Chapter 436 Special Purpose Contracts
436.412 - Violations, disciplinary actions authorized — governing law for contracts.
Each preneed contract made before August 28, 2009, and all payments and disbursements under such contract shall continue to be governed by this chapter as the chapter existed at the time the contract was made.Any licensee or registrant of the board may be disciplined for violation of any provision of sections 436.005 to 436.071* within the applicable statute of limitations.Joint accounts in existence as of August 27, 2009, shall continue to be governed by the provisions of section 436.053, as that section existed on August 27, 2009.
436.312 - Substitute security requirements.
1.The following shall constitute acceptable substitute security for purposes of sections 436.306 and 436.309:
(1)Certificates of deposit drawn and issued by a national banking association located in this state or by any banking corporation incorporated pursuant to the laws of this state, and mutually agreeable to the project owner and the contractor or subcontractor, in the amount of the retainage released.If the letter of credit is not renewed at least sixty days before the expiration of the letter of credit, the owner may draw upon the letter of credit regardless of the contractor's or subcontractor's performance for an amount equal to or no greater than the value of the amount of work remaining to be performed by the contractor or subcontractor;
(2)A retainage bond naming the owner as obligee issued by any surety company authorized to issue surety bonds in this state in the amount of the retainage released; or
(3)An irrevocable and unconditional letter of credit in favor of the owner, issued by a national banking association located in this state or by any banking corporation incorporated pursuant to the laws of this state, in the amount of the retainage released.
2.The contractor shall be entitled to receive, in all events, all interest and income earned on any securities deposited by the contractor in substitution for retainage.
436.257 - Violation, penalty.
The commission of any act prohibited by section 436.254 by an athlete agent is a class B misdemeanor.
436.157 - Contract for payment of royalties must be in writing, content.
Every contract for the payment of royalties executed in this state shall:
(1)Be in writing;
(2)Be signed by the parties;
(3)Not require a term exceeding one year unless agreed by the proprietor or if the contract is under the terms of a national agreement;
(4)Include at least the following information:
(a)The proprietor's name and business address and the name and location of each place of business to which the contract applies;
(b)The name and address of the performing rights society authorized to act on behalf of copyright owners being paid royalties under the contract;
(c)The duration of the contract; and
(d)The schedule of rates and terms of the royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of those rates for the duration of that contract.
436.457 - Seller's right to cancel, when, procedure.
1.A seller shall have the right to cancel a trust-funded or joint-account funded preneed contract if the purchaser is in default of any installment payment for over sixty days.
2.Prior to cancelling the contract, the seller shall notify the purchaser and provider in writing that the contract shall be cancelled if payment is not received within thirty days of the postmarked date of the notice.The notice shall include the amount of payments due, the date the payment is due, and the date of cancellation.
3.If the purchaser fails to remit the payments due within thirty days of the postmarked date of the notice, then the seller, at its option, may either cancel the contract or may continue the contract as a nonguaranteed contract where the purchaser will receive full credit for all payments the purchaser has made into the trust towards the cost of the beneficiary's funeral service or merchandise from the provider.
4.Upon cancellation by the seller under this section, eighty-five percent of the contract payments shall be refunded to the purchaser.All remaining funds shall be distributed to the seller.
436.153 - Proprietor entering into contract to be furnished certain information in writing — time limitation.
No performing rights society shall enter into, or offer to enter into, a contract for the payment of royalties by a proprietor unless at the time of the offer, or any time thereafter, but no later than seventy-two hours prior to the execution of that contract, it provides to the proprietor, in writing, the following:
(1)A schedule of the rates and terms of royalties under the contract, including any sliding scale, discounts, or reductions in fees on any basis for which the proprietor may be eligible, and any scheduled increases or decreases in fees during the term of the contract;
(2)Upon request of the proprietor, the opportunity to review the most currently available list of the copyright owners' licenses by the performing rights society at the premises of the proprietor;
(3)Notification of the method that must be used by the proprietor to obtain a listing of the copyrighted works licensed by the performing rights society contract, including the location of such listing of works licensed by the performing arts society and the toll-free number required by sections 436.150 to 436.163.
436.353 - Notice of offer to cure defects by contractor, contents — effect on court actions.
1.The contractor shall provide notice to each homeowner upon entering into a contract for sale, construction, or substantial remodel of a residence of the contractor's right to offer to cure construction defects before a claimant may commence action against the contractor pursuant to sections 436.350 to 436.365.Such notice shall be conspicuous and may be included as part of the underlying contract signed by the homeowner.In the sale of a condominium unit, the requirement for delivery of such notice shall be deemed satisfied if contained in a public offering statement in accordance with the laws of this state.
2.The notice required by this subsection shall provide time frame guidelines to comply with sections 436.350 to 436.365 for both the claimant and contractor and shall be in substantially the following form:
SECTIONS 436.350 TO 436.365 OF MISSOURI REVISED STATUTES PROVIDE YOU WITH CERTAIN RIGHTS IF YOU HAVE A DISPUTE WITH A CONTRACTOR REGARDING CONSTRUCTION DEFECTS.EXCEPT FOR CLAIMS FILED IN SMALL CLAIMS COURT, IF YOU HAVE A DISPUTE WITH A CONTRACTOR, YOU MUST DELIVER TO THE CONTRACTOR A WRITTEN CLAIM OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS.YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR.READ THIS NOTICE CAREFULLY.THERE ARE STRICT DEADLINES AND PROCEDURES UNDER SECTIONS 436.350 TO 436.365 WHICH MUST BE OBEYED IN ORDER TO PRESERVE YOUR ABILITY TO FILE A LAWSUIT.OTHER THAN REPAIRS TO WORK DONE BY THE CONTRACTOR THAT ARE NECESSARY TO PROTECT THE LIFE, HEALTH, OR SAFETY OF PERSONS LIVING IN A RESIDENCE, OR TO AVOID ADDITIONAL SIGNIFICANT AND MATERIAL DAMAGE TO THE RESIDENCE PURSUANT TO SUBSECTION 10 OF SECTION 436.356, YOU MAY NOT INCLUDE IN CLAIMS AGAINST YOUR CONTRACTOR THE COSTS OF OTHER REPAIRS YOU PERFORM BEFORE YOU ARE ENTITLED TO FILE A LAWSUIT UNDER SECTIONS 436.350 TO 436.365.
3.Nothing in sections 436.350 to 436.365 shall preclude or bar any action if a notice is not given to the claimant as required by this section, and the provisions of sections 436.350 to 436.365 shall not apply to any claim of a claimant against a contractor if such contractor failed to provide the written notice required by this section.
4.In those lawsuits originally filed by a contractor against a homeowner, if a homeowner files a counterclaim or an affirmative defense in such lawsuit that includes a claim based on a construction defect allegedly caused by the contractor, then the provisions of sections 436.350 to 436.365 shall not apply to said lawsuit, and the homeowner or association claimant will not be required to adhere to sections 436.350 to 436.365 for those claims made pursuant to the lawsuit, provided a claimant shall be required to follow those provisions for any claim not otherwise covered by said lawsuit.
436.306 - Security tendered, when.
1.The contractor may tender to the owner acceptable substitute security as set forth in section 436.312 with a written request for release of retainage in the amount of the substitute security.The contractor shall thereupon either:
(1)Be entitled to receive cash payment of retainage pursuant to this section; or
(2)Not be subject to the withholding of retainage, in either case, to the extent of the security tendered, provided that the contractor is not in default of its agreement with the owner.
2.If the tender described in subsection 1 of this section is made after retainage has been withheld, the owner shall, within five working days after receipt of the tender, pay to the contractor the withheld retainage to the extent of the substitute security.If the tender described in subsection 1 of this section is made before retainage has been withheld, the owner shall, to the extent of the substitute security, refrain from withholding any retainage from the future payments.
436.490 - Sale of business assets of provider — report to board required, contents.
1.A provider that intends to sell or otherwise dispose of all or a majority of its business assets, or its stock if a corporation, shall notify the board at least sixty days prior to selling or otherwise disposing of its business assets or stock, or ceasing to do business as a provider, and shall file a notification report on a form established by the board.
2.The report required by this section shall include:
(1)The name, phone number, and address of the purchasers of any outstanding preneed contract for which the licensee is the designated provider;
(2)The name and license numbers of all sellers authorized to designate the licensee as a provider in a preneed contract;
(3)The name, address, and license number of the provider assuming or agreeing to assume the licensee's obligations as a provider under a preneed contract, if any;
(4)The name, address, and phone number of a custodian who will maintain the books and records of the provider containing information about preneed contracts in which the licensee is or was formerly designated as provider;
(5)A final annual report containing the information required by section 436.460;
(6)The date the provider intends to sell or otherwise dispose of its business assets or stock, or cease doing business; and
(7)Any other information required by any other applicable statute or regulation enacted pursuant to state or federal law.
3.Within three days after the provider sells or disposes of its assets or stock or ceases doing business, the former provider shall notify each seller in writing that the former provider has sold or disposed of its assets or stock or has ceased doing business.
436.336 - Applicability.
Sections 436.300 to 436.336 shall apply to contracts and agreements entered into after August 28, 2002.Sections 436.300 to 436.336 shall apply to all private construction projects, except single-family residential construction and other residential construction consisting of four or fewer units.
436.236 - Temporary certificate of registration permitted, when.
The director may issue a temporary certificate of registration valid for sixty days while an application for registration or renewal is pending.
436.263 - Violation, penalty.
Any person who violates any provisions of sections 436.215 to 436.269 is guilty of a class A misdemeanor.
436.163 - Laws applicable only to performing rights societies.
Sections 436.150 to 436.163 shall only apply to performing rights societies.Sections 436.150 to 436.163 shall not apply to contracts between copyright owners or performing rights societies and broadcasters licensed by the Federal Communications Commission, or contracts with cable operators, programmers or other transmission services.
436.480 - Death or incapacity of purchaser, transfer of rights and remedies, to whom.
Upon the death or legal incapacity of a purchaser, all rights and remedies granted to the purchaser under sections 436.400 to 436.520 shall be enforceable by and accrue to the benefit of the purchaser's legal representative or his or her estate, and all payments otherwise payable to the purchaser shall be paid to that person.
436.333 - Unenforceability of contracts entered into after August 28, 2002.
A contract or agreement formed after August 28, 2002, shall be unenforceable to the extent that its provisions are inconsistent with sections 436.300 to 436.336. If retainage is withheld in violation of sections 436.300 to 436.360, a court may, in addition to any other award for damages, award interest at the rate of up to one and one-half percent per month from the date of such wrongful or improper withholding of retainage.In any action brought to enforce sections 436.300 to 436.336, a court may award reasonable attorney's fees to the prevailing party.If the parties elect to resolve the dispute by arbitration pursuant to section 435.350*, the arbitrator may award any remedy that a court is authorized to award.
436.233 - Sanctioning of certificate of registration, when — complaint procedure.
