased project, the contract shall provide
 4  for the development of a list of items required to render
 5  complete, satisfactory, and acceptable all the construction
 6  services purchased pursuant to the contract for each building,
 7  structure, or phase of the project within the time limitations
 8  provided in paragraph (a).
 9         (c)  The failure to include any corrective work or
10  pending items not yet completed on the list developed pursuant
11  to this subsection does not alter the responsibility of the
12  contractor to complete all the construction services purchased
13  pursuant to the contract.
14         (d)  Upon completion of all items on the list, the
15  contractor may submit a payment request for all remaining
16  retainage withheld by the local governmental entity pursuant
17  to this section. If a good-faith dispute exists as to whether
18  one or more items identified on the list have been completed
19  pursuant to the contract, the local governmental entity may
20  continue to withhold an amount not to exceed 150 percent of
21  the total costs to complete such items.
22         (e)  All items that require correction under the
23  contract and that are identified after the preparation and
24  delivery of the list remain the obligation of the contractor
25  as defined by the contract.
26         (f)  Warranty items may not affect the final payment of
27  retainage as provided in this section or as provided in the
28  contract between the contractor and its subcontractors and
29  suppliers.
30         (g)  Retainage may not be held by a local governmental
31  entity or a contractor to secure payment of insurance premiums
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  under a consolidated insurance program or series of insurance
 2  policies issued to a local governmental entity or a contractor
 3  for a project or group of projects, and the final payment of
 4  retainage as provided in this section may not be delayed
 5  pending a final audit by the local governmental entity's or
 6  contractor's insurance provider.
 7         (h)  If a local governmental entity fails to comply
 8  with its responsibilities to develop the list required under
 9  paragraph (a) or paragraph (b), as defined in the contract,
10  within the time limitations provided in paragraph (a), the
11  contractor may submit a payment request for all remaining
12  retainage withheld by the local governmental entity pursuant
13  to this section. The local governmental entity need not pay or
14  process any payment request for retainage if the contractor
15  has, in whole or in part, failed to cooperate with the local
16  governmental entity in the development of the list or failed
17  to perform its contractual responsibilities, if any, with
18  regard to the development of the list or if paragraph (8)(f)
19  applies.
20         (8)(a)  With regard to any contract for construction
21  services, a local governmental entity may withhold from each
22  progress payment made to the contractor an amount not
23  exceeding 10 percent of the payment as retainage to ensure the
24  satisfactory completion of the construction services purchased
25  pursuant to the contract until 50-percent completion of such
26  services.
27         (b)  After 50-percent completion of the construction
28  services purchased pursuant to the contract, the local
29  governmental entity must reduce to 5 percent the amount of
30  retainage withheld from each subsequent progress payment made
31  to the contractor. For purposes of this subsection, the term
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  "50-percent completion" has the meaning set forth in the
 2  contract between the local governmental entity and the
 3  contractor, or, if not defined in the contract, the point at
 4  which the local governmental entity has expended 50 percent of
 5  the total cost of the construction services purchased as
 6  identified in the contract together with all costs associated
 7  with existing change orders and other additions or
 8  modifications to the construction services provided for in the
 9  contract. However, notwithstanding this subsection, a
10  municipality with a population of 25,000 or fewer, or a county
11  with a population of 100,000 or fewer, may withhold retainage
12  in an amount not exceeding 10 percent of each progress payment
13  made to the contractor until final completion and acceptance
14  of the project by the local governmental entity.
15         (c)  After 50-percent completion of the construction
16  services purchased pursuant to the contract, the contractor
17  may elect to withhold retainage from payments to its
18  subcontractors at a rate higher than 5 percent. The specific
19  amount to be withheld must be determined on a case-by-case
20  basis and must be based on the contractor's assessment of the
21  subcontractor's past performance, the likelihood that such
22  performance will continue, and the contractor's ability to
23  rely on other safeguards. The contractor shall notify the
24  subcontractor, in writing, of its determination to withhold
25  more than 5 percent of the progress payment and the reasons
26  for making that determination, and the contractor may not
27  request the release of such retained funds from the local
28  governmental entity.
29         (d)  After 50-percent completion of the construction
30  services purchased pursuant to the contract, the contractor
31  may present to the local governmental entity a payment request
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  for up to one-half of the retainage held by the local
 2  governmental entity. The local governmental entity shall
 3  promptly make payment to the contractor, unless the local
 4  governmental entity has grounds, pursuant to paragraph (f),
 5  for withholding the payment of retainage. If the local
 6  governmental entity makes payment of retainage to the
 7  contractor under this paragraph which is attributable to the
 8  labor, services, or materials supplied by one or more
 9  subcontractors or suppliers, the contractor shall timely remit
10  payment of such retainage to those subcontractors and
11  suppliers.
12         (e)  This section does not prohibit a local
13  governmental entity from withholding retainage at a rate less
14  than 10 percent of each progress payment, from incrementally
15  reducing the rate of retainage pursuant to a schedule provided
16  for in the contract, or from releasing at any point all or a
17  portion of any retainage withheld by the local governmental
18  entity which is attributable to the labor, services, or
19  materials supplied by the contractor or by one or more
20  subcontractors or suppliers. If a local governmental entity
21  makes any payment of retainage to the contractor which is
22  attributable to the labor, services, or materials supplied by
23  one or more subcontractors or suppliers, the contractor shall
24  timely remit payment of such retainage to those subcontractors
25  and suppliers.
26         (f)  This section does not require the local
27  governmental entity to pay or release any amounts that are the
28  subject of a good-faith dispute, the subject of an action
29  brought pursuant to s. 255.05, or otherwise the subject of a
30  claim or demand by the local governmental entity or
31  contractor.
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         (g)  The time limitations set forth in this section for
 2  payment of payment requests apply to any payment request for
 3  retainage made pursuant to this section.
 4         (h)  Paragraphs (a)-(d) do not apply to construction
 5  services purchased by a local governmental entity which are
 6  paid for, in whole or in part, with federal funds and are
 7  subject to federal grantor laws and regulations or
 8  requirements that are contrary to any provision of the Local
 9  Government Prompt Payment Act.
10         (i)  This subsection does not apply to any construction
11  services purchased by a local governmental entity if the total
12  cost of the construction services purchased as identified in
13  the contract is $200,000 or less.
14         Section 4.  Section 255.0705, Florida Statutes, is
15  created to read:
16         255.0705  Popular name.--Sections 255.0705-255.078 may
17  be cited as the "Florida Prompt Payment Act."
18         Section 5.  Subsections (2) and (3) of section 255.071,
19  Florida Statutes, are amended to read:
20         255.071  Payment of subcontractors, sub-subcontractors,
21  materialmen, and suppliers on construction contracts for
22  public projects.--
23         (2)  The failure to pay any undisputed obligations for
24  such labor, services, or materials within 30 days after the
25  date the labor, services, or materials were furnished and
26  payment for such labor, services, or materials became due, or
27  within the time limitations set forth in s. 255.073(3) 30 days
28  after the date payment for such labor, services, or materials
29  is received, whichever last occurs, shall entitle any person
30  providing such labor, services, or materials to the procedures
31  specified in subsection (3) and the remedies provided in
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  subsection (4).
 2         (3)  Any person providing labor, services, or materials
 3  for the construction of a public building, for the prosecution
 4  and completion of a public work, or for repairs upon a public
 5  building or public work improvements to real property may file
 6  a verified complaint alleging:
 7         (a)  The existence of a contract for providing such
 8  labor, services, or materials to improve real property.
 9         (b)  A description of the labor, services, or materials
10  provided and alleging that the labor, services, or materials
11  were provided in accordance with the contract.
12         (c)  The amount of the contract price.
13         (d)  The amount, if any, paid pursuant to the contract.
14         (e)  The amount that remains unpaid pursuant to the
15  contract and the amount thereof that is undisputed.
16         (f)  That the undisputed amount has remained due and
17  payable pursuant to the contract for more than 30 days after
18  the date the labor or services were accepted or the materials
19  were received.
20         (g)  That the person against whom the complaint was
21  filed has received payment on account of the labor, services,
22  or materials described in the complaint and, as of the date
23  the complaint was filed, has failed to make payment within the
24  time limitations set forth in s. 255.073(3) more than 30 days
25  prior to the date the complaint was filed.
26         Section 6.  Section 255.072, Florida Statutes, is
27  created to read:
28         255.072  Definitions.--As used in ss. 255.073-255.078,
29  the term:
30         (1)  "Agent" means project architect, project engineer,
31  or any other agency or person acting on behalf of a public
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  entity.
 2         (2)  "Construction services" means all labor, services,
 3  and materials provided in connection with the construction,
 4  alteration, repair, demolition, reconstruction, or any other
 5  improvements to real property. The term "construction
 6  services" does not include contracts or work performed for the
 7  Department of Transportation.
 8         (3)  "Contractor" means any person who contracts
 9  directly with a public entity to provide construction
10  services.
11         (4)  "Payment request" means a request for payment for
12  construction services which conforms with all statutory
13  requirements and with all requirements specified by the public
14  entity to which the payment request is submitted.
15         (5)  "Public entity" means the state, or any office,
16  board, bureau, commission, department, branch, division, or
17  institution thereof, but does not include a local governmental
18  entity as defined in s. 218.72.
19         (6)  "Purchase" means the purchase of construction
20  services.
21         Section 7.  Section 255.073, Florida Statutes, is
22  created to read:
23         255.073  Timely payment for purchases of construction
24  services.--
25         (1)  Except as otherwise provided in ss.
26  255.072-255.078, s. 215.422 governs the timely payment for
27  construction services by a public entity.
28         (2)  If a public entity disputes a portion of a payment
29  request, the undisputed portion must be timely paid.
