[CLC-Discussion] 255.05 retainage

[Greg Elliott]

Okay.  255.05 bonded public construction job.  Your subcontractor has 
perfected his right to claim against the bond, and substantially 
completed his work.  Progress payments were paid current, but he is 
still owed retainage.  Months after he finished his work he sends the GC 
and their surety a request for information under FS 255.05(10)(d) by 
certified mail, and no body responds (within 10 days or otherwise).

Here's the question:  When did the retainage become "due and payable" 
from the surety under their payment bond for purposes of calculating 
interest?

Sure, sure, sure, the subcontract with GC says final payment (including 
retainage) after  "substantial completion of the project", "acceptance 
by owner", CO, payment by the Owner, all of that.  But the surety can't 
rely on that language.  See, /Everett Painting v Padula & Wadsworth/ 
(the payment bond is a separate agreement and 255.05 does not authorize 
conditional payment bonds).

In my view, retainage became due and payable from the surety on the 11th 
day after the request was sent under 255.05(10)(d), and no written 
response was delivered.

G. Elliott
-- 

Gregory T. Elliott
**/ELLIOTT - BERGER, P. A./**//
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)*
Board Certified In Construction Law

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