© Roetzel & Andress, LPA STATUTORY CHANGES IN FLORIDA’S CONSTRUCTION LAWS July 2012 Presented by: Thomas P. Wert, Esq.

Roetzel Introduction  With offices in four states and Washington, D.C., Roetzel offers comprehensive legal services to a broad spectrum of clients on a regional, national and international basis.  Orlando services include Construction, Business Litigation, Real Estate Development, Banking & Finance, Creditors’ Rights, Health Care, and Corporate and Business Services.  Our attorneys represent a wide range of clients, from multinational corporations to government entities, individuals and closely held businesses. The firm serves as general counsel to numerous clients and many of those relationships have existed for much of our history.  For the 5 th consecutive year, Roetzel was selected by in- house counsel at Fortune 500 companies as a 2012 "Go- To Law Firm®" for Commercial Litigation.

Public Construction Bonds and Private Payment Bonds 5  Changes have been made to the form required for payment and performance bonds on public projects and the enforceability of certain bond provisions

Public Construction Bonds  After October 1, 2012, the required payment and performance bond must state the bond number assigned by the surety on its front page  Before commencing work, the contractor must provide the public entity with a certified copy of the recorded bond.  Public entity now may not make a payment to the contractor until the contractor has provided the required certified copy of the recorded bond.

Public and Private Payment Bonds  § (1)(a), Florida Statutes previously made certain bond provisions unenforceable.  After 10/01/12, provisions limiting or expanding the duration of the bond or adding conditions to the enforcement of a claim against the bond are also unenforceable.  Similar change to private payment bonds (§ )

Public and Private Payment Bonds  § contractor may shorten the one- year duration of a payment bond claim to 60 days by recording a Notice of Contest of Claim Against Payment Bond  Clerk previously required to serve a copy of the notice upon the bond claimant by mail  60-day period did not begin to run until the clerk mailed the notice

Public and Private Payment Bonds  Contractor or the contractor’s attorney now required to serve the notice, rather than the clerk  Similar provisions added to § concerning private payment bonds

Public Construction Bonds  § , now has new subsection 11  After 10/01/12, public entity cannot condition payments on delivery of a releases or waivers from bond claimants, if the contractor furnishes and records bond and provides a written consent from the surety.  § (11) also allows surety to revoke a prior consent, or direct the public authority to withhold a specified amount from a payment, by serving written notice upon the public authority

Private Payment Bonds  Section previously provided if NOC is not recorded or a reference to the bond not given in NOC and the lienor is not notified in writing that a bond exists, the lienor has 45 days from notification of the bond’s existence to serve a NTC  § now provides that if NOC is not recorded with the bond before commencement of construction, a lienor not in privity with the contractor can elect to serve NTC up to 45 days after the lienor is served with a copy of the bond.

Private Payment Bonds  § now provides that a timely served notice to owner, which is served on the contractor, has the same effect as a notice to contractor  But NTO cannot extend the 1-year statutory limitation period for filing an action on the bond  Allows for the combination of NTO with a NTC, which may be entitled “NOTICE TO OWNER/ NOTICE TO CONTRACTOR.”

Private Payment Bonds  If bond is not recorded before construction, § (d) now allows a claimant, at its option, to calculate the 90-day time period for serving a notice of nonpayment from either:  (1) the date of final furnishing of labor, service or materials or  (2) the date the lienor is served with a copy of the bond  But, 1 year limitations period for bringing claim cannot be extended

Public Bids  New statute - §

Public Bids  Requires government departments or agencies to open sealed competitive bids ◦at a public meeting ◦ announce the name of each bidder ◦ announce the price of each bid ◦ make each bidder’s name/price available upon request.

Public Bids  § effective immediately  Must be complied with notwithstanding § , F.S.

Construction Liens for Tenant Work  Section has been amended to clarify the extent of liens on the interest of landlord when a tenant makes improvements  Abrogates Everglades Electric Supply, Inc. v. Paraiso Granite

Construction Liens for Tenant Work  Section now provides that a blanket notice recorded in the public records “effectively prohibits liens for improvements made by a lessee even if other leases for the premises on the parcel do not expressly prohibit liens or if provisions of each lease restricting the application of liens are not identical.”

Notice of Commencement  Required Notice of Commencement form: ◦ Expiration Date: … 9.Expiration date of Notice of Commencement (The expiration date will be one year from the date of recording unless a different date is specified)…. ◦ Sworn statement removed: “[U]nder penalty of perjury, I declare that I have read the foregoing Notice of Commencement and that the facts stated therein are true to the best of my knowledge and belief.”

Demand for Copy of Contract and Sworn Statement of Account  § (2) -written demand by the owner must now include “a description of the property and the names of the owner, the contractor, and the lienor’s customer, as set forth in the notice to owner”  Same information also now required in any written demand for a sworn statement of account served by a contractor

Demand for Copy of Contract and Sworn Statement of Account  § (5) – previously allowed a lienor to serve a written demand on the owner for a written statement of various contract amounts upon recordation of the claim of lien  Now, it allows lienor to serve the written demand on the owner while lienor is perfecting a claim of lien  Written demand must now include description of property and names of contractor and lienor’s customer

Manner of Serving Notices  Notices, claims of lien and other papers served under Chapter 713 may now be served by common carrier delivery service or by Global Express Guaranteed mail paid by the sender  If the address in NOC or building permit app. is incomplete, § allows service of notice by completing the address using information obtained from property appraiser or public record

Grandfathering - Certification of Registered Contractor  § reenacted for all applications submitted by November 1, 2015

Grandfathering - Certification of Registered Contractor  Licensing board required to issue certificate to registered contractor who can show: −holds a valid registered local license in a specified category −passed a written exam substantially similar to the exam required to be certified contractor −at least 5 years of experience as a contractor in that contracting category −not had contractor's license revoked −complies with the insurance and financial responsibility requirements  Applicants wishing to obtain a certificate pursuant to this section must make application by November 1, 2005.

Notice of Termination  § – Owners seeking to terminate the period of effectiveness of a NOC could previously do so by recording a Notice of Termination stating that the owner served a copy upon each lienor who had “given notice” and serving the NOT upon those lienors  Now, the NOT must contain a statement that owner has served copy of notice on each lienor with direct contract with owner or each lienor who has served a notice to owner and it is not effective to terminate NOC unless those parties have been served with the NOT

26 Speaker Contact Information Akron ● Chicago ● Cincinnati ● Cleveland ● Columbus Fort Lauderdale ● Fort Myers ● Naples ● Orlando ● Tallahassee ● Toledo ● Washington, D.C. Thomas P. Wert, Esq. Roetzel & Andress, LPA 420 South Orange Avenue CNL II, 7 th Floor Orlando, FL Phone: