HB 509

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. 287.0585, F.S.; providing an exemption for contractors
29making late payment to subcontractors when the contract is
30subject to the "Prompt Payment Act"; amending s. 95.11,
31F.S., to conform a cross reference; providing that
32specified sections of the act do not apply to certain
33pending contracts and projects; providing an effective
34date.
35
36Be It Enacted by the Legislature of the State of Florida:
37
38     Section 1.  Section 218.70, Florida Statutes, is amended to
39read:
40     218.70  Popular name Short title.--This part may be cited
41as the "Local Government Florida Prompt Payment Act."
42     Section 2.  Subsections (2), (6), and (7) of section
43218.72, Florida Statutes, are amended, and subsection (10) is
44added to said section, to read:
45     218.72  Definitions.--As used in this part:
46     (2)  "Local governmental entity" means a county or
47municipal government, school board, school district, authority,
48special taxing district, other political subdivision, or any
49office, board, bureau, commission, department, branch, division,
50or institution thereof or any project supported by county or
51municipal funds.
52     (6)  "Vendor" means any person who sells goods or services,
53sells or leases personal property, or leases real property
54directly to a local governmental entity. The term includes any
55person who provides waste-hauling services to residents or
56businesses located within the boundaries of a local government
57pursuant to a contract or local ordinance.
58     (7)  "Construction services" means all labor, services, and
59materials provided in connection with the construction,
60alteration, repair, demolition, reconstruction, or any other
61improvements to real property that require a license under parts
62I and II of chapter 489.
63     (10)  "Contractor" or "provider of construction services"
64means any person who contracts directly with a local
65governmental entity to provide construction services.
66     Section 3.  Subsection (6) of section 218.735, Florida
67Statutes, is amended, present subsection (7) of said section is
68redesignated as subsection (9), and new subsections (7) and (8)
69are added to said section, to read:
70     218.735  Timely payment for purchases of construction
71services.--
72     (6)  When a contractor receives payment from a local
73governmental entity for labor, services, or materials furnished
74by subcontractors and suppliers hired by the contractor, the
75contractor shall remit payment due to those subcontractors and
76suppliers within 10 15 days after the contractor's receipt of
77payment. When a subcontractor receives payment from a contractor
78for labor, services, or materials furnished by subcontractors
79and suppliers hired by the subcontractor, the subcontractor
80shall remit payment due to those subcontractors and suppliers
81within 7 15 days after the subcontractor's receipt of payment.
82Nothing herein shall prohibit a contractor or subcontractor from
83disputing, pursuant to the terms of the relevant contract, all
84or any portion of a payment alleged to be due to another party.
85In the event of such a dispute, the contractor or subcontractor
86may withhold the disputed portion of any such payment if the
87contractor or subcontractor notifies the party whose payment is
88disputed, in writing, of the amount in dispute and the actions
89required to cure the dispute. The contractor or subcontractor
90must pay all undisputed amounts due within the time limits
91imposed by this section.
92     (7)(a)  Each contract for construction services between a
93local governmental entity and a contractor must provide for the
94development of a list of items required to render complete,
95satisfactory, and acceptable the construction services purchased
96by the local governmental entity. The contract must specify the
97process for the development of the list, including
98responsibilities of the local governmental entity and the
99contractor in developing and reviewing the list and a reasonable
100time for developing the list, as follows:
101     1.  For construction projects having an estimated cost of
102less than $10 million, within 30 calendar days after reaching
103substantial completion of the construction services purchased as
104defined in the contract, or, if not defined in the contract,
105upon reaching beneficial occupancy or use; or
106     2.  For construction projects having an estimated cost of
107$10 million or more, within 30 calendar days, unless otherwise
108extended by contract not to exceed 60 calendar days, after
109reaching substantial completion of the construction services
110purchased as defined in the contract, or, if not defined in the
111contract, upon reaching beneficial occupancy or use.
112     (b)  If the contract between the local governmental entity
113and the contractor relates to the purchase of construction
114services on more than one building or structure, or involves a
115multiphased project, the contract must provide for the
116development of a list of items required to render complete,
117satisfactory, and acceptable all the construction services
118purchased pursuant to the contract for each building, structure,
119or phase of the project within the time limitations provided in
120paragraph (a).
