Although P3 projects have already been available in some form in Florida, they have been infrequently used and familiarity with these types of projects among public entities and contractors has been scant. The legislation has increased awareness of the opportunities for P3 projects. But the bills, in their current form, may inadvertently burden the process with well-intentioned, but impractical, requirements....
The owner of any construction project runs the unfortunate risk that its general contractor will not live up to its end of the bargain. If the contractor has not been paying its sub-contractors or suppliers, the owner may wind up in a situation where it faces liability for liens that exceed the contract price....
Florida's public/private partnership legislation continues to build momentum...
Senate Bill 576 on public/private partnership construction was drastically revised, but the core facets of the legislation, opening the door to great public construction opportunities, remains unimpaired. And the bill is gaining momentum as it continues to pass through legislative committees.
The changes in the new bill from the original version include:
1) public entities may contract for 3P projects only with legislative approval or if consistent with local government appropriation process as evidenced by approval of the project in the public entity’s work program;
2) detailed instructions on public notice, opportunity for competing proposals to be submitted on any 3P project, and the manner of selecting among competing proposals (traditional procurement requirements and bid protests don’t apply here);
3) prohibition against the use of state funds unless the project is for a facility owned by the public entity or a facility whose ownership will be conveyed to the public entity;
4) the private entity must provide an investment-grade technical study prepared by a nationally recognized expert detailing the finance plan, including required payment & performance bonds plus, in appropriate circumstances, letters of credit and guarantees from parent companies, lenders and equity partners;
5) the requirement that the 3P agreement ensure a negotiated portion of revenues from fee-generating projects are returned to the public entity over the life of the agreement; and
6) specific provisions addressing the financing of the job, such as the conditions for loans from the public entity for construction, suggestions for innovative finance techniques, and the prohibition against indemnity agreements from the public entity or pledging of security interests in the public entity’s assets.
Section 489.105(13), Florida Statutes defines a “Business Organization” as “any partnership, corporation, business trust, joint venture, or other legal entity which engages or offers to engage in the business of contracting or acts as a contractor as defined in this section.” This definition is used in Section 489.119(2) of the Statute as follows: “If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant’s legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the applicant must apply for registration or certification as the qualifying agent of the business organization.” Effective October 1, 2009, the Department of Business and Professional Regulation eliminated the requirement for a separate business license for construction companies in Florida. However, contractors are still required to qualify construction businesses with their license and provide background...
The law now requires that Home Inspectors be licensed by the Department of Business and Professional Regulation (“DBPR”). Inspection services through a corporation or partnership is allowed provided that all personnel of the corporation or partnership who act on its behalf as Home Inspectors are licensed by the DBPR. Licensed home inspectors are treated by the DBPR similar to licensed contractors. Home Inspectors are now subject to disciplinary actions and must maintain a commercial general liability insurance policy in an amount of not less than $300,000.00. Of note is the fact that the Home Inspectors law requires that after completion of a home inspection for compensation, the Home Inspector must provide a written report to the client. The report must indicate (1) the systems and components inspected that in his professional opinion are significantly deficient or are near the end of their useful life; (2) if not self-evident, the reason why the system or component...
On Tuesday I had the pleasure of being in Tallahassee and testifying at the House Civil Justice Subcommittee meeting against HB 1013 (the House equivalent of SB 1196). The Senate Judiciary Committee meeting scheduled for that afternoon was canceled and has been rolled over to next week. Although my opinion on this legislation can be found here, here, here, here and here, I was interested in hearing the remarks of the Bill's sponsor and others in support of the bill. After hearing those comments and having subsequent discussions with individuals supporting the bill it became clear to me that there existed several myths about common law implied warranties and the need for legislative action which needed to be addressed. Myth 1: The legislature must act immediately. This push by certain legislators to pass this bill by the end of this session ignores that the Supreme Court heard oral argument on the Lakeview case in the first week of December. The issue...