1. A local
government owner or operator may satisfy the requirements of section
33.1-24-08-83 by obtaining a
guarantee that conforms to the requirements of this section. The guarantor must
be either the estate in which the local government owner or operator is located
or a local government having a "substantial governmental relationship" with the
owner and operator and issuing the guarantee as an act incident to that
relationship. A local government acting as the guarantor must:
a. Demonstrate that it meets the bond rating
test requirement of section
33.1-24-08-94 and deliver a copy
of the chief financial officer's letter as contained in subsections 4 and 5 of
section
33.1-24-08-94 to the local
government owner or operator.
b.
Demonstrate that it meets the worksheet test requirements of section
33.1-24-08-95 and deliver a copy
of the chief financial officer's letter as contained in subsection 3 of section
33.1-24-08-95.
c. Demonstrate that it meets the local
government fund requirements of subsection 1, 2, or 3 of section
33.1-24-08-97, and deliver a
copy of the chief financial officer's letter as contained in section
33.1-24-08-97 to the local
government owner or operator.
2. If the local government guarantor is
unable to demonstrate financial assurance under sections
33.1-24-08-94,
33.1-24-08-95, subsection 1 of
section
33.1-24-08-97, subsection 2 of
section
33.1-24-08-97, or subsection 3
of section
33.1-24-08-97, at the end of the
financial reporting year, the guarantor shall send by certified mail, before
cancellation or nonrenewal of the guarantee, notice to the owner or operator.
The guarantee will terminate no less than one hundred twenty days after the
date the owner or operator receives the notification, as evidenced by the
return receipt. The owner or operator must obtain alternative coverage as
specified in subsection 5 of section
33.1-24-08-104.
3. The guarantee agreement must be worded as
specified in subsection 4 or 5, depending on which of the following alternative
guarantee arrangements is selected:
a. If, in
the default or incapacity of the owner or operator, the guarantor guarantees to
fund a standby trust as directed by the department, the guarantee shall be
worded as specified in subsection 4.
b. If in the default or incapacity of the
owner or operator, the guarantor guarantees to make payments as directed by the
department for taking corrective action or compensating third parties for
bodily injury and property damage, the guarantee shall be worded as specified
in subsection 5.
4. If
the guarantor is a state, the local government guarantee with standby trust
must be worded exactly as follows, except that instructions in brackets are to
be replaced with relevant information and the brackets deleted:
LOCAL GOVERNMENT GUARANTEE WITH STANDBY TRUST MADE BY A
STATE
Guarantee made this [date] by North Dakota, herein referred
to as guarantor, to the department and to any and all third parties, and
obligees, on behalf of [local government owner or operator].
Recitals.
(1)
Guarantor is a state.
(2) [Local
government owner or operator] owns or operates the following underground
storage tank or tanks, covered by this guarantee: [List the number of tanks at
each facility and the name(s) and address(es) of the facility(ies) where the
tanks are located. If more than one instrument is used to assure different
tanks at any one facility, for each tank covered by this instrument, list the
tank identification number provided in the notification submitted pursuant to
33.1-24-08, and the name and address of the facility.] This guarantee satisfies
sections
33.1-24-08-80 through
33.1-24-08-106 requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases", or "nonsudden accidental releases", or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from
operating the above-identified underground storage tank or tanks in the amount
of [insert dollar amount] per occurrence and [insert dollar amount] annual
aggregate.
(3) Guarantor guarantees
to the department and to any and all third parties that:
In the event that [local government owner or operator] fails
to provide alternative coverage within sixty days after receipt of a notice of
cancellation of this guarantee and the department has determined or suspects
that a release has occurred at an underground storage tank covered by this
guarantee, the guarantor, upon instructions from the department shall fund a
standby trust fund in accordance with the provisions of section
33.1-24-08-102, in an amount not
to exceed the coverage limits specified above.
In the event that the department determines that [local
government owner or operator] has failed to perform corrective action for
releases arising out of the operation of the above-identified tank or tanks in
accordance with sections
33.1-24-08-50 through
33.1-24-08-57, the guarantor
upon written instructions from the department shall fund a standby trust fund
in accordance with the provisions of section
33.1-24-08-102, in an amount not
to exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award
based on a determination of liability for bodily injury or property damage to
third parties caused by ["sudden" and/or "nonsudden"] accidental releases
arising from the operation of the above-identified tank or tanks, or fails to
pay an amount agreed to in settlement of a claim arising from or alleged to
arise from such injury or damage, the guarantor, upon written instruction from
the department, shall fund a standby trust in accordance with the provisions of
section 33.1-24-08-102, satisfy such
judgment(s), award(s), or settlement agreement(s) up to the limits of coverage
specified above.
(4)
Guarantor agrees to notify [owner or operator] by certified mail of a voluntary
or involuntary proceeding under Title 11 (Bankruptcy) United States Code naming
guarantor as debtor, within ten days after commencement of the
proceeding.
(5) Guarantor agrees to
remain bound under this guarantee notwithstanding any modification or
alteration of any obligation of [owner or operator] pursuant to
33.1-24-08.
(6) Guarantor agrees to
remain bound under this guarantee for so long as [local government owner or
operator] must comply with the applicable financial responsibility requirements
of sections
33.1-24-08-80 through
33.1-24-08-106, for the
above-identified tank or tanks, except that guarantor may cancel this guarantee
by sending notice by certified mail to [owner or operator], such cancellation
to become effective no earlier than one hundred twenty days after receipt of
such notice by [owner or operator], as evidenced by the return
receipt.
(7) The guarantor's
obligation does not apply to any of the following:
(a) Any obligation of [local government owner
or operator] under a workers' compensation, disability benefits, or
unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert:
local government owner or operator] arising from, and in the course of,
employment by [insert: local government owner or operator];
(c) Bodily injury or property damage arising
from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft;
(d)
Property damage to any property owned, rented, loaned to, in the care, custody,
or control of, or occupied by [insert: local government owner or operator] that
is not the direct result of a release from a petroleum underground storage
tank; or
(e) Bodily injury or
property damage for which [insert: owner or operator] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement
other than a contract or agreement entered into to meet the requirements of
section
33.1-24-08-83.
(8) Guarantor expressly waives
notice of acceptance of this guarantee by department, by any or all third
parties, or by [local government owner or operator].
I hereby certify that the wording of this guarantee is
identical to the wording specified in subsection 4 of section 33.1-24-08-96 as
such rules were constituted on the effective date shown immediately
below.
Effective date: __________
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary: __________
If the guarantor is a local government, the local government
guarantee with standby trust must be worded exactly as follows, except that
instructions in brackets are to be replaced with relevant information and the
brackets deleted:
LOCAL GOVERNMENT GUARANTEE WITH STANDBY TRUST MADE BY A LOCAL
GOVERNMENT
Guarantee made this [date] by [name of guaranteeing entity],
a local government organized under the laws of North Dakota, herein referred to
a guarantor, to the department, and to any and all third parties, and obliges,
on behalf of [local government owner or operator].
Recitals.
(1)
Guarantor meets or exceeds [select one: the local government bond rating test
requirements of section
33.1-24-08-94, the local
government financial test requirements of section
33.1-24-08-95, or the local
government fund under subsection 1, 2, or 3 of section
33.1-24-08-97.
(2) [Local government owner or operator] owns
or operates the following underground storage tank or tanks covered by this
guarantee: [List the number of tanks at each facility and the name(s) and
address(es) of the facility(ies) where the tanks are located. If more than one
instrument is used to assure different tanks at any one facility, for each tank
covered by this instrument, list the tank identification number provided in the
notification submitted pursuant to 33.1-24-08, and the name and address of the
facility.] This guarantee satisfies sections
33.1-24-08-80 through
33.1-24-08-106 requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from
operating the above-identified underground storage tank or tanks in the amount
of [insert: dollar amount] per occurrence and [insert: dollar amount] annual
aggregate.
(3) Incident to our
substantial governmental relationship with [local government owner or
operator], guarantor guarantees to the department and to any and all third
parties that:
In the event that [local government owner or operator] fails
to provide alternative coverage within sixty days after receipt of a notice of
cancellation of this guarantee and the department has determined or suspects
that a release has occurred at an underground storage tank covered by this
guarantee, the guarantor, upon instructions from the department shall fund a
standby trust fund in accordance with the provisions of section
33.1-24-08-102 in an amount not
to exceed the coverage limits specified above.
In the event that the department determines that [local
government owner or operator] has failed to perform corrective action for
releases arising out of the operation of the above-identified tank or tanks in
accordance with sections
33.1-24-08-50 through
33.1-24-08-57, the guarantor
upon written instructions from the department shall fund a standby trust fund
in accordance with the provisions of section
33.1-24-08-102, in an amount not
to exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a judgment or award
based on a determination of liability for bodily injury or property damage to
third parties caused by ["sudden" and/or "nonsudden"] accidental releases
arising from the operation of the above-identified tank or tanks, or fails to
pay an amount agreed to in settlement of a claim arising from or alleged to
arise from such injury or damage, the guarantor, upon written instructions from
the department shall fund a standby trust in accordance with the provisions of
section 33.1-24-08-102 to satisfy such
judgment(s), award(s), or settlement agreement(s) up to the limits of coverage
specified above.
(4)
Guarantor agrees that, if at the end of any fiscal year before cancellation of
this guarantee, the guarantor fails to meet or exceed the requirements of the
financial responsibility mechanism specified in paragraph 1, guarantor shall
send within one hundred twenty days of such failure, by certified mail, notice
to [local government owner or operator], as evidenced by the return
receipt.
(5) Guarantor agrees to
notify [owner or operator] by certified mail of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy) United States Code naming guarantor as
debtor, within ten days after commencement of the proceeding.
(6) Guarantor agrees to remain bound under
this guarantee notwithstanding any modification or alteration of any obligation
of [owner or operator] pursuant to 33.1-24-08.
(7) Guarantor agrees to remain bound under
this guarantee for so long as [local government owner or operator] must comply
with the applicable financial responsibility requirements of sections
33.1-24-08-80 through
33.1-24-08-106 for the
above-identified tank or tanks, except that guarantor may cancel this guarantee
by sending notice by certified mail to [owner or operator], such cancellation
to become effective no earlier than one hundred twenty days after receipt of
such notice by [owner or operator], as evidenced by the return
receipt.
(8) The guarantor's
obligation does not apply to any of the following:
(a) Any obligation of [local government owner
or operator] under a workers' compensation, disability benefits, or
unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert:
local government owner or operator];
(c) Bodily injury or property damage arising
from the ownership, maintenance, use, or entrustment to others of any aircraft,
motor vehicle, or watercraft;
(d)
Property damage to any property owned, rented, loaned to, in the care, custody,
or control of, or occupied by [insert: local government owner or operator] that
is not the direct result of a release from a petroleum underground storage
tank; or
(e) Bodily injury or
property damage for which [insert: owner or operator] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement
other than a contract or agreement entered into to meet the requirements of
section
33.1-24-08-83.
(9) Guarantor expressly
waives notice of acceptance of this guarantee by the department, by any or all
third parties, or by [local government owner or operator].
I hereby certify that the wording of this guarantee is
identical to the wording specified in subsection 4 of section 33.1-24-08-96 as
such rules were constituted on the effective date shown immediately
below.
Effective date: __________
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary: __________
5. If the guarantor is a
state, the local government guarantee without standby trust must be worded
exactly as follows, except that instructions in brackets are to be replaced
with relevant information and the brackets deleted:
LOCAL GOVERNMENT GUARANTEE WITHOUT STANDBY TRUST MADE BY A
STATE
Guarantee made this [date] by North Dakota, herein referred
to as guarantor, to the department and to any and all third parties, and
obligees, on behalf of [local government owner or operator].
Recitals.
(1)
Guarantor is a state.
(2) [Local
government owner or operator] owns or operates the following underground
storage tank or tanks covered by this guarantee: [list the number of tanks at
each facility and the name(s) and address(es) of the facility(ies) where the
tank or tanks are located. If more than one instrument is used to assure
different tanks at any one facility, for each tank covered by this instrument,
list the tank identification number provided in the notification submitted
pursuant to 33.1-24-08, and the name and address of the facility]. This
guarantee satisfies sections
33.1-24-08-80 through
33.1-24-08-106 requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from
operating the above-identified underground storage tank or tanks in the amount
of [insert: dollar amount] per occurrence and [insert: dollar amount] annual
aggregate.
(3) Guarantor guarantees
to the department and to any and all third parties and obligees that:
In the event that [local government owner or operator] fails
to provide alternative coverage within sixty days after receipt of a notice of
cancellation of this guarantee and the department has determined or suspects
that a release has occurred at an underground storage tank covered by this
guarantee, the guarantor, upon written instructions from the department shall
make funds available to pay for corrective actions and compensate third parties
for bodily injury and property damage in an amount not to exceed the coverage
limits specified above.
In the event that the department determines that [local
government owner or operator] has failed to perform corrective action for
releases arising out of the operation of the above-identified tank or tanks in
accordance with sections
33.1-24-08-50 through
33.1-24-08-57, the guarantor,
upon written instructions from the department, shall make funds available to
pay for corrective actions in an amount not to exceed the coverage limits
specified above.
If [owner or operator] fails to satisfy a judgment or award
based on a determination of liability for bodily injury or property damage to
third parties caused by ["sudden" and/or "nonsudden"] accidental releases
arising from the operation of the above-identified tank or tanks, or fails to
pay an amount agreed to in settlement of a claim arising from or alleged to
arise from such injury or damage, the guarantor, upon written instructions from
the department, shall make funds available to compensate third parties for
bodily injury and property damage in an amount not to exceed the coverage
limits specified above.
(4)
Guarantor agrees to notify [owner or operator] by certified mail of a voluntary
or involuntary proceeding under Title 11 (Bankruptcy) United States Code naming
guarantor as debtor, within ten days after commencement of the
proceeding.
(5) Guarantor agrees to
remain bound under this guarantee notwithstanding any modification or
alteration of any obligation of [owner or operator] pursuant to
33.1-24-08.
(6) Guarantor agrees to
remain bound under this guarantee for so long as [local government owner or
operator] must comply with the applicable financial responsibility requirements
of sections
33.1-24-08-80 through
33.1-24-08-106, for the
above-identified tank or tanks, except that guarantor may cancel this guarantee
by sending notice of certified mail to [owner or operator], such cancellation
to become effective no earlier than one hundred twenty days after receipt of
such notice by [owner or operator], as evidenced by the return receipt. If
notified of a probable release, the guarantor agrees to remain bound to the
terms of this guarantee for all charges arising from the release, up to the
coverage limits specified above, notwithstanding the cancellation of the
guarantee with respect to future releases.
(7) The guarantor's obligation does not apply
to any of the following:
(a) Any obligation
of [local government owner or operator] under a workers' compensation,
disability benefits, or unemployment compensation law or other similar
law;
(b) Bodily injury to an
employee of [insert: local government owner or operator] arising from, and in
the course of, employment by [insert: local government owner or
operator];
(c) Bodily injury or
property damage arising from the ownership, maintenance, use, or entrustment to
others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaned to, in the care, custody, or control of, or occupied by [insert:
local government owner or operator] that is not the direct result of a release
from a petroleum underground storage tank; or
(e) Bodily injury or property damage for
which [insert: owner or operator] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement other than a contract or
agreement entered into to meet the requirements of section
33.1-24-08-83.
(8) Guarantor expressly waives
notice of acceptance of this guarantee by the department, by any or all third
parties, or by [local government owner or operator].
I hereby certify that the wording of this guarantee is
identical to the wording specified in subsection 5 of section 33.1-24-08-96 as
such rules were constituted on the effective date shown immediately
below.
Effective date: __________
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary: __________
If the guarantor is a local government, the local government
guarantee without standby trust must be worded exactly as follows, except that
instructions in brackets are to be replaced with relevant information and the
brackets deleted:
LOCAL GOVERNMENT GUARANTEE WITHOUT STANDBY TRUST MADE BY A
LOCAL GOVERNMENT
Guarantee made this [date] by [name of guaranteeing entity],
a local government organized under the laws of North Dakota, herein referred to
as guarantor, to the department and to any and all third parties, and obligees,
on behalf of [local government owner or operator].
Recitals.
(1)
Guarantor meets or exceeds [select one: the local government bond rating test
requirements of section
33.1-24-08-94, the local
government financial test requirements of section
33.1-24-08-95, or the local
government fund under subsection 1, 2, or 3 of section
33.1-24-08-97].
(2) [Local government owner or operator] owns
or operates the following underground storage tank or tanks covered by this
guarantee: [List the number of tanks at each facility and the name(s) and
address(es) of the facility(ies) where the tanks are located. If more than one
instrument is used to assure different tanks at any one facility, for each tank
covered by this instrument, list the tank identification number provided in the
notification submitted pursuant to 33.1-24-08, and the name and address of the
facility.] This guarantee satisfies sections
33.1-24-08-80 through
33.1-24-08-106 requirements for
assuring funding for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from
operating the above-identified underground storage tank or tanks in the amount
of [insert: dollar amount] per occurrence and [insert: dollar amount] annual
aggregate.
(3) Incident to our
substantial governmental relationship with [local government owner or
operator], guarantor guarantees to the department and to any and all third
parties and obligees that:
In the event that [local government owner or operator] fails
to provide alternative coverage within sixty days after receipt of a notice of
cancellation of this guarantee and the department has determined or suspects
that a release has occurred at an underground storage tank covered by this
guarantee, the guarantor, upon written instructions from the department shall
make funds available to pay for corrective actions and compensate third parties
for bodily injury and property damage in an amount not to exceed the coverage
limits specified above.
In the event that the department determines that [local
government owner or operator] has failed to perform corrective action for
releases arising out of the operation of the above-identified tank or tanks in
accordance with sections
33.1-24-08-50 through
33.1-24-08-57, the guarantor,
upon written instructions from the department, shall make funds available to
pay for corrective actions in an amount not to exceed the coverage limits
specified above.
If [owner or operator] fails to satisfy a judgment or award
based on a determination of liability for bodily injury or property damage to
third parties caused by ["sudden" and/or "nonsudden"] accidental releases
arising from the operation of the above-identified tank or tanks, or fails to
pay an amount agreed to in settlement of a claim arising from or alleged to
arise from such injury or damage, the guarantor, upon written instructions from
the department, shall make funds available to compensate third parties for
bodily injury and property damage in an amount not to exceed the coverage
limits specified above.
(4)
Guarantor agrees that if at the end of any fiscal year before cancellation of
this guarantee, the guarantor fails to meet or exceed the requirements of the
financial responsibility mechanism specified in paragraph 1, guarantor shall
send within one hundred twenty days of such failure, by certified mail, notice
to [local government owner or operator], as evidenced by the return
receipt.
(5) Guarantor agrees to
notify [owner or operator] by certified mail of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy) United States Code naming guarantor as
debtor, within ten days after commencement of the proceeding.
(6) Guarantor agrees to remain bound under
this guarantee notwithstanding any modification or alteration of any obligation
of [owner or operator] pursuant to 33.1-24-08.
(7) Guarantor agrees to remain bound under
this guarantee for so long as [local government owner or operator] must comply
with the applicable financial responsibility requirements of sections
33.1-24-08-80 through
33.1-24-08-106 for the
above-identified tank or tanks, except that guarantor may cancel this guarantee
by sending notice by certified mail to [owner or operator], such cancellation
to become effective no earlier than one hundred twenty days after receipt of
such notice by [owner or operator], as evidenced by the return receipt. If
notified of a probable release, the guarantor agrees to remain bound to the
terms of this guarantee for all charges arising from the release, up to the
coverage limits specified above, notwithstanding the cancellation of the
guarantee with respect to future releases.
(8) The guarantor's obligation does not apply
to any of the following:
(a) Any obligation
of [local government owner or operator] under a workers' compensation,
disability benefits, or unemployment compensation law or other similar
law;
(b) Bodily injury to an
employee of [insert: local government owner or operator] arising from, and in
the course of, employment by [insert: local government owner or
operator];
(c) Bodily injury or
property damage arising from the ownership, maintenance, use, or entrustment to
others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaned to, in the care, custody, or control of, or occupied by [insert:
local government owner or operator] that is not the direct result of a release
from a petroleum underground storage tank; or
(e) Bodily injury or property damage for
which [insert: owner or operator] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement other than a contract or
agreement entered into to meet the requirements of section
33.1-24-08-83.
(9) Guarantor expressly
waives notice of acceptance of this guarantee by the department, by any or all
third parties, or by the [local government owner or operator].
I hereby certify that the wording of this guarantee is
identical to the wording specified in subsection 5 of section 33.1-24-08-96 as
such rules were constituted on the effective date shown immediately
below.
Effective date: __________
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
__________
