Legislation | Construction Law Authority

Legislation, Procurement, Public Construction

Public/private partnerships continue to build momentum despite Senate's failure to pass the bill...

SB 1196 Passes

March 9, 2012

Unfortunately SB 1196 passed the Senate yesterday. The next step for the bill will be the governor's desk. The only way the bill does not become law at this point is if the governor vetoes it. If he signs it or merely does nothing the bill becomes law and will take effect, by its terms, on July 1, 2012. The negative impact of this legislation will be substantial for Florida homeowner's. However, it is fairly certain that there will be challenges to the legislation. How effective the challenges will be remains to be seen. What impact, if any, the legislation has on the Maronda case pending before the Florida Supreme Court will also be interesting....

SB 1196 moving forward

March 6, 2012

As noted previously, there are a couple of bills (HB 1013 and SB 1196) pending before the Florida legislature involving HOA warranties which would be devastating for HOAs with common area defects. These bills prohibit implied warranties of fitness and merchantability from applying to streets, roads, sidewalks, drainage areas, utilities, or any other improvements that are not located on or under the lot on which a new home is constructed. In short, the bills will result in homeowners being stuck with shoddy common areas for which they have no recourse. The House version of the bill (HB 1013) has already passed the House of Representatives. The Senate version (SB 1196) had been “stuck” in the Budget Committee. If SB 1196 had remained in Budget, it would have died in committee. However, yesterday SB 1196 was removed from Budget and could be heard by the full Senate this week. Therefore, its VERY IMPORTANT that...

Legislation Would Encourage Public-Private Partnerships

February 29, 2012

Legislation, Public Construction

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....

Momentum Continues for Pending Public/Private Partnership Legislation

February 28, 2012

Legislation, Public Construction

Florida's public/private partnership legislation continues to build momentum...

Public/Private Partnership Bill Gets Facelift, But Still Has Momentum

February 14, 2012

Legislation, Public Construction

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.

Myths about Common Law Implied Warranties and the effect of the anti-Maronda Legislation

February 2, 2012

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...

SB 1196 (Anti-Maronda) heading to Senate Judiciary Committee

January 27, 2012

With the legislative session in full swing it appears that some legislators are pushing SB 1196 and its companion HB 1013, and are determined to wipe out common law implied warranties relating to residential construction. SB 1196 is sponsored by Senator Michael S. "Mike" Bennett (R), and HB 1013 is sponsored by Representative Frank Artiles(R). These bills are an overreaction to the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010). As noted previously, and also here, here and here, these bills: - -Would negatively impact homeowner associations, condominiums, co-ops, timeshares and mobile home parks as the term “home” is an all-encompassing term. - -Ignores the fact that most new residential dwellings are built in planned communities - -Expose homeowners to liability to repair defective construction and design for which they have no recourse - -Homeowners who fail to pay their assessments for these repairs can have their homes foreclosed upon - -Will result in...

SB 1196 amendment

January 25, 2012