Mo. Code Regs. tit. 10 § 26-3.114

Current through Register Vol. 49, No. 21, November 1, 2024.

Section 10 CSR 26-3.114 - Local Government Guarantee

PURPOSE: This rule describes the requirements for a local government guarantee of financial responsibility.

(1) A local government owner or operator may satisfy the requirements of 10 CSR 26-3.093 by obtaining a guarantee that conforms to the requirements of this rule. The guarantor must be either the state 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 shall demonstrate that it meets the-

(A) Bond rating test requirement of 10 CSR 26-3.112 and deliver a copy of the chief financial officer's letter as contained in 10 CSR 26-3.112(4) or (5) to the local government owner or operator;

(B) Worksheet test requirements of 10 CSR 26-3.113 and deliver a copy of the chief financial officer's letter as contained in 10 CSR 26-3.113(3) to the local government owner or operator; or

(C) Local government fund requirements of 10 CSR 26-3.115(1)(A), (B), or (C) and deliver a copy of the chief financial officer's letter as contained in 10 CSR 26-3.115 to the local government owner or operator.

(2) If the local government guarantor is unable to demonstrate financial assurance under any of 10 CSR 26-3.112, 10 CSR 26-3.113, or 10 CSR 26-3.115(1)(A), (B), or (C), at the end of the financial reporting year, the guarantor shall send by certified mail, before cancellation or non-renewal of the guarantee, notice to the owner or operator. The guarantee will terminate no less than one hundred twenty (120) days after the date the owner or operator receives the notification, as evidenced by the return receipt. The owner or operator shall obtain alternative coverage as specified in 10 CSR 26-3.110(5).

(3) The guarantee agreement shall be worded as specified in Form 14 or 15, included herein, depending on which of the following alternative guarantee arrangements is selected, if in the default or incapacity of the owner or operator, the guarantor guarantees to-

(A) Fund a standby trust as directed by the director, the guarantee shall be worded as specified in Form 14, included herein;

(B) Make payments as directed by the director for taking corrective action or compensating third parties for bodily injury and property damage, the guarantee shall be worded as specified in Form 15, included herein.

(4) If the guarantor is the state, the local government guarantee with standby trust shall be worded as specified in Form 14, included herein.

(5) If the guarantor is a local government, the local government guarantee with standby trust shall be worded as specified in Form 15, included herein.

(6) If the guarantor is the state, the local government guarantee without standby trust shall be worded as specified in Form 16, included herein.

(7) If the guarantor is a local government, the local government guarantee without standby trust shall be worded as specified in Form 17, included herein.

Form 14-Local Government Guarantee With Standby Trust Made by a State

The following text should be used to comply with the requirements of 10 CSR 26-3.114(4) as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:

Local Government Guarantee With Standby Trust Made by a State

Guarantee made this [date] by [name of state], herein referred to as guarantor, to [the state implementing agency] and to any and all third parties, and obligees, on behalf of [local government owner or operator].

Recitals

1. Guarantor is the state.

2. [Local government owner or operator] owns or operates the following underground 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 10 CSR 26-2.022, and the name and address of the facility]. This guarantee satisfies 10 CSR 26-3.090-10 CSR 26-3.115 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.

3. Guarantor guarantees to [implementing agency] and to any and all third parties that:

In the event that [local government owner or operator] fails to provide alternative coverage within sixty (60) days after receipt of a notice of cancellation of this guarantee and the [director of the implementing agency] has determined or suspects that a release has occurred at an underground storage tank covered by this guarantee, the guarantor, upon instructions from the [director] shall fund a standby trust fund in accordance with the provisions of 10 CSR 26-3.108, in an amount not to exceed the coverage limits specified above.

In the event that the [director] 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 10 CSR 26-2.070-10 CSR 26-2.083, the guarantor upon written instructions from the [director] shall fund a standby trust fund in accordance with the provisions of 10 CSR 26-3.108, 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 the injury or damage, the guarantor, upon written instructions from the [director], shall fund a standby trust in accordance with the provisions of 10 CSR 26-3.108 to satisfy the 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 (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 10 CSR 26-2 and 3.

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; and

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 10 CSR 26-3.093.

8. Guarantor expressly waives notice of acceptance of this guarantee by [the implementing agency], 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 10 CSR 26-3.114(4) as the 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:

Form 15-Local Government Guarantee With Standby Trust Made by a Local Government

The following text should be used to comply with the requirements of 10 CSR 26-3.114(5) as follows, except that the instructions in brackets are to be replaced by the 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 [name of state], herein referred to as guarantor, to [the state implementing agency] 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 10 CSR 26-3.112, the local government financial test requirements of 10 CSR 26-3.113, or the local government fund under 10 CSR 26-3.115(1)(A), (B), or (C)].