1.The director may revoke, suspend, or refuse to renew any certificate of registration required under this chapter for one or any combination of causes stated in subsection 2 of this section.The director shall notify the applicant in writing of the reasons for the refusal and shall advise the applicant of the applicant's right to file a complaint with the administrative hearing commission as provided by chapter 621.
2.The director may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621 against any holder of any certificate of registration required by this chapter or any person who has failed to renew or has surrendered the person's certificate of registration for any one or any combination of the following causes:
(1)The person has been finally adjudicated and found guilty, or entered a plea of guilty or nolo contendere, in a criminal prosecution under the laws of any state or of the United States, for any offense reasonably related to the qualifications, functions or duties under this chapter, for any offense an essential element of which is fraud, dishonesty or an act of violence, or for any offense involving moral turpitude, whether or not sentence is imposed;
(2)Use of fraud, deception, misrepresentation or bribery in securing any certificate of registration under this chapter;
(3)Misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of the functions regulated by this chapter including but not limited to the following:
(a)Obtaining or attempting to obtain any fee, charge, tuition, or other compensation by fraud, deception, or misrepresentation;
(b)Attempting directly or indirectly by way of intimidation, coercion or deception to obtain consultation;
(c)Failure to comply with any subpoena or subpoena duces tecum from the director;
(d)Failing to inform the director of the athlete agent's current residence and business address;
(4)Violation of, or attempting to violate, directly or indirectly, or assisting or enabling any person to violate, any provision of this chapter, or of any lawful rule or regulation adopted under this chapter;
(5)Impersonation of any person holding a certificate of registration or allowing any person to use his or her certificate of registration;
(6)Violation of the drug laws or rules and regulations of this state, any other state, or the federal government;
(7)Knowingly making, or causing to be made, or aiding, or abetting in the making of, a false statement in any birth or other certificate or document executed in connection with the transaction;
(8)Soliciting patronage in person, by agents, by representatives, or by any other means or manner, under the person's own name or under the name of another person or concern, actual or pretended in such a manner as to confuse, deceive, or mislead the public;
(9)A pattern of personal use or consumption of any controlled substance unless it is prescribed, dispensed or administered by a physician who is authorized by law to do so.
3.After the filing of such complaint before the administrative hearing commission, the proceedings shall be conducted in accordance with the provisions of chapter 621.Upon a finding by the administrative hearing commission that the grounds provided in subsection 2 of this section for disciplinary action are met the director may singly or in combination warn, censure, or place the person named in the complaint on probation on such terms and conditions as the director deems appropriate for a period not to exceed six months, or may suspend the person's certificate of registration period not to exceed one year, or restrict or limit the person's certificate of registration for an indefinite period of time, or revoke the person's certificate of registration.
4.In any order of revocation, the director may provide that the person may not apply for reinstatement of the person's certificate of registration for a period of time ranging from two to seven years following the date of the order of revocation.All stay orders shall toll this time period.
436.362 - Mediation requirements.
1.At any time, either a claimant or contractor may offer to resolve a claim against a contractor through mediation.Mediation pursuant to this section shall be nonbinding and independently administered.The contractor and claimant shall mutually agree upon a qualified independent and neutral mediator and shall equally share the cost of the mediator.If the parties agree upon a mediator, then the mediation shall take place within a reasonable time period, but in no event later than forty-five days after service of a request for mediation by a claimant upon a contractor or a request by a contractor upon a claimant.A contractor who receives a request for mediation from a claimant shall serve a response in writing within fourteen days and may include within the response the name of a proposed mediator and mediation date.A claimant who receives a request for mediation from a contractor shall serve a response in writing within fourteen days and may include within the response the name of a proposed mediator and mediation date.
2.The contractor or claimant may include in the mediation any person or entity reasonably necessary for resolution of the claim asserted.This subsection shall not be construed to mandate attendance at a mediation by a person or entity other than the contractor or claimant served with a notice of claim.
3.If all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration, conciliation, or mediation, then no person who serves as arbitrator, conciliator or mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the arbitration, conciliation, or mediation.
4.Arbitration, conciliation, and mediation proceedings shall be regarded as settlement negotiations and the confidentiality of such proceeding shall be as set forth in supreme court rule 17.
5.Notwithstanding any provisions of law or the agreements of the parties to the contrary, the resolution of the dispute by the parties through mediation or otherwise shall not operate to release any claim of the claimant except the claim described in the notice of defect, and shall not operate to release the claim described in the notice of defect until the agreed-upon remedy has been accomplished.
436.266 - Uniformity considered in applying law.
In applying and construing sections 436.215 to 436.272, consideration must be given to the need to promote uniformity of the law with respect to the subject matter of sections 436.215 to 436.272 among states that enact it.
436.485 - Violations, penalties.
1.Any person, including the officers, directors, partners, agents, or employees of such person, who shall knowingly and willfully violate or assist or enable any person to violate any provision of sections 436.400 to 436.520 by incompetence, misconduct, gross negligence, fraud, misrepresentation, or dishonesty is guilty of a class D felony.Each violation of any provision of sections 436.400 to 436.520 constitutes a separate offense and may be prosecuted individually.The attorney general shall have concurrent jurisdiction with any local prosecutor to prosecute under this section.
2.Any violation of the provisions of sections 436.400 to 436.520 shall constitute a violation of the provisions of section 407.020.In any proceeding brought by the attorney general for a violation of the provisions of sections 436.400 to 436.520, the court may order all relief and penalties authorized under chapter 407 and, in addition to imposing the penalties provided for in sections 436.400 to 436.520, order the revocation or suspension of the license or registration of a defendant seller, provider, or preneed agent.
436.272 - Moneys collected for certain violations to be transferred to general revenue.
Any moneys collected by the director under section 436.263 shall immediately be transferred to the department of revenue for deposit in the state treasury to the credit of general revenue.
436.327 - Substantial completion defined.
The project shall be deemed to have reached substantial completion upon the occurrence of the earlier of the architect or engineer issuing a certificate of substantial completion in accordance with the terms of the contract documents or the owner accepting the performance of the full contract.
436.227 - Application procedure, contents.
An applicant for registration shall submit an application for registration to the director in a form prescribed by the director.The application must be in the name of an individual and signed by the applicant under penalty of perjury and must state or contain:
(1)The name of the applicant and the address of the applicant's principal place of business;
(2)The name of the applicant's business or employer, if applicable;
(3)Any business or occupation engaged in by the applicant for the five years next preceding the date of submission of the application;
(4)A description of the applicant's:
(a)Formal training as an athlete agent;
(b)Practical experience as an athlete agent; and
(c)Educational background relating to the applicant's activities as an athlete agent;
(5)The names and addresses of three individuals not related to the applicant who are willing to serve as references;
(6)The name, sport, and last known team for each individual for whom the applicant provided services as an athlete agent during the five years next preceding the date of submission of the application;
(7)The names and addresses of all persons who are:
(a)With respect to the athlete agent's business if it is not a corporation, the partners, officers, associates, or profit-sharers; and
(b)With respect to a corporation employing the athlete agent, the officers, directors, and any shareholder of the corporation with a five percent or greater interest;
(8)Whether the applicant or any other person named under subdivision (7) of this section* has been convicted of a crime that if committed in this state would be a felony or other crime involving moral turpitude, and a description of the crime;
(9)Whether there has been any administrative or judicial determination that the applicant or any other person named under subdivision (7) of this section* has made a false, misleading, deceptive, or fraudulent representation;
(10)Any instance in which the prior conduct of the applicant or any other person named under subdivision (7) of this section* resulted in the imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event on a student athlete or educational institution;
(11)Any sanction, suspension, or disciplinary action taken against the applicant or any other person named under subdivision (7) of this section* arising out of occupational or professional conduct; and
(12)Whether there has been any denial of an application for, suspension or revocation of, or refusal to renew the registration or licensure of the applicant or any other person named under subdivision (7) of this section* as an athlete agent in any state.
436.456 - Cancellation of contract, when, procedure.
At any time before final disposition, or before the funeral or burial services, facilities, or merchandise described in a preneed contract are furnished, the purchaser may cancel the contract, if designated as revocable, without cause.In order to cancel the contract the purchaser shall:
(1)In the case of a joint account-funded preneed contract, deliver written notice of the cancellation to the seller.Within fifteen days of receipt of notice of the cancellation, the seller shall take whatever steps may be required by the financial institution to obtain the funds from the financial institution.Upon receipt of the funds from the financial institution, the seller shall distribute the principal to the purchaser.Interest shall be distributed as provided in the agreement with the seller and purchaser;
(2)In the case of an insurance-funded preneed contract, deliver written notice of the cancellation to the seller.Within fifteen days of receipt of notice of the cancellation, the seller shall notify the purchaser that the cancellation of the contract shall not cancel any life insurance funding the contract and that insurance cancellation is required to be made in writing to the insurer;
(3)In the case of a trust-funded preneed contract, deliver written notice of the cancellation to the seller and trustee.Within fifteen days of receipt of notice of the cancellation, the trustee shall distribute one hundred percent of the trust property including any percentage of the total payments received on the trust-funded contract that have been withdrawn from the account under subsection 4 of section 436.430 but excluding the income, to the purchaser of the contract;
(4)In the case of a guaranteed installment payment contract where the beneficiary dies before all installments have been paid, the purchaser shall pay the seller the amount remaining due under the contract in order to receive the goods and services set out in the contract, otherwise the purchaser or their estate will receive full credit for all payments the purchaser has made towards the cost of the beneficiary's funeral at the provider current prices.
436.356 - Court actions arising from construction defects, notice of alleged defect to be given, response of contractor — dispute of claim, procedure — mediation, where to occur.
1.In every action against a contractor arising from construction or substantial remodel of a residence, a claimant shall serve the contractor with a written notice of claim of construction defects.The notice of claim shall state that the claimant asserts a construction defect claim against the contractor and shall describe the claim in reasonable detail sufficient to determine the general nature of the defect as well as any known results of the defect.
2.Within fourteen days after service of the notice of claim, the contractor shall serve a written response on the claimant which shall:
(1)Propose to inspect the residence that is the subject of the claim and to complete the inspection within a specified time frame.The proposal shall include the statement that the contractor shall, based on the inspection, thereafter offer to remedy the defect within a specified time frame, compromise by payment, or dispute the claim; or
(2)Offer to remedy the claim without an inspection within a specified time frame; or
(3)Offer to remedy part of the claim without inspection and compromise and settle the remainder of the claim by monetary payment within a specified time frame; or
(4)Offer to compromise and settle all of a claim without inspection.A contractor's offer pursuant to this subdivision to compromise and settle a claimant's or association's claim may include, but is not limited to, an express offer to purchase the claimant's residence that is the subject of the claim; or
(5)State that the contractor disputes the claim and will neither remedy the construction defect nor compromise and settle the claim.
3.(1)If the contractor disputes the claim pursuant to subdivision (5) of subsection 2 of this section or does not respond to the claimant's notice of claim within the time stated in subsection 2 of this section, the claimant may bring an action against the contractor for the defect described in the notice of claim without further notice.