121     (c)  The failure to include any corrective work or pending
122items not yet completed on the list developed pursuant to this
123subsection does not alter the responsibility of the contractor
124to complete all the construction services purchased pursuant to
125the contract.
126     (d)  Upon completion of all items on the list, the
127contractor may submit a payment request for all remaining
128retainage withheld by the local governmental entity pursuant to
129this section. If a good-faith dispute exists as to whether one
130or more items identified on the list have been completed
131pursuant to the contract, the local governmental entity may
132continue to withhold an amount not to exceed 150 percent of the
133total costs to complete such items.
134     (e)  All items that require correction under the contract
135and that are identified after the preparation and delivery of
136the list remain the obligation of the contractor as defined by
137the contract.
138     (f)  Warranty items may not affect the final payment of
139retainage as provided in this section or as provided in the
140contract between the contractor and its subcontractors and
141suppliers.
142     (g)  Retainage may not be held by a local governmental
143entity or a contractor to secure payment of insurance premiums
144under a consolidated insurance program or series of insurance
145policies issued to a local governmental entity or a contractor
146for a project or group of projects, and the final payment of
147retainage as provided in this section may not be delayed pending
148a final audit by the local governmental entity's or contractor's
149insurance provider.
150     (h)  If a local governmental entity fails to comply with
151its responsibilities to develop the list required under
152paragraph (a) or paragraph (b), as defined in the contract,
153within the time limitations provided in paragraph (a), the
154contractor may submit a payment request for all remaining
155retainage withheld by the local governmental entity pursuant to
156this section. The local governmental entity need not pay or
157process any payment request for retainage if the contractor has,
158in whole or in part, failed to cooperate with the local
159governmental entity in the development of the list or failed to
160perform its contractual responsibilities, if any, with regard to
161the development of the list or if paragraph (8)(f) applies.
162     (8)(a)  With regard to any contract for construction
163services, a local governmental entity may withhold from each
164progress payment made to the contractor an amount not exceeding
16510 percent of the payment as retainage until 50-percent
166completion of such services.
167     (b)  After 50-percent completion of the construction
168services purchased pursuant to the contract, the local
169governmental entity must reduce to 5 percent the amount of
170retainage withheld from each subsequent progress payment made to
171the contractor. For purposes of this subsection, the term "50-
172percent completion" has the meaning set forth in the contract
173between the local governmental entity and the contractor or, if
174not defined in the contract, the point at which the local
175governmental entity has expended 50 percent of the total cost of
176the construction services purchased as identified in the
177contract together with all costs associated with existing change
178orders and other additions or modifications to the construction
179services provided for in the contract. However, notwithstanding
180this subsection, a municipality having a population of 25,000 or
181fewer, or a county having a population of 100,000 or fewer, may
182withhold retainage in an amount not exceeding 10 percent of each
183progress payment made to the contractor until final completion
184and acceptance of the project by the local governmental entity.
185     (c)  After 50-percent completion of the construction
186services purchased pursuant to the contract, the contractor may
187elect to withhold retainage from payments to its subcontractors
188at a rate higher than 5 percent. The specific amount to be
189withheld must be determined on a case-by-case basis and must be
190based on the contractor's assessment of the subcontractor's past
191performance, the likelihood that such performance will continue,
192and the contractor's ability to rely on other safeguards. The
193contractor shall notify the subcontractor, in writing, of its
194determination to withhold more than 5 percent of the progress
195payment and the reasons for making that determination, and the
196contractor may not request the release of such retained funds
197from the local governmental entity.
198     (d)  After 50-percent completion of the construction
199services purchased pursuant to the contract, the contractor may
200present to the local governmental entity a payment request for
201up to one-half of the retainage held by the local governmental
202entity. The local governmental entity shall promptly make
203payment to the contractor, unless the local governmental entity
204has grounds, pursuant to paragraph (f), for withholding the
205payment of retainage. If the local governmental entity makes
206payment of retainage to the contractor under this paragraph
207which is attributable to the labor, services, or materials
208supplied by one or more subcontractors or suppliers, the
209contractor shall timely remit payment of such retainage to those
210subcontractors and suppliers.
211     (e)  This section does not prohibit a local governmental
212entity from withholding retainage at a rate less than 10 percent
213of each progress payment, from incrementally reducing the rate
214of retainage pursuant to a schedule provided for in the
215contract, or from releasing at any point all or a portion of any
216retainage withheld by the local governmental entity which is
217attributable to the labor, services, or materials supplied by
218the contractor or by one or more subcontractors or suppliers. If
219a local governmental entity makes any payment of retainage to
220the contractor which is attributable to the labor, services, or
221materials supplied by one or more subcontractors or suppliers,
222the contractor shall timely remit payment of such retainage to
223those subcontractors and suppliers.
224     (f)  This section does not require the local governmental
225entity to pay or release any amounts that are the subject of a
226good-faith dispute, the subject of a claim brought pursuant to
227s. 255.05, or otherwise the subject of a claim or demand by the
228local governmental entity or contractor.
229     (g)  The time limitations set forth in this section for
230payment of payment requests apply to any payment request for
231retainage made pursuant to this section.
232     (h)  Paragraphs (a)-(d) do not apply to construction
233services purchased by a local governmental entity which are paid
234for, in whole or in part, with federal funds and are subject to
235federal grantor laws and regulations or requirements that are
236contrary to any provision of the Local Government Prompt Payment
237Act.
238     (i)  This subsection does not apply to any construction
239services purchased by a local governmental entity if the total
240cost of the construction services purchased as identified in the
241contract is $200,000 or less.
242     Section 4.  Section 255.0705, Florida Statutes, is created
243to read:
244     255.0705  Popular name.--Sections 255.0705-255.078 may be
245cited as the "Florida Prompt Payment Act."
246     Section 5.  Subsections (2) and (3) of section 255.071,
247Florida Statutes, are amended to read:
248     255.071  Payment of subcontractors, sub-subcontractors,
249materialmen, and suppliers on construction contracts for public
250projects.--
251     (2)  The failure to pay any undisputed obligations for such
252labor, services, or materials within 30 days after the date the
253labor, services, or materials were furnished and payment for
254such labor, services, or materials became due, or within the
255time limitations set forth in s. 255.073(3) 30 days after the
256date payment for such labor, services, or materials is received,
257whichever last occurs, shall entitle any person providing such
258labor, services, or materials to the procedures specified in
259subsection (3) and the remedies provided in subsection (4).
260     (3)  Any person providing labor, services, or materials for
261the construction of a public building, for the prosecution and
262completion of a public work, or for repairs upon a public
263building or public work improvements to real property may file a
264verified complaint alleging:
265     (a)  The existence of a contract for providing such labor,
266services, or materials to improve real property.
267     (b)  A description of the labor, services, or materials
268provided and alleging that the labor, services, or materials
269were provided in accordance with the contract.
270     (c)  The amount of the contract price.
271     (d)  The amount, if any, paid pursuant to the contract.
272     (e)  The amount that remains unpaid pursuant to the
273contract and the amount thereof that is undisputed.
274     (f)  That the undisputed amount has remained due and
275payable pursuant to the contract for more than 30 days after the
276date the labor or services were accepted or the materials were
277received.
278     (g)  That the person against whom the complaint was filed
279has received payment on account of the labor, services, or
280materials described in the complaint and, as of the date the
281complaint was filed, has failed to make payment within the time
282limitations set forth in s. 255.073(3) more than 30 days prior
283to the date the complaint was filed.
284     Section 6.  Section 255.072, Florida Statutes, is created
285to read:
286     255.072  Definitions.--As used in ss. 255.073-255.078, the
287term:
288     (1)  "Agent" means project architect, project engineer, or
289any other agency or person acting on behalf of a public entity.
290     (2)  "Construction services" means all labor, services, and
291materials provided in connection with the construction,
292alteration, repair, demolition, reconstruction, or any other
293improvements to real property. The term "construction services"
294does not include contracts or work performed for the Department
295of Transportation.
296     (3)  "Contractor" means any person who contracts directly
297with a public entity to provide construction services.
298     (4)  "Payment request" means a request for payment for
299construction services which conforms with all statutory
300requirements and with all requirements specified by the public
301entity to which the payment request is submitted.
302     (5)  "Public entity" means the state, or any office, board,
303bureau, commission, department, branch, division, or institution
304thereof, but does not include a local governmental entity as
305defined in s. 218.72.
306     (6)  "Purchase" means the purchase of construction
307services.
