Please welcome Stephanie Amiero,
our new paralegal. She comes to us with a Bachelor's
degree in Political Science from USF as well as
a Certificate in Paralegal Studies from Paralegal
Careers, Inc. Stephanie has more than 13 years
of legal experience. She will be handling our
document control activities, using CaseMap.
CaseMap is a database program which
enables us to keep track and identify all pertinent
documents, persons, and issues within each case.
In just a few short keystrokes we can sort and
analyze issues, witnesses and exhibits in preparation
for deposition or trial. Stephanie joined us on
July 5 and has already become proficient in the
use of this new program. We are pleased to have
her on board.
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Our new corporate maintenance program
which was introduced in our Spring 2000 newsletter,
has enjoyed a very positive response so far. The
service includes bringing your corporate book
to a current status and then notifying you each
year when your next update is due.
We strongly believe that maintaining
your corporate records is essential for the proper
operation of your business and may help you avoid
potential problems with creditors or the IRS should
you be faced with an audit. If you have added
new shareholders or elected new officers recently
or have purchased or leased property, but have
not held an annual meeting reflecting this activity,
you may be in need of our corporate maintenance
program.
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Minutes for annual shareholders
and directors meetings
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Corporate resolutions
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Notification of annual meeting
date
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Serving as your registered agent
Contact
Marlowe McNabb for more information.
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One of the more controversial aspects
of this year's legislative session was an attempt,
primarily spearheaded by the American Subcontractors
Association, to place limits or eliminate retainage.
While passage of this provision came close,in
the end it was converted to a study to be performed
by the Office of Program Policy Analysis and Government
Accountability in consultation with the Legislative
Committee on Intergovernmental Relations.
OPPAGA is to gather information
from various government bodies and private entities
relating to the positive and negative impacts
of the current retainage system. In particular,
it is to determine whether the traditional 10%
retainage practice is equitable and whether there
are viable alternatives to this practice. The
report is due January 1, 2001.
Indemnity Obligations Limited
Under Florida Statutes Section 725.06,
a party seeking indemnification from another for
its own negligence was required to either limit
the indemnity obligation to a specific dollar
amount or to make a separate payment for the indemnity.
The effect of this statute was that contracts
were written segregating a part of the contract
sum as payment for this indemnity.
This session, the Legislature amended
725.06 to eliminate the right to require that
a party be indemnified for its own negligence,
declaring that such contract provisions are void
as against the public policy ofthe State of Florida.
This change is effective for contracts entered
into after July 1, 2000. House bill 220.
Grandfathering Provisions
Florida Statute Section 489.118
allowed certification of registered contractors.
The requirements for this are: (1) valid local
license, (2) passed a written examination, (3)
five years of experience as a licensed contractor,
(4) license has not been revoked or suspended
within five years or assed a fine in excess of
$500, (5) compliance with the insurance and financial
requirements.
This year this provision was modified
to add additional tests that will are acceptable
for the examination provision. The tests added
were by Experior Assessments, Professional Testing,
Inc., or Assessment System, Inc. The right to
make an application for grandfathering expires
on November 1, 2004.
Uniform Building Code
The Uniform Florida Building Code
was passed on the last day of the session. The
bill moves the effective date of the code from
January 1, 2001, to July 1, 2001. It also strengthened
the mandate to maintain a statewide system with
as little variation in local jurisdictions as
is possible.
Essentially, an appeal system has
been set up in which local jurisdictions wishing
to adopt more restrictive provisions must go through.
This is obviously designed to discourage these
kinds of distinctions. The establishment of a
product approval system is the last work that
needs to be accomplished. This act takes effect
October 1, 2000, and applies to all pools constructed
on or after that date.
Residential Swimming Pool Safety Act
This bill imposes new restrictions
on residential swimming pool owners. In order
to pass final inspection, a residential swimming
pool must meet one of the following criteria.
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Be isolated from access to home by a pool barrier. The pool barrier must be at least 4' high and must be separate from any fence, wall or other enclosure surrounding the yard in most instances.
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Be equipped with a pool safety cover
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All doors and windows providing direct access to the pool from the home equipped with exit alarms.
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All doors providing direct access from the home must be equipped with self-closing, self-latching devices, and a release mechanism at least 54" above the floor.System, Inc.
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In a recent opinion, Florida's Second
District Court of Appeal ruled that a contractor
was wrongfully denied its demand to arbitrate
by the trial court after it had been sued for
allegedly breaching its construction contract.
The appellate court found that the arbitration
clause in the contract was governed by the Florida
Arbitration Code and was valid, enforceable and
irrevocable. The firm filed the appeal on behalf
of the contractor after the trial court had refused
to grant their motion to stay the litigation pending
arbitration.
Although the arbitration provision
was the standard AIA A-401 arbitration clause,
the trial court had held that it was not enforceable
because another clause in the construction contract
required arbitration outside Florida if the parties
could not agree on the arbitration forum. Under
the Florida Arbitration Code, Florida courts have
no statutory authority to compel arbitration in
another jurisdiction.
Joe McNabb handled the appeal for
the firm. He argued that arbitration is a favored
means of dispute resolution and that courts are
required to indulge every reasonable presumption
in favor of arbitration. Further, he explained
to the appellate court that every contract contains
an implied condition and a duty of good faith
and fair dealing in performance and enforcement
of the contract. McNabb contended that the opposing
party, which was a Florida corporation, violated
that duty by refusing to agree on any arbitration
forum, even after the contractor (an out-of-state
corporation) had agreed to arbitrate in Florida.
This obstinate refusal wrongfully triggered the
out-of-state forum selection provision and improperly
invalidated the arbitration agreement under the
Florida Arbitration Code.
The appellate court agreed that
the opposing party had acted in bad faith by initiating
a lawsuit in Florida, on a contract that was governed
by Florida law, and then refusing to arbitrate
in Florida solely for the purpose of invalidating
the arbitration provision. The court also restated
guidance from a previous opinion that "[a]rbitration
is especially appropriate in situations involving
issues that are unique to certain industries and
which require specialized knowledge for their
resolution...the construction industry is such
an industry." Finding that the trial court erred
in not ordering a stay of the litigation until
the dispute was resolved through arbitration,
the appellate court reversed the trial court's
order and remanded it back to the trial court
for entry of an order to stay the litigation pending
arbitration. As an added bonus, the appellate
court ordered the opposing party to pay the attorneys'
fees and costs incurred by the contractor for
the appeal.
If you need additional information
on any of these bills, please contact
our office and we will be happy to assist
you.
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