(2)If the claimant rejects the inspection proposal or the settlement offer made by the contractor pursuant to subsection 2 of this section, the claimant shall serve written notice of the claimant's rejection on the contractor.The notice shall include the basis for claimant's rejection.After service of the rejection, the claimant and contractor may attempt to resolve the claim through mediation in accordance with section 436.362.If the claim is not resolved through mediation, the claimant may bring an action against the contractor for the construction defect claim without further notice described in the notice of claim.If the contractor has not received from the claimant within thirty days after the claimant's receipt of the contractor's response either an acceptance or rejection of the inspection proposal or settlement offer, the contractor may at any time thereafter terminate the proposal or offer by serving written notice to the claimant.If the contractor so terminates the proposal, the claimant may thereafter bring an action against the contractor for the defect described in the notice of claim without further notice.
(3)If the claimant elects to accept the offer of the contractor to remedy the claim without an inspection pursuant to subdivision (2) of subsection 2 of this section, or if the claimant elects to accept the offer of the contractor to remedy part of the claim without inspection and compromise and settle the remainder of the claim by monetary payment pursuant to subdivision (3) of subsection 2 of this section, the claimant shall provide the contractor and its contractors or other agents reasonable access to the claimant's residence during normal working hours to perform and complete the construction or work in accordance with the timetable stated in the offer.Any dispute relating to performance of the remedial construction or work by the contractor may be resolved by mediation in accordance with section 436.362.If the dispute is not resolved by mediation, the claimant may bring an action against the contractor for the defect described in the notice of claim.
4.(1)If the claimant elects to allow the contractor to inspect in accordance with the contractor's proposal pursuant to subdivision (1) of subsection 2 of this section, within fourteen days after the date of the claimant's election to allow an inspection is communicated to the contractor, the claimant and contractor shall agree on a time and date for the inspection, and such inspection shall occur within fourteen days from the date of the communication of such election for an inspection unless the claimant and contractor agree to a later date.The claimant shall provide the contractor and its subcontractors, suppliers, or other agents reasonable access to the claimant's residence during normal working hours to inspect the premises and the claimed defect.The contractor shall perform the inspection at its own cost.If destructive testing is necessary, the contractor shall repair all damage caused by the testing.
(2)Within fourteen days following completion of the inspection, the contractor shall serve a report of the scope of the inspection and the findings and results of the inspection on the claimant, and either:
(a)A written offer to remedy all of the claim at no cost to the claimant, including a description of the construction or work necessary to remedy the defect described in the claim, and a timetable for the completion of such construction or work; or
(b)A written offer to remedy part of the claim, and compromise and settle the remainder of the claim by monetary payment, within a specified time frame; or
(c)A written offer to compromise and settle all of the claim by monetary payment pursuant to subdivision (4) of subsection 2 of this section; or
(d)A written statement that the contractor will not proceed further to remedy the defect.
(3)If the contractor does not proceed further to remedy the construction defect within the stated timetable, or if the contractor fails to comply with the provisions of subdivision (2) of this subsection, the claimant may bring an action against the contractor for the defect described in the notice of claim without further notice.
(4)If the claimant rejects the offer made by the contractor pursuant to paragraph (a), (b), or (c) of subdivision (2) of this subsection to either remedy the construction defect or remedy part of the claim and make a monetary settlement as to the remainder of the claim or to compromise and settle the claim by monetary payment, the claimant shall serve written notice of the claimant's rejection and the reasons for the rejection on the contractor.After service of the rejection notice, the claimant and contractor may attempt to resolve the dispute through mediation in accordance with section 436.362.If the dispute is not resolved through mediation, the claimant may bring an action against the contractor for the defect described in the notice of claim.If the contractor has not received from the claimant within thirty days after the claimant's receipt of the contractor's response either an acceptance or rejection of the offer made pursuant to paragraph (a), (b), or (c) of subdivision (2) of this subsection, the contractor may at any time thereafter terminate the offer by serving written notice to the claimant.If the contractor so terminates its offer, the claimant may bring an action against the contractor for the claim described in the notice of claim without further notice.
5.(1)Any claimant accepting the offer of a contractor to remedy all or part of the construction defect pursuant to paragraph (a) or (b) of subdivision (2) of subsection 4 of this section shall do so by serving the contractor with a written notice of acceptance within a reasonable time period after receipt of the offer, and no later than thirty days after receipt of the offer.The claimant shall provide the contractor and its subcontractors or other agents reasonable access to the claimant's residence during normal working hours to perform and complete the construction or work by the timetable stated in the offer.Any dispute relating to performance of the remedial construction or work by the contractor may be resolved by mediation in accordance with section 436.362.If the dispute is not resolved by mediation, the claimant may bring an action against the contractor for the defect described in the notice of claim.
(2)The claimant and contractor may, by mutual written agreement, alter the extent of construction or the timetable for completion of construction stated in the offer, including, but not limited to, repair of additional defects.
6.Any action commenced by a claimant prior to compliance with the requirements of this section shall, upon motion by a party to the action, be subject to dismissal without prejudice, and shall not be recommenced until the claimant has complied with the requirements of this section if the court finds the claimant knowingly violated the sections of said act.
7.The claimant may amend the notice of claim to include construction defects discovered after the service of the original notice of claim and shall otherwise comply with the requirements of this section for the additional claims.Claims for defects discovered after the commencement or recommencement of an action may be added to such action only after providing notice to the contractor of the defect and allowing for response under subsection 2 of this section.
8.If, during the pendency of the notice, inspection, offer, acceptance, or repair process, an applicable limitations period would otherwise expire, the claimant may file an action against the contractor, but such action shall be immediately abated pending completion of the notice of claim process described in this section.This subsection shall not be construed either to revive a statute of limitations period that has expired prior to the date on which a claimant's written notice of claim is served or extend any applicable statute of repose.
9.A written notice of claim and any written response by a contractor shall be treated as a settlement offer and shall not be admissible in an action related to a construction defect asserted therein, except as otherwise permitted by law.A written notice of claim and any written response by a contractor shall not be admissible as a prior inconsistent statement.
10.In the event that immediate action must be taken by a claimant to prevent imminent injury to persons because of alleged construction defects, including defective garage doors, that threaten the life or safety of persons, or alleged construction defects, including defective garage doors, that if not addressed will result in significant and material additional damage to the residence, the homeowner or another person designated by the homeowner including the contractor may undertake reasonable repairs necessary to mitigate the emergency situation.Claimants may thereafter include the cost of such repairs in the written notice of claim of construction defects provided for in subsection 1 of this section.Provided, however, that other than the undertaking of immediate repairs to remedy an emergency situation, any repairs to construction defects undertaken by homeowners shall not be included in claims initiated under subsection 1 of this section, and shall not be the subject of an action.
11.Any mediation shall take place in the county where the claimant resides or in a mutually agreed to location.
436.103 - Action for damages or injunction, jurisdiction.
Any party to a franchise agreement may bring an action in the jurisdiction in which the franchisee is located to recover damages sustained by reason of the breach of the franchise agreement and, where appropriate, shall be entitled to injunctive relief.Such party to the franchise, if successful, shall also be entitled to the costs of the action including, but not limited to, reasonable attorney's fees.
436.303 - Contract provisions — retainage.
A contract or agreement may include a provision for the retainage of a portion of any payment due from the owner to the contractor, not to exceed ten percent of the amount of such payment due pursuant to the contract or agreement, to ensure the proper performance of the contract or agreement, provided that the contract may provide that if the contractor's performance is not in accordance with the terms of the contract or agreement, the owner may retain additional sums to protect the owner's interest in satisfactory performance of the contract or agreement.The amount or amounts so retained by the owner shall be referred to in sections 436.300 to 436.336 as "retainage", and shall be held by the owner in trust for the benefit of the contractor and contractor's subcontractors, sub-subcontractors, and suppliers at whatever tier who are not in default, in proportion to their respective interests.Such retainage shall be subject to the conditions and limitations listed in sections 436.300 to 436.336.
436.242 - Contract requirements and content.
1.An agency contract must be in a record signed by the parties.
2.An agency contract must state or contain:
(1)The amount and method of calculating the consideration to be paid by the student athlete for services to be provided by the athlete agent under the contract and any other consideration the athlete agent has received or will receive from any other source for entering into the contract or for providing the services;
(2)The name of any person not listed in the application for registration or renewal who will be compensated because the student athlete signed the agency contract;
(3)A description of any expenses that the student athlete agrees to reimburse;
(4)A description of the services to be provided to the student athlete;
(5)The duration of the contract; and
(6)The date of execution.
3.An agency contract shall contain in close proximity to the signature of the student athlete a conspicuous notice in boldface type in capital letters stating:
|"WARNING TO STUDENT ATHLETE IF YOU SIGN THIS CONTRACT:|
|(1)||YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT ATHLETE IN YOUR SPORT;|
|(2)||BOTH YOU AND YOUR ATHLETE AGENT ARE REQUIRED TO TELL YOUR ATHLETIC DIRECTOR, IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO AN AGENCY CONTRACT; AND|
|(3)||YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THE CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY.".|
4.An agency contract that does not conform to this section is voidable by the student athlete.
5.The athlete agent shall give a copy of the signed agency contract to the student athlete at the time of signing.
436.105 - Franchisor to have registered agent on file in office of secretary of state.
Any franchisor which grants a franchise to any person in this state shall have a registered agent in this state.The name and address of such registered agent shall be on file with the secretary of state's office.
436.458 - Alternative provider permitted, when.
1.A purchaser may select an alternative provider as the designated provider under the original contract if the purchaser notifies the seller and original provider in writing of the purchaser's intent, stating the name of the alternative provider and the alternative provider consents to the new designation.Purchasers shall not be penalized or assessed any additional fee or cost for such transfer of the provider designation.
2.The seller shall pay the newly designated provider all payments owed to the original provider under the contract.The newly designated provider shall assume all rights, duties, obligations, and liabilities as the original provider under the contract.Interest shall continue to be allocated to the seller as provided under the contract.
3.In the case of a trust-funded contract and upon written notice to the seller of the purchaser's intent to select an alternative provider under subsection 1 of this section, the seller shall either continue the trust with the new provider in place of, and to receive all payment owed to, the original provider under the original agreement, or pay to the new trust all of the trust property, including principal and income.
436.505 - Credit life insurance may be offered to purchaser.
A preneed contract may offer the purchaser the option to acquire and maintain credit life insurance on the life of the purchaser.Such insurance shall provide for the payment of death benefits to the seller in an amount equal to the total of all contract payments unpaid as of the date of such purchaser's death, and shall be used solely to make those unpaid payments.Any such credit life insurance shall be provided by a duly authorized insurance company and the preneed contract shall clearly identify the name of the insurer and the amount of payment allocated to the premium payment for the credit life.No seller or provider may provide any form of self insured credit life.
436.405 - Definitions.