30         (3)  When a contractor receives payment from a public
31  entity for labor, services, or materials furnished by
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  subcontractors and suppliers hired by the contractor, the
 2  contractor shall remit payment due to those subcontractors and
 3  suppliers within 10 days after the contractor's receipt of
 4  payment. When a subcontractor receives payment from a
 5  contractor for labor, services, or materials furnished by
 6  subcontractors and suppliers hired by the subcontractor, the
 7  subcontractor shall remit payment due to those subcontractors
 8  and suppliers within 7 days after the subcontractor's receipt
 9  of payment. This subsection does not prohibit a contractor or
10  subcontractor from disputing, pursuant to the terms of the
11  relevant contract, all or any portion of a payment alleged to
12  be due to another party if the contractor or subcontractor
13  notifies the party whose payment is disputed, in writing, of
14  the amount in dispute and the actions required to cure the
15  dispute. The contractor or subcontractor must pay all
16  undisputed amounts due within the time limits imposed by this
17  subsection.
18         (4)  All payments due for the purchase of construction
19  services and not made within the applicable time limits shall
20  bear interest at the rate specified in s. 215.422. After July
21  1, 2005, such payments shall bear interest at the rate of 1
22  percent per month, to the extent that the Chief Financial
23  Officer's replacement project for the state's accounting and
24  cash management systems (Project ASPIRE) is operational for
25  the particular affected public entities. After January 1,
26  2006, all such payments due from public entities shall bear
27  interest at the rate of 1 percent per month.
28         Section 8.  Section 255.074, Florida Statutes, is
29  created to read:
30         255.074  Procedures for calculation of payment due
31  dates.--
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         (1)  Each public entity shall establish procedures
 2  whereby each payment request received by the public entity is
 3  marked as received on the date on which it is delivered to an
 4  agent or employee of the public entity or of a facility or
 5  office of the public entity.
 6         (2)  If the terms under which a purchase is made allow
 7  for partial deliveries and a payment request is submitted for
 8  a partial delivery, the time for payment for the partial
 9  delivery must be calculated from the time of the partial
10  delivery and the submission of the payment request.
11         (3)  A public entity must submit a payment request to
12  the Chief Financial Officer for payment no more than 20 days
13  after receipt of the payment request.
14         Section 9.  Section 255.075, Florida Statutes, is
15  created to read:
16         255.075  Mandatory interest.--A contract between a
17  public entity and a contractor may not prohibit the collection
18  of late payment interest charges authorized under s.
19  255.073(4).
20         Section 10.  Section 255.076, Florida Statutes, is
21  created to read:
22         255.076  Improper payment request; resolution of
23  disputes.-- In an action to recover amounts due for
24  construction services purchased by a public entity, the court
25  shall award court costs and reasonable attorney's fees,
26  including fees incurred through any appeal, to the prevailing
27  party, if the court finds that the nonprevailing party
28  withheld any portion of the payment that is the subject of the
29  action without any reasonable basis in law or fact to dispute
30  the prevailing party's claim to those amounts.
31         Section 11.  Section 255.077, Florida Statutes, is
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  created to read:
 2         255.077  Project closeout and payment of retainage.--
 3         (1)  Each contract for construction services between a
 4  public entity and a contractor must provide for the
 5  development of a list of items required to render complete,
 6  satisfactory, and acceptable the construction services
 7  purchased by the public entity. The contract must specify the
 8  process for the development of the list, including
 9  responsibilities of the public entity and the contractor in
10  developing and reviewing the list and a reasonable time for
11  developing the list, as follows:
12         1.  For construction projects with an estimated cost of
13  less than $10 million, within 30 calendar days after reaching
14  substantial completion of the construction services purchased
15  as defined in the contract, or, if not defined in the
16  contract, upon reaching beneficial occupancy or use; or
17         2.  For construction projects with an estimated cost of
18  $10 million or more, within 30 calendar days, unless otherwise
19  extended by contract not to exceed 60 calendar days, after
20  reaching substantial completion of the construction services
21  purchased as defined in the contract, or, if not defined in
22  the contract, upon reaching beneficial occupancy or use.
23         (2)  If the contract between the public entity and the
24  contractor relates to the purchase of construction services on
25  more than one building or structure, or involves a multiphased
26  project, the contract shall provide for the development of a
27  list of items required to render complete, satisfactory, and
28  acceptable all the construction services purchased pursuant to
29  the contract for each building, structure, or phase of the
30  project within the time limitations provided in subsection
31  (1).
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         (3)  The failure to include any corrective work or
 2  pending items not yet completed on the list developed pursuant
 3  to subsection (1) or subsection (2) does not alter the
 4  responsibility of the contractor to complete all the
 5  construction services purchased pursuant to the contract.
 6         (4)  Upon completion of all items on the list, the
 7  contractor may submit a payment request for all remaining
 8  retainage withheld by the public entity pursuant to s.
 9  255.078. If a good-faith dispute exists as to whether one or
10  more items identified on the list have been completed pursuant
11  to the contract, the public entity may continue to withhold an
12  amount not to exceed 150 percent of the total costs to
13  complete such items.
14         (5)  All items that require correction under the
15  contract and that are identified after the preparation and
16  delivery of the list remain the obligation of the contractor
17  as defined by the contract.
18         (6)  Warranty items may not affect the final payment of
19  retainage as provided in this section or as provided in the
20  contract between the contractor and its subcontractors and
21  suppliers.
22         (7)  Retainage may not be held by a public entity or a
23  contractor to secure payment of insurance premiums under a
24  consolidated insurance program or series of insurance policies
25  issued to a public entity or a contractor for a project or
26  group of projects, and the final payment of retainage as
27  provided in this section may not be delayed pending a final
28  audit by the public entity's or contractor's insurance
29  provider.
30         (8)  If a public entity fails to comply with its
31  responsibilities to develop the list required under subsection
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  (1) or subsection (2), as defined in the contract, within the
 2  time limitations provided in subsection (1), the contractor
 3  may submit a payment request for all remaining retainage
 4  withheld by the public entity pursuant to s. 255.078. The
 5  public entity need not pay or process any payment request for
 6  retainage if the contractor has, in whole or in part, failed
 7  to cooperate with the public entity in the development of the
 8  list or failed to perform its contractual responsibilities, if
 9  any, with regard to the development of the list or if s.
10  255.078(6) applies.
11         Section 12.  Section 255.078, Florida Statutes, is
12  created to read:
13         255.078  Public construction retainage.--
14         (1)  With regard to any contract for construction
15  services, a public entity may withhold from each progress
16  payment made to the contractor an amount not exceeding 10
17  percent of the payment as retainage to ensure the satisfactory
18  completion of the construction services purchased pursuant to
19  the contract until 50-percent completion of such services.
20         (2)  After 50-percent completion of the construction
21  services purchased pursuant to the contract, the public entity
22  must reduce to 5 percent the amount of retainage withheld from
23  each subsequent progress payment made to the contractor. For
24  purposes of this section, the term "50-percent completion" has
25  the meaning set forth in the contract between the public
26  entity and the contractor, or, if not defined in the contract,
27  the point at which the public entity has expended 50 percent
28  of the total cost of the construction services purchased as
29  identified in the contract together with all costs associated
30  with existing change orders and other additions or
31  modifications to the construction services provided for in the
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                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  contract.
 2         (3)  After 50-percent completion of the construction
 3  services purchased pursuant to the contract, the contractor
 4  may elect to withhold retainage from payments to its
 5  subcontractors at a rate higher than 5 percent. The specific
 6  amount to be withheld must be determined on a case-by-case
 7  basis and must be based on the contractor's assessment of the
 8  subcontractor's past performance, the likelihood that such
 9  performance will continue, and the contractor's ability to
10  rely on other safeguards. The contractor shall notify the
11  subcontractor, in writing, of its determination to withhold
12  more than 5 percent of the progress payment and the reasons
13  for making that determination, and the contractor may not
14  request the release of such retained funds from the public
15  entity.
16         (4)  After 50-percent completion of the construction
17  services purchased pursuant to the contract, the contractor
18  may present to the public entity a payment request for up to
19  one-half of the retainage held by the public entity. The
20  public entity shall promptly make payment to the contractor,
21  unless the public entity has grounds, pursuant to subsection
22  (6), for withholding the payment of retainage. If the public
23  entity makes payment of retainage to the contractor under this
24  subsection which is attributable to the labor, services, or
25  materials supplied by one or more subcontractors or suppliers,
26  the contractor shall timely remit payment of such retainage to
27  those subcontractors and suppliers.
28         (5)  Neither this section nor s. 255.077 prohibits a
29  public entity from withholding retainage at a rate less than
30  10 percent of each progress payment, from incrementally
31  reducing the rate of retainage pursuant to a schedule provided
                                  16
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  for in the contract, or from releasing at any point all or a
 2  portion of any retainage withheld by the public entity which
 3  is attributable to the labor, services, or materials supplied
 4  by the contractor or by one or more subcontractors or
 5  suppliers.  If a public entity makes any payment of retainage
 6  to the contractor which is attributable to the labor,
 7  services, or materials supplied by one or more subcontractors
 8  or suppliers, the contractor shall timely remit payment of
 9  such retainage to those subcontractors and suppliers.
10         (6)  Neither this section nor s. 255.077 requires the
11  public entity to pay or release any amounts that are the
12  subject of a good-faith dispute, the subject of an action
13  brought pursuant to s. 255.05, or otherwise the subject of a
14  claim or demand by the public entity or contractor.
15         (7)  The same time limits for payment of a payment
16  request apply regardless of whether the payment request is
17  for, or includes, retainage.
18         (8)  Subsections (1)-(4) do not apply to construction
19  services purchased by a public entity which are paid for, in
20  whole or in part, with federal funds and are subject to
21  federal grantor laws and regulations or requirements that are
22  contrary to any provision of the Florida Prompt Payment Act.
23         (9)  This section does not apply to any construction
24  services purchased by a public entity if the total cost of the
25  construction services purchased as identified in the contract
26  is $200,000 or less.
27         Section 13.  Section 255.05, Florida Statutes, is
28  amended to read:
29         255.05  Bond of contractor constructing public
30  buildings; form; action by materialmen.--
31         (1)(a)  Any person entering into a formal contract with
                                  17
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  the state or any county, city, or political subdivision
 2  thereof, or other public authority, for the construction of a
 3  public building, for the prosecution and completion of a
 4  public work, or for repairs upon a public building or public
 5  work shall be required, before commencing the work or before
 6  recommencing the work after a default or abandonment, to
 7  execute, deliver to the public owner, and record in the public
 8  records of the county where the improvement is located, a
 9  payment and performance bond with a surety insurer authorized
10  to do business in this state as surety. A public entity may
11  not require a contractor to secure a surety bond under this
12  section from a specific agent or bonding company. The bond
13  must state on its front page: the name, principal business
14  address, and phone number of the contractor, the surety, the
15  owner of the property being improved, and, if different from
16  the owner, the contracting public entity; the contract number
17  assigned by the contracting public entity; and a description
18  of the project sufficient to identify it, such as a legal
19  description or the street address of the property being
20  improved, and a general description of the improvement. Such
21  bond shall be conditioned upon the contractor's performance of
22  the construction work in the time and manner prescribed in the
23  contract and promptly making payments to all persons defined
24  in s. 713.01 who furnish labor, services, or materials for the
25  prosecution of the work provided for in the contract. Any
26  claimant may apply to the governmental entity having charge of
27  the work for copies of the contract and bond and shall
28  thereupon be furnished with a certified copy of the contract
29  and bond. The claimant shall have a right of action against
30  the contractor and surety for the amount due him or her,
31  including unpaid finance charges due under the claimant's
                                  18
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  contract. Such action shall not involve the public authority
 2  in any expense. When such work is done for the state and the
 3  contract is for $100,000 or less, no payment and performance
 4  bond shall be required. At the discretion of the official or
 5  board awarding such contract when such work is done for any
 6  county, city, political subdivision, or public authority, any
 7  person entering into such a contract which is for $200,000 or
 8  less may be exempted from executing the payment and
 9  performance bond. When such work is done for the state, the
10  Secretary of the Department of Management Services may
11  delegate to state agencies the authority to exempt any person
12  entering into such a contract amounting to more than $100,000
13  but less than $200,000 from executing the payment and
14  performance bond. In the event such exemption is granted, the
15  officer or officials shall not be personally liable to persons
16  suffering loss because of granting such exemption. The
17  Department of Management Services shall maintain information
18  on the number of requests by state agencies for delegation of
19  authority to waive the bond requirements by agency and project
20  number and whether any request for delegation was denied and
21  the justification for the denial. Any provision in a bond
22  furnished for public work contracts as provided by this
23  subsection restricting the classes or persons protected by the
24  bond or the venue of any proceeding relating to the bond is
25  unenforceable.
26         (b)  The Department of Management Services shall adopt
27  rules with respect to all contracts for $200,000 or less, to
28  provide:
29         1.  Procedures for retaining up to 10 percent of each
30  request for payment submitted by a contractor and procedures
31  for determining disbursements from the amount retained on a
                                  19
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  pro rata basis to laborers, materialmen, and subcontractors,
 2  as defined in s. 713.01.
 3         2.  Procedures for requiring certification from
 4  laborers, materialmen, and subcontractors, as defined in s.
 5  713.01, prior to final payment to the contractor that such
 6  laborers, materialmen, and subcontractors have no claims
 7  against the contractor resulting from the completion of the
 8  work provided for in the contract.
 9  
10  The state shall not be held liable to any laborer,
11  materialman, or subcontractor for any amounts greater than the
12  pro rata share as determined under this section.
13         (2)(a)1.  If a claimant is no longer furnishing labor,
14  services, or materials on a project, a contractor or the
15  contractor's agent or attorney may elect to shorten the
16  prescribed time in this paragraph within which an action to
17  enforce any claim against a payment bond provided pursuant to
18  this section may be commenced by recording in the clerk's
19  office a notice in substantially the following form:
20  
21                    NOTICE OF CONTEST OF CLAIM
22                       AGAINST PAYMENT BOND
23  
24  To: ...(Name and address of claimant)...
25  
26         You are notified that the undersigned contests your
27  notice of nonpayment, dated ............, ........, and served
28  on the undersigned on ............, ........, and that the
29  time within which you may file suit to enforce your claim is
30  limited to 60 days after the date of service of this notice.
31  
                                  20
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         DATED on ............, .........
 2  
 3  Signed:...(Contractor or Attorney)...
 4  
 5  The claim of any claimant upon whom such notice is served and
 6  who fails to institute a suit to enforce his or her claim
 7  against the payment bond within 60 days after service of such
 8  notice shall be extinguished automatically. The clerk shall
 9  mail a copy of the notice of contest to the claimant at the
10  address shown in the notice of nonpayment or most recent
11  amendment thereto and shall certify to such service on the
12  face of such notice and record the notice. Service is complete
13  upon mailing.
