38-1-40 - Notice of intent to obtain final completion.
38-1-40. Notice of intent to obtain final completion.
(1) An owner, as defined in Section 14-2-1, of a nonresidential construction project thatis registered with the database, or a contractor of a commercial nonresidential constructionproject that is registered with the database under Section 38-1-33, shall file with the database anotice of intent to obtain final completion as provided in this section if:
(a) the completion of performance time under the original contract is greater than 120days;
(b) the total original construction contract price exceeds $500,000; and
(c) the contractor or owner has not obtained a payment bond in accordance with Section14-2-1.
(2) The notice of intent described in Subsection (1) shall be filed at least 45 days beforethe day on which the owner or contractor of a commercial nonresidential construction projectfiles or could have filed a notice of completion under Section 38-1-33.
(3) A person supplying labor, materials, or services to an owner, a contractor, orsubcontractor who files a notice of intent in accordance with Subsection (1) shall file anamendment to the person's preliminary notice previously filed by the person as required inSection 38-1-32:
(a) that includes:
(i) a good faith estimate of the total amount remaining due to complete the contract,purchase order, or agreement relating to the person's approved labor, approved materials, andapproved services;
(ii) the identification of each contractor or subcontractor with whom the person has acontract or contracts for supplying project labor, materials, or services; and
(iii) a separate statement of all known amounts or categories of work in dispute; and
(b) no later than 20 days after the day on which the owner or contractor files a notice ofintent.
(4) (a) A person identified in accordance with Subsection (3)(a)(i) who has compliedwith, or is exempt from, the provisions of Section 38-1-22, may demand a statement of adequateassurance from the owner, contractor, or subcontractor with whom the person has privity ofcontract no later than 10 days after the day on which the person files a balance statement inaccordance with Subsection (3) from an owner, contractor, or subcontractor who is in privity ofcontract with the person.
(b) A demand for adequate assurance as described in Subsection (4)(a) may include arequest for a statement from the owner, contractor, or subcontractor that the owner, contractor, orsubcontractor has sufficient funds dedicated and available to pay for all sums due to the personfiling for the adequate assurances or that will become due in order to complete a constructionproject.
(c) A person who demands adequate assurance under Subsection (4)(a) shall delivercopies of the demand to the owner and contractor:
(i) by hand delivery with a responsible party's acknowledgment of receipt;
(ii) by certified mail with a return receipt; or
(iii) as provided under Rule 4, Utah Rules of Civil Procedure.
(5) (a) A person identified in accordance with Subsection (3)(a)(i) who has compliedwith, or is exempt from, the provisions of Section 38-1-32 may bring a legal action against aparty with whom the person is in privity of contract, including a request for injunctive or
declaratory relief, to determine the adequacy of an owner's, with whom the demanding personcontracted, contractor's, with whom the demanding person contracted, or subcontractor's, withwhom the demanding person contracted, funds if, after the person demands adequate assurance inaccordance with the requirements of this section:
(i) the owner, contractor, or subcontractor fails to provide adequate assurance that theowner, contractor, or subcontractor has sufficient available funds, or access to financing or othersufficient available funds, to pay for the completion of the demanding person's approved work onthe construction project; or
(ii) the parties disagree, in good faith, as to whether there are adequate funds, or access tofinancing or other sufficient available funds, to pay for the completion of the demanding person'sapproved work on the construction project.
(b) If a court finds that an owner, contractor, or subcontractor has failed to provideadequate assurance in accordance with Subsection (4)(a), the court may require the owner,contractor, or subcontractor to post adequate security with the court sufficient to assure timelypayment of the remaining contract balance for the approved work of the person seeking adequateassurance, including:
(i) cash;
(ii) a bond;
(iii) an irrevocable letter of credit;
(iv) property;
(v) financing; or
(vi) another form of security approved by the court.
(6) (a) A person is subject to the civil penalty described in Subsection (6)(b), if theperson files a balance statement described in Subsection (3):
(i) that misrepresents the amount due under the contract; and
(ii) with the intent to:
(A) charge an owner, contractor, or subcontractor more than the actual amount due; or
(B) procure any other unfair advantage or benefit on the person's behalf.
(b) The civil penalty described in Subsection (6)(a) is the greater of:
(i) twice the amount by which the balance statement filed under Subsection (3) exceedsthe amount actually remaining due under the contract for completion of construction; or
(ii) the actual damages incurred by the owner, contractor, or subcontractor.
(7) A court shall award reasonable attorney fees to a prevailing party for an actionbrought under this section.
(8) Failure to comply with the requirements established in this section does not affect anyother requirement or right under this chapter.
(9) A person who has not complied with, or is not exempt from, the provisions ofSection 38-1-32 may not be entitled to a right or a remedy provided in this section.
(10) This section does not create a cause of action against a person with whom thedemanding party is not in privity of contract.
Amended by Chapter 31, 2010 General Session