1.As used in sections 436.400 to 436.520, unless the context otherwise requires, the following terms shall mean:
(1)"Beneficiary", the individual who is to be the subject of the disposition or who will receive funeral services, facilities, or merchandise described in a preneed contract;
(2)"Board", the board of embalmers and funeral directors;
(3)"Guaranteed contract", a preneed contract in which the seller promises, assures, or guarantees to the purchaser that all or any portion of the costs for the disposition, services, facilities, or merchandise identified in a preneed contract will be no greater than the amount designated in the contract upon the preneed beneficiary's death or that such costs will be otherwise limited or restricted;
(4)"Insurance-funded preneed contract", a preneed contract which is designated to be funded by payments or proceeds from an insurance policy or a deferred annuity contract that is not classified as a variable annuity and has death benefit proceeds that are never less than the sum of premiums paid;
(5)"Joint account-funded preneed contract", a preneed contract which designates that payments for the preneed contract made by or on behalf of the purchaser will be deposited and maintained in a joint account in the names of the purchaser and seller, as provided in this chapter;
(6)"Market value", a fair market value:
(a)As to cash, the amount thereof;
(b)As to a security as of any date, the price for the security as of that date obtained from a generally recognized source, or to the extent no generally recognized source exists, the price to sell the security in an orderly transaction between unrelated market participants at the measurement date; and
(c)As to any other asset, the price to sell the asset in an orderly transaction between unrelated market participants at the measurement date consistent with statements of financial accounting standards;
(7)"Nonguaranteed contract", a preneed contract in which the seller does not promise, assure, or guarantee that all or any portion of the costs for the disposition, facilities, service, or merchandise identified in a preneed contract will be limited to the amount designated in the contract upon the preneed beneficiary's death or that such costs will be otherwise limited or restricted;
(8)"Preneed contract", any contract or other arrangement which provides for the final disposition in Missouri of a dead human body, funeral or burial services or facilities, or funeral merchandise, where such disposition, services, facilities, or merchandise are not immediately required.Such contracts include, but are not limited to, agreements providing for a membership fee or any other fee for the purpose of furnishing final disposition, funeral or burial services or facilities, or funeral merchandise at a discount or at a future date;
(9)"Preneed trust", a trust to receive deposits of, administer, and disburse payments received under preneed contracts, together with income thereon;
(10)"Purchaser", the person who is obligated to pay under a preneed contract;
(11)"Trustee", the trustee of a preneed trust, including successor trustees;
(12)"Trust-funded preneed contract", a preneed contract which provides that payments for the preneed contract shall be deposited and maintained in trust.
2.All terms defined in chapter 333 shall be deemed to have the same meaning when used in sections 436.400 to 436.520.
436.254 - Prohibited acts.
1.An athlete agent may not do any of the following with the intent to induce a student athlete to enter into an agency contract:
(1)Give any materially false or misleading information or make a materially false promise or representation;
(2)Furnish anything of value to a student athlete before the student athlete enters into the agency contract; or
(3)Furnish anything of value to any individual other than the student athlete or another registered athlete agent.
2.An athlete agent may not intentionally:
(1)Initiate contact with a student athlete unless registered under sections 436.215 to 436.272;
(2)Refuse or willfully fail to retain or permit inspection of the records required by section 436.251;
(3)Violate section 436.224 by failing to register;
(4)Provide materially false or misleading information in an application for registration or renewal of registration;
(5)Predate or postdate an agency contract; or
(6)Fail to notify a student athlete prior to the student athlete's signing an agency contract for a particular sport that the signing by the student athlete may make the student athlete ineligible to participate as a student athlete in that sport.
436.450 - Insurance-funded preneed contract requirements.
1.An insurance-funded preneed contract shall comply with sections 436.400 to 436.520 and the specific requirements of this section.
2.A seller, provider, or any preneed agent shall not receive or collect from the purchaser of an insurance-funded preneed contract any amount in excess of what is required to pay the premiums on the insurance policy as assessed or required by the insurer as premium payments for the insurance policy except for any amount required or authorized by this chapter or by rule.A seller shall not receive or collect any administrative or other fee from the purchaser for or in connection with an insurance-funded preneed contract, other than those fees or amounts assessed by the insurer.As of August 29, 2009, no preneed seller, provider, or agent shall use any existing preneed contract as collateral or security pledged for a loan or take preneed funds of any existing preneed contract as a loan for any purpose other than as authorized by this chapter.
3.Payments collected by or on behalf of a seller for an insurance-funded preneed contract shall be promptly remitted to the insurer or the insurer's designee as required by the insurer; provided that payments shall not be retained or held by the seller or preneed agent for more than thirty days from the date of receipt.
4.It is unlawful for a seller, provider, or preneed agent to procure or accept a loan against any insurance contract used to fund a preneed contract.
5.Laws regulating insurance shall not apply to preneed contracts, but shall apply to any insurance or annuity sold with a preneed contract; provided, however, the provisions of sections 436.400 to 436.520 shall not apply to annuities or insurance polices regulated by chapters 374, 375, and 376 used to fund preneed funeral agreements, contracts, or programs.
6.This section shall apply to all preneed contracts including those entered into before August 28, 2009.
7.For any insurance-funded preneed contract sold after August 28, 2009, the following shall apply:
(1)The purchaser or beneficiary shall be the owner of the insurance policy purchased to fund a preneed contract; and
(2)An insurance-funded preneed contract shall be valid and enforceable only if the seller or provider is named as the beneficiary or assignee of the life insurance policy funding the contract.
8.If the proceeds of the life insurance policy exceed the actual cost of the goods and services provided pursuant to the nonguaranteed preneed contract, any overage shall be paid to the estate of the beneficiary, or, if the beneficiary received public assistance, to the state of Missouri.
436.309 - Subcontractor may tender substitute security, when.
A subcontractor of the contractor may tender to the contractor acceptable substitute security as set forth in section 436.312 with a written request for release of retainage in the amount of the substitute security.The contractor shall tender the subcontractor's substitute security to the owner with a like request, pursuant to the provisions of section 436.306.Provided that the subcontractor is not in default of its agreement with the contractor, the contractor shall pay over to the subcontractor, within five working days after receipt, any accumulated retainage paid by the owner to the contractor on account of substitute security tendered by the subcontractor, except that the contractor shall not be required to pay over retainage in excess of the amount properly attributable to work completed by the subcontractor at the time of payment.Provided that the subcontractor is not in default of its agreement with the contractor, the contractor shall refrain from withholding retainage from payments to the subcontractor to the extent the owner has refrained from withholding retainage from payments to the contractor on account of the subcontractor's substituted security.The subcontractor shall be entitled to receive, upon receipt by the contractor, all income received by the contractor from the owner on account of income-producing securities deposited by the subcontractor as substitute security.Except as otherwise provided in this section, the contractor shall have no obligation to collect or pay to a subcontractor retainage on account of substitute security tendered by the subcontractor.
436.150 - Definitions.
As used in sections 436.150 to 436.163, the following terms mean:
(1)"Copyright owner", the owner of a copyright of a nondramatic musical work other than a motion picture or other audiovisual works recognized and enforceable under the copyright laws of the United States pursuant to Title 17 of the United States Code;
(2)"Performing rights society", an association or corporation that licenses the public performance of nondramatic musical works on behalf of copyright owners, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.;
(3)"Proprietor", the owner of a retail establishment, restaurant, inn, bar, tavern, sports or entertainment facility, not-for-profit organization, or any other similar place of business or professional office located in this state in which the public may assemble and in which nondramatic musical works may be performed, broadcast, or otherwise transmitted for the enjoyment of the members of the public there assembled;
(4)"Royalty" or "royalties", the fees payable by a proprietor to a performing rights society for the public performance of nondramatic musical.
436.350 - Definitions.
As used in sections 436.350 to 436.365, unless the context clearly requires otherwise, the following terms shall mean:
(1)"Action", any civil lawsuit, action, or proceeding, in contract or tort, or otherwise, for damages or indemnity, brought to assert a claim, whether by petition, complaint, counterclaim, or cross-claim, for damage to, diminution in the value of, or the loss of use of real or personal property caused by an alleged construction defect.Action does not include any claim originating in small claims court, or any civil action in tort alleging personal injury or wrongful death to a person or persons resulting from an alleged construction defect;
(a)An association or unit owners' association as defined and provided for in subdivision (3) of section 448.1-103;
(b)A homeowners' association, including but not limited to a nonprofit corporation or unincorporated association of homeowners created pursuant to a declaration to own and operate portions of a planned community or other residential subdivision and which has the power under the declaration to assess association members to pay the costs and expenses incurred in the performance of the association's obligations under the declaration, or tenants-in-common with respect to the ownership of common areas or amenities of a planned community or other residential subdivision; or
(c)Any cooperative form of ownership of multiunit housing;
(3)"Claimant", a homeowner or association which asserts a claim against a contractor concerning an alleged construction defect;
(4)"Construction defect", for the purposes of sections 436.350 to 436.365, a deficiency in, or a deficiency arising from, any of the following:
(a)Defective material, products, or components used in new residential construction or from a substantial remodel;
(b)Violation of the applicable codes and ordinances, including those ordinances which regulate zoning and the subdivision of land, in effect at the time of the commencement of construction of residential improvements, or as to a substantive remodel, at the commencement of such substantial remodel; provided however, that any matter that is in compliance with applicable codes and ordinances, including without limitation those ordinances which regulate zoning and the subdivision of land, in effect at the commencement of construction of residential improvements, or to a substantial remodel as the case may be, shall conclusively establish that such matter is not, nor shall it be deemed or construed to be a construction defect, unless a construction defect as to such matter is established because of defective material, products, or components used in new residential construction or in a substantial remodel;
(c)Failure to construct residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction.Compliance with the applicable codes and ordinances, including without limitation those ordinances which regulate zoning and the subdivision of land, in effect at the commencement of construction, or of a substantial remodeling as the case may be, shall conclusively establish construction in accordance with accepted trade standards for good and workmanlike construction, with respect to all matters specified in those codes;
(d)Failure to construct residential improvements in accordance with the agreement between the contractor and the claimant, notwithstanding anything to the contrary in this subdivision;
(5)"Contractor", any person, company, firm, partnership, corporation, association, or other entity that is engaged in the business of designing, developing, constructing, or substantially remodeling residences;
(6)"Homeowner", any person, company, firm, partnership, corporation, association, or other entity who contracts with a contractor for the construction, substantial remodel of a residence, or the sale of a residence constructed by such contractor.Homeowner also includes a subsequent purchaser of a residence from any homeowner;
(7)"Residence", a single-family house, duplex, triplex, quadraplex, or a unit in a multiunit residential structure in which title to each individual unit is transferred to the owner under a condominium or cooperative system, and shall include common areas and common elements as defined in subdivision (4) of section 448.1-103. Residence shall include the land and improvements to land under and around the house, unit, or structure.Residence shall not include a manufactured home as defined in section 700.010;
(8)"Serve" or "service", personal service to the person intended to be notified or mailing to the last known address of such person;
(9)"Substantial remodel", a remodel of a residence, for which the total cost exceeds one-half of the assessed value of the residence for property tax purposes at the time the contract for the remodel work was made.
436.440 - Provisions applicable to all preneed trusts.
1.The provisions of this section shall apply to all preneed trusts, including trusts established before August 28, 2009.
2.A preneed trustee may delegate to an agent duties and powers that a prudent trustee of comparable skills would reasonably delegate under the circumstances.The trustee shall exercise reasonable care, skill, and caution in:
(1)Selecting an agent;
(2)Establishing the scope and terms of the agency, consistent with the purposes and terms of the trust; and
(3)Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the agency.
3.In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the agency.
4.By accepting a delegation of powers or duties from the trustee of a preneed trust, an agent submits to the jurisdiction of the courts of this state.
5.Delegation of duties and powers to an agent shall not relieve the trustee of any duty or responsibility imposed on the trustee by sections 436.400 to 436.520 or the trust agreement.
6.For trusts in existence as of August 28, 2009, it shall be permissible for those trusts to continue to utilize the services of an independent financial advisor, if said advisor was in place pursuant to section 436.031 as of August 28, 2009.
436.248 - Cancellation of contract, when.
1.A student athlete may cancel an agency contract by giving notice in writing to the athlete agent of the cancellation within fourteen days after the contract is signed.
2.A student athlete may not waive the right to cancel an agency contract.
3.If a student athlete cancels an agency contract within fourteen days of signing the contract, the student athlete is not required to pay any consideration under the contract or to return any consideration received from the agent to induce the student athlete to enter into the contract.
436.215 - Citation of law.
Sections 436.215 to 436.272 may be cited as the "Uniform Athlete Agents Act".
436.315 - Withholding of retainage prohibited, when.
A contractor shall not withhold from any subcontractor any retainage in excess of the retainage withheld from the contractor by the owner for the subcontractor's work, unless the subcontractor's performance is not in accordance with the terms of the subcontract, in which case, subject to the terms of the subcontract, the contractor may retain additional sums to ensure the subcontractor's satisfactory performance of the subcontract.
436.415 - Provision of certain services required by provider — seller's duties.
1.Except as otherwise provided in sections 436.400 to 436.520, the provider designated in a preneed contract shall be obligated to provide final disposition, funeral or burial services and facilities, and funeral merchandise as described in the preneed contract.
2.The seller designated in a preneed contract shall be obligated to collect and properly deposit and disburse all payments made by, or on behalf of, a purchaser of a preneed contract and ensure that is statutorily and contractual duties are met, in compliance with sections 436.400 to 436.520.
436.460 - Seller report to board required, contents — fee — filing of reports.
1.Each seller shall file an annual report with the board which shall contain the following information:
(1)The contract number of each preneed* contract sold since the filing of the last report with an indication of, and whether it is funded by a trust, insurance or joint account;
(2)The total number and total face value of preneed contracts sold since the filing of the last report;
(3)The contract amount of each preneed contract sold since the filing of the last report, identified by contract;
(4)The name, address, and license number of all preneed agents authorized to sell preneed contracts on behalf of the seller;
(5)The date the report is submitted and the date of the last report;
(6)The list including the name, address, contract number and whether it is funded by a trust, insurance or joint account of all Missouri preneed contracts fulfilled, cancelled or transferred by the seller during the preceding calendar year;
(7)The name and address of each provider with whom it is under contract;
(8)The name and address of the person designated by the seller as custodian of the seller's books and records relating to the sale of preneed contracts;
(9)Written consent authorizing the board to order an investigation, examination and, if necessary, an audit of any joint or trust account established under sections 436.400 to 436.520, designated by depository or account number;
(10)Written consent authorizing the board to order an investigation, examination and if necessary an audit of its books and records relating to the sale of preneed contracts; and
(11)Certification under oath that the report is complete and correct attested to by an officer of the seller.The seller or officer shall be subject to the penalty of making a false affidavit or declaration.
2.A seller that sells or has sold trust-funded preneed contracts shall also include in the annual report required by subsection 1** of this section:
(1)The name and address of the financial institution in which it maintains a preneed trust account and the account numbers of such trust accounts;
(2)The trust fund balance as reported in the previous year's report;
(3)The current face value of the trust fund;
(4)Principal contributions received by the trustee since the previous report;
(5)Total trust earnings and total distributions to the seller since the previous report;
(6)Authorization of the board to request from the trustee a copy of any trust statement, as part of an investigation, examination or audit of the preneed seller;
(7)Total expenses, excluding distributions to the seller, since the previous report; and
(8)Certification under oath that the information required by subdivisions (1) to (7) of this subsection is complete and correct and attested to by a corporate officer of the trustee.The trustee shall be subject to the penalty of making a false affidavit or declaration.
3.A seller that sells or who has sold joint account-funded preneed contracts shall also include in the annual report required by subsection 1 of this section:
(1)The name and address of the financial institution in Missouri in which it maintains the joint account and the account numbers for each joint account;
(2)The amount on deposit in each joint account;
(3)The joint account balance as reported in the previous year's report;
(4)Principal contributions placed into each joint account since the filing of the previous report;
(5)Total earnings since the previous report;
(6)Total distributions to the seller from each joint account since the previous report;
(7)Total expenses deducted from the joint account, excluding distributions to the seller, since the previous report; and
(8)Certification under oath that the information required by subdivisions (1) to (7) of this subsection is complete and correct and attested to by an authorized representative of the financial institution.The affiant shall be subject to the penalty of making a false affidavit or declaration.
4.A seller that sells or who has sold any insurance-funded preneed contracts shall also include in the annual report required by subsection 1 of this section:
(1)The name and address of each insurance company issuing insurance to fund a preneed contract sold by the seller during the preceding year;
(2)The status and total face value of each policy;
(3)The amount of funds the seller directly received on each contract and the date the amount was forwarded to any insurance company; and
(4)Certification under oath that the information required by subsections 1 to 3 of this section is complete and correct attested to by an authorized representative of the insurer.The affiant shall be subject to the penalty of making a false affidavit or declaration.
5.Each seller shall remit an annual reporting fee in an amount established by the board by rule for each preneed contract sold in the year since the date the seller filed its last annual report with the board.This reporting fee shall be paid annually and may be collected from the purchaser of the preneed contract as an additional charge or remitted to the board from the funds of the seller.The reporting fee shall be in addition to any other fees authorized under sections 436.400 to 436.520.
6.All reports required by this section shall be filed by the thirty-first day of October of each year or by the date established by the board by rule.Annual reports filed after the date provided herein shall be subject to a late fee in an amount established by rule of the board.
7.If a seller fails to file the annual report on or before its due date, his or her preneed seller license shall automatically be suspended until such time as the annual report is filed and all applicable fees have been paid.
8.This section shall apply to contracts entered into before August 28, 2009.
436.239 - Application fee — athlete agent fund created — rulemaking authority.
1.An application for registration or renewal of registration shall be accompanied by a fee which shall be determined by the director and established by rule.All fees payable under the provisions of this section shall be collected by the division of professional registration and transmitted to the department of revenue for deposit in the state treasury to the credit of the fund to be known as the "Athlete Agent Fund" which is hereby established.The provisions of section 33.080 to the contrary notwithstanding, money in the athlete agent fund shall not be transferred and placed to the credit of general revenue until the amount in the athlete agent fund at the end of the biennium exceeds two times the amount of the appropriations from such fund for the preceding fiscal year or, if the director allows renewal of registration less frequently than yearly, then three times the appropriations from such fund for the preceding fiscal year; provided that no amount from such fund may be transferred to the credit of general revenue earlier than August 28, 2006.The amount if any which may be transferred to the credit of general revenue after August 28, 2006, is that amount in the athlete agent fund which exceeds the appropriate multiple of the appropriations from such fund for the preceding fiscal year.
2.The director may promulgate rules to authorize and file athlete agent documents as that term is defined in section 536.010.Any rule promulgated under the authority in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly under chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2003, shall be invalid and void.
436.260 - Educational institution cause of action, when, damages, accrual of right of action.
1.An educational institution has a right of action against an athlete agent or a former student athlete for damages caused by a violation of sections 436.215 to 436.272.In an action under this section, the court may award to the prevailing party costs and reasonable attorney's fees.
2.Damages of an educational institution under subsection 1 of this section include losses and expenses incurred because as a result of the activities of an athlete agent or former student athlete the educational institution was injured by a violation of sections 436.215 to 436.272 or was penalized, disqualified, or suspended from participation in athletics by a national association for the promotion and regulation of athletics, by an athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate sanctions.
3.A right of action under this section does not accrue until the educational institution discovers or by the exercise of reasonable diligence would have discovered the violation by the athlete agent or former student athlete.
4.Any liability of the athlete agent or the former student athlete under this section is several and not joint.
5.Sections 436.215 to 436.272 do not restrict rights, remedies, or defenses of any person under law or equity.
436.435 - Compliance of contracts entered into prior to effective date — investment of trust property and assets — loans against assets prohibited.
1.To the extent that any provisions in this chapter which come into effect on August 28, 2009, apply to trusts governed under this chapter which are in existence on August 28, 2009, such trusts shall be in compliance with this chapter no later than July 1, 2010.
2.All property held in a preneed trust, including principal and undistributed income, shall be invested and reinvested by the trustee thereof and shall only be invested and reinvested in investments which have reasonable potential for growth or producing income.Funds in, or belonging to, a preneed trust shall not be invested in any term life insurance product.
3.A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise when investing and managing trust assets.
4.A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purpose of the trust is better served without diversification.
5.In investing and managing trust assets, a trustee shall consider the following as are relevant to the trust:
(1)General economic conditions;
(2)The possible effect of inflation or deflation;
(3)The expected tax consequences of investment decisions or strategies;
(4)The role that each investment or course of action plays within the overall trust portfolio;
(5)The expected total return from income and the appreciation of capital;
(6)Needs for liquidity, regularity of income, and preservation or appreciation of capital.
6.No seller, provider, or preneed agent shall procure or accept a loan against any investment or asset of or belonging to a preneed trust.As of August 29, 2009, no preneed seller, provider, or agent shall use any existing preneed contract as collateral or security pledged for a loan or take preneed funds of any existing preneed contract as a loan or for any purpose other than as authorized by this chapter.
436.525 - Board to maintain certain personal information about purchaser — confidentiality of information.
The board shall maintain as a closed and confidential record, not subject to discovery unless the person provides written consent for disclosure, all personal information about any individual preneed purchaser or beneficiary, including but not limited to name, address, Social Security number, financial institution account numbers, and any health information disclosed in the preneed contract or any document prepared in conjunction with the preneed contract; provided, however, that the board may disclose such confidential information without the consent of the person involved in the course of voluntary interstate exchange of information; or in the course of any litigation concerning that person or the provider, seller, or sales agent involved with the preneed contract; or pursuant to a lawful request or to other administrative or law enforcement agencies acting within the scope of their statutory authority.In any such litigation, the board and its attorneys shall take reasonable precautions to ensure the protection of such information from disclosure to the public.
436.425 - Contract form, requirements — voidability of contract — waiver of contract benefits for public assistance recipients.
