[RPPTL-constructionlaw] FW: ICPC Construction Lien & BondLegislation for 2012

Tue Oct 11 13:05:29 PDT 2011

  Reese,

        Two comments:

          1.  Service of Notice of Contest  (Fla. Stats. ss. 713.22(2)
and 713.23(1)(e))-   I don't believe it is advisable to change
responsibility for serving a potentially claim dispositive document from
a neutral (i.e., Clerk) to a very interested party (i.e., Contractor).
Whatever issues someone may have had with the Clerk serving notices ( I
have had none myself), the potential mischief created by vesting in the
contractor the responsibility to serve the critical Notice of Contest
document appears to far outweigh the incidence of negligence by a
disinterested Clerk.  The fact that service is required to be consistent
with Fla. Stat. s. 713.18 does not save this proposed change in my
opinion.  It is not difficult to conjure a scenario where the Contractor
"serves" the lienor in person  pursuant to 713.18 with some paperwork
but not the Notice of Contest of Lien.  Contractor later swears the
Notice of Contest was included in the package, Lienor denies it was and
we now have a swearing contest on a collateral issue that may now be the
dispositive issue in the lawsuit.  We don't need to introduce this kind
of uncertainity into the Lien Law.  If someone has a problem with the
existing Clerk service format, I would suggest adding an express
requirement that the Clerk's service by mail be CMRRR.  

        2.  Penal Sum of Bond-   The proposed change to Fla. Stat. s.
713.23(1)(f) contains a reference to the liability of the surety not
being increased beyond the penal sum of the bond.  This is problematic
as drafted.  Bonded construction projects inevitably have additive
change orders to the underlying contract of the principal on the bond.
Sureties recognize this and require their principals to inform them of
such additive change orders so that they can collect additional premium
dollars to match their increased risk.  Letting the surety limit its
exposure to the penal sum of the bond as issued lets the surety off
unnecessarily.   As proposed the language reads:
" but the liability of the surety may not be increased beyond the penal
sum of the bond".  I would add after the final word "bond" the following
: "as increased by the amount of any written change order(s) executed by
Principal and Obligee with notice to the Surety". 

Michael R. Gibbons  (Bio
<http://lowndes-law.com/our-people/michael-r-gibbons> )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
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/> 

________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Tuesday, October 11, 2011 2:42 PM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] FW: ICPC Construction Lien &
BondLegislation for 2012

CLC Members,

Please see attached proposed lien law legislation for which comments
have been requested from the CLC.  Please provide any comments you have
to me by COB this Friday, October 14.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney 

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson at tritthenderson.com <mailto:%5Be-mail%5D> 
www.tritthenderson.com <http://www.tritthenderson.com/> 

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only
for the use of intended recipients. If the reader of this message is not
an intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
permanently remove any copies of this message from your system and do
not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of:
(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.

From: Roberts, Hardy L. [mailto:hroberts at carltonfields.com] 
Sent: Tuesday, October 11, 2011 1:05 PM
To: Reese J. Henderson, Jr.
Cc: Arnold D. Tritt, Jr.; lcheron at smithcurrie.com; Wright, Wm. Cary
Subject: FW: ICPC Construction Lien & Bond Legislation for 2012

FYI

From: Freedman, Robert S. 
Sent: Tuesday, October 11, 2011 1:04 PM
To: Heron, Lisa Colon, Co-Vice Chair - Construction Law; Roberts, Hardy
L.; Tritt, Arnold D., Chair - Construction Law; Wright, Wm. Cary
Subject: FW: ICPC Construction Lien & Bond Legislation for 2012

Greetings.  Please see the below email from Martha and the attached
proposed legislation.  I have confirmed with Martha that she needs
comments back by the middle of next week, so please send me your
committee's thoughts by the end of business on Tuesday, October 18th so
that we can meet her timing.  Thanks. Rob 

From: Martha J. Edenfield [mailto:martha at penningtonlaw.com] 
Sent: Tuesday, October 11, 2011 12:30 PM
To: Barry Spivey; Freedman, Robert S.
Cc: Peter M. Dunbar
Subject: FW: ICPC Construction Lien & Bond Legislation for 2012

We have been asked to comment on this proposed legislation. Please let
me know who else need to receive it. It would be helpful to have
comments by next week. Thanks!

Martha

From: Deborah Lawson [mailto:deborahlawson at aol.com] 
Sent: Wednesday, October 05, 2011 12:06 PM
To: Peter M. Dunbar; Martha J. Edenfield
Cc: rbkershner at att.net; george.moraitis at myfloridahouse.gov;
matthew.bogdanoff at myfloridahouse.gov
Subject: ICPC Construction Lien & Bond Legislation for 2012

Pete and Martha,

Representative Moraitis has agreed to sponsor the ICPC's Construction
Lien and Bond legislation for the upcoming Session and has asked Bruce
and I to make sure to get a copy to you for the Construction Law
Committee's review.  Attached is the bill and a section-by-section
summary of what it does.  

For the most part, this bill is a very scaled down version of the much
larger bill we have been working on for the last several years.  We have
jettisoned the consumer provisions that were in our bill because frankly
we have been unable to convince the residential contractors that better
consumer education would be beneficial and have decided to just try to
get these clean up issues taken care of.  

We have added one new issue to the bill - language in both 255.05 and
713.23 to insure that bonds do not have limited duration.  This is to
address a recent appellate court decision in Utah which upheld the
effectiveness of a bond that terminated prior to completion of the
project.  In that case the claimants were left completely unprotected.
We have never had this issue in Florida and want to make sure that the
problem does not proliferate.

We certainly welcome any comments or recommendations from the Bar, and
would also appreciate a heads up on any legislation you may be working
on this upcoming year.  We have seen several proposals that have been
working their way through the bar committee process, some of which we do
have concerns about.

Sincerely,

Deborah E. Lawson

Lawson Governmental Affairs

4125 Pecan Branch Road

Tallahassee, FL  32309-5558

Ph.  850 878 1606

Fax  850 878 2716

Cell 850 570 0033

This email message has been delivered safely and archived online by Mimecast.  For more information please visit http://www.mimecast.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20111011/a3696e05/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: LEED_GArgb.jpg
Type: image/jpeg
Size: 16088 bytes
Desc: LEED_GArgb.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20111011/a3696e05/LEED_GArgb.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: tritthenderson_logo03.jpg
Type: image/jpeg
Size: 14683 bytes
Desc: tritthenderson_logo03.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20111011/a3696e05/tritthenderson_logo03.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 3857 bytes
Desc: image006.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20111011/a3696e05/image006.jpg>