[CLC-Discussion] Is a 255.05 Bond Required or Not .... that is the question.

[Gibbons, Michael]

I would think not. The purpose of the s. 255.05 payment bond is (i) to provide a source of security to ensure payment to subs and suppliers who have no lien rights on public owned property and (ii) protect tax dollars from being consumed in disputes over payment to subcontractors and suppliers.  In your case, taxpayer dollars are not at risk.  Also, assuming the paver work at least qualifies as a “subdivision improvement” the lienors would have the statutory right under 713.04 to lien the adjoining private property owner (your client) for value of unpaid work.   One suggestion for addressing the issue is to expressly include in the prime contract an acknowledgement from the client private property owner that its adjacent owned and benefitted property will be security for and subject to liens of lienors providing labor or materials to the right of way portion of the scope of work.  As long as the ROW work is lienable if unpaid, there is no good rationale for a bond.  Difficult to see how your owner client would be prejudiced assuming it is administering the work under one contract and the funding source is the same.

Michael R. Gibbons  (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of leslie.tomczak at akerman.com
Sent: Wednesday, March 25, 2015 11:57 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Is a 255.05 Bond Required or Not .... that is the question.

Hi all!

I have a private owner who is hiring a GC to perform exterior improvements to its commercial property which involves, in part, improvements (i.e., new pavers, landscaping, etc.) to a public right-of-way (i.e., the entrance to the owner's property) owned by the City.  Under this scenario, is the private owner required to have the GC post a 255.05 bond for this work?  The City is not contributing funds to the project.

I found a Florida Attorney General Opinion (AGO 2012-12) that required a private party who leased land from a public entity to obtain a bond when doing work on the land and contained a discussion on what is or may be a "public work" for purposes of 255.05, but nothing directly on point yet.   Any input would be greatly appreciated.

Leslie Tomczak
Board Certified by The Florida Bar in Construction Law
LEED AP
Akerman LLP I 350 East Las Olas Boulevard I Suite 1600 I Fort Lauderdale, FL 33301
Dir: 954.759.8926 I Main: 954.463.2700 I I Fax: 954.463.2224
leslie.tomczak at akerman.com<mailto:leslie.tomczak at akerman.com>


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