1.All preneed contracts shall be sequentially numbered and in writing and in a font type and size that are easily read, and shall clearly and conspicuously:
(1)Include the name, address and phone number of the purchaser, beneficiary, provider and seller;
(2)Identify the name, address, phone and license number of the provider and the seller;
(3)Set out in detail the disposition, funeral and burial services and facilities, and merchandise requested;
(4)Identify whether the contract is trust funded, insurance funded, or joint account funded;
(5)Include notice that the cancellation of the contract shall not cancel any life insurance funding the contract, and that insurance cancellation is required to be made in writing to the insurer;
(6)Include notice that the purchaser will only receive the cash surrender value of any insurance policy funding the contract if cancelled after a designated time, which may be less than the amount paid into the policy;
(7)Include notice that the board provides by rule that the purchaser has the right to transfer the provider designation to another provider;
(8)Prominently identify whether the contract is revocable or irrevocable;
(9)Set forth the terms for cancellation by the purchaser or by the seller;
(10)Identify any preneed trust or joint account into which contract payments shall be deposited, including the name and address of the corresponding trustee or financial institution;
(11)Include the name, address and phone number of any insurance company issuing an insurance policy used to fund the preneed contract;
(12)Include the name and signature of the purchaser, the provider or its authorized representative, the preneed agent responsible for the sale of the contract, and the seller or its authorized representative;
(13)Prominently identify whether the contract is a guaranteed or nonguaranteed contract;
(14)Include any applicable consumer disclosures required by the board by rule; and
(15)Include a disclosure on all guaranteed installment payment contracts informing the purchaser what will take place in the event the beneficiary dies before all installments have been paid, including an explanation of what will be owed by the purchaser for the funeral services in such an event;
(16)Comply with the provisions of sections 436.400 to 436.520 or any rule promulgated thereunder.
2.A preneed contract shall be voidable and unenforceable at the option of the purchaser, or the purchaser's legal representative, if it is determined in a court of competent jurisdiction that the contract is not in compliance with this section or not issued by a seller licensed under chapter 333, or if the provider has not consented to serve as provider at the time the contract was executed.Upon exercising the option by written notice to the seller and provider, all payments made under such contract shall be recoverable by the purchaser, or the purchaser's legal representative, from the contract seller, trustee, or other payee thereof.
3.A beneficiary who seeks to become eligible to receive public assistance under chapter 208 or any other applicable state or federal law may irrevocably waive their rights to receive any refund or payment of any moneys from the funds or insurance used to fund their preneed contract.Such irrevocable waiver may be executed at any time and shall be in writing, signed and dated by the beneficiary and shall be delivered to the seller and any applicable trustee, financial institution or insurance company.
4.All purchasers shall have the right as provided in this chapter to cancel or rescind a revocable preneed contract and transfer any preneed contract with or without cause.
5.A preneed contract, shall not be changed from a trust-funded, insurance-funded, or joint account-funded preneed contract without the written consent of the purchaser.
436.221 - Director's authority.
1.The director shall administer the provisions of sections 436.215 to 436.272.
2.By engaging in the business of an athlete agent in this state, a nonresident individual appoints the director as the individual's agent to accept service of process in any civil action related to the individual's business as an athlete agent in this state.
3.The director may subpoena witnesses, issue subpoenas duces tecum and require production of documents and records.Subpoenas including subpoenas duces tecum shall be served by a person authorized to serve subpoenas of courts of record.In lieu of requiring attendance of a person to produce original documents in response to a subpoena duces tecum, the board may require sworn copies of such documents to be filed with it or delivered to its designated representative.
4.The director may enforce its subpoenas including subpoenas duces tecum by applying to a circuit court of Cole County, the county of the investigation, hearing or proceeding, or any county where the person resides or may be found for an order upon any person who shall fail to obey a subpoena to show cause why such subpoena should not be enforced, which such order and a copy of the application therefor shall be served upon the person in the same manner as a summons in a civil action and if the circuit court shall after a hearing determine that the subpoena should be sustained and enforced such court shall proceed to enforce the subpoena in the same manner as though the subpoena had been issued in a civil case in the circuit court.
436.321 - Adjustment in retainage, when.
If it is determined that a subcontractor's performance has been satisfactorily completed and the subcontractor can be released prior to substantial completion of the entire project without risk to the owner involving the subcontractor's work, the contractor shall request such adjustment in retainage, if any, from the owner as necessary to enable the contractor to pay the subcontractor in full, and the owner shall as part of the next contractual payment cycle release the subcontractor's retainage to the contractor, who shall in turn as part of the next contractual payment cycle release such retainage as is due the subcontractor.
436.470 - Complaint procedure — violation, attorney general may file court action.
1.Any person may file a complaint with the board to notify the board of an alleged violation of this chapter.The board shall investigate each such complaint.
2.The board shall have authority to conduct inspections and investigations of providers, sellers, and preneed agents and conduct financial examinations of the books and records of providers, sellers, and preneed agents and any trust or joint account to determine compliance with sections 436.400 to 436.520, or to determine whether grounds exist for disciplining a person licensed or registered under sections 333.310 to 333.340, at the discretion of the board and with or without cause.The board shall conduct a financial examination of the books and records of each seller as authorized by this section at least once every five years, subject to available funding.
3.Upon determining that an inspection, investigation, examination, or audit shall be conducted, the board shall issue a notice authorizing an employee or other person appointed by the board to perform such inspection, investigation, examination, or audit.The notice shall instruct the person appointed by the board as to the scope of the inspection, investigation, examination or audit.
4.The board shall not appoint or authorize any person to conduct an inspection, investigation, examination, or audit under this section if the individual has a conflict of interest or is affiliated with the management of, or owns a pecuniary interest in, any person subject to inspection, investigation, examination, or audit under chapter 333 or sections 436.400 to 436.520.
5.The board may request that the director of the division of professional registration, the director of the department of insurance, financial institutions and professional registration, or the office of the attorney general designate one or more investigators or financial examiners to assist in any investigation, examination, or audit, and such assistance shall not be unreasonably withheld.
6.The person conducting the inspection, investigation, or audit may enter the office, premises, establishment, or place of business of any seller or licensed provider of preneed contracts, or any office, premises, establishment, or place where the practice of selling or providing preneed funerals is conducted, or where such practice is advertised as being conducted for the purpose of conducting the inspection, investigation, examination, or audit.
7.Upon request by the board, a licensee or registrant shall make the books and records of the licensee or registrant available to the board for inspection and copying at any reasonable time, including, any insurance, trust, joint account, or financial institution records deemed necessary by the board to determine compliance with sections 436.400 to 436.520.
8.The board shall have the power to issue subpoenas to compel the production of records and papers by any licensee, trustee or registrant of the board.Subpoenas issued under this section shall be served in the same manner as subpoenas in a criminal case.
9.All sellers, providers, preneed agents, and trustees shall cooperate with the board or its designee, the division of finance, the department of insurance, financial institutions and professional registration, and the office of the attorney general in any inspection, investigation, examination, or audit brought under this section.
10.This section shall not be construed to limit the board's authority to file a complaint with the administrative hearing commission charging a licensee or registrant with any actionable conduct or violation, regardless of whether such complaint exceeds the scope of acts charged in a preliminary public complaint filed with the board and whether any public complaint has been filed with the board.
11.The board, the division of finance, the department of insurance, financial institutions and professional registration, and the office of the attorney general may share information relating to any preneed inspection, investigation, examination, or audit.
12.If an inspection, investigation, examination, or audit reveals a violation of sections 436.400 to 436.520, the office of the attorney general may initiate a judicial proceeding to:
(2)Approve a nonjudicial settlement;
(3)Interpret or construe the terms of the trust;
(4)Determine the validity of a trust or of any of its terms;
(5)Compel a trustee to report or account;
(6)Enjoin a seller, provider, or preneed agent from performing a particular act;
(7)Enjoin a trustee from performing a particular act or grant to a trustee any necessary or desirable power;
(8)Review the actions of a trustee, including the exercise of a discretionary power;
(9)Appoint or remove a trustee;
(10)Determine trustee liability and grant any available remedy for a breach of trust;
(11)Approve employment and compensation of preneed agents;
(12)Determine the propriety of investments;
(13)Determine the timing and quantity of distributions and dispositions of assets; or
(14)Utilize any other power or authority vested in the attorney general by law.
436.520 - Rulemaking authority.
1.The board shall promulgate and enforce rules for administration and enforcement of sections 436.400 to 436.520 including the establishment of the amount of any fees authorized thereunder for the transaction of its business and for standards of service and practice to be followed for the licensing and registration of providers, sellers, and preneed agents deemed necessary for the public good and consistent with the laws of this state.Such fees shall be set at a level to produce revenue which does not substantially exceed the cost and expense of administering this chapter.
2.Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028.This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly under chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2009, shall be invalid and void.
436.420 - Written contract required, contents — notification to board of provider authorization — seller to provide copy of contract to board upon request.
1.No person shall be designated as a provider in a preneed contract unless the provider has a written contractual agreement with the seller.Any seller who designates a person as a provider in a preneed contract without a contractual relationship with such person is in violation of the provisions of sections 436.400 to 436.520. No contract is required if the seller and provider are the same legal entity.
2.The written agreement required by this section shall include:
(1)Written consent from the provider authorizing the seller to designate or obligate the provider under a preneed contract;
(2)Procedures for tracking preneed contract funds or payments received by the provider and for remitting such funds or payments to the seller, including the time period authorized by the seller for the remittance of funds and payments; and
(3)The signatures of the seller and the provider or their authorized representatives and the date such signatures were* obtained.
3.A provider shall notify the board within fifteen days of authorizing or otherwise agreeing to allow a seller to designate himself or herself as the provider under any preneed contract.
4.Upon request of the board, a seller, provider, or preneed agent shall provide a copy of any preneed contract or any contract or agreement with a seller or provider to the board.
436.224 - Certificate of registration required — temporary license, criteria.
1.Except as otherwise provided in subsection 2 of this section, an individual may not act as an athlete agent in this state before being issued a certificate of registration under section 436.230 or 436.236.
2.An individual with a temporary license under section 436.236 may act as an athlete agent before being issued a certificate of registration for all purposes except signing an agency contract if:
(1)A student athlete or another acting on behalf of the student athlete initiates communication with the individual; and
(2)Within seven days after an initial act as an athlete agent, the individual submits an application to register as an athlete agent in this state.
3.An agency contract resulting from conduct in violation of this section is void.The athlete agent shall return any consideration received under the contract.
436.324 - Release of retainage, when.
Within thirty days of the project reaching substantial completion, as defined in section 436.327, all retainage or substitute security shall be released by the owner to the contractor less an amount equal to one hundred fifty percent of the costs to complete any remaining items.Upon receipt of such retainage from the owner, the contractor shall within seven days release to each subcontractor that subcontractor's share of the retainage.
436.161 - Proprietor may bring action for violations to recover damages — recovery to include costs.
1.A proprietor may bring an action or assert a counterclaim in a court of competent jurisdiction, against a performing rights society, or both, to enjoin any violation of sections 436.150 to 436.163 and to recover any damages sustained by the proprietor as a result of a violation of sections 436.150 to 436.163.The proprietor may seek an injunction or any other relief available at law or in equity.If successful, the proprietor shall be entitled to recover actual damages sustained by him, together with reasonable attorney's fees, filing fees and reasonable costs of suit, in addition to any other legal or equitable relief.
2.The rights, remedies and prohibitions accorded by the provisions of sections 436.150 to 436.163 shall be in addition to and cumulative of any other right, remedy or prohibition accorded by common law, federal law or the statutes of this state, and nothing contained in sections 436.150 to 436.163 shall be construed to deny, abrogate or impair any such common law or statutory right, remedy or prohibition.
436.465 - Record-keeping requirements of seller.
A seller shall maintain:
(1)Adequate records of all preneed contracts and related agreements with providers, trustees of a preneed trust, and financial institutions holding a joint account established under sections 436.400 to 436.520;
(2)Records of preneed contracts, including financial institution statements and death certificates, shall be maintained by the seller for the duration of the contract and for no less than five years after the performance or cancellation of the contract.
436.365 - Law not to restrict or inhibit other remedies or ability to contract.
1.Nothing in sections 436.350 to 436.365 shall be construed to create a theory or cause of action upon which liability may be based or to limit any causes of action or remedies otherwise available to a homeowner or contractor pursuant to law after giving effect to the provisions of sections 436.350 to 436.365, nor to hinder or otherwise affect the employment, agency, or contractual relationship between homeowners and contractors during the process of construction or remodeling, and does not preclude the termination of those relationships as allowed under current law.Nothing in sections 436.350 to 436.365 shall negate or otherwise restrict a contractor's right to access or inspection provided by law, covenant, easement, or contract.
2.Nothing in sections 436.350 to 436.365 shall be construed to prevent contracts between contractors and homeowners from specifying that disputes shall be resolved by binding arbitration pursuant to chapter 435.In contracts between contractors and homeowners that specify binding arbitration as the means of dispute resolution, sections 436.350 to 436.365 shall not be applicable; provided, in those contracts between contractors and homeowners that specify binding arbitration as the means of dispute resolution, the contractor shall provide notice, pursuant to section 435.460, that disputes may be resolved by binding arbitration and sections 436.350 to 436.365 are not applicable to such transactions.
3.The provisions of sections 436.350 to 436.365 shall not apply to an action brought by an insurer, subrogated to the rights of a claimant, if payment was made by the insurer pursuant to a claim under an insurance policy.
436.230 - Certificate of registration issued, when — refusal to issue, when.
1.Except as otherwise provided in subsection 2 of this section, the director shall issue a certificate of registration to an individual who complies with * section 436.227.
2.The director may refuse to issue a certificate of registration if the director determines that the applicant has engaged in conduct that has a significant adverse effect on the applicant's fitness to serve as an athlete agent.In making the determination, the director may consider whether the applicant has:
(1)Been convicted of a crime that if committed in this state would be a felony or other crime involving moral turpitude;
(2)Made a materially false, misleading, deceptive, or fraudulent representation as an athlete agent or in the application;
(3)Engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity;
(4)Engaged in conduct prohibited by section 436.254;
(5)Had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure in any state;
(6)Engaged in conduct or failed to engage in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student athlete or educational institution; or
(7)Engaged in conduct that significantly adversely reflects on the applicant's credibility, honesty, or integrity.
3.In making a determination under subsection 3 of this section, the director shall consider:
(1)How recently the conduct occurred;
(2)The nature of the conduct and the context in which it occurred; and
(3)Any other relevant conduct of the applicant.
4.An athlete agent may apply to renew a registration by submitting an application for renewal in a form prescribed by the director.The application for renewal must be signed by the applicant under penalty of perjury under section 575.040 and shall contain current information on all matters required in an original registration.
5.A certificate of registration or a renewal of a registration is valid for two years.
436.330 - Subcontractor obligations.
Subcontractors and sub-subcontractors of every tier shall comply with the provisions of sections 436.300 to 436.336 in their relations with their sub-subcontractors and suppliers and shall be bound by the same obligations to their sub-subcontractors and suppliers as contractors are to their subcontractors.
436.430 - Trust-funded preneed contract requirements.
1.A trust-funded guaranteed preneed contract shall comply with sections 436.400 to 436.520 and the specific requirements of this section.
2.A seller must deposit all payments received on a preneed contract into the designated preneed trust within sixty days of receipt of the funds by the seller, the preneed sales agent or designee.A seller may not require the consumer to pay any fees or other charges except as authorized by the provisions of chapter 333 and this chapter or other state or federal law.
3.A seller may request the trustee to distribute to the seller an amount up to the first five percent of the total amount of any preneed contract as an origination fee.The seller may make this request at any time after five percent of the total amount of the preneed contract has been deposited into the trust.The trustee shall make this distribution to the seller within fifteen days of the receipt of the request.
4.In addition to the origination fee, the trustee may distribute to the seller an amount up to ten percent of the face value of the contract on a preneed contract at any time after the consumer payment has been deposited into the trust.The seller may make written request for this distribution and the trustee shall make this distribution to the seller within fifteen days of the receipt of the request or as may be provided in any written agreement between the seller and the trustee.
5.The trustee of a preneed trust shall be a state- or federally-chartered financial institution authorized to exercise trust powers in Missouri.The trustee shall accept all deposits made to it for a preneed contract and shall hold, administer, and distribute such deposits, in trust, as trust principal, under sections 436.400 to 436.520.
6.The financial institution referenced herein may neither control, be controlled by, nor be under common control with the seller or preneed agent.The terms "control", "controlled by" and "under common control with" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person.Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing ten percent or more of the voting securities.This presumption may be rebutted by a showing to the board that control does not in fact exist.
7.Payments regarding two or more preneed contracts may be deposited into and commingled in the same preneed trust, so long as the trustee maintains adequate records that individually and separately identify the payments, earnings, and distributions for each preneed contract.
8.Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, other circumstances of the trust, and all other requirements of sections 436.400 to 436.520.
9.All expenses of establishing and administering a preneed trust, including trustee's fees, legal and accounting fees, investment expenses, and taxes may be paid from income generated from the investment of the trust assets.Principal of the trust shall not be used to pay the costs of administration.If the income of the trust is insufficient to pay the costs of administration, those costs shall be paid as per the written agreements between the seller, provider and the trustee.
10.The seller and provider of a trust-funded guaranteed preneed contract shall be entitled to all income, including, but not limited to, interest, dividends, capital gains, and losses generated by the investment of preneed trust property regarding such contract as stipulated in the contract between the seller and provider.Income of the trust, excluding expenses allowed under this subsection, shall accrue through the life of the trust, except in instances when a contract is cancelled.The trustee of the trust may distribute market value of all income, net of losses, to the seller upon, but not before, the final disposition of the beneficiary and provision of the funeral and burial services and facilities, and merchandise to, or for, the benefit of the beneficiary.This subsection shall apply to trusts established on or after August 28, 2009.
11.Providers shall request payment by submitting a certificate of performance to the seller certifying that the provider has rendered services under the contract or as requested.The certificate shall be signed by both the provider and the person authorized to make arrangements on behalf of the beneficiary.If there is no written contract between the seller and provider, the provider shall be entitled to the market value of all trust* assets allocable to the preneed contract.Sellers shall remit payment to the provider within sixty days of receiving the certificate of performance.
12.If a seller fails to make timely payment of an amount due a provider under sections 436.400 to 436.520, the provider shall have the right, in addition to other rights and remedies against such seller, to make demand upon the trustee of the preneed trust for the contract to distribute to the provider from the trust all amounts to which the seller would be entitled to receive for the preneed contract.
13.The trustee of a preneed trust, including trusts established before August 28, 2009, shall maintain adequate books and records of all transactions administered over the life of the trust and pertaining to the trust generally.The trustee shall assist the seller who established the trust or its successor in interest in the preparation of the annual report described in section 436.460.The seller shall furnish to each contract purchaser, within thirty days after receipt of the purchaser's written request, a written statement of all deposits made to such trust regarding such purchaser's contract including the principal and interest paid to date.
14.A preneed trust, including trusts established before August 28, 2009, shall terminate when the trust principal no longer includes any payments made under any preneed contract, and upon such termination the trustee shall distribute all trust property, including principal and undistributed income, to the seller which established the trust.
436.445 - Trustee not to make decisions, when.
A trustee of any preneed trust, including trusts established before August 28, 2009, shall not after August 28, 2009, make any decisions to invest any trust fund with:
(1)The spouse of the trustee;
(2)The descendants, siblings, parents, or spouses of a seller or an officer, manager, director or employee of a seller, provider, or preneed agent;
(3)Agents, other than authorized external investment advisors as authorized by section 436.440, or attorneys of a trustee, seller, or provider; or
(4)A corporation or other person or enterprise in which the trustee, seller, or provider owns a controlling interest or has an interest that might affect the trustee's judgment.
436.218 - Definitions.
As used in sections 436.215 to 436.272, the following terms mean:
(1)"Agency contract", an agreement in which a student athlete authorizes a person to negotiate or solicit on behalf of the student athlete a professional sports services contract or an endorsement contract;
(2)"Athlete agent", an individual who enters into an agency contract with a student athlete or directly or indirectly recruits or solicits a student athlete to enter into an agency contract.The term does not include a spouse, parent, sibling, grandparent, or guardian of the student athlete or an individual acting solely on behalf of a professional sports team or professional sports organization.The term includes an individual who represents to the public that the individual is an athlete agent;
(3)"Athletic director", an individual responsible for administering the overall athletic program of an educational institution or if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate;
(4)"Contact", a direct or indirect communication between an athlete agent and a student athlete to recruit or solicit the student athlete to enter into an agency contract;
(5)"Director", the director of the division of professional registration;
(6)"Division", the division of professional registration;
(7)"Endorsement contract", an agreement under which a student athlete is employed or receives consideration to use on behalf of the other party any value that the student athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance;
(8)"Intercollegiate sport", a sport played at the collegiate level for which eligibility requirements for participation by a student athlete are established by a national association for the promotion or regulation of collegiate athletics;
(9)"Person", an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity;
(10)"Professional sports services contract", an agreement under which an individual is employed or agrees to render services as a player on a professional sports team, with a professional sports organization, or as a professional athlete;
(11)"Record", information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(12)"Registration", registration as an athlete agent under sections 436.215 to 436.272;
(13)"State", a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States;
(14)"Student athlete", a current student who engages in, has engaged in, is eligible to engage in, or may be eligible in the future to engage in, any intercollegiate sport.
436.318 - Release of retainage, payment made.
Upon the release of retainage by the owner to the contractor, other than for substituted security pursuant to sections 436.306 and 436.312, the contractor shall pay to each subcontractor the subcontractor's ratable share of the retainage released, provided that all conditions of the subcontract for release of retainage to the subcontractor have been satisfied.
