Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS for SB 1202
       
       
       
       
       
       
                                Barcode 640582                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             03/09/2012 05:50 PM       .                                
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       Senator Bogdanoff moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (b) of subsection (2) and paragraph
    6  (e) of subsection (5) of section 95.11, Florida Statutes, are
    7  amended to read:
    8         95.11 Limitations other than for the recovery of real
    9  property.—Actions other than for recovery of real property shall
   10  be commenced as follows:
   11         (2) WITHIN FIVE YEARS.—
   12         (b) A legal or equitable action on a contract, obligation,
   13  or liability founded on a written instrument, except for an
   14  action to enforce a claim against a payment bond, which shall be
   15  governed by the applicable provisions of paragraph (5)(e), s.
   16  ss. 255.05(10), s. 337.18(1), or s. and 713.23(1)(e).
   17         (5) WITHIN ONE YEAR.—
   18         (e) Except for actions governed by s. 255.05(10), s.
   19  337.18(1), or s. 713.23(1)(e), an action to enforce any claim
   20  against a payment bond on which the principal is a contractor,
   21  subcontractor, or sub-subcontractor as defined in s. 713.01, for
   22  private work as well as public work, from the last furnishing of
   23  labor, services, or materials or from the last furnishing of
   24  labor, services, or materials by the contractor if the
   25  contractor is the principal on a bond on the same construction
   26  project, whichever is later.
   27         Section 2. Subsection (1), paragraph (a) of subsection (2),
   28  and subsection (6) of section 255.05, Florida Statutes, are
   29  amended, and subsection (11) is added to that section, to read:
   30         255.05 Bond of contractor constructing public buildings;
   31  form; action by claimants materialmen.—
   32         (1)(a)A Any person entering into a formal contract with
   33  the state or any county, city, or political subdivision thereof,
   34  or other public authority or private entity, for the
   35  construction of a public building, for the prosecution and
   36  completion of a public work, or for repairs upon a public
   37  building or public work shall be required, before commencing the
   38  work or before recommencing the work after a default or
   39  abandonment, to execute, deliver to the public owner, and record
   40  in the public records of the county where the improvement is
   41  located, a payment and performance bond with a surety insurer
   42  authorized to do business in this state as surety. A public
   43  entity may not require a contractor to secure a surety bond
   44  under this section from a specific agent or bonding company.
   45         (a) The bond must state on its front page:
   46         1. The name, principal business address, and phone number
   47  of the contractor, the surety, the owner of the property being
   48  improved, and, if different from the owner, the contracting
   49  public entity.;
   50         2. The contract number assigned by the contracting public
   51  entity.;
   52         3. The bond number assigned by the surety. and
   53         4. A description of the project sufficient to identify it,
   54  such as a legal description or the street address of the
   55  property being improved, and a general description of the
   56  improvement.
   57         (b) Before commencing the work or before recommencing the
   58  work after a default or abandonment, the contractor shall
   59  provide to the public entity a certified copy of the recorded
   60  bond. Notwithstanding the terms of the contract or any other law
   61  governing prompt payment for construction services, the public
   62  entity may not make a payment to the contractor until the
   63  contractor has complied with this paragraph. This paragraph
   64  applies to contracts entered into on or after October 1, 2012.
   65         (c) The Such bond shall be conditioned upon the
   66  contractor’s performance of the construction work in the time
   67  and manner prescribed in the contract and promptly making
   68  payments to all persons defined in s. 713.01 who furnish labor,
   69  services, or materials for the prosecution of the work provided
   70  for in the contract. A Any claimant may apply to the
   71  governmental entity having charge of the work for copies of the
   72  contract and bond and shall thereupon be furnished with a
   73  certified copy of the contract and the recorded bond. The
   74  claimant shall have a cause right of action against the
   75  contractor and surety for the amount due him or her, including
   76  unpaid finance charges due under the claimant’s contract. Such
   77  action may shall not involve the public authority in any
   78  expense.
   79         (d) When the such work is done for the state and the
   80  contract is for $100,000 or less, no payment and performance
   81  bond shall be required. At the discretion of the official or
   82  board awarding such contract when such work is done for any
   83  county, city, political subdivision, or public authority, a any
   84  person entering into such a contract that which is for $200,000
   85  or less may be exempted from executing the payment and
   86  performance bond. When such work is done for the state, the
   87  Secretary of Management Services may delegate to state agencies
   88  the authority to exempt any person entering into such a contract
   89  amounting to more than $100,000 but less than $200,000 from
   90  executing the payment and performance bond. If an In the event
   91  such exemption is granted, the officer or official is officials
   92  shall not be personally liable to persons suffering loss because
   93  of granting such exemption. The Department of Management
   94  Services shall maintain information on the number of requests by
   95  state agencies for delegation of authority to waive the bond
   96  requirements by agency and project number and whether any
   97  request for delegation was denied and the justification for the
   98  denial.
   99         (e) Any provision in a payment bond issued on or after
  100  October 1, 2012, furnished for public work contracts as provided
  101  by this subsection which further restricts the classes of
  102  persons as defined in s. 713.01 protected by the bond, which
  103  restricts or the venue of any proceeding relating to such bond,
  104  which limits or expands the effective duration of the bond, or
  105  which adds conditions precedent to the enforcement of a claim
  106  against the bond beyond those provided in this section is
  107  unenforceable.
  108         (f)(b) The Department of Management Services shall adopt
  109  rules with respect to all contracts for $200,000 or less, to
  110  provide:
  111         1. Procedures for retaining up to 10 percent of each
  112  request for payment submitted by a contractor and procedures for
  113  determining disbursements from the amount retained on a pro rata
  114  basis to laborers, materialmen, and subcontractors, as defined
  115  in s. 713.01.
  116         2. Procedures for requiring certification from laborers,
  117  materialmen, and subcontractors, as defined in s. 713.01, before
  118  prior to final payment to the contractor that such laborers,
  119  materialmen, and subcontractors have no claims against the
  120  contractor resulting from the completion of the work provided
  121  for in the contract.
  122  
  123  The state is shall not be held liable to any laborer,
  124  materialman, or subcontractor for any amounts greater than the
  125  pro rata share as determined under this section.
  126         (g)(c)1. The amount of the bond shall equal the contract
  127  price, except that for a contract in excess of $250 million, if
  128  the state, county, municipality, political subdivision, or other
  129  public entity finds that a bond in the amount of the contract
  130  price is not reasonably available, the public owner shall set
  131  the amount of the bond at the largest amount reasonably
  132  available, but not less than $250 million.
  133         2. For construction-management or design-build contracts,
  134  if the public owner does not include in the bond amount the cost
  135  of design or other nonconstruction services, the bond may not be
  136  conditioned on performance of such services or payment to
  137  persons furnishing such services. Notwithstanding paragraphs (c)
  138  and (e) paragraph (a), such a bond may exclude persons
  139  furnishing such services from the classes of persons protected
  140  by the bond.
  141         (2)(a)1. If a claimant is no longer furnishing labor,
  142  services, or materials on a project, a contractor or the
  143  contractor’s agent or attorney may elect to shorten the
  144  prescribed time in this paragraph within which an action to
  145  enforce any claim against a payment bond must provided pursuant
  146  to this section may be commenced by recording in the clerk’s
  147  office a notice in substantially the following form:
  148  
  149                     NOTICE OF CONTEST OF CLAIM                    
  150                        AGAINST PAYMENT BOND                       
  151  
  152         To: ...(Name and address of claimant)...
  153  
  154         You are notified that the undersigned contests your notice
  155  of nonpayment, dated ............, ........, and served on the
  156  undersigned on ............, ........, and that the time within
  157  which you may file suit to enforce your claim is limited to 60
  158  days after the date of service of this notice.
  159  
  160  DATED on ............, .........
  161  
  162  Signed: ...(Contractor or Attorney)...
  163  
  164         The claim of a any claimant upon whom such notice is served
  165  and who fails to institute a suit to enforce his or her claim
  166  against the payment bond within 60 days after service of such
  167  notice shall be extinguished automatically. The contractor or
  168  the contractor’s attorney clerk shall serve mail a copy of the
  169  notice of contest to the claimant at the address shown in the
  170  notice of nonpayment or most recent amendment thereto and shall
  171  certify to such service on the face of the such notice and
  172  record the notice. Service is complete upon mailing.
  173         2. A claimant, except a laborer, who is not in privity with
  174  the contractor shall, before commencing or not later than 45
  175  days after commencing to furnish labor, services, or materials
  176  for the prosecution of the work, furnish the contractor with a
  177  written notice that he or she intends to look to the bond for
  178  protection. A claimant who is not in privity with the contractor
  179  and who has not received payment for his or her labor, services,
  180  or materials shall deliver to the contractor and to the surety
  181  written notice of the performance of the labor or delivery of
  182  the materials or supplies and of the nonpayment. The notice of
  183  nonpayment shall may be served at any time during the progress
  184  of the work or thereafter but may not be served earlier than
  185  before 45 days after the first furnishing of labor, services, or
  186  materials or, and not later than 90 days after the final
  187  furnishing of the labor, services, or materials by the claimant
  188  or, with respect to rental equipment, not later than 90 days
  189  after the date that the rental equipment was last on the job
  190  site available for use. Any notice of nonpayment served by a
  191  claimant who is not in privity with the contractor which
  192  includes sums for retainage must specify the portion of the
  193  amount claimed for retainage. An No action for the labor,
  194  materials, or supplies may not be instituted against the
  195  contractor or the surety unless the notice to the contractor and
  196  notice of nonpayment have been served, if required by this
  197  section both notices have been given. Notices required or
  198  permitted under this section shall may be served in accordance
  199  with s. 713.18. A claimant may not waive in advance his or her
  200  right to bring an action under the bond against the surety. In
  201  any action brought to enforce a claim against a payment bond
  202  under this section, the prevailing party is entitled to recover
  203  a reasonable fee for the services of his or her attorney for
  204  trial and appeal or for arbitration, in an amount to be
  205  determined by the court, which fee must be taxed as part of the
  206  prevailing party’s costs, as allowed in equitable actions. The
  207  time periods for service of a notice of nonpayment or for
  208  bringing an action against a contractor or a surety shall be
  209  measured from the last day of furnishing labor, services, or
  210  materials by the claimant and may shall not be measured by other
  211  standards, such as the issuance of a certificate of occupancy or
  212  the issuance of a certificate of substantial completion.
  213         (6) All payment bond forms used by a public owner and all
  214  payment bonds executed pursuant to this section by a surety
  215  shall make reference to this section by number, and shall
  216  contain reference to the notice and time limitation provisions
  217  in subsections subsection (2) and (10), and shall comply with
  218  the requirements of paragraph (1)(a).
  219         (11) When a contractor furnishes and records a payment and
  220  performance bond for a public works project in accordance with
  221  this section and provides the public authority with a written
  222  consent from the surety regarding the project or payment in
  223  question, the public authority may not condition its payment to
  224  the contractor on the production of a release, waiver, or like
  225  documentation from a claimant demonstrating that the claimant
  226  does not have an outstanding claim against the contractor, the
  227  surety, the payment bond, or the public authority for payments
  228  due on labor, services, or materials furnished on the public
  229  works project. The surety may, in a writing served on the public
  230  authority, revoke its consent or direct that the public
  231  authority withhold a specified amount from a payment, which
  232  shall be effective upon receipt. This subsection applies to
  233  contracts entered into on or after October 1, 2012.
