New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 5 - PETROLEUM STORAGE TANKS › Part 117 - FINANCIAL RESPONSIBILITY › Section 20.5.117.1756 - FORM DOCUMENT FOR GUARANTEE

Current through Register Vol. 35, No. 13, July 16, 2024
The guarantee shall be worded as follows, except that
				  instructions in brackets are to be replaced with the relevant information and
				  the brackets deleted:
GUARANTEE
Guarantee made this [date] by [name of guaranteeing
								entity], a business entity organized under the laws of the state of [name of
								state], herein referred to as guarantor, to the New Mexico Environment
								Department and to any and all third parties, and obligees, on behalf of [owner
								or operator] of [business address].
Recitals
(1) Guarantor meets or exceeds the financial test
								criteria of Subsection B, C or D of 20.5.117.1705 New Mexico Administrative
								Code (NMAC) and agrees to comply with the requirements for guarantors as
								specified in Subsection B of 20.5.117.1706 NMAC.
(2) [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 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 20.5.117.1703 NMAC 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
								"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 at least
								[insert dollar amount] per occurrence and [insert: dollar amount] annual
								aggregate arising from operating the above-identified above ground storage
								tank(s).
(3) [Insert appropriate phrase: "On behalf of our
								subsidiary" (if guarantor is corporate parent of the owner or operator); "On
								behalf of our affiliate" (if guarantor is a related firm of the owner or
								operator); or "Incident to our business relationship with" (if guarantor is
								providing the guarantee as an incident to a substantial business relationship
								with owner or operator)] [owner or operator], guarantor guarantees to the
								department and to any and all third parties that:
In the event that [owner or operator] fails to
								provide alternate coverage within 60 days after receipt of a notice of
								cancellation of this guarantee and the 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 of the Environment Department,
								shall fund a standby trust fund in accordance with the provisions of
								20.5.117.1713 NMAC, in an amount not to exceed the coverage limits specified
								above.
In the event that the secretary determines that
								[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 in accordance with the provisions of 20.5.117.1713 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
								20.5.117.1713 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
								the financial test criteria of Subsections B, C and D of 20.5.117.1705 NMAC,
								guarantor shall send within 120 days of such failure, by certified mail, notice
								to [owner or operator]. The guarantee will terminate 120 days from the date of
								receipt of the notice by [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 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 20.5 NMAC, the New Mexico Petroleum Storage
								Tank Regulations.
(7) Guarantor agrees to remain bound under this
								guarantee for so long as [owner or operator] shall comply with the applicable
								financial responsibility requirements of 20.5.119 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 [insert 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 owner
								or operator] arising from, and in the course of, employment by [insert 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 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 implementing agency], by any or all third parties, or
								by [owner or operator].
I hereby certify that the wording of this guarantee
								is identical to the wording specified in 20.5.117.1756 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: