HB 0509

1
A bill to be entitled
2An act relating to prompt payment for construction
3services; amending s. 218.70, F.S.; providing a popular
4name; amending s. 218.72, F.S.; redefining terms used in
5pt. VII of ch. 218, F.S.; amending s. 218.735, F.S.;
6revising provisions relating to timely payment for
7purchases of construction services; revising deadlines for
8payment; providing procedures for project closeout and
9payment of retainage; providing requirements for local
10government construction retainage; providing exceptions;
11creating s. 255.0705, F.S.; providing a popular name;
12amending s. 255.071, F.S.; revising deadlines for the
13payment of subcontractors, sub-subcontractors,
14materialmen, and suppliers on construction contracts for
15public projects; creating ss. 255.072, 255.073, 255.074,
16255.075, 255.076, 255.077, and 255.078, F.S.; providing
17definitions; providing for timely payment for purchases of
18construction services by a public entity; providing
19procedures for calculating payment due dates; authorizing
20the collection of interest under certain circumstances;
21providing for an award of court costs and attorney's fees;
22providing for project closeout and payment of retainage;
23providing exceptions; amending s. 255.05, F.S.; providing
24requirements for certain notices of nonpayment served by a
25claimant who is not in privity with the contractor;
26providing limitations on a claimant's institution of
27certain actions against a contractor or surety; amending
28s. 95.11, F.S., to conform a cross reference; providing
29that specified sections of the act do not apply to certain
30pending contracts and projects; providing an effective
31date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Section 218.70, Florida Statutes, is amended to
36read:
37     218.70  Popular name Short title.--This part may be cited
38as the "Local Government Florida Prompt Payment Act."
39     Section 2.  Subsections (2), (6), and (7) of section
40218.72, Florida Statutes, are amended, and subsection (10) is
41added to said section, to read:
42     218.72  Definitions.--As used in this part:
43     (2)  "Local governmental entity" means a county or
44municipal government, school board, school district, authority,
45special taxing district, other political subdivision, or any
46office, board, bureau, commission, department, branch, division,
47or institution thereof or any project supported by county or
48municipal funds.
49     (6)  "Vendor" means any person who sells goods or services,
50sells or leases personal property, or leases real property
51directly to a local governmental entity. The term includes any
52person who provides waste-hauling services to residents or
53businesses located within the boundaries of a local government
54pursuant to a contract or local ordinance.
55     (7)  "Construction services" means all labor, services, and
56materials provided in connection with the construction,
57alteration, repair, demolition, reconstruction, or any other
58improvements to real property that require a license under parts
59I and II of chapter 489.
60     (10)  "Contractor" or "provider of construction services"
61means any person who contracts directly with a local
62governmental entity to provide construction services.
63     Section 3.  Subsection (6) of section 218.735, Florida
64Statutes, is amended, present subsection (7) of said section is
65redesignated as subsection (9), and new subsections (7) and (8)
66are added to said section, to read:
67     218.735  Timely payment for purchases of construction
68services.--
69     (6)  When a contractor receives payment from a local
70governmental entity for labor, services, or materials furnished
71by subcontractors and suppliers hired by the contractor, the
72contractor shall remit payment due to those subcontractors and
73suppliers within 10 15 days after the contractor's receipt of
74payment. When a subcontractor receives payment from a contractor
75for labor, services, or materials furnished by subcontractors
76and suppliers hired by the subcontractor, the subcontractor
77shall remit payment due to those subcontractors and suppliers
78within 7 15 days after the subcontractor's receipt of payment.
79Nothing herein shall prohibit a contractor or subcontractor from
80disputing, pursuant to the terms of the relevant contract, all
81or any portion of a payment alleged to be due to another party.
82In the event of such a dispute, the contractor or subcontractor
83may withhold the disputed portion of any such payment if the
84contractor or subcontractor notifies the party whose payment is
85disputed, in writing, of the amount in dispute and the actions
86required to cure the dispute. The contractor or subcontractor
87must pay all undisputed amounts due within the time limits
88imposed by this section.
