New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 5 - PETROLEUM STORAGE TANKS › Part 117 - FINANCIAL RESPONSIBILITY › Section 20.5.117.1766 - FORM DOCUMENTS FOR LOCAL GOVERNMENT GUARANTEE

Current through Register Vol. 35, No. 13, July 16, 2024
A. Required form documents for guarantees
				with standby trusts.
(1) Local government
				guarantee with standby trust made by the state. The guarantee agreement shall
				be worded as follows:
GUARANTEE
Guarantee made this [date] by the State of New
								Mexico, herein referred to as Guarantor, to the New Mexico Environment
								Department and to any and all third parties, and obliges, 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 storage tank(s) 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 this instrument is used to assure
								both underground and above ground storage tanks, identify each storage tank as
								underground or above ground and list the tank identification number provided in
								the notification submitted pursuant to 20.5.102.202 New Mexico Administrative
								Code (NMAC). 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
								20.5.102.202 NMAC and the name and address of the facility.] This guarantee
								satisfies the requirements of 20.5.117 NMAC 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
								"non-sudden 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(s) in the amount of [insert dollar
								amount] per occurrence and [insert dollar amount] annual aggregate and the
								above-identified above ground storage tank(s) in the amount of [insert dollar
								amount] per occurrence and [insert dollar amount] annual aggregate.
(3) Guarantor guarantees to the New Mexico
								Environment Department (Department) and to any and all third parties
								that:
In the event that [local government owner or
								operator] fails to provide alternative coverage within 60 days after receipt of
								a notice of cancellation of this guarantee and the Secretary of the New Mexico
								Environment Department has determined or suspects that a release has occurred
								at a storage tank covered by this guarantee, the Guarantor, upon instructions
								from the Secretary shall fund a standby trust fund in accordance with the
								provisions of 20.5.117.1722 NMAC; in an amount not to exceed the coverage
								limits specified above.
In the event that the Secretary 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(s) in
								accordance with 20.5.119 NMAC, the Guarantor upon written instructions from the
								Secretary shall fund a standby trust fund in accordance with the provisions of
								20.5.117.1722 NMAC, 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 "non-sudden"] accidental
								releases arising from the operation of the above-identified tank(s), 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 Secretary, shall fund a standby trust in accordance with the provisions of
								20.5.117.1722 NMAC to 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 the Bankruptcy
								Code, 11 U.S.C., naming Guarantor as debtor, within 10 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 20.5 NMAC.
(6) Guarantor agrees to remain bound under this
								guarantee for so long as [local government owner or operator] shall comply with
								the applicable financial responsibility requirements of 20.5.117 NMAC for the
								above identified tank(s), 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 120 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 storage tank;
(e) Bodily damage 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 20.5.117.1703 NMAC.
(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 Paragraph (1) of Subsection A of
								20.5.117.1766 NMAC, as such regulations 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:
(2)
				Local government guarantee with standby trust made by a local government. The
				guarantee agreement shall be worded as follows:
GUARANTEE
Guarantee made this [date] by [name of guaranteeing
								entity], a local government organized under the laws of New Mexico, herein
								referred to as Guarantor, to the New Mexico Environment 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 20.5.117.1714 New Mexico
								Administrative Code (NMAC), the local government financial test requirements of
								20.5.117.1715 NMAC, or the local government fund under Subsection A, B or C of
								20.5.117.1717 NMAC.]
(2) [Local government owner or operator] owns or
								operates the following storage tank(s) 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 this instrument is used to assure
								both underground and above ground storage tanks, identify each storage tank as
								underground or above ground and list the tank identification number provided in
								the notification submitted pursuant to 20.5.102.202 NMAC. 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 20.5.102.202 NMAC and the name and address
								of the facility.] This guarantee satisfies requirements of 20.5.117 NMAC 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 "non-sudden 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(s) in the amount of
								[insert dollar amount] per occurrence and [insert: dollar amount] annual
								aggregate and the above-identified above ground storage tank(s) 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 New Mexico Environment Department (Department) and to any and all third
								parties that:
In the event that [local government owner or
								operator] fails to provide alternative coverage within 60 days after receipt of
								a notice of cancellation of this guarantee and the Secretary of the New Mexico
								Environment Department (Secretary) has determined or suspects that a release
								has occurred at a storage tank covered by this guarantee, the Guarantor, upon
								instructions from the Secretary shall fund a standby trust fund in accordance
								with the provisions of 20.5.117.1722 NMAC, in an amount not to exceed the
								coverage limits specified above.
In the event that the Secretary 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(s) in
								accordance with 20.5.119 NMAC, the Guarantor upon written instructions from the
								Secretary shall fund a standby trust fund in accordance with the provisions of
								20.5.117.1722 NMAC, 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 "non-sudden"] accidental
								releases arising from the operation of the above-identified tank(s), 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 Secretary, shall fund a standby trust in accordance with the provisions of
								20.5.117.1722 NMAC 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 120 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 the Bankruptcy
								Code, 11 U.S.C., naming Guarantor as debtor, within 10 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 the New Mexico Petroleum Storage Tank
								Regulations (20.5 NMAC).
(7) Guarantor agrees to remain bound under this
								guarantee for so long as [local government owner or operator] shall comply with
								the applicable financial responsibility requirements of 20.5.117 NMAC for the
								above identified tank(s), 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 120 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] 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 storage tank;
(e) Bodily damage 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 20.5.117.1703 NMAC.
(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 Paragraph (2) of Subsection A of
								20.5.117.1766 NMAC, as such regulations 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: