CODE OF VIRGINIA

PROVISIONS FOR PERIODIC PARTIAL AND FINAL RELEASE OF CERTAIN PERFORMANCE
GUARANTEES (§ 15.2-2245)

A. A subdivision ordinance shall provide for the periodic partial and final
complete release of any bond, escrow, letter of credit, or other performance
guarantee required by the governing body under this article within thirty days
after receipt of written notice by the subdivider or developer of completion of
part or all of any public facilities required to be constructed hereunder unless
the governing body or its designated administrative agency notifies the
subdivider or developer in writing of nonreceipt of approval by an applicable
state agency, or of any specified defects or deficiencies in construction and
suggested corrective measures prior to the expiration of the thirty-day period.
Any inspection of such public facilities shall be based solely upon conformance
with the terms and conditions of the performance agreement and the approved
design plan and specifications for the facilities for which the performance
guarantee is applicable, and shall not include the approval of any person other
than an employee of the governing body, its administrative agency, the Virginia
Department of Transportation or other political subdivision or a person who has
contracted with the governing body, its administrative agency, the Virginia
Department of Transportation or other political subdivision.

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

C. After receipt of the written notices required above, if the governing body or
administrative agency takes no action within the times specified above and the
subdivider or developer files suit in the local circuit court to obtain partial
or final release of a bond, escrow, letter of credit, or other performance
guarantee, as the case may be, the circuit court, upon finding the governing
body or its administrative agency was without good cause in failing to act,
shall award such subdivider or developer his reasonable costs and
attorneys’ fees.

D. No governing body or administrative agency shall refuse to make a periodic
partial or final release of a bond, escrow, letter of credit, or other
performance guarantee for any reason not directly related to the specified
defects or deficiencies in construction of the public facilities covered by said
bond, escrow, letter of credit or other performance guarantee.

E. Upon written request by the subdivider or developer, the governing body or
its designated administrative agency shall be required to make periodic partial
releases of such bond, escrow, letter of credit, or other performance guarantee
in a cumulative amount equal to no less than ninety percent of the original
amount for which the bond, escrow, letter of credit, or other performance
guarantee was taken, and may make partial releases to such lower amounts as may
be authorized by the governing body or its designated administrative agency
based upon the percentage of public facilities completed and approved by the
governing body, local administrative agency, or state agency having
jurisdiction. Periodic partial releases may not occur before the completion of
at least thirty percent of the public facilities covered by any bond, escrow,
letter of credit, or other performance guarantee. The governing body or
administrative agency shall not be required to execute more than three periodic
partial releases in any twelve-month period. Upon final completion and
acceptance of the public facilities, the governing body or administrative agency
shall release any remaining bond, escrow, letter of credit, or other performance
guarantee to the subdivider or developer. For the purpose of final release, the
term “acceptance” means: when the public facility is accepted by and
taken over for operation and maintenance by the state agency, local government
department or agency, or other public authority which is responsible for
maintaining and operating such public facility upon acceptance.

F. For the purposes of this section, a certificate of partial or final
completion of such public facilities from either a duly licensed professional
engineer or land surveyor, as defined in and limited to § 54.1-400, or from a
department or agency designated by the locality may be accepted without
requiring further inspection of such public facilities.

HISTORY: 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.