436.245 - Notice of contract, when.
1.Within seventy-two hours after entering into an agency contract or before the next scheduled athletic event in which the student athlete may participate whichever occurs first the athlete agent shall give notice in writing of the existence of the contract to the athletic director of the educational institution at which the student athlete is enrolled or the athlete agent has reasonable grounds to believe the student athlete intends to enroll.
2.Within seventy-two hours after entering into an agency contract or before the next athletic event in which the student athlete may participate whichever occurs first the student athlete shall in writing inform the athletic director of the educational institution at which the student athlete is enrolled that he or she has entered into an agency contract.
436.410 - Applicability exceptions.
The provisions of sections 436.400 to 436.520 shall not apply to any contract or other arrangement sold by a cemetery operator for which payments received by or on behalf of the purchaser are required to be placed in an endowed care fund or for which a deposit into a segregated account is required under chapter 214; provided that a cemetery operator shall comply with sections 436.400 to 436.520 if the contract or arrangement sold by the operator includes services that may only be provided by a licensed funeral director or embalmer.
436.510 - Seller's failure to make timely payment, effect of — rights of purchaser.
If a seller shall fail to make timely payment of an amount due a purchaser or a provider under the provisions of sections 436.400 to 436.520, the purchaser or provider, as appropriate, shall have the right, in addition to other rights and remedies against such seller, to make demand upon the trustee of the preneed trust for the contract to distribute to the purchaser or provider from the trust, as damages, an amount equal to all deposits made into the trust for the contract.
436.100 - Definitions.
As used in this section, the following terms mean:
(1)"Campground", real property, other than state-owned property, which contains parcels for rent to transient guests for pay or compensation, which may include temporary utility hook-ups for use by the transient guests, and where such transient guests generally use tents, recreational vehicles or some other form of temporary shelter while on the rented premises;
(2)"Franchise", a written arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trade mark, service mark, or related characteristics, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise;
(3)"Franchisee", a person to whom a franchise to operate a campground is offered or granted;
(4)"Franchisor", a person who grants a franchise to operate a campground to another person;
(5)"Person", a natural person, corporation, partnership, trust, or other entity and, in case of an entity, it shall include any other entity which has a majority interest in such entity or effectively controls such other entity as well as the individual officers, directors, and other persons in active control of the activities of each such entity.
436.300 - Private construction work contract payment requirements.
Notwithstanding any other law to the contrary, all parties to any contract or agreement for private construction work that is between any owner and any contractor, or between any contractor and any subcontractor, or between any subcontractor and any sub-subcontractor, or any supplier at whatever tier for construction, reconstruction, maintenance, alteration, or repair for a private owner of any building, improvement, structure, private road, appurtenance, or appliance, including moving, demolition, or any excavating connected therewith, shall make payment in accordance with the terms of such contract or agreement, provided such terms are not inconsistent with the provisions of sections 436.300 to 436.336.
436.159 - Prohibited acts by performing rights society, exception — violations — penalties.
1.No performing rights society, or any agent or employee thereof shall:
(1)Enter onto the premises of a proprietor's business for the purpose of discussing a contract for payment of royalties for the use of copyrighted works by that proprietor without first identifying himself to the proprietor or his employees and disclose that the agent is acting on behalf of the performing rights society and disclosing the purpose of the discussion;
(2)Collect or attempt to collect a royalty payment or any other fee except as provided in a contract executed pursuant to the provisions of sections 436.150 to 436.163;
(3)Use or attempt to use any act or practice in negotiating with a proprietor, or in retaliation for a proprietor's failure or refusal to negotiate, with respect to a contract for the payment of royalties, including, but not limited to:
(a)Engaging in any coercive conduct, act or practice that is disruptive of a proprietor's business or threatening to commence legal proceedings in connection with an alleged copyright violation with the intent of coercing the proprietor to negotiate or enter into a contract for the payment of royalties;
(b)However, nothing in sections 436.150 to 436.163 shall be construed to prevent the performing rights society from informing the proprietor of the proprietor's obligations under the federal copyright law, Title 17 of the United States Code;
(c)Charging or collecting a royalty which is unreasonable in comparison to the royalties for similar licenses;
(4)Levy and collect any license fee, royalty, or other charge from any person or entity which conducts a nonprofit musical festival or performance, unless prior to the festival or performance such performing rights society, upon the request of the person or entity conducting such festival or performance, submits to the person or entity conducting such festival or performance a list of copyrighted vocal and instrumental musical compositions which may not be performed or otherwise copied unless the license fee, royalty, or charge is paid.The person or entity conducting the festival or performance shall submit such a request to any local agency or representative of the performing rights society.
2.A person who violates any of the provisions of sections 436.150 to 436.163 shall be guilty of a class C misdemeanor.
436.500 - Sale of business assets by seller, report to board required, contents.
1.A seller that intends to sell or otherwise dispose of all or a majority of its business assets or its stock shall notify the board at least sixty days prior to selling or otherwise disposing of its assets or stock, or ceasing to do business as a seller, and shall file a notification report on a form established by the board.
2.The report required by this section shall include:
(1)A notarized and signed statement from the person assuming or agreeing to assume the obligations of the seller indicating that the assuming seller has been provided with a copy of the seller's final annual report and has consented to assuming the outstanding obligations of the seller;
(2)In lieu of the notarized statement required by subdivision (1) of this subsection, the seller may file a plan detailing how the assets of the seller will be set aside and used to service all outstanding preneed contracts sold by the seller; and
(3)Any other information required by any other applicable statute or regulation enacted pursuant to state or federal law.
3.Within thirty days after assuming the obligations of a seller under this section, the assuming seller shall:
(1)Notify each provider in writing that the former seller has sold or disposed of its assets or stock or has ceased doing business; and
(2)Provide written notification to the purchasers of each preneed contract assumed by the seller indicating that the former seller has transferred ownership or has ceased doing business.
4.Nothing in this section shall be construed to require the board to audit, inspect, investigate, examine, or edit the books and records of a seller subject to the provisions of this section nor shall this section be construed to amend, rescind, or supersede any duty imposed on, or due diligence required of, an entity assuming the obligations of the seller.
5.The office of the attorney general shall have the authority to initiate legal action to compel or otherwise ensure compliance with this section by a former provider licensee.
436.359 - Rejection of settlement offer by association governing board, effect of — meeting requirements.
1.If an association's governing board rejects a written settlement offer from the contractor and has satisfied applicable provisions of section 436.356, and upon written request by the contractor as part of said offer that the association hold a meeting of the members, the provisions of this section shall apply prior to the association filing an action alleging construction defects in the common areas and common elements.
2.The board shall hold a meeting open to each member of the association.The meeting shall be held no less than fifteen days before the association commences an action against the contractor.
3.No less than fifteen days before this meeting is held, a written notice shall be sent to each member of the association specifying all of the following:
(1)That a meeting will take place to discuss construction defects that may lead to the filing of an action, and the date, time, and place of the meeting;
(2)The options that are available to address the construction defects, including the filing of an action and a statement of the various alternatives that are reasonably foreseeable by the association to pay for those options and whether these payments are expected to be made from the use of reserve account funds or the imposition of regular or special assessments, or emergency assessment increases;
(3)The complete text of any written final settlement offer from the contractor and a concise explanation of the contractor's specific reasons for the terms of the offer.
4.The discussions at the meeting and the contents of the notice and the items required to be specified in the notice under subsection 3 of this section are privileged communications and are not admissible in evidence in any action, unless the association consents to their admission.
5.No more than one request to meet and discuss a written settlement offer under this section may be made by the contractor.
436.400 - Citation of law — applicability.
The provisions of sections 436.400 to 436.520 shall be referenced as the "Missouri Preneed Funeral Contract Act" and shall apply only to preneed contracts entered into, and accounts created on or after, August 28, 2009, unless otherwise specified.
436.251 - Records to be retained.
1.An athlete agent shall retain the following records for a period of five years:
(1)The name and address of each individual represented by the athlete agent;
(2)Any agency contract entered into by the athlete agent; and
(3)Any direct costs incurred by the athlete agent in the recruitment or solicitation of a student athlete.
2.Records required by subsection 1 of this section to be retained are open to inspection by the director during normal business hours.
436.455 - Joint account-funded preneed contract requirements.
1.A joint account-funded preneed contract shall comply with sections 436.400 to 436.520 and the specific requirements of this section.
2.In lieu of a trust-funded or insurance-funded preneed contract, the seller and the purchaser may agree in writing that all funds paid by the purchaser or beneficiary for the preneed contract shall be deposited with a financial institution chartered and regulated by the federal or state government authorized to do business in Missouri in an account in the joint names and under the joint control of the seller and purchaser, beneficiary or party holding power of attorney over the beneficiary's estate, or in an account titled in the beneficiary's name and payable on the beneficiary's death to the seller.There shall be a separate joint account established for each preneed contract sold or arranged under this section.Funds shall only be withdrawn or paid from the account upon the signatures of both the seller and the purchaser or under a pay-on-death designation or as required to pay reasonable expenses of administering the account.
3.All consideration paid by the purchaser under a joint account-funded contract shall be deposited into a joint account as authorized by this section within ten days of receipt of payment by the seller.
4.The financial institution shall hold, invest, and reinvest funds deposited under this section in other accounts offered to depositors by the financial institutions as provided in the written agreement of the purchaser and the seller, provided the financial institution shall not invest or reinvest any funds deposited under this section in term life insurance or any investment that does not reasonably have the potential to gain income or increase in value.
5.Income generated by preneed funds deposited under this section shall be used to pay the reasonable expenses of administering the account as charged by the financial institution and the balance of the income shall be distributed or reinvested upon fulfillment of the contract, cancellation or transfer pursuant to the provisions of this chapter.
6.Within fifteen days after a provider delivers a copy of a certificate of performance to the seller, signed by the provider and the person authorized to make arrangements on behalf of the beneficiary, certifying that the provider has furnished the final disposition, funeral, and burial services and facilities, and merchandise as required by the preneed contract, or has provided alternative funeral benefits for the beneficiary under special arrangements made with the purchaser, the seller shall take whatever steps are required by the financial institution to secure payment of the funds from the financial institution.The seller shall pay the provider within ten days of receipt of funds.
7.Any seller, provider, or preneed agent shall not procure or accept a loan against any investment, or asset of, or belonging to a joint account.As of August 28, 2009, it shall be prohibited to use any existing preneed contract as collateral or security pledged for a loan, or take preneed funds of any existing preneed contract as a loan or for any purpose other than as authorized by this chapter.
436.155 - Performing rights society duties — list of music to be on file with attorney general.
The performing rights society shall establish and maintain a toll-free telephone number which the proprietor may use to inquire regarding specific musical works and copyright owners represented by that performing rights society.The performing rights society shall file a printed listing of works licensed by the society with the attorney general, and provide or make available, upon request, a listing on suitable electronic media to bona fide trade associations representing groups of proprietors.A list shall be provided the proprietor by electronic or other means, solely at the proprietor's expense.