  234         Section 3. Effective upon this act becoming a law, section
  235  255.0518, Florida Statutes, is created
  236         to read:
  237         255.0518 Public bids; bid opening.—Notwithstanding s.
  238  119.071(1)(b), the state or any county or municipality thereof
  239  or any department or agency of the state, county, or
  240  municipality or any other public body or institution shall:
  241         (1) When opening sealed bids or the portion of any sealed
  242  bids that include the prices submitted that are received
  243  pursuant to a competitive solicitation for construction or
  244  repairs on a public building or public work, open the sealed
  245  bids at a public meeting conducted in compliance with s.
  246  286.011.
  247         (2) Announce at that meeting the name of each bidder and
  248  the price submitted.
  249         (3) Make available upon request the name of each bidder and
  250  the price submitted.
  251         Section 4. Paragraph (b) of subsection (2) of section
  252  713.10, Florida Statutes, is amended to read:
  253         713.10 Extent of liens.—
  254         (2)
  255         (b) The interest of the lessor is shall not be subject to
  256  liens for improvements made by the lessee when:
  257         1. The lease, or a short form or a memorandum of the lease
  258  that contains the specific language in the lease prohibiting
  259  such liability, is recorded in the official records of the
  260  county where the premises are located before the recording of a
  261  notice of commencement for improvements to the premises and the
  262  terms of the lease expressly prohibit such liability; or
  263         2. The terms of the lease expressly prohibit such
  264  liability, and a notice advising that leases for the rental of
  265  premises on a parcel of land prohibit such liability has been
  266  recorded in the official records of the county in which the
  267  parcel of land is located before the recording of a notice of
  268  commencement for improvements to the premises, and the notice
  269  includes the following:
  270         a. The name of the lessor.
  271         b. The legal description of the parcel of land to which the
  272  notice applies.
  273         c. The specific language contained in the various leases
  274  prohibiting such liability.
  275         d. A statement that all or a majority of the leases entered
  276  into for premises on the parcel of land expressly prohibit such
  277  liability.
  278         3. The lessee is a mobile home owner who is leasing a
  279  mobile home lot in a mobile home park from the lessor.
  280  
  281  A notice that is consistent with subparagraph 2. effectively
  282  prohibits liens for improvements made by a lessee even if other
  283  leases for premises on the parcel do not expressly prohibit
  284  liens or if provisions of each lease restricting the application
  285  of liens are not identical.
  286         Section 5. Paragraphs (d) and (e) of subsection (1) of
  287  section 713.13, Florida Statutes, are amended to read:
  288         713.13 Notice of commencement.—
  289         (1)
  290         (d) A notice of commencement must be in substantially the
  291  following form:
  292  
  293  Permit No..... Tax Folio No.....
  294                       NOTICE OF COMMENCEMENT                      
  295  State of....
  296  County of....
  297  
  298  The undersigned hereby gives notice that improvement will be
  299  made to certain real property, and in accordance with Chapter
  300  713, Florida Statutes, the following information is provided in
  301  this Notice of Commencement.
  302         1. Description of property: ...(legal description of the
  303  property, and street address if available)....
  304         2. General description of improvement:.....
  305         3. Owner information or Lessee information if the Lessee
  306  contracted for the improvement:
  307         a. Name and address:.....
  308         b. Interest in property:.....
  309         c. Name and address of fee simple titleholder (if different
  310  from Owner listed above):.....
  311         4.a. Contractor: ...(name and address)....
  312         b. Contractor’s phone number:.....
  313         5. Surety (if applicable, a copy of the payment bond is
  314  attached):
  315         a. Name and address:.....
  316         b. Phone number:.....
  317         c. Amount of bond: $.....
  318         6.a. Lender: ...(name and address)....
  319         b. Lender’s phone number:.....
  320         7. Persons within the State of Florida designated by Owner
  321  upon whom notices or other documents may be served as provided
  322  by Section 713.13(1)(a)7., Florida Statutes:
  323         a. Name and address:.....
  324         b. Phone numbers of designated persons:.....
  325         8.a. In addition to himself or herself, Owner designates
  326  ............ of ............ to receive a copy of the Lienor’s
  327  Notice as provided in Section 713.13(1)(b), Florida Statutes.
  328         b. Phone number of person or entity designated by
  329  owner:.....
  330         9. Expiration date of notice of commencement (the
  331  expiration date may not be before the completion of construction
  332  and final payment to the contractor, but will be 1 year from the
  333  date of recording unless a different date is specified).....
  334  
  335  WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
  336  EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
  337  PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
  338  STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
  339  TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
  340  POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
  341  INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
  342  ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
  343  COMMENCEMENT.
  344  
  345  Under penalty of perjury, I declare that I have read the
  346  foregoing notice of commencement and that the facts stated
  347  therein are true to the best of my knowledge and belief.
  348  
  349  ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
  350  Authorized Officer/Director/Partner/Manager)...
  351  
  352  ...(Signatory’s Title/Office)...
  353  
  354  The foregoing instrument was acknowledged before me this ....
  355  day of ...., ...(year)..., by ...(name of person)... as ...(type
  356  of authority, . . . e.g. officer, trustee, attorney in fact)...
  357  for ...(name of party on behalf of whom instrument was
  358  executed)....
  359  
  360         ...(Signature of Notary Public - State of Florida)...
  361  
  362         ...(Print, Type, or Stamp Commissioned Name of Notary
  363  Public)...
  364  
  365         Personally Known .... OR Produced Identification ....
  366  
  367         Type of Identification Produced............
  368  
  369         (e) A copy of any payment bond must be attached at the time
  370  of recordation of the notice of commencement. The failure to
  371  attach a copy of the bond to the notice of commencement when the
  372  notice is recorded negates the exemption provided in s.