308     Section 7.  Section 255.073, Florida Statutes, is created
309to read:
310     255.073  Timely payment for purchases of construction
311services.--
312     (1)  Except as otherwise provided in ss. 255.072-255.078,
313s. 215.422 governs the timely payment for construction services
314by a public entity.
315     (2)  If a public entity disputes a portion of a payment
316request, the undisputed portion must be timely paid.
317     (3)  When a contractor receives payment from a public
318entity for labor, services, or materials furnished by
319subcontractors and suppliers hired by the contractor, the
320contractor shall remit payment due to those subcontractors and
321suppliers within 10 days after the contractor's receipt of
322payment. When a subcontractor receives payment from a contractor
323for labor, services, or materials furnished by subcontractors
324and suppliers hired by the subcontractor, the subcontractor
325shall remit payment due to those subcontractors and suppliers
326within 7 days after the subcontractor's receipt of payment. This
327subsection does not prohibit a contractor or subcontractor from
328disputing, pursuant to the terms of the relevant contract, all
329or any portion of a payment alleged to be due to another party
330if the contractor or subcontractor notifies the party whose
331payment is disputed, in writing, of the amount in dispute and
332the actions required to cure the dispute. The contractor or
333subcontractor must pay all undisputed amounts due within the
334time limits imposed by this subsection.
335     (4)  All payments due for the purchase of construction
336services and not made within the applicable time limits shall
337bear interest at the rate specified in s. 215.422. After July 1,
3382006, such payments shall bear interest at the rate of 1 percent
339per month, to the extent that the Chief Financial Officer's
340replacement project for the state's accounting and cash
341management systems is operational for the particular affected
342public entity. After January 1, 2007, all such payments due from
343public entity shall bear interest at the rate of 1 percent per
344month.
345     Section 8.  Section 255.074, Florida Statutes, is created
346to read:
347     255.074  Procedures for calculation of payment due dates.--
348     (1)  Each public entity shall establish procedures whereby
349each payment request received by the public entity is marked as
350received on the date on which it is delivered to an agent or
351employee of the public entity or of a facility or office of the
352public entity.
353     (2)  If the terms under which a purchase is made allow for
354partial deliveries and a payment request is submitted for a
355partial delivery, the time for payment for the partial delivery
356must be calculated from the time of the partial delivery and the
357submission of the payment request.
358     (3)  A public entity must submit a payment request to the
359Chief Financial Officer for payment no more than 20 days after
360receipt of the payment request.
361     Section 9.  Section 255.075, Florida Statutes, is created
362to read:
363     255.075  Mandatory interest.--A contract between a public
364entity and a contractor may not prohibit the collection of late
365payment interest charges authorized under s. 255.073(4).
366     Section 10.  Section 255.076, Florida Statutes, is created
367to read:
368     255.076  Award of court costs and attorney's fees.--In an
369action to recover amounts due for construction services
370purchased by a public entity, the court shall award court costs
371and reasonable attorney's fees, including fees incurred through
372any appeal, to the prevailing party, if the court finds that the
373nonprevailing party withheld any portion of the payment that is
374the subject of the action without any reasonable basis in law or
375fact to dispute the prevailing party's claim to those amounts.
376     Section 11.  Section 255.077, Florida Statutes, is created
377to read:
378     255.077  Project closeout and payment of retainage.--
379     (1)  Each contract for construction services between a
380public entity and a contractor must provide for the development
381of a list of items required to render complete, satisfactory,
382and acceptable the construction services purchased by the public
383entity. The contract must specify the process for the
384development of the list, including responsibilities of the
385public entity and the contractor in developing and reviewing the
386list and a reasonable time for developing the list, as follows:
387     (a)  For construction projects having an estimated cost of
388less than $10 million, within 30 calendar days after reaching
389substantial completion of the construction services purchased as
390defined in the contract, or, if not defined in the contract,
391upon reaching beneficial occupancy or use; or
392     (b)  For construction projects having an estimated cost of
393$10 million or more, within 30 calendar days, unless otherwise
394extended by contract not to exceed 60 calendar days, after
395reaching substantial completion of the construction services
396purchased as defined in the contract, or, if not defined in the
397contract, upon reaching beneficial occupancy or use.
398     (2)  If the contract between the public entity and the
399contractor relates to the purchase of construction services on
400more than one building or structure, or involves a multiphased
401project, the contract must provide for the development of a list
402of items required to render complete, satisfactory, and
403acceptable all the construction services purchased pursuant to
404the contract for each building, structure, or phase of the
405project within the time limitations provided in subsection (1).
406     (3)  The failure to include any corrective work or pending
407items not yet completed on the list developed pursuant to
408subsection (1) or subsection (2) does not alter the
409responsibility of the contractor to complete all the
410construction services purchased pursuant to the contract.
411     (4)  Upon completion of all items on the list, the
412contractor may submit a payment request for all remaining
413retainage withheld by the public entity pursuant to s. 255.078.
414If a good-faith dispute exists as to whether one or more items
415identified on the list have been completed pursuant to the
416contract, the public entity may continue to withhold an amount
417not to exceed 150 percent of the total costs to complete such
418items.
419     (5)  All items that require correction under the contract
420and that are identified after the preparation and delivery of
421the list remain the obligation of the contractor as defined by
422the contract.
423     (6)  Warranty items may not affect the final payment of
424retainage as provided in this section or as provided in the
425contract between the contractor and its subcontractors and
426suppliers.
427     (7)  Retainage may not be held by a public entity or a
428contractor to secure payment of insurance premiums under a
429consolidated insurance program or series of insurance policies
430issued to a public entity or a contractor for a project or group
431of projects, and the final payment of retainage as provided in
432this section may not be delayed pending a final audit by the
433public entity's or contractor's insurance provider.
434     (8)  If a public entity fails to comply with its
435responsibilities to develop the list required under subsection
436(1) or subsection (2), as defined in the contract, within the
437time limitations provided in subsection (1), the contractor may
438submit a payment request for all remaining retainage withheld by
439the public entity pursuant to s. 255.078. The public entity need
440not pay or process any payment request for retainage if the
441contractor has, in whole or in part, failed to cooperate with
442the public entity in the development of the list or failed to
443perform its contractual responsibilities, if any, with regard to
444the development of the list or if s. 255.078(6) applies.
445     Section 12.  Section 255.078, Florida Statutes, is created
446to read:
447     255.078  Public construction retainage.--
448     (1)  With regard to any contract for construction services,
449a public entity may withhold from each progress payment made to
450the contractor an amount not exceeding 10 percent of the payment
451as retainage until 50-percent completion of such services.
452     (2)  After 50-percent completion of the construction
453services purchased pursuant to the contract, the public entity
454must reduce to 5 percent the amount of retainage withheld from
455each subsequent progress payment made to the contractor. For
456purposes of this section, the term "50-percent completion" has
457the meaning set forth in the contract between the public entity
458and the contractor or, if not defined in the contract, the point
459at which the public entity has expended 50 percent of the total
460cost of the construction services purchased as identified in the
461contract together with all costs associated with existing change
462orders and other additions or modifications to the construction
463services provided for in the contract.
464     (3)  After 50-percent completion of the construction
465services purchased pursuant to the contract, the contractor may
466elect to withhold retainage from payments to its subcontractors
467at a rate higher than 5 percent. The specific amount to be
468withheld must be determined on a case-by-case basis and must be
469based on the contractor's assessment of the subcontractor's past
470performance, the likelihood that such performance will continue,
471and the contractor's ability to rely on other safeguards. The
472contractor shall notify the subcontractor, in writing, of its
473determination to withhold more than 5 percent of the progress
474payment and the reasons for making that determination, and the
475contractor may not request the release of such retained funds
476from the public entity.
477     (4)  After 50-percent completion of the construction
478services purchased pursuant to the contract, the contractor may
479present to the public entity a payment request for up to one-
480half of the retainage held by the public entity. The public
481entity shall promptly make payment to the contractor, unless the
482public entity has grounds, pursuant to subsection (6), for
483withholding the payment of retainage. If the public entity makes
484payment of retainage to the contractor under this subsection
485which is attributable to the labor, services, or materials
486supplied by one or more subcontractors or suppliers, the
487contractor shall timely remit payment of such retainage to those
488subcontractors and suppliers.
