(1) Except as provided in subsection (2) of this section, this article 46 applies to:
(a) A contract that:
(I) Has a price of at least one hundred fifty thousand dollars; and
(II) Is made between a property owner and a contractor;
(b) A subcontract to a contract described in subsection (1)(a) of this section, notwithstanding that the subcontract price is less than one hundred fifty thousand dollars; and
(c) A supply agreement that is made to supply materials, goods, or equipment used to perform a contract notwithstanding that the supply agreement price is less than one hundred fifty thousand dollars.
(2) This article 46 does not apply to:
(a) A single contract that governs the building of either:
(I) One single-family dwelling; or
(II) One multifamily dwelling with no more than four family dwelling units; or
(b) A contract with a public entity, as defined in section 24-91-102 (3).
Source: L. 2021: Entire article added, (HB 21-1167), ch. 146, p. 860, � 1, effective September 7.
38-46-103. Private construction contracts - retainage - conditions precedent. (1) A property owner, contractor, or subcontractor shall not withhold as retainage more than five percent of the price of the work completed under the contract or subcontract. Making a partial payment under this subsection (1) is not acceptance or approval of some of the work or of a waiver of defects in the work.
(2) This article 46 addresses only the amount of retainage that may be withheld by a property owner, contractor, or subcontractor and does not change, override, or invalidate any other provision in a contract, subcontract, or supply agreement. Such a provision includes, but is not limited to:
(a) A provision relating to timing of a payment, including final payment;
(b) A provision requiring satisfactory performance of the work of the contract, subcontract, or supply agreement before payment is due;
(c) A provision allowing a property owner, contractor, or subcontractor to withhold payment or deduct from any payment otherwise due any backcharges or other amounts as authorized by the contract, subcontract, or supply agreement; or
(d) A provision relating to a condition precedent that must be satisfied before a payment is due to a contractor, subcontractor, sub-subcontractor, or supplier. A condition precedent includes a requirement that:
(I) A contractor must actually receive payment from the property owner to be obliged to make payment to a subcontractor or supplier; or
(II) A subcontractor must actually receive payment from the contractor to be obliged to make payment to a subsequent subcontractor or supplier.
Source: L. 2021: Entire article added, (HB 21-1167), ch. 146, p. 861, � 1, effective September 7.