14         2.  A claimant, except a laborer, who is not in privity
15  with the contractor shall, before commencing or not later than
16  45 days after commencing to furnish labor, materials, or
17  supplies for the prosecution of the work, furnish the
18  contractor with a notice that he or she intends to look to the
19  bond for protection. A claimant who is not in privity with the
20  contractor and who has not received payment for his or her
21  labor, materials, or supplies shall deliver to the contractor
22  and to the surety written notice of the performance of the
23  labor or delivery of the materials or supplies and of the
24  nonpayment. The notice of nonpayment may be served at any time
25  during the progress of the work or thereafter but not before
26  45 days after the first furnishing of labor, services, or
27  materials, and not later than 90 days after the final
28  furnishing of the labor, services, or materials by the
29  claimant or, with respect to rental equipment, not later than
30  90 days after the date that the rental equipment was last on
31  the job site available for use. Any notice of nonpayment
                                  21
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  served by a claimant who is not in privity with the contractor
 2  which includes sums for retainage must specify the portion of
 3  the amount claimed for retainage. No action for the labor,
 4  materials, or supplies may be instituted against the
 5  contractor or the surety unless both notices have been given.
 6  Notices required or permitted under this section may be served
 7  in accordance with s. 713.18. An action, except for an action
 8  exclusively for recovery of retainage, must be instituted
 9  against the contractor or the surety on the payment bond or
10  the payment provisions of a combined payment and performance
11  bond within 1 year after the performance of the labor or
12  completion of delivery of the materials or supplies. An action
13  exclusively for recovery of retainage must be instituted
14  against the contractor or the surety within 1 year after the
15  performance of the labor or completion of delivery of the
16  materials or supplies, or within 90 days after receipt of
17  final payment (or the payment estimate containing the owner's
18  final reconciliation of quantities if no further payment is
19  earned and due as a result of deductive adjustments) by the
20  contractor or surety, whichever comes last. A claimant may not
21  waive in advance his or her right to bring an action under the
22  bond against the surety. In any action brought to enforce a
23  claim against a payment bond under this section, the
24  prevailing party is entitled to recover a reasonable fee for
25  the services of his or her attorney for trial and appeal or
26  for arbitration, in an amount to be determined by the court,
27  which fee must be taxed as part of the prevailing party's
28  costs, as allowed in equitable actions. The time periods for
29  service of a notice of nonpayment or for bringing an action
30  against a contractor or a surety shall be measured from the
31  last day of furnishing labor, services, or materials by the
                                  22
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  claimant and shall not be measured by other standards, such as
 2  the issuance of a certificate of occupancy or the issuance of
 3  a certificate of substantial completion.
 4         (b)  When a person is required to execute a waiver of
 5  his or her right to make a claim against the payment bond in
 6  exchange for, or to induce payment of, a progress payment, the
 7  waiver may be in substantially the following form:
 8  
 9                     WAIVER OF RIGHT TO CLAIM
10                     AGAINST THE PAYMENT BOND
11                        (PROGRESS PAYMENT)
12  
13         The undersigned, in consideration of the sum of $....,
14  hereby waives its right to claim against the payment bond for
15  labor, services, or materials furnished through ...(insert
16  date)... to ...(insert the name of your customer)... on the
17  job of ...(insert the name of the owner)..., for improvements
18  to the following described project:
19  
20                     (description of project)
21  
22  This waiver does not cover any retention or any labor,
23  services, or materials furnished after the date specified.
24  
25         DATED ON ........, .....
26                                                ...(Claimant)...
27                                                 By:............
28  
29         (c)  When a person is required to execute a waiver of
30  his or her right to make a claim against the payment bond, in
31  exchange for, or to induce payment of, the final payment, the
                                  23
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  waiver may be in substantially the following form:
 2  
 3                     WAIVER OF RIGHT TO CLAIM
 4             AGAINST THE PAYMENT BOND (FINAL PAYMENT)
 5  
 6         The undersigned, in consideration of the final payment
 7  in the amount of $...., hereby waives its right to claim
 8  against the payment bond for labor, services, or materials
 9  furnished to ...(insert the name of your customer)... on the
10  job of ...(insert the name of the owner)..., for improvements
11  to the following described project:
12  
13                     (description of project)
14  
15         DATED ON ........, .....
16                                                ...(Claimant)...
17                                                 By:............
18  
19         (d)  A person may not require a claimant to furnish a
20  waiver that is different from the forms in paragraphs (b) and
21  (c).
22         (e)  A claimant who executes a waiver in exchange for a
23  check may condition the waiver on payment of the check.
24         (f)  A waiver that is not substantially similar to the
25  forms in this subsection is enforceable in accordance with its
26  terms.
27         (3)  The bond required in subsection (1) may be in
28  substantially the following form:
29  
30                     PUBLIC CONSTRUCTION BOND
31  
                                  24
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         Bond No.  (enter bond number)
 2  
 3         BY THIS BOND, We _____, as Principal and _____, a
 4  corporation, as Surety, are bound to _____, herein called
 5  Owner, in the sum of $_____, for payment of which we bind
 6  ourselves, our heirs, personal representatives, successors,
 7  and assigns, jointly and severally.
 8         THE CONDITION OF THIS BOND is that if Principal:
 9         1.  Performs the contract dated _____, _____, between
10  Principal and Owner for construction of _____, the contract
11  being made a part of this bond by reference, at the times and
12  in the manner prescribed in the contract; and
13         2.  Promptly makes payments to all claimants, as
14  defined in Section 255.05(1), Florida Statutes, supplying
15  Principal with labor, materials, or supplies, used directly or
16  indirectly by Principal in the prosecution of the work
17  provided for in the contract; and
18         3.  Pays Owner all losses, damages, expenses, costs,
19  and attorney's fees, including appellate proceedings, that
20  Owner sustains because of a default by Principal under the
21  contract; and
22         4.  Performs the guarantee of all work and materials
23  furnished under the contract for the time specified in the
24  contract, then this bond is void; otherwise it remains in full
25  force.
26         Any action instituted by a claimant under this bond for
27  payment must be in accordance with the notice and time
28  limitation provisions in Section 255.05, Florida Statutes.
29         Any changes in or under the contract documents and
30  compliance or noncompliance with any formalities connected
31  with the contract or the changes does not affect Surety's
                                  25
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  obligation under this bond.
 2  
 3         DATED ON _____, _____.
 4  
 5  ...  (Name of Principal)  ...
 6  By ...  (As Attorney in Fact)  ...
 7  ...  (Name of Surety)  ...
 8  
 9         (4)  The payment provisions of all bonds required by
10  furnished for public work contracts described in subsection
11  (1) shall, regardless of form, be construed and deemed
12  statutory bonds furnished pursuant to this section and such
13  bonds shall not under any circumstances be converted into
14  common law bonds bond provisions, subject to all requirements
15  of subsection (2).
16         (5)  In addition to the provisions of chapter 47, any
17  action authorized under this section may be brought in the
18  county in which the public building or public work is being
19  constructed or repaired. This subsection shall not apply to an
20  action instituted prior to May 17, 1977.
21         (6)  All bonds executed pursuant to this section shall
22  make reference to this section by number and shall contain
23  reference to the notice and time limitation provisions of this
24  section.
25         (6)(7)  In lieu of the bond required by this section, a
26  contractor may file with the state, county, city, or other
27  political authority an alternative form of security in the
28  form of cash, a money order, a certified check, a cashier's
29  check, an irrevocable letter of credit, or a security of a
30  type listed in part II of chapter 625. Any such alternative
31  form of security shall be for the same purpose and be subject
                                  26
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  to the same conditions as those applicable to the bond
 2  required by this section.  The determination of the value of
 3  an alternative form of security shall be made by the
 4  appropriate state, county, city, or other political
 5  subdivision.
 6         (7)(8)  When a contractor has furnished a payment bond
 7  pursuant to this section, he or she may, when the state,
 8  county, municipality, political subdivision, or other public
 9  authority makes any payment to the contractor or directly to a
10  claimant, serve a written demand on any claimant who is not in
11  privity with the contractor for a written statement under oath
12  of his or her account showing the nature of the labor or
13  services performed and to be performed, if any; the materials
14  furnished; the materials to be furnished, if known; the amount
15  paid on account to date; the amount due; and the amount to
16  become due, if known, as of the date of the statement by the
17  claimant. Any such demand to a claimant who is not in privity
18  with the contractor must be served on the claimant at the
19  address and to the attention of any person who is designated
20  to receive the demand in the notice to contractor served by
21  the claimant. The failure or refusal to furnish the statement
22  does not deprive the claimant of his or her rights under the
23  bond if the demand is not served at the address of the
24  claimant or directed to the attention of the person designated
25  to receive the demand in the notice to contractor. The failure
26  to furnish the statement within 30 days after the demand, or
27  the furnishing of a false or fraudulent statement, deprives
28  the claimant who fails to furnish the statement, or who
29  furnishes the false or fraudulent statement, of his or her
30  rights under the bond. If the contractor serves more than one
31  demand for statement of account on a claimant and none of the
                                  27
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  information regarding the account has changed since the
 2  claimant's last response to a demand, the failure or refusal
 3  to furnish such statement does not deprive the claimant of his
 4  or her rights under the bond. The negligent inclusion or
 5  omission of any information deprives the claimant of his or
 6  her rights under the bond to the extent that the contractor
 7  can demonstrate prejudice from such act or omission by the
 8  claimant. The failure to furnish a response to a demand for
 9  statement of account does not affect the validity of any claim
10  on the bond being enforced in a lawsuit filed before the date
11  the demand for statement of account is received by the
12  claimant.
13         (8)(9)  On any public works project for which the
14  public authority requires a performance and payment bond,
15  suits at law and in equity may be brought and maintained by
16  and against the public authority on any contract claim arising
17  from breach of an express provision or an implied covenant of
18  a written agreement or a written directive issued by the
19  public authority pursuant to the written agreement.  In any
20  such suit, the public authority and the contractor shall have
21  all of the same rights and obligations as a private person
22  under a like contract except that no liability may be based on
23  an oral modification of either the written contract or written
24  directive.  Nothing herein shall be construed to waive the
25  sovereign immunity of the state and its political subdivisions
26  from equitable claims and equitable remedies. The provisions
27  of this subsection shall apply only to contracts entered into
28  on or after July 1, 1999.
29         (9)  An action, except an action for recovery of
30  retainage, must be instituted against the contractor or the
31  surety on the payment bond or the payment provisions of a
                                  28
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  combined payment and performance bond within 1 year after the
 2  performance of the labor or completion of delivery of the
 3  materials or supplies. An action for recovery of retainage
 4  must be instituted against the contractor or the surety within
 5  1 year after the performance of the labor or completion of
 6  delivery of the materials or supplies, provided that such an
 7  action may not be instituted until one of the following
 8  conditions is satisfied:
 9         (a)  The public entity has paid out the claimant's
10  retainage to the contractor, and the time provided under s.
11  255.073(3) for payment of that retainage to the claimant has
12  expired;
13         (b)  The claimant has completed all work required under
14  its contract and 70 days have passed since the contractor sent
15  its final payment request to the public entity; or
16         (c)  The claimant has asked the contractor, in writing,
17  when the contractor received payment of the claimant's
18  retainage or when the contractor sent its final payment
19  request to the public entity, and the contractor has failed to
20  respond to this request, in writing, within 10 days after
21  receipt.
22  
23  If none of the conditions described in paragraph (a),
24  paragraph (b), or paragraph (c) is satisfied and an action for
25  recovery of retainage therefore cannot be instituted within
26  the 1-year limitation period set forth in this subsection,
27  this limitation period shall be extended until 120 days after
28  one of these conditions is satisfied.
29         Section 14.  Paragraph (b) of subsection (2) of section
30  95.11, Florida Statutes, is amended to read:
31         95.11  Limitations other than for the recovery of real
                                  29
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1  property.--Actions other than for recovery of real property
 2  shall be commenced as follows:
 3         (2)  WITHIN FIVE YEARS.--
 4         (b)  A legal or equitable action on a contract,
 5  obligation, or liability founded on a written instrument,
 6  except for an action to enforce a claim against a payment
 7  bond, which shall be governed by the applicable provisions of
 8  ss. 255.05(9) 255.05(2)(a)2. and 713.23(1)(e).
 9  
10  (Redesignate subsequent sections.)
11  
12  
13  ================ T I T L E   A M E N D M E N T ===============
14  And the title is amended as follows:
15         On page 1, lines 3 through 6, delete those lines
16  
17  and insert:
18         amending s. 218.70, F.S.; providing a short
19         title; amending s. 218.72, F.S.; redefining
20         terms used in part VII of ch. 218, F.S.;
21         amending s. 218.735, F.S.; revising provisions
22         relating to timely payment for purchases of
23         construction services; revising deadlines for
24         payment; providing procedures for project
25         closeout and payment of retainage; providing
26         requirements for local government construction
27         retainage; providing that ss. 218.72-218.76,
28         F.S., apply to the payment of any payment
29         request for retainage; providing exceptions;
30         creating s. 255.0705, F.S.; providing a short
31         title; amending s. 255.071, F.S.; revising
                                  30
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         deadlines for the payment of subcontractors,
 2         sub-subcontractors, materialmen, and suppliers
 3         on construction contracts for public projects;
 4         creating ss. 255.072, 255.073, 255.074,
 5         255.075, 255.076, 255.077, and 255.078, F.S.;
 6         providing definitions; providing for timely
 7         payment for purchases of construction services
 8         by a public entity; providing procedures for
 9         calculating payment due dates; providing
10         procedures for handling improper payment
11         requests; providing for the resolution of
12         disputes; providing for project closeout and
13         payment of retainage; providing that ss.
14         255.072-255.076, F.S., apply to the payment of
15         any payment request for retainage; providing
16         exceptions; amending s. 255.05, F.S.; providing
17         that certain restrictions in bonds issued for
18         public works projects are unenforceable;
19         providing requirements for certain notices of
20         nonpayment served by a claimant who is not in
21         privity with the contractor; revising the form
22         for a public construction bond; requiring the
23         payment provisions of all public construction
24         bonds to be construed as statutory bonds;
25         prohibiting conversion to common law bonds;
26         deleting obsolete language; deleting a
27         requirement that bond forms used by public
28         owners reference certain notice and time
29         limitation provisions; providing limitations on
30         a claimant's institution of certain actions
31         against a contractor or surety; amending s.
                                  31
    8:18 AM   04/26/04                                s2754c-21t12
                                                  SENATE AMENDMENT
    Bill No. SB 2754
    Amendment No. ___   Barcode 481972
 1         95.11, F.S., to conform a cross-reference;
 2  
 3  
 4  
 5  
 6  
 7  
 8  
 9  
10  
11  
12  
13  
14  
15  
16  
17  
18  
19  
20  
21  
22  
23  
24  
25  
26  
27  
28  
29  
30  
31  
                                  32
    8:18 AM   04/26/04                                s2754c-21t12