[CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473

Thu Feb 25 08:44:32 PST 2021

To clarify, RPPTL and AGC together are taking a position adverse to a position Barry is advocating on behalf of his trade association NACM.

Lee A. Weintraub
Shareholder
Board Certified in Construction Law
Chair, Public Private Partnerships Practice Group
Vice Chair, Construction Law and Litigation Practice Group
Becker & Poliakoff
1 East Broward Blvd., Suite 1800
Ft. Lauderdale, 
FL 
33301
954.985.4147
954.985.4176
lweintraub at beckerlawyers.com
www.beckerlawyers.com
Connect with me on LinkedIn
Follow me on Twitter
Follow Becker on...
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, February 25, 2021 11:42 AM
To: clc-discussion at lists.flabarrpptl.org
Cc: Bob Swaine (bob at heartlandlaw.com) <bob at heartlandlaw.com>
Subject: Re: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473

The construction law committee does not have the right to direct the Section’s lobbyist.  This is in the hands of the entire RPPTL Executive Council now.

Barry circulated this because we are taking a position adverse to the position RPPTL is taking.

Lee

A.

Weintraub
Shareholder
Board Certified in Construction Law
Chair, Public Private Partnerships Practice Group
Vice Chair, Construction Law and Litigation Practice Group
[cid:image003.png at 01D70B6B.92E42370]<http://www.beckerlawyers.com>
Becker & Poliakoff
1 East Broward Blvd., Suite 1800
Ft. Lauderdale,
FL
33301
[cid:image004.png at 01D70B6B.92E42370]
954.985.4147<tel:954.985.4147>

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954.985.4176<fax:954.985.4176>
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lweintraub at beckerlawyers.com<mailto:lweintraub at beckerlawyers.com>
[cid:image007.png at 01D70B6B.92E42370]
www.beckerlawyers.com<http://www.beckerlawyers.com/>
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Connect with me on LinkedIn
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, February 25, 2021 11:35 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473

EXTERNAL EMAIL - This message originated from an External Source.

CLC Members

 Please find the emails setting forth the positions of RPPTL being argued this week before the Florida legislature. RPPTL via the  RPPTL  lobbyist is supporting amendments to SB 622 and HB 473 as set forth below.

Please share your opinions on this issue with the entire CLC.

Sincerely,

Barry Kalmanson
500 N. Maitland Avenue
Suite 305
Maitland, Fl. 32751
407-645-4500 x 215

WWW.BARRYKALMANSON.COM<http://www.barrykalmanson.com>

From: Warren Husband <whh at MHDFirm.com<mailto:whh at MHDFirm.com>>
Sent: Monday, February 22, 2021 1:19 PM

Cc: French Brown (FBrown at deanmead.com<mailto:FBrown at deanmead.com>) <FBrown at deanmead.com<mailto:FBrown at deanmead.com>>; Carol Bowen (cbowen at abceastflorida.com<mailto:cbowen at abceastflorida.com>) <cbowen at abceastflorida.com<mailto:cbowen at abceastflorida.com>>; Kari Hebrank (KHebrank at carltonfields.com<mailto:KHebrank at carltonfields.com>) <KHebrank at carltonfields.com<mailto:KHebrank at carltonfields.com>>; Rusty Payton (rpayton at fhba.com<mailto:rpayton at fhba.com>) <rpayton at fhba.com<mailto:rpayton at fhba.com>>
Subject: RE: Construction Liens and Bonds - CS/SB 622 and HB 473 (Status Update)

Sure.  For example, if you are the owner or lender, you do not have a contract with the subs, subs-subs, or suppliers (same for the general contractor with respect to the sub-subs and suppliers), so you might want the lien waivers obtained from each of these potential lienors during the course of construction to warrant the following to the owner, lender, and/or general contractor:

  1.  Warrant that the work performed or material supplied under the lien waiver is in accordance with the lienor’s contract.

  1.  Warrant that the work performed or material supplied under the lien waiver is in accordance with the Florida Building Code (and any required product approvals under the Code).

  1.  Warrant that the work under the lien waiver was performed in a workmanlike manner (for a sub or sub-sub).

  1.  Warrant that the materials supplied under the lien waiver were new and of good quality (for a supplier).

  1.  Warrant that the lienor has not assigned its lien rights to another party.

  1.  Warrant that the lienor is not delinquent in paying any of its subs or suppliers on the project.

[WHH signature]

This transmission and its attachments, if any, may contain confidential and legally privileged information. If you are not an intended recipient, you are hereby notified that any review, distribution, duplication, or use of any of the information contained in or attached to this transmission is strictly prohibited. If you are not an intended recipient, please immediately notify us by reply e-mail and destroy the original transmission and its attachments without reading or saving in any manner. Please note that this transmission does not create an attorney-client relationship if the recipient is not already a client.

From: Warren Husband <whh at MHDFirm.com<mailto:whh at MHDFirm.com>>
Sent: Friday, February 19, 2021 9:46 AM
To: perry.keith at flsenate.gov<mailto:perry.keith at flsenate.gov>; Jackie.Toledo at myfloridahouse.gov<mailto:Jackie.Toledo at myfloridahouse.gov>; Ramba, Megan <Ramba.Megan at flsenate.gov<mailto:Ramba.Megan at flsenate.gov>>; Clemens, Clayton <Clayton.Clemens at myfloridahouse.gov<mailto:Clayton.Clemens at myfloridahouse.gov>>
Cc:  French Brown (FBrown at deanmead.com<mailto:FBrown at deanmead.com>) <FBrown at deanmead.com<mailto:FBrown at deanmead.com>>; Carol Bowen (cbowen at abceastflorida.com<mailto:cbowen at abceastflorida.com>) <cbowen at abceastflorida.com<mailto:cbowen at abceastflorida.com>>; Kari Hebrank (KHebrank at carltonfields.com<mailto:KHebrank at carltonfields.com>) <KHebrank at carltonfields.com<mailto:KHebrank at carltonfields.com>>; Rusty Payton (rpayton at fhba.com<mailto:rpayton at fhba.com>) <rpayton at fhba.com<mailto:rpayton at fhba.com>>
Subject: Construction Liens and Bonds - CS/SB 622 and HB 473 (Status Update)

Good morning, one and all.  On behalf of RPPTL, AGC, ABC, and the Home Builders, we wanted to touch base with Sen. Perry, Rep. Toledo, and Melissa on where we currently stand as we try to resolve our remaining concerns with this bill.

In sum, as the bill now stands in the form of CS/SB 622, there are three issues remaining from our earlier correspondence, which involve the provisions on:  (a) lien waivers, (2) service address for lien documents, and (3) the conditions for filing a single claim of lien.

In the attached document, we propose a compromise in which we would recede from our objections and accept the current language in the bill with respect to the last two items:  service address and single claim of lien.

On the lien waiver issue, we would also accept the language last proposed by the Suppliers stating that lien waivers “shall” (rather than “may”) substantially comply with the statutory form.  On the Suppliers’ proposed language below that would render a waiver unenforceable if it varies from the statutory waiver form, however, we simply cannot agree that this is sound public policy.

(8) A lien waiver or lien release that is not substantially similar to the forms in subsections (4) and (5) is not enforceable in accordance with the terms of the lien waiver or lien release.

As proposed, the language would render a lien waiver that includes any “extra” terms completely unenforceable, even with respect to its waiver of lien rights and even if the lienor had entered into a contract agreeing to the “extra” terms or to the use of a non-statutory waiver form.

While there are positive elements in the bill that would be helpful across all segments of the construction industry, the problems created by this proposed language simply outweigh the positive elements and make it impossible for us to support the bill.

However, we are suggesting alternative language that we genuinely believe will accomplish the objectives of the Suppliers.  As explained to us, the Suppliers do not want to be bound by the terms of lengthy and complicated waiver forms that their customers (subs and sub-subs) are pressuring them to sign in the context of those customers seeking progress payments or final payments on a job.

We have no issue with that concept unless the Supplier has entered into a contract in which they agreed to the “extra” terms or to the use of a non-statutory waiver form.  As explained in the attached document, the language we propose is as follows:

 (8) A lien waiver or lien release that is not substantially similar to the forms in subsections (4) and (5) is enforceable only to the extent of its release or waiver of lien rights or as otherwise agreed to in the lienor’s contract in accordance with the terms of the lien waiver or lien release.

Importantly, this language should still afford the Suppliers what they want -- the capacity to sign all manner of waiver forms, even those with “extra” terms, without fear that those “extra” terms are enforceable, so long as the Supplier has not signed a contract agreeing to the “extra” terms or to the use of a non-statutory waiver form.

We remain ready to discuss the matter further with all involved, and we continue to believe that a resolution is possible.

Thanks to everyone for their efforts on this bill.

I hope everyone has a good weekend after this lengthy committee week!

[WHH signature]

This transmission and its attachments, if any, may contain confidential and legally privileged information. If you are not an intended recipient, you are hereby notified that any review, distribution, duplication, or use of any of the information contained in or attached to this transmission is strictly prohibited. If you are not an intended recipient, please immediately notify us by reply e-mail and destroy the original transmission and its attachments without reading or saving in any manner. Please note that this transmission does not create an attorney-client relationship if the recipient is not already a client.

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