2006 Code of Virginia § 15.2-2245 - Provisions for periodic partial and final release of certain performance guarantees

15.2-2245. Provisions for periodic partial and final release of certainperformance guarantees.

A. A subdivision ordinance shall provide for the periodic partial and finalcomplete release of any bond, escrow, letter of credit, or other performanceguarantee required by the governing body under this article within thirtydays after receipt of written notice by the subdivider or developer ofcompletion of part or all of any public facilities required to be constructedhereunder unless the governing body or its designated administrative agencynotifies the subdivider or developer in writing of nonreceipt of approval byan applicable state agency, or of any specified defects or deficiencies inconstruction and suggested corrective measures prior to the expiration of thethirty-day period. Any inspection of such public facilities shall be basedsolely upon conformance with the terms and conditions of the performanceagreement and the approved design plan and specifications for the facilitiesfor which the performance guarantee is applicable, and shall not include theapproval of any person other than an employee of the governing body, itsadministrative agency, the Virginia Department of Transportation or otherpolitical subdivision or a person who has contracted with the governing body,its administrative agency, the Virginia Department of Transportation or otherpolitical subdivision.

B. If no such action is taken by the governing body or administrative agencywithin the time specified above, the request shall be deemed approved, and apartial release granted to the subdivider or developer. No final releaseshall be granted until after expiration of such thirty-day period and thereis an additional request in writing sent by certified mail return receipt tothe chief administrative officer of such governing body. The governing bodyor its designated administrative agency shall act within ten working days ofreceipt of the request; then if no action is taken the request shall bedeemed approved and final release granted to the subdivider or developer.

C. After receipt of the written notices required above, if the governing bodyor administrative agency takes no action within the times specified above andthe subdivider or developer files suit in the local circuit court to obtainpartial or final release of a bond, escrow, letter of credit, or otherperformance guarantee, as the case may be, the circuit court, upon findingthe governing body or its administrative agency was without good cause infailing to act, shall award such subdivider or developer his reasonable costsand attorneys' fees.

D. No governing body or administrative agency shall refuse to make a periodicpartial or final release of a bond, escrow, letter of credit, or otherperformance guarantee for any reason not directly related to the specifieddefects or deficiencies in construction of the public facilities covered bysaid bond, escrow, letter of credit or other performance guarantee.

E. Upon written request by the subdivider or developer, the governing body orits designated administrative agency shall be required to make periodicpartial releases of such bond, escrow, letter of credit, or other performanceguarantee in a cumulative amount equal to no less than ninety percent of theoriginal amount for which the bond, escrow, letter of credit, or otherperformance guarantee was taken, and may make partial releases to such loweramounts as may be authorized by the governing body or its designatedadministrative agency based upon the percentage of public facilitiescompleted and approved by the governing body, local administrative agency, orstate agency having jurisdiction. Periodic partial releases may not occurbefore the completion of at least thirty percent of the public facilitiescovered by any bond, escrow, letter of credit, or other performanceguarantee. The governing body or administrative agency shall not be requiredto execute more than three periodic partial releases in any twelve-monthperiod. Upon final completion and acceptance of the public facilities, thegoverning body or administrative agency shall release any remaining bond,escrow, letter of credit, or other performance guarantee to the subdivider ordeveloper. For the purpose of final release, the term "acceptance" means:when the public facility is accepted by and taken over for operation andmaintenance by the state agency, local government department or agency, orother public authority which is responsible for maintaining and operatingsuch public facility upon acceptance.

F. For the purposes of this section, a certificate of partial or finalcompletion of such public facilities from either a duly licensed professionalengineer or land surveyor, as defined in and limited to 54.1-400, or from adepartment or agency designated by the locality may be accepted withoutrequiring further inspection of such public facilities.

(Code 1950, 15-781, 15-967.1; 1950, p. 183; 1962, c. 407, 15.1-466;1970, c. 436; 1973, cc. 169, 480; 1975, c. 641; 1976, c. 270; 1978, cc. 429,439, 440; 1979, cc. 183, 188, 395; 1980, cc. 379, 381; 1981, c. 348; 1983,cc. 167, 609; 1984, c. 111; 1985, cc. 422, 455; 1986, c. 54; 1987, c. 717;1988, cc. 279, 735; 1989, cc. 332, 393, 403, 495; 1990, cc. 170, 176, 287,708, 973; 1991, cc. 30, 47, 288, 538; 1992, c. 380; 1993, cc. 836, 846, 864;1994, c. 421; 1995, cc. 386, 388, 389, 452, 457, 474; 1996, cc. 77, 325, 452,456; 1997, c. 587; 2002, c. 779.)