  373  713.02(6). However, if a payment bond under s. 713.23 exists but
  374  was not attached at the time of recordation of the notice of
  375  commencement, the bond may be used to transfer any recorded lien
  376  of a lienor except that of the contractor by the recordation and
  377  service of a notice of bond pursuant to s. 713.23(2). The notice
  378  requirements of s. 713.23 apply to any claim against the bond;
  379  however, the time limits for serving any required notices shall,
  380  at the option of the lienor, be calculated from the dates begin
  381  running from the later of the time specified in s. 713.23 or the
  382  date the notice of bond is served on the lienor.
  383         Section 6. Section 489.118, Florida Statutes, is reenacted
  384  and amended to read:
  385         489.118 Certification of registered contractors;
  386  grandfathering provisions.—The board shall, upon receipt of a
  387  completed application and appropriate fee, issue a certificate
  388  in the appropriate category to any contractor registered under
  389  this part who makes application to the board and can show that
  390  he or she meets each of the following requirements:
  391         (1) Currently holds a valid registered local license in one
  392  of the contractor categories defined in s. 489.105(3)(a)-(q)
  393  489.105(3)(a)-(p).
  394         (2) Has, for that category, passed a written examination
  395  that the board finds to be substantially similar to the
  396  examination required to be licensed as a certified contractor
  397  under this part. For purposes of this subsection, a written,
  398  proctored examination such as that produced by the National
  399  Assessment Institute, Block and Associates, NAI/Block, Experior
  400  Assessments, Professional Testing, Inc., or Assessment Systems,
  401  Inc., shall be considered to be substantially similar to the
  402  examination required to be licensed as a certified contractor.
  403  The board may not impose or make any requirements regarding the
  404  nature or content of these cited examinations.
  405         (3) Has at least 5 years of experience as a contractor in
  406  that contracting category, or as an inspector or building
  407  administrator with oversight over that category, at the time of
  408  application. For contractors, only time periods in which the
  409  contractor license is active and the contractor is not on
  410  probation shall count toward the 5 years required by this
  411  subsection.
  412         (4) Has not had his or her contractor’s license revoked at
  413  any time, had his or her contractor’s license suspended within
  414  the last 5 years, or been assessed a fine in excess of $500
  415  within the last 5 years.
  416         (5) Is in compliance with the insurance and financial
  417  responsibility requirements in s. 489.115(5).
  418  
  419  Applicants wishing to obtain a certificate pursuant to this
  420  section must make application by November 1, 2015 2005.
  421         Section 7. Paragraph (f) of subsection (1) and subsection
  422  (4) of section 713.132, Florida Statutes, are amended to read:
  423         713.132 Notice of termination.—
  424         (1) An owner may terminate the period of effectiveness of a
  425  notice of commencement by executing, swearing to, and recording
  426  a notice of termination that contains:
  427         (f) A statement that the owner has, before recording the
  428  notice of termination, served a copy of the notice of
  429  termination on the contractor and on each lienor who has a
  430  direct contract with the owner or who has served a notice to
  431  owner given notice. The owner is not required to serve a copy of
  432  the notice of termination on any lienor who has executed a
  433  waiver and release of lien upon final payment in accordance with
  434  s. 713.20.
  435         (4) A notice of termination is effective to terminate the
  436  notice of commencement at the later of 30 days after recording
  437  of the notice of termination or the date stated in the notice of
  438  termination as the date on which the notice of commencement is
  439  terminated, if provided that the notice of termination has been
  440  served pursuant to paragraph (1)(f) on the contractor and on
  441  each lienor who has a direct contract with the owner or who has
  442  served a notice to owner given notice.
  443         Section 8. Section 713.16, Florida Statutes, is amended to
  444  read:
  445         713.16 Demand for copy of contract and statements of
  446  account; form.—
  447         (1) A copy of the contract of a lienor or owner and a
  448  statement of the amount due or to become due if fixed or
  449  ascertainable thereon must be furnished by any party thereto,
  450  upon written demand of an owner or a lienor contracting with or
  451  employed by the other party to such contract. If the owner or
  452  lienor refuses or neglects to furnish such copy of the contract
  453  or such statement, or willfully and falsely states the amount
  454  due or to become due if fixed or ascertainable under such
  455  contract, any person who suffers any detriment thereby has a
  456  cause of action against the person refusing or neglecting to
  457  furnish the same or willfully and falsely stating the amount due
  458  or to become due for his or her damages sustained thereby. The
  459  information contained in such copy or statement furnished
  460  pursuant to such written demand is binding upon the owner or
  461  lienor furnishing it unless actual notice of any modification is
  462  given to the person demanding the copy or statement before such
  463  person acts in good faith in reliance on it. The person
  464  demanding such documents must pay for the reproduction thereof;
  465  and, if such person fails or refuses to do so, he or she is
  466  entitled only to inspect such documents at reasonable times and
  467  places.
  468         (2) The owner may serve in writing a demand of any lienor
  469  for a written statement under oath of his or her account showing
  470  the nature of the labor or services performed and to be
  471  performed, if any, the materials furnished, the materials to be
  472  furnished, if known, the amount paid on account to date, the
  473  amount due, and the amount to become due, if known, as of the
  474  date of the statement by the lienor. Any such demand to a lienor
  475  must be served on the lienor at the address and to the attention
  476  of any person who is designated to receive the demand in the
  477  notice to owner served by such lienor and must include a
  478  description of the property and the names of the owner, the
  479  contractor, and the lienor’s customer, as set forth in the
  480  lienor’s notice to owner. The failure or refusal to furnish the
  481  statement does not deprive the lienor of his or her lien if the
  482  demand is not served at the address of the lienor or directed to
  483  the attention of the person designated to receive the demand in
  484  the notice to owner. The failure or refusal to furnish the
  485  statement under oath within 30 days after the demand, or the
  486  furnishing of a false or fraudulent statement, deprives the
  487  person so failing or refusing to furnish such statement of his
  488  or her lien. If the owner serves more than one demand for
  489  statement of account on a lienor and none of the information
  490  regarding the account has changed since the lienor’s last
  491  response to a demand, the failure or refusal to furnish such
  492  statement does not deprive the lienor of his or her lien. The
  493  negligent inclusion or omission of any information deprives the
  494  person of his or her lien to the extent the owner can
  495  demonstrate prejudice from such act or omission by the lienor.
