Be it enacted by the General Assembly of Virginia:
1. That §15.2-2245 of the Code of Virginia is amended and reenacted as follows:
§15.2-2245. Provisions for periodic partial and final release of certain performance guarantees.
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, including
performance guarantees for erosion and sediment control measures, stormwater
management facilities, and fill and borrow areas, under
this article within thirty 30 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 30-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 in subsection A, 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
30-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 10 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'
attorney 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 90
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 30 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 12-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 that
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.