489     (5)  Neither this section nor s. 255.077 prohibits a public
490entity from withholding retainage at a rate less than 10 percent
491of each progress payment, from incrementally reducing the rate
492of retainage pursuant to a schedule provided for in the
493contract, or from releasing at any point all or a portion of any
494retainage withheld by the public entity which is attributable to
495the labor, services, or materials supplied by the contractor or
496by one or more subcontractors or suppliers. If a public entity
497makes any payment of retainage to the contractor which is
498attributable to the labor, services, or materials supplied by
499one or more subcontractors or suppliers, the contractor shall
500timely remit payment of such retainage to those subcontractors
501and suppliers.
502     (6)  Neither this section nor s. 255.077 requires the
503public entity to pay or release any amounts that are the subject
504of a good-faith dispute, the subject of a claim brought pursuant
505to s. 255.05, or otherwise the subject of a claim or demand by
506the public entity or contractor.
507     (7)  The same time limits for payment of a payment request
508apply regardless of whether the payment request is for, or
509includes, retainage.
510     (8)  Subsections (1)-(4) do not apply to construction
511services purchased by a public entity which are paid for, in
512whole or in part, with federal funds and are subject to federal
513grantor laws and regulations or requirements that are contrary
514to any provision of the Florida Prompt Payment Act.
515     (9)  This section does not apply to any construction
516services purchased by a public entity if the total cost of the
517construction services purchased as identified in the contract is
518$200,000 or less.
519     Section 13.  Paragraph (a) of subsection (2) of section
520255.05, Florida Statutes, is amended, and subsection (10) is
521added to said section, to read:
522     255.05  Bond of contractor constructing public buildings;
523form; action by materialmen.--
524     (2)(a)1.  If a claimant is no longer furnishing labor,
525services, or materials on a project, a contractor or the
526contractor's agent or attorney may elect to shorten the
527prescribed time in this paragraph within which an action to
528enforce any claim against a payment bond provided pursuant to
529this section may be commenced by recording in the clerk's office
530a notice in substantially the following form:
531
532
NOTICE OF CONTEST OF CLAIM
533
AGAINST PAYMENT BOND
534
535To:  . . . (Name and address of claimant) . . .  
536
537     You are notified that the undersigned contests your notice
538of nonpayment, dated ____________, ________, and served on the
539undersigned on ____________, ________, and that the time within
540which you may file suit to enforce your claim is limited to 60
541days after the date of service of this notice.
542
543     DATED on ____________, ________.
544
545Signed: . . . (Contractor or Attorney) . . .  
546
547The claim of any claimant upon whom such notice is served and
548who fails to institute a suit to enforce his or her claim
549against the payment bond within 60 days after service of such
550notice shall be extinguished automatically. The clerk shall mail
551a copy of the notice of contest to the claimant at the address
552shown in the notice of nonpayment or most recent amendment
553thereto and shall certify to such service on the face of such
554notice and record the notice. Service is complete upon mailing.
555     2.  A claimant, except a laborer, who is not in privity
556with the contractor shall, before commencing or not later than
55745 days after commencing to furnish labor, materials, or
558supplies for the prosecution of the work, furnish the contractor
559with a notice that he or she intends to look to the bond for
560protection. A claimant who is not in privity with the contractor
561and who has not received payment for his or her labor,
562materials, or supplies shall deliver to the contractor and to
563the surety written notice of the performance of the labor or
564delivery of the materials or supplies and of the nonpayment. The
565notice of nonpayment may be served at any time during the
566progress of the work or thereafter but not before 45 days after
567the first furnishing of labor, services, or materials, and not
568later than 90 days after the final furnishing of the labor,
569services, or materials by the claimant or, with respect to
570rental equipment, not later than 90 days after the date that the
571rental equipment was last on the job site available for use. Any
572notice of nonpayment served by a claimant who is not in privity
573with the contractor which includes sums for retainage must
574specify the portion of the amount claimed for retainage. No
575action for the labor, materials, or supplies may be instituted
576against the contractor or the surety unless both notices have
577been given. Notices required or permitted under this section may
578be served in accordance with s. 713.18. An action, except for an
579action exclusively for recovery of retainage, must be instituted
580against the contractor or the surety on the payment bond or the
581payment provisions of a combined payment and performance bond
582within 1 year after the performance of the labor or completion
583of delivery of the materials or supplies. An action exclusively
584for recovery of retainage must be instituted against the
585contractor or the surety within 1 year after the performance of
586the labor or completion of delivery of the materials or
587supplies, or within 90 days after receipt of final payment (or
588the payment estimate containing the owner's final reconciliation
589of quantities if no further payment is earned and due as a
590result of deductive adjustments) by the contractor or surety,
591whichever comes last. A claimant may not waive in advance his or
592her right to bring an action under the bond against the surety.
593In any action brought to enforce a claim against a payment bond
594under this section, the prevailing party is entitled to recover
595a reasonable fee for the services of his or her attorney for
596trial and appeal or for arbitration, in an amount to be
597determined by the court, which fee must be taxed as part of the
598prevailing party's costs, as allowed in equitable actions. The
599time periods for service of a notice of nonpayment or for
600bringing an action against a contractor or a surety shall be
601measured from the last day of furnishing labor, services, or
602materials by the claimant and shall not be measured by other
603standards, such as the issuance of a certificate of occupancy or
604the issuance of a certificate of substantial completion.
605     (10)  An action, except an action for recovery of
606retainage, must be instituted against the contractor or the
607surety on the payment bond or the payment provisions of a
608combined payment and performance bond within 1 year after the
609performance of the labor or completion of delivery of the
610materials or supplies. An action for recovery of retainage must
611be instituted against the contractor or the surety within 1 year
612after the performance of the labor or completion of delivery of
613the materials or supplies; however, such an action may not be
614instituted until one of the following conditions is satisfied:
615     (a)  The public entity has paid out the claimant's
616retainage to the contractor, and the time provided under s.
617218.735 or s. 255.073(3) for payment of that retainage to the
618claimant has expired;
619     (b)  The claimant has completed all work required under its
620contract and 70 days have passed since the contractor sent its
621final payment request to the public entity; or
622     (c)  At least 160 days have passed since reaching
623substantial completion of the construction services purchased,
624as defined in the contract, or if not defined in the contract,
625since reaching beneficial occupancy or use of the project.
626     (d)  The claimant has asked the contractor, in writing, for
627any of the following information and the contractor has failed
628to respond to the claimant's request, in writing, within 10 days
629after receipt of the request:
630     1.  Whether the project has reached substantial completion,
631as that term is defined in the contract, or if not defined in
632the contract, if beneficial occupancy or use of the project has
633occurred.
634     2.  Whether the contractor has received payment of the
635claimant's retainage, and if so, the date the retainage was
636received by the contractor.
637     3.  Whether the contractor has sent its final payment
638request to the public entity, and if so, the date on which the
639final payment request was sent.
640
641If none of the conditions described in paragraph (a), paragraph
642(b), paragraph (c), or paragraph (d) is satisfied and an action
643for recovery of retainage cannot be instituted within the 1-year
644limitation period set forth in this subsection, this limitation
645period shall be extended until 120 days after one of these
646conditions is satisfied.
647     Section 14.  Subsection (2) of section 287.0585, Florida
648Statutes, is amended to read:
649     287.0585  Late payments by contractors to subcontractors
650and suppliers; penalty.--
651     (2)  This section shall not apply when the contract between
652the contractor and subcontractors or subvendors provides
653otherwise, or when payments under the contract are otherwise
654governed by ss. 255.0705-255.078.
655     Section 15.  Paragraph (b) of subsection (2) of section
65695.11, Florida Statutes, is amended to read:
657     95.11  Limitations other than for the recovery of real
658property.--Actions other than for recovery of real property
659shall be commenced as follows:
660     (2)  WITHIN FIVE YEARS.--
661     (b)  A legal or equitable action on a contract, obligation,
662or liability founded on a written instrument, except for an
663action to enforce a claim against a payment bond, which shall be
664governed by the applicable provisions of ss. 255.05(10)
665255.05(2)(a)2. and 713.23(1)(e).
666     Section 16.  Neither the amendments to sections 95.11,
667218.70, 218.72, 218.735, and 255.071, Florida Statutes, and
668subsection (2) of section 255.05, Florida Statutes, as provided
669in this act, nor subsection (10) of section 255.05, Florida
670Statutes, and section 255.078, Florida Statutes, as created by
671this act, apply to any existing construction contract pending
672approval by a local governmental entity or public entity, or to
673any project advertised for bid by the local governmental entity
674or public entity, on or before October 1, 2005.
675     Section 17.  This act shall take effect October 1, 2005.


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