  496  The failure to furnish a response to a demand for statement of
  497  account does not affect the validity of any claim of lien being
  498  enforced through a foreclosure case filed before prior to the
  499  date the demand for statement is received by the lienor.
  500         (3) A request for sworn statement of account must be in
  501  substantially the following form:
  502  
  503               REQUEST FOR SWORN STATEMENT OF ACCOUNT              
  504  
  505         WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT,
  506  SIGNED UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
  507  STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
  508  
  509         To: ...(Lienor’s name and address)...
  510  
  511         The undersigned hereby demands a written statement under
  512  oath of his or her account showing the nature of the labor or
  513  services performed and to be performed, if any, the materials
  514  furnished, the materials to be furnished, if known, the amount
  515  paid on account to date, the amount due, and the amount to
  516  become due, if known, as of the date of the statement for the
  517  improvement of real property identified as ...(property
  518  description)....
  519  
  520         ...(name of contractor)...
  521  
  522         ...(name of the lienor’s customer, as set forth in the
  523  lienor’s Notice to Owner, if such notice has been served)...
  524  
  525         ...(signature and address of owner)...
  526         ...(date of request for sworn statement of account)...
  527  
  528         (4) When a contractor has furnished a payment bond pursuant
  529  to s. 713.23, he or she may, when an owner makes any payment to
  530  the contractor or directly to a lienor, serve a written demand
  531  on any other lienor for a written statement under oath of his or
  532  her account showing the nature of the labor or services
  533  performed and to be performed, if any, the materials furnished,
  534  the materials to be furnished, if known, the amount paid on
  535  account to date, the amount due, and the amount to become due,
  536  if known, as of the date of the statement by the lienor. Any
  537  such demand to a lienor must be served on the lienor at the
  538  address and to the attention of any person who is designated to
  539  receive the demand in the notice to contractor served by such
  540  lienor. The demand must include a description of the property
  541  and the names of the owner, the contractor, and the lienor’s
  542  customer, as set forth in the lienor’s notice to contractor. The
  543  failure or refusal to furnish the statement does not deprive the
  544  lienor of his or her rights under the bond if the demand is not
  545  served at the address of the lienor or directed to the attention
  546  of the person designated to receive the demand in the notice to
  547  contractor. The failure to furnish the statement within 30 days
  548  after the demand, or the furnishing of a false or fraudulent
  549  statement, deprives the person who fails to furnish the
  550  statement, or who furnishes the false or fraudulent statement,
  551  of his or her rights under the bond. If the contractor serves
  552  more than one demand for statement of account on a lienor and
  553  none of the information regarding the account has changed since
  554  the lienor’s last response to a demand, the failure or refusal
  555  to furnish such statement does not deprive the lienor of his or
  556  her rights under the bond. The negligent inclusion or omission
  557  of any information deprives the person of his or her rights
  558  under the bond to the extent the contractor can demonstrate
  559  prejudice from such act or omission by the lienor. The failure
  560  to furnish a response to a demand for statement of account does
  561  not affect the validity of any claim on the bond being enforced
  562  in a lawsuit filed prior to the date the demand for statement of
  563  account is received by the lienor.
  564         (5)(a) Any lienor who is perfecting a claim of lien has
  565  recorded a claim of lien may serve with the claim of lien or
  566  thereafter a make written demand on the owner for a written
  567  statement under oath showing:
  568         1. The amount of the direct contract under which the lien
  569  was recorded;
  570         2. The dates and amounts paid or to be paid by or on behalf
  571  of the owner for all improvements described in the direct
  572  contract;
  573         3. The reasonable estimated costs of completing the direct
  574  contract under which the lien was claimed pursuant to the scope
  575  of the direct contract; and
  576         4. If known, the actual cost of completion.
  577         (b) Any owner who does not provide the statement within 30
  578  days after demand, or who provides a false or fraudulent
  579  statement, is not a prevailing party for purposes of an award of
  580  attorney attorney’s fees under s. 713.29. The written demand
  581  must include the following warning in conspicuous type in
  582  substantially the following form:
  583  
  584         WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT
  585  WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL
  586  RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY
  587  ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING
  588  THIS STATEMENT.
  589         (6) Any written demand served on the owner must include a
  590  description of the property and the names of the contractor and
  591  the lienor’s customer, as set forth in the lienor’s notice to
  592  owner.
  593         (7)(6) For purposes of this section, the term “information”
  594  means the nature and quantity of the labor, services, and
  595  materials furnished or to be furnished by a lienor and the
  596  amount paid, the amount due, and the amount to become due on the
  597  lienor’s account.
  598         Section 9. Section 713.18, Florida Statutes, is amended to
  599  read:
  600         713.18 Manner of serving notices and other instruments.—
  601         (1) Service of notices, claims of lien, affidavits,
  602  assignments, and other instruments permitted or required under
  603  this part, or copies thereof when so permitted or required,
  604  unless otherwise specifically provided in this part, must be
  605  made by one of the following methods:
  606         (a) By actual delivery to the person to be served; if a
  607  partnership, to one of the partners; if a corporation, to an
  608  officer, director, managing agent, or business agent; or, if a
  609  limited liability company, to a member or manager.
  610         (b) By common carrier delivery service or sending the same
  611  by registered, Global Express Guaranteed, or certified mail,
  612  with postage or shipping paid by the sender and prepaid, or by
  613  overnight or second-day delivery with evidence of delivery,
  614  which may be in an electronic format.
  615         (c) If the method specified in paragraph (a) or paragraph
  616  (b) cannot be accomplished, By posting on the site of the
  617  improvement if service as provided by paragraph (a) or paragraph
  618  (b) cannot be accomplished premises.
  619         (2) Notwithstanding subsection (1), service of if a notice
  620  to owner or, a preliminary notice to contractor under s. 255.05,
  621  s. 337.18, or s. 713.23, or a preliminary notice under s. 255.05
  622  is mailed by registered or certified mail with postage prepaid
  623  to the person to be served at any of the addresses set forth in
  624  subsection (3) within 40 days after the date the lienor first
  625  furnishes labor, services, or materials, service of that notice
  626  is effective as of the date of mailing if:
  627         (a) The notice is mailed by registered, Global Express
  628  Guaranteed, or certified mail, with postage prepaid, to the
  629  person to be served at any of the addresses set forth in
  630  subsection (3);
  631         (b) The notice is mailed within 40 days after the date the
  632  lienor first furnishes labor, services, or materials; and
  633         (c)1. The person who served the notice maintains a
  634  registered or certified mail log that shows the registered or
  635  certified mail number issued by the United States Postal
  636  Service, the name and address of the person served, and the date
  637  stamp of the United States Postal Service confirming the date of
  638  mailing; or if
  639         2. The person who served the notice maintains electronic
  640  tracking records generated by through use of the United States
  641  Postal Service Confirm service or a similar service containing
  642  the postal tracking number, the name and address of the person
  643  served, and verification of the date of receipt by the United
  644  States Postal Service.
  645         (3)(a)Service of If an instrument served pursuant to this
  646  section is effective on the date of mailing the instrument if
  647  it:
  648         1. Is sent to the last address shown in the notice of
  649  commencement or any amendment thereto or, in the absence of a
  650  notice of commencement, to the last address shown in the
  651  building permit application, or to the last known address of the
  652  person to be served; and, is not received, but
  653         2. Is returned as being “refused,” “moved, not
  654  forwardable,” or “unclaimed,” or is otherwise not delivered or
  655  deliverable through no fault of the person serving the item,
  656  then service is effective on the date the instrument was sent.
  657         (b) If the address shown in the notice of commencement or
  658  any amendment to the notice of commencement, or, in the absence
  659  of a notice of commencement, in the building permit application,
  660  is incomplete for purposes of mailing or delivery, the person
  661  serving the item may complete the address and properly format it
  662  according to United States Postal Service addressing standards
  663  using information obtained from the property appraiser or
  664  another public record without affecting the validity of service
  665  under this section.
  666         (4) A notice served by a lienor on one owner or one partner
  667  of a partnership owning the real property If the real property
  668  is owned by more than one person or a partnership, a lienor may
  669  serve any notices or other papers under this part on any one of
  670  such owners or partners, and such notice is deemed notice to all
  671  owners and partners.
  672         Section 10. Section 713.22, Florida Statutes, is amended to
  673  read:
  674         713.22 Duration of lien.—
  675         (1) A No lien provided by this part does not shall continue
  676  for a longer period than 1 year after the claim of lien has been
  677  recorded or 1 year after the recording of an amended claim of
  678  lien that shows a later date of final furnishing of labor,
  679  services, or materials, unless within that time an action to
  680  enforce the lien is commenced in a court of competent
  681  jurisdiction. A lien that has been continued beyond the 1-year
  682  period The continuation of the lien effected by the commencement
  683  of an the action is shall not enforceable be good against
  684  creditors or subsequent purchasers for a valuable consideration
  685  and without notice, unless a notice of lis pendens is recorded.
  686         (2) An owner or the owner’s agent or attorney may elect to
  687  shorten the time prescribed in subsection (1) within which to
  688  commence an action to enforce any claim of lien or claim against
  689  a bond or other security under s. 713.23 or s. 713.24 by
  690  recording in the clerk’s office a notice in substantially the
  691  following form:
  692  
  693                      NOTICE OF CONTEST OF LIEN                    
  694  
  695  To: ...(Name and address of lienor)...
  696  
  697  You are notified that the undersigned contests the claim of lien
  698  filed by you on ...., ...(year)..., and recorded in .... Book
  699  ...., Page ...., of the public records of .... County, Florida,
  700  and that the time within which you may file suit to enforce your
  701  lien is limited to 60 days from the date of service of this
  702  notice. This .... day of ...., ...(year)....
  703  
  704         Signed: ...(Owner or Attorney)...
  705  
  706  The lien of any lienor upon whom such notice is served and who
  707  fails to institute a suit to enforce his or her lien within 60
  708  days after service of such notice shall be extinguished
  709  automatically. The clerk shall serve, in accordance with s.
  710  713.18, mail a copy of the notice of contest to the lien
  711  claimant at the address shown in the claim of lien or most
  712  recent amendment thereto and shall certify to such service and
  713  the date of service on the face of the such notice and record
  714  the notice. Service shall be deemed complete upon mailing.
