Virginia Administrative Code › Title 9 - ENVIRONMENT › Agency 25 - STATE WATER CONTROL BOARD › Chapter 640 - ABOVEGROUND STORAGE TANK AND PIPELINE FACILITY FINANCIAL RESPONSIBILITY REQUIREMENTS › Section 9VAC25-640-250:5 - APPENDIX V. PERFORMANCE BOND

Current through Register Vol. 40, No. 24, July 15, 2024
(Note: The instructions in brackets are to be replaced by the
				  relevant information and the brackets deleted.)
Date bond executed: _____________
Effective date: _____________
Principal: [legal name and address of operator]
				  _____________
Type of organization: [insert "individual" "joint venture,"
				  "partnership," "corporation," or appropriate identification of type of
				  organization] _____________
State of incorporation (if applicable): _____________
Surety(ies): [name(s) and business address(es)]
				  _____________
Scope of Coverage:
[List for each facility: the name and address of the facility
				  where tanks assured by this mechanism are located, either the registration
				  identification number assigned by the Department or the Oil Discharge
				  Contingency Plan facility identification number, and whether tanks are assured
				  by this mechanism. If more than one instrument is used to assure different
				  tanks at any one facility, list each tank assured by this mechanism. For
				  pipelines, list the home office address and the names of the cities and
				  counties in the Commonwealth where the pipeline is located.
List the coverage guaranteed by the bond: containment and
				  clean up of oil from a discharge arising from operating the aboveground storage
				  tank and/or pipeline.]
Penal sums of bond:
Containment and Clean up (per discharge) $ __________
Annual Aggregate $ __________
Surety's bond number: _____________
Know All Persons by These Presents, that we, the Principal
				  and Surety(ies), hereto are firmly bound to the Department of Environmental
				  Quality of the Commonwealth of Virginia, in the above penal sums for the
				  payment of which we bind ourselves, our heirs, executors, administrators,
				  successors, and assigns jointly and severally; provided that, where the
				  Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind
				  ourselves in such sums jointly and severally only for the purpose of allowing a
				  joint action or actions against any or all of us, and for all other purposes
				  each Surety binds itself, jointly and severally with the Principal, for the
				  payment of such sums only as is set forth opposite the name of such Surety, but
				  if no limit of liability is indicated, the limit of liability shall be the full
				  amount of the penal sums.
Whereas said Principal is required under § 62.1-44.34:16
				  of the Code of Virginia and under 9VAC25-640 to provide financial assurance for
				  containment and clean up necessitated by discharges of oil; [if coverage is
				  different for different tanks or locations or pipelines, indicate the type of
				  coverage applicable to each tank or location or pipeline] arising from
				  operating the aboveground storage tanks and/or pipelines identified
				  above;
Now, therefore, the conditions of the obligation are such
				  that if the Principal shall faithfully contain and clean up, in accordance with
				  the Department of Environmental Quality's instructions for containment and
				  clean up of discharges of oil arising from operating the tank(s) identified
				  above, or if the Principal shall provide alternate financial assurance, as
				  specified in 9VAC25-640, within 120 days after the date the notice of
				  cancellation is received by the Principal from the Surety(ies), then this
				  obligation shall be null and void; otherwise it is to remain in full force and
				  effect.
Such obligation does not apply to any of the
				  following:
(a) Any obligation of
				operator under a workers' compensation, disability benefits, or unemployment
				compensation law or other similar law;
(b) Bodily injury to an employee of operator
				arising from, and in the course of, employment by 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 operator that is not the direct result of a
				discharge from an aboveground storage tank and/or pipeline;
(e) Bodily injury or property damage for
				which 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 9VAC25-640.
The Surety(ies) shall become liable on this bond obligation
				  only when the Principal has failed to fulfill the conditions described
				  above.
Upon notification by the Department of Environmental Quality
				  that the Principal has failed to contain and clean up in accordance with
				  9VAC25-91 and the Department of Environmental Quality's instructions, the
				  Surety(ies) shall either perform containment and clean up in accordance with
				  9VAC25-91 and the department's instructions, or pay funds in an amount up to
				  the annual aggregate penal sum to the Department of Environmental Quality as
				  directed by the Department of Environmental Quality under
				  9VAC25-640-180.
				  The Department of Environmental Quality in its sole discretion may elect to
				  require the surety to pay the funds or to perform containment and cleanup up to
				  the annual aggregate penal sum.
Upon notification by the Department of Environmental Quality
				  that the Principal has failed to provide alternate financial assurance within
				  60 days after the date the notice of cancellation is received by the Principal
				  from the Surety(ies) and that the Department of Environmental Quality has
				  determined or suspects that a discharge has occurred, the Surety(ies) shall pay
				  funds in an amount not exceeding the annual aggregate penal sum to the
				  Department of Environmental Quality as directed by the Department of
				  Environmental Quality under
				  9VAC25-640-180.
The Surety(ies) submit to the jurisdiction of the Circuit
				  Court of the City of Richmond to adjudicate any claim against it (them) by the
				  Department of Environmental Quality and waive any objection to venue in that
				  court. Interest shall accrue at the judgment rate of interest on the amount due
				  beginning seven days after the date of notification by the Department of
				  Environmental Quality. In the event the Department of Environmental Quality
				  shall institute legal action to compel performance by the Surety under this
				  agreement, the Surety shall be liable for all costs and legal fees incurred by
				  the department to enforce this agreement.
The Surety(ies) hereby waive(s) notification of amendments to
				  applicable laws, statutes, rules, and regulations and agrees that no such
				  amendment shall in any way alleviate its (their) obligation on this bond. The
				  Surety(ies) hereby agrees that it(they) has been notified of all material facts
				  regarding this contract of suretyship and waiver(s) any defense founded in
				  concealment of material facts. The Surety(ies) represents that the person
				  executing this agreement has full authority to execute the agreement.
				  Surety(ies) hereby waive(s) any right to notice of breach or default of the
				  Principal. The Department of Environmental Quality may enforce this agreement
				  against the Surety(ies) without bringing suit against the Principal. The
				  Department of Environmental Quality shall not be required to exhaust the assets
				  of the Principal before demanding performance by the Surety. No lawful act of
				  the Department of Environmental Quality, including without limitation any
				  extension of time to the Principal, shall serve to release any surety, whether
				  or not that act may be construed to alter or vary this agreement. Release of
				  one cosurety shall not act as the release of another. This agreement shall be
				  construed to affect its purpose to provide remedial action for discharges of
				  petroleum.
The liability of the Surety(ies) shall not be discharged by
				  any payment or succession of payments hereunder, unless and until such payment
				  or payments shall amount in the annual aggregate to the penal sum shown on the
				  face of the bond, but in no event shall the obligation of the Surety(ies)
				  hereunder exceed the amount of said annual aggregate penal sum.
The Surety(ies) may cancel the bond by sending notice of
				  cancellation by certified mail or overnight courier to the Principal and the
				  Department of Environmental Quality, provided, however, that cancellation shall
				  not occur during the 120 days beginning on the date of receipt of the notice of
				  cancellation by the Principal and the Department of Environmental Quality, as
				  evidenced by the return receipt.
The Principal may terminate this bond by sending written
				  notice to the Surety(ies).
In Witness Thereof, the Principal and Surety(ies) have
				  executed this Bond and have affixed their seals on the date set forth
				  above.
The persons whose signatures appear below hereby certify that
				  they are authorized to execute this surety bond on behalf of the Principal and
				  Surety(ies) and that the wording of this surety bond is identical to the
				  wording specified in Appendix V of 9VAC25-640 as such regulations were
				  constituted on the date this bond was executed.
PRINCIPAL
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate seal]
CORPORATE SURETY(IES)
[Name and address]
State of Incorporation:
Liability limit: $ _______________
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal,
				  and other information in the same manner as for Surety above.]
Bond premium: $ ______________
Statutory Authority: §§ 62.1-44.15 and
					 62.1-44.34:16 of the Code of Virginia.