89     (7)(a)  Each contract for construction services between a
90local governmental entity and a contractor must provide for the
91development of a list of items required to render complete,
92satisfactory, and acceptable the construction services purchased
93by the local governmental entity. The contract must specify the
94process for the development of the list, including
95responsibilities of the local governmental entity and the
96contractor in developing and reviewing the list and a reasonable
97time for developing the list, as follows:
98     1.  For construction projects having an estimated cost of
99less than $10 million, within 30 calendar days after reaching
100substantial completion of the construction services purchased as
101defined in the contract, or, if not defined in the contract,
102upon reaching beneficial occupancy or use; or
103     2.  For construction projects having an estimated cost of
104$10 million or more, within 30 calendar days, unless otherwise
105extended by contract not to exceed 60 calendar days, after
106reaching substantial completion of the construction services
107purchased as defined in the contract, or, if not defined in the
108contract, upon reaching beneficial occupancy or use.
109     (b)  If the contract between the local governmental entity
110and the contractor relates to the purchase of construction
111services on more than one building or structure, or involves a
112multiphased project, the contract must provide for the
113development of a list of items required to render complete,
114satisfactory, and acceptable all the construction services
115purchased pursuant to the contract for each building, structure,
116or phase of the project within the time limitations provided in
117paragraph (a).
118     (c)  The failure to include any corrective work or pending
119items not yet completed on the list developed pursuant to this
120subsection does not alter the responsibility of the contractor
121to complete all the construction services purchased pursuant to
122the contract.
123     (d)  Upon completion of all items on the list, the
124contractor may submit a payment request for all remaining
125retainage withheld by the local governmental entity pursuant to
126this section. If a good-faith dispute exists as to whether one
127or more items identified on the list have been completed
128pursuant to the contract, the local governmental entity may
129continue to withhold an amount not to exceed 150 percent of the
130total costs to complete such items.
131     (e)  All items that require correction under the contract
132and that are identified after the preparation and delivery of
133the list remain the obligation of the contractor as defined by
134the contract.
135     (f)  Warranty items may not affect the final payment of
136retainage as provided in this section or as provided in the
137contract between the contractor and its subcontractors and
138suppliers.
139     (g)  Retainage may not be held by a local governmental
140entity or a contractor to secure payment of insurance premiums
141under a consolidated insurance program or series of insurance
142policies issued to a local governmental entity or a contractor
143for a project or group of projects, and the final payment of
144retainage as provided in this section may not be delayed pending
145a final audit by the local governmental entity's or contractor's
146insurance provider.
147     (h)  If a local governmental entity fails to comply with
148its responsibilities to develop the list required under
149paragraph (a) or paragraph (b), as defined in the contract,
150within the time limitations provided in paragraph (a), the
151contractor may submit a payment request for all remaining
152retainage withheld by the local governmental entity pursuant to
153this section. The local governmental entity need not pay or
154process any payment request for retainage if the contractor has,
155in whole or in part, failed to cooperate with the local
156governmental entity in the development of the list or failed to
157perform its contractual responsibilities, if any, with regard to
158the development of the list or if paragraph (8)(f) applies.
159     (8)(a)  With regard to any contract for construction
160services, a local governmental entity may withhold from each
161progress payment made to the contractor an amount not exceeding
16210 percent of the payment as retainage to ensure the
163satisfactory completion of the construction services purchased
164pursuant to the contract until 50-percent completion of such
165services.
166     (b)  After 50-percent completion of the construction
167services purchased pursuant to the contract, the local
168governmental entity must reduce to 5 percent the amount of
169retainage withheld from each subsequent progress payment made to
170the contractor. For purposes of this subsection, the term "50-
171percent completion" has the meaning set forth in the contract
172between the local governmental entity and the contractor or, if
173not defined in the contract, the point at which the local
174governmental entity has expended 50 percent of the total cost of
175the construction services purchased as identified in the
176contract together with all costs associated with existing change
177orders and other additions or modifications to the construction
178services provided for in the contract. However, notwithstanding
179this subsection, a municipality having a population of 25,000 or
180fewer, or a county having a population of 100,000 or fewer, may
181withhold retainage in an amount not exceeding 10 percent of each
182progress payment made to the contractor until final completion
183and acceptance of the project by the local governmental entity.
184     (c)  After 50-percent completion of the construction
185services purchased pursuant to the contract, the contractor may
186elect to withhold retainage from payments to its subcontractors
187at a rate higher than 5 percent. The specific amount to be
188withheld must be determined on a case-by-case basis and must be
189based on the contractor's assessment of the subcontractor's past
190performance, the likelihood that such performance will continue,
191and the contractor's ability to rely on other safeguards. The
192contractor shall notify the subcontractor, in writing, of its
193determination to withhold more than 5 percent of the progress
194payment and the reasons for making that determination, and the
195contractor may not request the release of such retained funds
196from the local governmental entity.
197     (d)  After 50-percent completion of the construction
198services purchased pursuant to the contract, the contractor may
199present to the local governmental entity a payment request for
200up to one-half of the retainage held by the local governmental
201entity. The local governmental entity shall promptly make
202payment to the contractor, unless the local governmental entity
203has grounds, pursuant to paragraph (f), for withholding the
204payment of retainage. If the local governmental entity makes
205payment of retainage to the contractor under this paragraph
206which is attributable to the labor, services, or materials
207supplied by one or more subcontractors or suppliers, the
208contractor shall timely remit payment of such retainage to those
209subcontractors and suppliers.
210     (e)  This section does not prohibit a local governmental
211entity from withholding retainage at a rate less than 10 percent
212of each progress payment, from incrementally reducing the rate
213of retainage pursuant to a schedule provided for in the
214contract, or from releasing at any point all or a portion of any
215retainage withheld by the local governmental entity which is
216attributable to the labor, services, or materials supplied by
217the contractor or by one or more subcontractors or suppliers. If
218a local governmental entity makes any payment of retainage to
219the contractor which is attributable to the labor, services, or
220materials supplied by one or more subcontractors or suppliers,
221the contractor shall timely remit payment of such retainage to
222those subcontractors and suppliers.
223     (f)  This section does not require the local governmental
224entity to pay or release any amounts that are the subject of a
225good-faith dispute, the subject of an action brought pursuant to
226s. 255.05, or otherwise the subject of a claim or demand by the
227local governmental entity or contractor.
228     (g)  The time limitations set forth in this section for
229payment of payment requests apply to any payment request for
230retainage made pursuant to this section.
231     (h)  Paragraphs (a)-(d) do not apply to construction
232services purchased by a local governmental entity which are paid
233for, in whole or in part, with federal funds and are subject to
234federal grantor laws and regulations or requirements that are
235contrary to any provision of the Local Government Prompt Payment
236Act.
237     (i)  This subsection does not apply to any construction
238services purchased by a local governmental entity if the total
239cost of the construction services purchased as identified in the
240contract is $200,000 or less.
241     Section 4.  Section 255.0705, Florida Statutes, is created
242to read:
243     255.0705  Popular name.--Sections 255.0705-255.078 may be
244cited as the "Florida Prompt Payment Act."
245     Section 5.  Subsections (2) and (3) of section 255.071,
246Florida Statutes, are amended to read:
247     255.071  Payment of subcontractors, sub-subcontractors,
248materialmen, and suppliers on construction contracts for public
249projects.--
250     (2)  The failure to pay any undisputed obligations for such
251labor, services, or materials within 30 days after the date the
252labor, services, or materials were furnished and payment for
253such labor, services, or materials became due, or within the
254time limitations set forth in s. 255.073(3) 30 days after the
255date payment for such labor, services, or materials is received,
256whichever last occurs, shall entitle any person providing such
257labor, services, or materials to the procedures specified in
258subsection (3) and the remedies provided in subsection (4).
259     (3)  Any person providing labor, services, or materials for
260the construction of a public building, for the prosecution and
261completion of a public work, or for repairs upon a public
262building or public work improvements to real property may file a
263verified complaint alleging:
264     (a)  The existence of a contract for providing such labor,
265services, or materials to improve real property.
266     (b)  A description of the labor, services, or materials
267provided and alleging that the labor, services, or materials
268were provided in accordance with the contract.
269     (c)  The amount of the contract price.
270     (d)  The amount, if any, paid pursuant to the contract.
271     (e)  The amount that remains unpaid pursuant to the
272contract and the amount thereof that is undisputed.
273     (f)  That the undisputed amount has remained due and
274payable pursuant to the contract for more than 30 days after the
275date the labor or services were accepted or the materials were
276received.
277     (g)  That the person against whom the complaint was filed
278has received payment on account of the labor, services, or
279materials described in the complaint and, as of the date the
280complaint was filed, has failed to make payment within the time
281limitations set forth in s. 255.073(3) more than 30 days prior
282to the date the complaint was filed.
283     Section 6.  Section 255.072, Florida Statutes, is created
284to read:
285     255.072  Definitions.--As used in ss. 255.073-255.078, the
286term:
287     (1)  "Agent" means project architect, project engineer, or
288any other agency or person acting on behalf of a public entity.
289     (2)  "Construction services" means all labor, services, and
290materials provided in connection with the construction,
291alteration, repair, demolition, reconstruction, or any other
292improvements to real property. The term "construction services"
293does not include contracts or work performed for the Department
294of Transportation.
295     (3)  "Contractor" means any person who contracts directly
296with a public entity to provide construction services.
297     (4)  "Payment request" means a request for payment for
298construction services which conforms with all statutory
299requirements and with all requirements specified by the public
300entity to which the payment request is submitted.
301     (5)  "Public entity" means the state, or any office, board,
302bureau, commission, department, branch, division, or institution
303thereof, but does not include a local governmental entity as
304defined in s. 218.72.
305     (6)  "Purchase" means the purchase of construction
306services.
307     Section 7.  Section 255.073, Florida Statutes, is created
308to read:
309     255.073  Timely payment for purchases of construction
310services.--
311     (1)  Except as otherwise provided in ss. 255.072-255.078,
312s. 215.422 governs the timely payment for construction services
313by a public entity.
314     (2)  If a public entity disputes a portion of a payment
315request, the undisputed portion must be timely paid.
316     (3)  When a contractor receives payment from a public
317entity for labor, services, or materials furnished by
318subcontractors and suppliers hired by the contractor, the
319contractor shall remit payment due to those subcontractors and
320suppliers within 10 days after the contractor's receipt of
321payment. When a subcontractor receives payment from a contractor
322for labor, services, or materials furnished by subcontractors
323and suppliers hired by the subcontractor, the subcontractor
324shall remit payment due to those subcontractors and suppliers
325within 7 days after the subcontractor's receipt of payment. This
326subsection does not prohibit a contractor or subcontractor from
327disputing, pursuant to the terms of the relevant contract, all
328or any portion of a payment alleged to be due to another party
329if the contractor or subcontractor notifies the party whose
330payment is disputed, in writing, of the amount in dispute and
331the actions required to cure the dispute. The contractor or
332subcontractor must pay all undisputed amounts due within the
333time limits imposed by this subsection.
334     (4)  All payments due for the purchase of construction
335services and not made within the applicable time limits shall
336bear interest at the rate specified in s. 215.422. After July 1,
3372006, such payments shall bear interest at the rate of 1 percent
338per month, to the extent that the Chief Financial Officer's
339replacement project for the state's accounting and cash
340management systems is operational for the particular affected
341public entity. After January 1, 2007, all such payments due from
342public entity shall bear interest at the rate of 1 percent per
343month.
344     Section 8.  Section 255.074, Florida Statutes, is created
345to read:
346     255.074  Procedures for calculation of payment due dates.--
347     (1)  Each public entity shall establish procedures whereby
348each payment request received by the public entity is marked as
349received on the date on which it is delivered to an agent or
350employee of the public entity or of a facility or office of the
351public entity.
352     (2)  If the terms under which a purchase is made allow for
353partial deliveries and a payment request is submitted for a
354partial delivery, the time for payment for the partial delivery
355must be calculated from the time of the partial delivery and the
356submission of the payment request.
357     (3)  A public entity must submit a payment request to the
358Chief Financial Officer for payment no more than 20 days after
359receipt of the payment request.
360     Section 9.  Section 255.075, Florida Statutes, is created
361to read:
362     255.075  Mandatory interest.--A contract between a public
363entity and a contractor may not prohibit the collection of late
364payment interest charges authorized under s. 255.073(4).
365     Section 10.  Section 255.076, Florida Statutes, is created
366to read:
367     255.076  Award of court costs and attorney's fees.--In an
368action to recover amounts due for construction services
369purchased by a public entity, the court shall award court costs
370and reasonable attorney's fees, including fees incurred through
371any appeal, to the prevailing party, if the court finds that the
372nonprevailing party withheld any portion of the payment that is
373the subject of the action without any reasonable basis in law or
374fact to dispute the prevailing party's claim to those amounts.
375     Section 11.  Section 255.077, Florida Statutes, is created
376to read:
377     255.077  Project closeout and payment of retainage.--
378     (1)  Each contract for construction services between a
379public entity and a contractor must provide for the development
380of a list of items required to render complete, satisfactory,
381and acceptable the construction services purchased by the public
382entity. The contract must specify the process for the
383development of the list, including responsibilities of the
384public entity and the contractor in developing and reviewing the
385list and a reasonable time for developing the list, as follows:
386     (a)  For construction projects having an estimated cost of
387less than $10 million, within 30 calendar days after reaching
388substantial completion of the construction services purchased as
389defined in the contract, or, if not defined in the contract,
390upon reaching beneficial occupancy or use; or
391     (b)  For construction projects having an estimated cost of
392$10 million or more, within 30 calendar days, unless otherwise
393extended by contract not to exceed 60 calendar days, after
394reaching substantial completion of the construction services
395purchased as defined in the contract, or, if not defined in the
396contract, upon reaching beneficial occupancy or use.
397     (2)  If the contract between the public entity and the
398contractor relates to the purchase of construction services on
399more than one building or structure, or involves a multiphased
400project, the contract must provide for the development of a list
401of items required to render complete, satisfactory, and
402acceptable all the construction services purchased pursuant to
403the contract for each building, structure, or phase of the
404project within the time limitations provided in subsection (1).
405     (3)  The failure to include any corrective work or pending
406items not yet completed on the list developed pursuant to
407subsection (1) or subsection (2) does not alter the
408responsibility of the contractor to complete all the
409construction services purchased pursuant to the contract.
410     (4)  Upon completion of all items on the list, the
411contractor may submit a payment request for all remaining
412retainage withheld by the public entity pursuant to s. 255.078.
413If a good-faith dispute exists as to whether one or more items
414identified on the list have been completed pursuant to the
415contract, the public entity may continue to withhold an amount
416not to exceed 150 percent of the total costs to complete such
417items.
418     (5)  All items that require correction under the contract
419and that are identified after the preparation and delivery of
420the list remain the obligation of the contractor as defined by
421the contract.
422     (6)  Warranty items may not affect the final payment of
423retainage as provided in this section or as provided in the
424contract between the contractor and its subcontractors and
425suppliers.
426     (7)  Retainage may not be held by a public entity or a
427contractor to secure payment of insurance premiums under a
428consolidated insurance program or series of insurance policies
429issued to a public entity or a contractor for a project or group
430of projects, and the final payment of retainage as provided in
431this section may not be delayed pending a final audit by the
432public entity's or contractor's insurance provider.
433     (8)  If a public entity fails to comply with its
434responsibilities to develop the list required under subsection
435(1) or subsection (2), as defined in the contract, within the
436time limitations provided in subsection (1), the contractor may
437submit a payment request for all remaining retainage withheld by
438the public entity pursuant to s. 255.078. The public entity need
439not pay or process any payment request for retainage if the
440contractor has, in whole or in part, failed to cooperate with
441the public entity in the development of the list or failed to
442perform its contractual responsibilities, if any, with regard to
443the development of the list or if s. 255.078(6) applies.
444     Section 12.  Section 255.078, Florida Statutes, is created
445to read:
446     255.078  Public construction retainage.--
447     (1)  With regard to any contract for construction services,
448a public entity may withhold from each progress payment made to
449the contractor an amount not exceeding 10 percent of the payment
450as retainage to ensure the satisfactory completion of the
451construction services purchased pursuant to the contract until
45250-percent completion of such services.
453     (2)  After 50-percent completion of the construction
454services purchased pursuant to the contract, the public entity
455must reduce to 5 percent the amount of retainage withheld from
456each subsequent progress payment made to the contractor. For
457purposes of this section, the term "50-percent completion" has
458the meaning set forth in the contract between the public entity
459and the contractor or, if not defined in the contract, the point
460at which the public entity has expended 50 percent of the total
461cost of the construction services purchased as identified in the
462contract together with all costs associated with existing change
463orders and other additions or modifications to the construction
464services provided for in the contract.
465     (3)  After 50-percent completion of the construction
466services purchased pursuant to the contract, the contractor may
467elect to withhold retainage from payments to its subcontractors
468at a rate higher than 5 percent. The specific amount to be
469withheld must be determined on a case-by-case basis and must be
470based on the contractor's assessment of the subcontractor's past
471performance, the likelihood that such performance will continue,
472and the contractor's ability to rely on other safeguards. The
473contractor shall notify the subcontractor, in writing, of its
474determination to withhold more than 5 percent of the progress
475payment and the reasons for making that determination, and the
476contractor may not request the release of such retained funds
477from the public entity.
478     (4)  After 50-percent completion of the construction
479services purchased pursuant to the contract, the contractor may
480present to the public entity a payment request for up to one-
481half of the retainage held by the public entity. The public
482entity shall promptly make payment to the contractor, unless the
483public entity has grounds, pursuant to subsection (6), for
484withholding the payment of retainage. If the public entity makes
485payment of retainage to the contractor under this subsection
486which is attributable to the labor, services, or materials
487supplied by one or more subcontractors or suppliers, the
488contractor shall timely remit payment of such retainage to those
489subcontractors and suppliers.
490     (5)  Neither this section nor s. 255.077 prohibits a public
491entity from withholding retainage at a rate less than 10 percent
492of each progress payment, from incrementally reducing the rate
493of retainage pursuant to a schedule provided for in the
494contract, or from releasing at any point all or a portion of any
495retainage withheld by the public entity which is attributable to
496the labor, services, or materials supplied by the contractor or
497by one or more subcontractors or suppliers. If a public entity
498makes any payment of retainage to the contractor which is
499attributable to the labor, services, or materials supplied by
500one or more subcontractors or suppliers, the contractor shall
501timely remit payment of such retainage to those subcontractors
502and suppliers.
503     (6)  Neither this section nor s. 255.077 requires the
504public entity to pay or release any amounts that are the subject
505of a good-faith dispute, the subject of an action brought
506pursuant to s. 255.05, or otherwise the subject of a claim or
507demand by the public entity or contractor.
508     (7)  The same time limits for payment of a payment request
509apply regardless of whether the payment request is for, or
510includes, retainage.
511     (8)  Subsections (1)-(4) do not apply to construction
512services purchased by a public entity which are paid for, in
513whole or in part, with federal funds and are subject to federal
514grantor laws and regulations or requirements that are contrary
515to any provision of the Florida Prompt Payment Act.
516     (9)  This section does not apply to any construction
517services purchased by a public entity if the total cost of the
518construction services purchased as identified in the contract is
519$200,000 or less.
520     Section 13.  Paragraph (a) of subsection (2) of section
521255.05, Florida Statutes, is amended, and subsection (10) is
522added to said section, to read:
523     255.05  Bond of contractor constructing public buildings;
524form; action by materialmen.--
525     (2)(a)1.  If a claimant is no longer furnishing labor,
526services, or materials on a project, a contractor or the
527contractor's agent or attorney may elect to shorten the
528prescribed time in this paragraph within which an action to
529enforce any claim against a payment bond provided pursuant to
530this section may be commenced by recording in the clerk's office
531a notice in substantially the following form:
532
533
NOTICE OF CONTEST OF CLAIM
534
AGAINST PAYMENT BOND
535
536To:  . . . (Name and address of claimant) . . .  
537
538     You are notified that the undersigned contests your notice
539of nonpayment, dated ____________, ________, and served on the
540undersigned on ____________, ________, and that the time within
541which you may file suit to enforce your claim is limited to 60
542days after the date of service of this notice.
543
544     DATED on ____________, ________.
545
546Signed: . . . (Contractor or Attorney) . . .  
547
548The claim of any claimant upon whom such notice is served and
549who fails to institute a suit to enforce his or her claim
550against the payment bond within 60 days after service of such
551notice shall be extinguished automatically. The clerk shall mail
552a copy of the notice of contest to the claimant at the address
553shown in the notice of nonpayment or most recent amendment
554thereto and shall certify to such service on the face of such
555notice and record the notice. Service is complete upon mailing.
556     2.  A claimant, except a laborer, who is not in privity
557with the contractor shall, before commencing or not later than
55845 days after commencing to furnish labor, materials, or
559supplies for the prosecution of the work, furnish the contractor
560with a notice that he or she intends to look to the bond for
561protection. A claimant who is not in privity with the contractor
562and who has not received payment for his or her labor,
563materials, or supplies shall deliver to the contractor and to
564the surety written notice of the performance of the labor or
565delivery of the materials or supplies and of the nonpayment. The
566notice of nonpayment may be served at any time during the
567progress of the work or thereafter but not before 45 days after
568the first furnishing of labor, services, or materials, and not
569later than 90 days after the final furnishing of the labor,
570services, or materials by the claimant or, with respect to
571rental equipment, not later than 90 days after the date that the
572rental equipment was last on the job site available for use. Any
573notice of nonpayment served by a claimant who is not in privity
574with the contractor which includes sums for retainage must
575specify the portion of the amount claimed for retainage. No
576action for the labor, materials, or supplies may be instituted
577against the contractor or the surety unless both notices have
578been given. Notices required or permitted under this section may
579be served in accordance with s. 713.18. An action, except for an
580action exclusively for recovery of retainage, must be instituted
581against the contractor or the surety on the payment bond or the
582payment provisions of a combined payment and performance bond
583within 1 year after the performance of the labor or completion
584of delivery of the materials or supplies. An action exclusively
585for recovery of retainage must be instituted against the
586contractor or the surety within 1 year after the performance of
587the labor or completion of delivery of the materials or
588supplies, or within 90 days after receipt of final payment (or
589the payment estimate containing the owner's final reconciliation
590of quantities if no further payment is earned and due as a
591result of deductive adjustments) by the contractor or surety,
592whichever comes last. A claimant may not waive in advance his or
593her right to bring an action under the bond against the surety.
594In any action brought to enforce a claim against a payment bond
595under this section, the prevailing party is entitled to recover
596a reasonable fee for the services of his or her attorney for
597trial and appeal or for arbitration, in an amount to be
598determined by the court, which fee must be taxed as part of the
599prevailing party's costs, as allowed in equitable actions. The
600time periods for service of a notice of nonpayment or for
601bringing an action against a contractor or a surety shall be
602measured from the last day of furnishing labor, services, or
603materials by the claimant and shall not be measured by other
604standards, such as the issuance of a certificate of occupancy or
605the issuance of a certificate of substantial completion.
606     (10)  An action, except an action for recovery of
607retainage, must be instituted against the contractor or the
608surety on the payment bond or the payment provisions of a
609combined payment and performance bond within 1 year after the
610performance of the labor or completion of delivery of the
611materials or supplies. An action for recovery of retainage must
612be instituted against the contractor or the surety within 1 year
613after the performance of the labor or completion of delivery of
614the materials or supplies; however, such an action may not be
615instituted until one of the following conditions is satisfied:
616     (a)  The public entity has paid out the claimant's
617retainage to the contractor, and the time provided under s.
618255.073(3) for payment of that retainage to the claimant has
619expired;
620     (b)  The claimant has completed all work required under its
621contract and 70 days have passed since the contractor sent its
622final payment request to the public entity; or
623     (c)  The claimant has asked the contractor, in writing,
624when the contractor received payment of the claimant's retainage
625or when the contractor sent its final payment request to the
626public entity, and the contractor has failed to respond to this
627request, in writing, within 10 days after receipt.
628
629If none of the conditions described in paragraph (a), paragraph
630(b), or paragraph (c) is satisfied and therefore an action for
631recovery of retainage cannot be instituted within the 1-year
632limitation period set forth in this subsection, this limitation
633period shall be extended until 120 days after one of these
634conditions is satisfied.
635     Section 14.  Paragraph (b) of subsection (2) of section
63695.11, Florida Statutes, is amended to read:
637     95.11  Limitations other than for the recovery of real
638property.--Actions other than for recovery of real property
639shall be commenced as follows:
640     (2)  WITHIN FIVE YEARS.--
641     (b)  A legal or equitable action on a contract, obligation,
642or liability founded on a written instrument, except for an
643action to enforce a claim against a payment bond, which shall be
644governed by the applicable provisions of ss. 255.05(10)
645255.05(2)(a)2. and 713.23(1)(e).
646     Section 15.  Neither the amendments to sections 95.11,
647218.70, 218.72, 218.735, and 255.071, Florida Statutes, and
648subsection (2) of section 255.05, Florida Statutes, as provided
649in this act, nor subsection (10) of section 255.05, Florida
650Statutes, and section 255.078, Florida Statutes, as created by
651this act, applies to any existing construction contract pending
652approval by a local governmental entity or public entity, or to
653any project advertised for bid by the local governmental entity
654or public entity, on or before October 1, 2005.
655     Section 16.  This act shall take effect October 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.