  715         Section 11. Paragraphs (c), (d), (e), and (f) of subsection
  716  (1) and subsections (2) and (4) of section 713.23, Florida
  717  Statutes, are amended to read:
  718         713.23 Payment bond.—
  719         (1)
  720         (c) Either Before beginning or within 45 days after
  721  beginning to furnish labor, materials, or supplies, a lienor who
  722  is not in privity with the contractor, except a laborer, shall
  723  serve the contractor with notice in writing that the lienor will
  724  look to the contractor’s bond for protection on the work. If a
  725  notice of commencement with the attached bond is not recorded
  726  before commencement of construction, or a reference to the bond
  727  is not given in the notice of commencement, and in either case
  728  if the lienor not in privity with the contractor is not
  729  otherwise notified in writing of the existence of the bond, the
  730  lienor not in privity with the contractor may, in the
  731  alternative, elect to serve the notice to the contractor up to
  732  shall have 45 days after from the date the lienor is served with
  733  a copy notified of the existence of the bond within which to
  734  serve the notice. A notice to owner pursuant to s. 713.06 that
  735  has been timely served on the contractor satisfies the
  736  requirements of this paragraph. However, the limitation period
  737  for commencement of an action on the payment bond as established
  738  in paragraph (e) may not be expanded. The notice may be in
  739  substantially the following form and may be combined with a
  740  notice to owner given under s. 713.06 and, if so, may be
  741  entitled “NOTICE TO OWNER/NOTICE TO CONTRACTOR:
  742  
  743                        NOTICE TO CONTRACTOR                       
  744  
  745         To ...(name and address of contractor)...
  746  
  747         The undersigned hereby informs you that he or she has
  748  furnished or is furnishing services or materials as follows:
  749  
  750         ...(general description of services or materials)... for
  751  the improvement of the real property identified as ...(property
  752  description)... under an order given by ...(lienor’s
  753  customer)....
  754  
  755         This notice is to inform you that the undersigned intends
  756  to look to the contractor’s bond to secure payment for the
  757  furnishing of materials or services for the improvement of the
  758  real property.
  759  
  760         ...(name of lienor)...
  761         ...(signature of lienor or lienor’s representative)...
  762         ...(date)...
  763         ...(lienor’s address)...
  764  
  765         The undersigned notifies you that he or she has furnished
  766  or is furnishing ...(services or materials)... for the
  767  improvement of the real property identified as ...(property
  768  description)... owned by ...(owner’s name and address)... under
  769  an order given by .... and that the undersigned will look to the
  770  contractor’s bond for protection on the work.
  771  
  772         ...(Lienor’s signature and address)...
  773  
  774         (d) In addition, a lienor is required, as a condition
  775  precedent to recovery under the bond, to serve a written notice
  776  of nonpayment to the contractor and the surety not later than 90
  777  days after the final furnishing of labor, services, or materials
  778  by the lienor. A written notice satisfies this condition
  779  precedent with respect to the payment described in the notice of
  780  nonpayment, including unpaid finance charges due under the
  781  lienor’s contract, and with respect to any other payments which
  782  become due to the lienor after the date of the notice of
  783  nonpayment. The time period for serving a written notice of
  784  nonpayment shall be measured from the last day of furnishing
  785  labor, services, or materials by the lienor and shall not be
  786  measured by other standards, such as the issuance of a
  787  certificate of occupancy or the issuance of a certificate of
  788  substantial completion. The failure of a lienor to receive
  789  retainage sums not in excess of 10 percent of the value of
  790  labor, services, or materials furnished by the lienor is not
  791  considered a nonpayment requiring the service of the notice
  792  provided under this paragraph. If the payment bond is not
  793  recorded before commencement of construction, the time period
  794  for the lienor to serve a notice of nonpayment may at the option
  795  of the lienor be calculated from the date specified in this
  796  section or the date the lienor is served a copy of the bond.
  797  However, the limitation period for commencement of an action on
  798  the payment bond as established in paragraph (e) may not be
  799  expanded. The notice under this paragraph may be in
  800  substantially the following form:
  801  
  802                        NOTICE OF NONPAYMENT                       
  803  
  804         To ...(name of contractor and address)...
  805  
  806         ...(name of surety and address)...
  807  
  808         The undersigned notifies you that he or she has furnished
  809  ...(describe labor, services, or materials)... for the
  810  improvement of the real property identified as ...(property
  811  description).... The amount now due and unpaid is $.....
  812  
  813         ...(signature and address of lienor)...
  814  
  815         (e) An No action for the labor or materials or supplies may
  816  not be instituted or prosecuted against the contractor or surety
  817  unless both notices have been given, if required by this
  818  section. An No action may not shall be instituted or prosecuted
  819  against the contractor or against the surety on the bond under
  820  this section after 1 year from the performance of the labor or
  821  completion of delivery of the materials and supplies. The time
  822  period for bringing an action against the contractor or surety
  823  on the bond shall be measured from the last day of furnishing
  824  labor, services, or materials by the lienor. The time period and
  825  may shall not be measured by other standards, such as the
  826  issuance of a certificate of occupancy or the issuance of a
  827  certificate of substantial completion. A contractor or the
  828  contractor’s agent or attorney may elect to shorten the
  829  prescribed time within which an action to enforce any claim
  830  against a payment bond provided under this section or s. 713.245
  831  must may be commenced at any time after a notice of nonpayment,
  832  if required, has been served for the claim by recording in the
  833  clerk’s office a notice in substantially the following form:
  834  
  835                     NOTICE OF CONTEST OF CLAIM                    
  836                        AGAINST PAYMENT BOND                       
  837  
  838         To: ...(Name and address of lienor)...
  839  
  840         You are notified that the undersigned contests your notice
  841  of nonpayment, dated ...., ...., and served on the undersigned
  842  on ...., ...., and that the time within which you may file suit
  843  to enforce your claim is limited to 60 days from the date of
  844  service of this notice.
  845  
  846  DATED on ...., .....
  847  
  848  Signed: ...(Contractor or Attorney)...
  849  
  850  The claim of any lienor upon whom the notice is served and who
  851  fails to institute a suit to enforce his or her claim against
  852  the payment bond within 60 days after service of the notice
  853  shall be extinguished automatically. The contractor or the
  854  contractor’s attorney clerk shall serve mail a copy of the
  855  notice of contest to the lienor at the address shown in the
  856  notice of nonpayment or most recent amendment thereto and shall
  857  certify to such service on the face of the notice and record the
  858  notice. Service is complete upon mailing.
  859         (f) A Any lienor has a direct right of action on the bond
  860  against the surety. Any provision in a payment bond issued on or
  861  after October 1, 2012, which further restricts A bond must not
  862  contain any provisions restricting the classes of persons who
  863  are protected by the payment bond, which restricts thereby or
  864  the venue of any proceeding relating to such payment bond, which
  865  limits or expands the effective duration of the payment bond, or
  866  which adds conditions precedent to the enforcement of a claim
  867  against a payment bond beyond those provided in this part is
  868  unenforceable. The surety is not entitled to the defense of pro
  869  tanto discharge as against any lienor because of changes or
  870  modifications in the contract to which the surety is not a
  871  party; but the liability of the surety may not be increased
  872  beyond the penal sum of the bond. A lienor may not waive in
  873  advance his or her right to bring an action under the bond
  874  against the surety.
  875         (2) The bond shall secure every lien under the direct
  876  contract accruing subsequent to its execution and delivery,
  877  except that of the contractor. Every claim of lien, except that
  878  of the contractor, filed subsequent to execution and delivery of
  879  the bond shall be transferred to it with the same effect as
  880  liens transferred under s. 713.24. Record notice of the transfer
  881  shall be effected by the contractor, or any person having an
  882  interest in the property against which the claim of lien has
  883  been asserted, by recording in the clerk’s office a notice, with
  884  the bond attached, in substantially the following form:
  885  
  886                           NOTICE OF BOND                          
  887  
  888         To ...(Name and Address of Lienor)...
  889  
  890         You are notified that the claim of lien filed by you on
  891  ...., ...., and recorded in Official Records Book .... at page
  892  .... of the public records of .... County, Florida, is secured
  893  by a bond, a copy being attached.
  894  
  895         Signed: ...(Name of person recording notice)...
  896  
  897  The notice shall be verified. The person recording the notice of
  898  bond clerk shall serve mail a copy of the notice with a copy of
  899  the bond to the lienor at the address shown in the claim of
  900  lien, or the most recent amendment to it; shall certify to the
  901  service on the face of the notice; and shall record the notice.
  902  The clerk shall receive the same fee as prescribed in s.
  903  713.24(1) for certifying to a transfer of lien.
  904         (4) The provisions of s. 713.24(3) shall apply to bonds
  905  under this section except when those provisions conflict with
  906  this section.
  907         Section 12. Except as otherwise expressly provided in this
  908  act, this act shall take effect October 1, 2012.
  909  
  910  
  911  ================= T I T L E  A M E N D M E N T ================
  912         And the title is amended as follows:
  913         Delete everything before the enacting clause
  914  and insert:
  915                        A bill to be entitled                      
  916         An act relating to construction contracting; amending
  917         s. 95.11, F.S.; adding a cross-reference; amending s.
  918         255.05, F.S.; requiring that the bond number be stated
  919         on the first page of the bond; providing that a public
  920         entity may not make payment to the contractor unless
  921         the public entity has received a certified copy of the
  922         bond; providing that a provision in a payment bond
  923         furnished for a public works contract that limits or
  924         expands the effective duration of the bond or adds
  925         conditions precedent is unenforceable; requiring a
  926         contractor, or the contractor’s attorney, to serve
  927         rather than mail a notice of contest of claim against
  928         the payment bond; providing prerequisites for
  929         commencement of an action against a payment bond;
  930         requiring payment bond forms to reference specified
  931         notice and time limitation provisions; providing that
  932         payment to a contractor who has furnished a payment
  933         bond on a public works project may not be conditioned
  934         upon production of certain documents if the surety has
  935         given written consent; providing for the surety to
  936         withhold or revoke consent; creating s. 255.0518,
  937         F.S.; requiring that the state, a county, a
  938         municipality, or any other public body or institution
  939         open sealed bids received in response to a competitive
  940         solicitation at a public meeting, announce the name of
  941         each bidder and the price submitted, and make
  942         available upon request the names of bidders and
  943         submitted prices; amending s. 713.10, F.S.; providing
  944         that a specified notice concerning a lessor’s
  945         liability for liens for improvements made by the
  946         lessee prohibits liens even if other leases do not
  947         expressly prohibit liens or if certain other
  948         provisions are not identical; amending s. 713.13,
  949         F.S.; revising a notice form to clarify that the
  950         notice of commencement expires 1 year after the date
  951         of recording; removing a clause relating to perjury;
  952         providing additional time for service when a notice of
  953         commencement is not recorded with a copy of the bond
  954         attached; reenacting and amending s. 489.118, F.S.;
  955         reviving certain grandfathering provisions and setting
  956         a new deadline by which certain registered contractors
  957         may apply for certification; amending s. 713.132,
  958         F.S.; requiring notice of termination to be served on
  959         lienors in privity with the owner; amending s. 713.16,
  960         F.S.; revising requirements for demands for a copy of
  961         a construction contract and a statement of account;
  962         authorizing a lienor to make certain written demands
  963         to an owner for certain written statements; providing
  964         requirements for such written demands; amending s.
  965         713.18, F.S.; providing additional methods by which
  966         certain items may be served; revising provisions
  967         relating to when service of specified items is
  968         effective; specifying requirements for certain written
  969         instruments under certain circumstances; amending s.
  970         713.22, F.S.; requiring that the clerk serve rather
  971         than mail a notice of contest of lien; amending s.
  972         713.23, F.S.; revising the contents of a notice to
  973         contractor; requiring that a contractor serve rather
  974         than mail a notice of contest of claim against the
  975         payment bond and a notice of bond; clarifying the
  976         attachment of the bond to the notice; providing that a
  977         provision in a payment bond that limits or expands the
  978         effective duration of the bond or adds conditions
  979         precedent is unenforceable; clarifying applicability
  980         of certain provisions; providing effective dates.