[CLC-Discussion] P3 Partnership - Bonding Question

[Adam C. Linkhorst]

Good afternoon -

I am hoping to get some insight on which bond statute (713.23 or 337.18) is applicable to an FDOT Project where the Project is a P3 and the GC is in privity with the concessionaire.  On one hand, since the Owner is the State of Florida/FDOT it appears 337.18 might apply.  On the other hand, since the concessionaire agreement states in part that the concessionaire is leasing the property from the FDOT, it suggests that 713.23 might apply.  There is some commentary in a Florida Bar Journal Article about P3 Projects stating that 713 could apply to the leasehold interest.

3) Bond and Lien Rights -- Parties must also be aware of the mechanisms to secure payment on a P3 project. Florida law is clear that property owned by the federal, state, or local government cannot be liened.77 As the government is the final owner of most if not all transportation projects, the claimant will generally be unable to file a claim of lien on the property. The possibility may exist under certain circumstances, however, for a lien claimant to file a lien on a long-term P3 leasehold interest,78 or if the project is used for a private purpose.79
Brian M. Rowlson, Public Private Partnerships: The Future of Public Construction in Florida?, Fla. B.J., July/August 2012, at 36, 40

Thanks for any insight.  Have a good weekend.

Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL  33458
Email:  acl at FloridaHardhatLaw.com<mailto:acl at FloridaHardhatLaw.com>
Tel.   561.626.8880 / Cell.  954.562.9199
Fax.  561.626.8885
Website:  www.Floridahardhatlaw.com<http://www.floridahardhatlaw.com/>

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