Empathy List Archives

RC

RPPTL CLC-Discussion

Thu, Feb 25, 2021 6:03 PM

This is the bill summary, and it sounds benign:

“The bill provides that provisions of waivers and releases are unenforceable unless the claimant has otherwise agreed to those provisions in its direct contract. The statutory forms include a form to acknowledge payment for labor, services, or materials and a form waiver or release of a lien or the waiver of the right to make a claim against the contractor’s payment bond. Accordingly, provisions included in a waiver or release that release a party from other liabilities or waive other rights are unenforceable under the bill.”
But beware – now the onus is on everyone to read the “extra” provisions that will appear in contracts that can allow “anything” to be added to a waiver and release. Lots of room for mischief. We no longer have a standard NNP or lien release.

We have the “Person who is holding the power, has the lawyers and holds the money-releases” and the plain release for the unwashed masses.

Is this a backdoor change by the surety industry to get what they could not get last time around? A bonded job will say that the Contract Documents include the Prime Contract and all attachments. Buried in there will be language making changes on what needs to be in a NNP. We will see an explosion in litigation is my guess when sureties deny claims as being improper.

New language:
(d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c) in exchange for, or to induce payment of, a progress payment or final payment unless the claimant has entered into a direct contract that requires the claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c).
(f) Any provisions in a waiver which are that is not related to the waiver of a claim or a right to claim against a payment bond as provided in this subsection are unenforceable, unless the claimant has otherwise agreed to those provisions in the direct contract.”

[cid:image001.png@01D70B76.A8219AA0]https://www.npw-law.com/

This is the bill summary, and it sounds benign: “The bill provides that provisions of waivers and releases are unenforceable unless the claimant has otherwise agreed to those provisions in its direct contract. The statutory forms include a form to acknowledge payment for labor, services, or materials and a form waiver or release of a lien or the waiver of the right to make a claim against the contractor’s payment bond. Accordingly, provisions included in a waiver or release that release a party from other liabilities or waive other rights are unenforceable under the bill.” But beware – now the onus is on everyone to read the “extra” provisions that will appear in contracts that can allow “anything” to be added to a waiver and release. Lots of room for mischief. We no longer have a standard NNP or lien release. We have the “Person who is holding the power, has the lawyers and holds the money-releases” and the plain release for the unwashed masses. Is this a backdoor change by the surety industry to get what they could not get last time around? A bonded job will say that the Contract Documents include the Prime Contract and all attachments. Buried in there will be language making changes on what needs to be in a NNP. We will see an explosion in litigation is my guess when sureties deny claims as being improper. New language: (d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c) in exchange for, or to induce payment of, a progress payment or final payment unless the claimant has entered into a direct contract that requires the claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c). (f) Any provisions in a waiver which are that is not related to the waiver of a claim or a right to claim against a payment bond as provided in this subsection are unenforceable, unless the claimant has otherwise agreed to those provisions in the direct contract.” [cid:image001.png@01D70B76.A8219AA0]<https://www.npw-law.com/>

RC

RPPTL CLC-Discussion

Thu, Feb 25, 2021 6:33 PM

The use of the term “direct contract” in the proposed legislation is unfortunate as it is a defined term under 713.01(9) and refers only to a contract with an Owner. I recommend deletion of the term “direct” and replacing it with “a contract”. Otherwise, the proposed change on its face will only apply to those in privity with the Owner (which is clearly not the intent behind the Bill).

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
Emailmailto:Michael.Gibbons@lowndes-law.com | Websitehttp://lowndes-law.com | Bio<lowndes-law.com/people/Michael-Gibbons> | vCardhttps://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64

[cid:image001.png@01D70B7A.C7AEDB40]
LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, February 25, 2021 1:04 PM
To: clc-discussion@lists.flabarrpptl.org
Cc: Bob Swaine (bob@heartlandlaw.com) bob@heartlandlaw.com
Subject: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473

CAUTION: THIS IS AN EXTERNAL EMAIL

This is the bill summary, and it sounds benign:

“The bill provides that provisions of waivers and releases are unenforceable unless the claimant has otherwise agreed to those provisions in its direct contract. The statutory forms include a form to acknowledge payment for labor, services, or materials and a form waiver or release of a lien or the waiver of the right to make a claim against the contractor’s payment bond. Accordingly, provisions included in a waiver or release that release a party from other liabilities or waive other rights are unenforceable under the bill.”
But beware – now the onus is on everyone to read the “extra” provisions that will appear in contracts that can allow “anything” to be added to a waiver and release. Lots of room for mischief. We no longer have a standard NNP or lien release.

We have the “Person who is holding the power, has the lawyers and holds the money-releases” and the plain release for the unwashed masses.

Is this a backdoor change by the surety industry to get what they could not get last time around? A bonded job will say that the Contract Documents include the Prime Contract and all attachments. Buried in there will be language making changes on what needs to be in a NNP. We will see an explosion in litigation is my guess when sureties deny claims as being improper.

New language:
(d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c) in exchange for, or to induce payment of, a progress payment or final payment unless the claimant has entered into a direct contract that requires the claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c).
(f) Any provisions in a waiver which are that is not related to the waiver of a claim or a right to claim against a payment bond as provided in this subsection are unenforceable, unless the claimant has otherwise agreed to those provisions in the direct contract.”

[cid:image002.png@01D70B7A.C7AEDB40]https://protect-us.mimecast.com/s/-VvxCqxMQrT8l8p2HZqMqA/

This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

The use of the term “direct contract” in the proposed legislation is unfortunate as it is a defined term under 713.01(9) and refers only to a contract with an Owner. I recommend deletion of the term “direct” and replacing it with “a contract”. Otherwise, the proposed change on its face will only apply to those in privity with the Owner (which is clearly not the intent behind the Bill). Michael Gibbons Shareholder 215 N. Eola Dr. | Orlando, FL 32801 D: 407.418.6378 | P: 407.843.4600 Email<mailto:Michael.Gibbons@lowndes-law.com> | Website<http://lowndes-law.com> | Bio<lowndes-law.com/people/Michael-Gibbons> | vCard<https://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64> [cid:image001.png@01D70B7A.C7AEDB40] LOCAL ROOTS. BROAD REACH. SM From: clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion Sent: Thursday, February 25, 2021 1:04 PM To: clc-discussion@lists.flabarrpptl.org Cc: Bob Swaine (bob@heartlandlaw.com) <bob@heartlandlaw.com> Subject: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473 CAUTION: THIS IS AN EXTERNAL EMAIL This is the bill summary, and it sounds benign: “The bill provides that provisions of waivers and releases are unenforceable unless the claimant has otherwise agreed to those provisions in its direct contract. The statutory forms include a form to acknowledge payment for labor, services, or materials and a form waiver or release of a lien or the waiver of the right to make a claim against the contractor’s payment bond. Accordingly, provisions included in a waiver or release that release a party from other liabilities or waive other rights are unenforceable under the bill.” But beware – now the onus is on everyone to read the “extra” provisions that will appear in contracts that can allow “anything” to be added to a waiver and release. Lots of room for mischief. We no longer have a standard NNP or lien release. We have the “Person who is holding the power, has the lawyers and holds the money-releases” and the plain release for the unwashed masses. Is this a backdoor change by the surety industry to get what they could not get last time around? A bonded job will say that the Contract Documents include the Prime Contract and all attachments. Buried in there will be language making changes on what needs to be in a NNP. We will see an explosion in litigation is my guess when sureties deny claims as being improper. New language: (d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c) in exchange for, or to induce payment of, a progress payment or final payment unless the claimant has entered into a direct contract that requires the claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c). (f) Any provisions in a waiver which are that is not related to the waiver of a claim or a right to claim against a payment bond as provided in this subsection are unenforceable, unless the claimant has otherwise agreed to those provisions in the direct contract.” [cid:image002.png@01D70B7A.C7AEDB40]<https://protect-us.mimecast.com/s/-VvxCqxMQrT8l8p2HZqMqA/> This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com

RC

RPPTL CLC-Discussion

Thu, Feb 25, 2021 6:36 PM

That is exactly the opposition RPPTL has.

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@beckerlawyers.com
www.beckerlawyers.com
Connect with me on LinkedIn
Follow me on Twitter
Follow Becker on...
Confidentiality Note: This message, together with any attachments, may contain privileged and confidential information. If the reader of this message is not the intended recipient, you are hereby notified that any examination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us by reply e-mail and permanently delete the original message, along with any attachments. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, February 25, 2021 1:33 PM
To: clc-discussion@lists.flabarrpptl.org
Cc: Bob Swaine (bob@heartlandlaw.com) bob@heartlandlaw.com
Subject: Re: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473

The use of the term “direct contract” in the proposed legislation is unfortunate as it is a defined term under 713.01(9) and refers only to a contract with an Owner. I recommend deletion of the term “direct” and replacing it with “a contract”. Otherwise, the proposed change on its face will only apply to those in privity with the Owner (which is clearly not the intent behind the Bill).

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
Emailmailto:Michael.Gibbons@lowndes-law.com | Websitehttp://lowndes-law.com | Biohttp://lowndes-law.com/people/Michael-Gibbons | vCardhttps://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64

[cid:image001.png@01D70B7B.43CB5140]
LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Thursday, February 25, 2021 1:04 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Cc: Bob Swaine (bob@heartlandlaw.com mailto:bob@heartlandlaw.com) <bob@heartlandlaw.com mailto:bob@heartlandlaw.com>
Subject: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473

CAUTION: THIS IS AN EXTERNAL EMAIL

This is the bill summary, and it sounds benign:

“The bill provides that provisions of waivers and releases are unenforceable unless the claimant has otherwise agreed to those provisions in its direct contract. The statutory forms include a form to acknowledge payment for labor, services, or materials and a form waiver or release of a lien or the waiver of the right to make a claim against the contractor’s payment bond. Accordingly, provisions included in a waiver or release that release a party from other liabilities or waive other rights are unenforceable under the bill.”
But beware – now the onus is on everyone to read the “extra” provisions that will appear in contracts that can allow “anything” to be added to a waiver and release. Lots of room for mischief. We no longer have a standard NNP or lien release.

We have the “Person who is holding the power, has the lawyers and holds the money-releases” and the plain release for the unwashed masses.

Is this a backdoor change by the surety industry to get what they could not get last time around? A bonded job will say that the Contract Documents include the Prime Contract and all attachments. Buried in there will be language making changes on what needs to be in a NNP. We will see an explosion in litigation is my guess when sureties deny claims as being improper.

New language:
(d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c) in exchange for, or to induce payment of, a progress payment or final payment unless the claimant has entered into a direct contract that requires the claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c).
(f) Any provisions in a waiver which are that is not related to the waiver of a claim or a right to claim against a payment bond as provided in this subsection are unenforceable, unless the claimant has otherwise agreed to those provisions in the direct contract.”

[cid:image002.png@01D70B7B.43CB5140]https://protect-us.mimecast.com/s/-VvxCqxMQrT8l8p2HZqMqA/

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

[v4.30]

That is exactly the opposition RPPTL has. 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@beckerlawyers.com www.beckerlawyers.com Connect with me on LinkedIn Follow me on Twitter Follow Becker on... Confidentiality Note: This message, together with any attachments, may contain privileged and confidential information. If the reader of this message is not the intended recipient, you are hereby notified that any examination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us by reply e-mail and permanently delete the original message, along with any attachments. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion Sent: Thursday, February 25, 2021 1:33 PM To: clc-discussion@lists.flabarrpptl.org Cc: Bob Swaine (bob@heartlandlaw.com) <bob@heartlandlaw.com> Subject: Re: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473 The use of the term “direct contract” in the proposed legislation is unfortunate as it is a defined term under 713.01(9) and refers only to a contract with an Owner. I recommend deletion of the term “direct” and replacing it with “a contract”. Otherwise, the proposed change on its face will only apply to those in privity with the Owner (which is clearly not the intent behind the Bill). Michael Gibbons Shareholder 215 N. Eola Dr. | Orlando, FL 32801 D: 407.418.6378 | P: 407.843.4600 Email<mailto:Michael.Gibbons@lowndes-law.com> | Website<http://lowndes-law.com> | Bio<http://lowndes-law.com/people/Michael-Gibbons> | vCard<https://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64> [cid:image001.png@01D70B7B.43CB5140] LOCAL ROOTS. BROAD REACH. SM From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> <clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion Sent: Thursday, February 25, 2021 1:04 PM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Cc: Bob Swaine (bob@heartlandlaw.com<mailto:bob@heartlandlaw.com>) <bob@heartlandlaw.com<mailto:bob@heartlandlaw.com>> Subject: [CLC-Discussion] Construction Liens and Bonds - CS/SB 622 and HB 473 CAUTION: THIS IS AN EXTERNAL EMAIL This is the bill summary, and it sounds benign: “The bill provides that provisions of waivers and releases are unenforceable unless the claimant has otherwise agreed to those provisions in its direct contract. The statutory forms include a form to acknowledge payment for labor, services, or materials and a form waiver or release of a lien or the waiver of the right to make a claim against the contractor’s payment bond. Accordingly, provisions included in a waiver or release that release a party from other liabilities or waive other rights are unenforceable under the bill.” But beware – now the onus is on everyone to read the “extra” provisions that will appear in contracts that can allow “anything” to be added to a waiver and release. Lots of room for mischief. We no longer have a standard NNP or lien release. We have the “Person who is holding the power, has the lawyers and holds the money-releases” and the plain release for the unwashed masses. Is this a backdoor change by the surety industry to get what they could not get last time around? A bonded job will say that the Contract Documents include the Prime Contract and all attachments. Buried in there will be language making changes on what needs to be in a NNP. We will see an explosion in litigation is my guess when sureties deny claims as being improper. New language: (d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c) in exchange for, or to induce payment of, a progress payment or final payment unless the claimant has entered into a direct contract that requires the claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c). (f) Any provisions in a waiver which are that is not related to the waiver of a claim or a right to claim against a payment bond as provided in this subsection are unenforceable, unless the claimant has otherwise agreed to those provisions in the direct contract.” [cid:image002.png@01D70B7B.43CB5140]<https://protect-us.mimecast.com/s/-VvxCqxMQrT8l8p2HZqMqA/> Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. [v4.30]