3. Incident to our substantial governmental relationship with [local government owner or operator], guarantor guarantees to [implementing agency] and to any and all third parties that:

In the event that [local government owner or operator] fails to provide alternative coverage within sixty (60) days after receipt of a notice of cancellation of this guarantee and [the director of the implementing agency] has determined or suspects that a release has occurred at an underground storage tank covered by this guarantee, the guarantor, upon instructions from [the director] shall fund a standby trust fund in accordance with the provisions of 10 CSR 26-3.108, in an amount not to exceed the coverage limits specified above.

In the event that [the director] 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 10 CSR 26-2.070-10 CSR 26-2.083, the guarantor upon written instructions from [the director] shall fund a standby trust fund in accordance with the provisions of 10 CSR 26-3.108, 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(s), or fails to pay an amount agreed to in settlement of a claim arising from or alleged to arise from the injury or damage, the guarantor, upon written instructions from [the director], shall fund a standby trust in accordance with the provisions of 10 CSR 26-3.108 to satisfy the 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 section 10 CSR 26-3.096(2), guarantor shall send within one hundred twenty (120) days of the 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 (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 10 CSR 26-2 and 3.

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;

9. Guarantor expressly waives notice of acceptance of this guarantee by [the implementing agency], 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 10 CSR 26-3.114(5) as the 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:

Form 16-Local Government Guarantee Without Standby Trust Made by a State

The following text should be used to comply with the requirements of 10 CSR 26-3.114(6) 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

Recitals

1. Guarantor is the state.

2. [Local government owner or operator] owns or operates the following underground 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 10 CSR 26-2.022, and the name and address of the facility.]. This guarantee satisfies 10 CSR 26-3.090-10 CSR 26-3.115 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.

3. Guarantor guarantees to [implementing agency] 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 (60) days after receipt of a notice of cancellation of this guarantee and the [director of the implementing agency] 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 director] 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 director] determines that [local government owner or operator] has failed to perform corrective action for releases arising out of the operation of above-identified tank(s) in accordance with 10 CSR 26-2.070-10 CSR 26-2.083, the guarantor upon written instructions from [the director] 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 "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 the injury or damage, the guarantor, upon written instructions from [the director], 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.

5. Guarantor agrees to remain bound under this guarantee notwithstanding any modification or alteration of any obligation of [owner or operator] pursuant to 10 CSR 26-2 and 3.

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 10 CSR 26-3.090-10 CSR 26-3.115 for the above-identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to [owner or operator], the cancellation to become effective no earlier than one hundred twenty (120) days after receipt of the 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 [local government owner or operator] arising from, and in the course of, employment by [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 [local government owner or operator] that is not the direct result of a release from a petroleum underground storage tank;

E. Bodily injury or property damage for which [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 10 CSR 26-3.093.

8. Guarantor expressly waives notice of acceptance of this guarantee by [the implementing agency], 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 10 CSR 26-3.114(6) as the 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:

Form 17-Local Government Guarantee Without Standby Trust Made by a Local Government

The following text should be used to comply with the requirements of 10 CSR 26-3.114(7) 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

Recitals

1. Guarantor meets or exceeds [select one: the local government bond rating test requirements of 10 CSR 26-3.112, the local government financial test requirements of 10 CSR 26-3.113, the local government fund under 10 CSR 26-3.115(1)(A), (B), or (C)].

2. [Local government owner or operator] owns or operates the following underground 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 10 CSR 26-2.022, and the name and address of the facility.]. This guarantee satisfies 10 CSR 26-3.090-10 CSR 26-3.115 requirements for assuring funding for ["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.

3. Incident to our substantial governmental relationship with [local government owner or operator], guarantor guarantees to [implementing agency] 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 (60) days after receipt of a notice of cancellation of this guarantee and the [director of the implementing agency] 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 director] 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 director] 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 10 CSR 26-2.070-10 CSR 26-2.083, the guarantor upon written instructions from [the director] 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 "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 the injury or damage, the guarantor, upon written instructions from [the director], 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, guarantor shall send within one hundred twenty (120) days of the failure, by certified mail, notice to [local government owner or operator], as evidenced by the return receipt.

6. Guarantor agrees to remain bound under this guarantee notwithstanding any modification or alteration of any obligation of [owner or operator] pursuant to 10 CSR 26-2 and 3.

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 10 CSR 26-3.090-10 CSR 26-3.115 for the above-identified tank(s), except that guarantor may cancel this guarantee by sending notice by certified mail to [owner or operator], the cancellation to become effective no earlier than one hundred twenty (120) days after receipt of the 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 [local government owner or operator] arising from, and in the course of, employment by [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;

9. Guarantor expressly waives notice of acceptance of this guarantee by [the implementing agency], 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 10 CSR 26-3.114(7) as the 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:

10 CSR 26-3.114

AUTHORITY: section 319.114, RSMo 2000.* This rule originally filed as 10 CSR 20-11.114. Original rule filed Aug. 3, 1993, effective 4/9/1994. Moved and amended: Filed April 15, 2011, effective 12/30/2011 .

*Original authority: 319.114, RSMo 1989.