N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 613-8.4
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of the tank system owner or operator, or guarantor]. This letter is in support of the use of [insert: "the financial test of self-insurance," and/or "guarantee"] to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" or "non-sudden accidental releases" or "accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this financial test or a financial test under an authorized State program by this [insert: "owner or operator," and/or "guarantor"]: [List for each facility: the name and address of the facility where tanks assured by this financial test are located. If separate mechanisms or combinations of mechanisms are being used to assure any of the tanks at this facility, list each tank assured by this financial test by the tank identification number provided in the notification submitted pursuant to subdivision 1.9(c) of this Part.]
Amount | |
Closure | $ |
Post-Closure Care | $ |
Liability Coverage | $ |
Corrective Action | $ |
Total | $ |
This [insert: "owner or operator," or "guarantor"] has not received an adverse opinion, a disclaimer of opinion, or a "going concern" qualification from an independent auditor on his financial statements for the latest completed fiscal year.
1. Amount of annual UST aggregate coverage being assured by a financial test, and/or guarantee | $ |
2. Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and abandonment costs covered by a financial test, and/or guarantee | $ |
3. Sum of lines 1 and 2 | $ |
4. Total tangible assets | $ |
5. Total liabilities [if any of the amount reported on line 3 is included in total liabilities, you may deduct that amount from this line and add that amount to line 6] | $ |
6. Tangible net worth [subtract line 5 from line 4] | $ |
7. Is line 6 at least $10 million? | Yes / No |
8. Is line 6 at least 10 times line 3? | Yes / No |
9. Have financial statements for the latest fiscal year been filed with the Securities and Exchange Commission? | Yes / No |
10. Have financial statements for the latest fiscal year been filed with the Energy Information Administration? | Yes / No |
11. Have financial statements for the latest fiscal year been filed with the Rural Utilities Service? | Yes / No |
12. Has financial information been provided to Dun and Bradstreet, and has Dun and Bradstreet provided a financial strength rating of 4A or 5A? [Answer "Yes" only if both criteria have been met.] | Yes / No |
I hereby certify that the wording of this letter is identical to the wording specified in 6 NYCRR 613-8.4(d)(1)(iv) as such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
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 state implementing agency] and to any and all third parties, and obligees, on behalf of [tank system owner or operator] of [business address]. Recitals.
Recitals.
In the event that [tank system owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the [Commissioner of 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 [Commissioner], shall fund a standby trust fund in accordance with the provisions of 6 NYCRR 613-8.7(a), in an amount not to exceed the coverage limits specified above.
In the event that the [Commissioner] determines that [tank system 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 6 NYCRR 613-7, the guarantor upon written instructions from the [Commissioner] shall fund a standby trust in accordance with the provisions of 6 NYCRR 613-8.7(a), in an amount not to exceed the coverage limits specified above.
If [tank system 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 [Commissioner], shall fund a standby trust in accordance with the provisions of 6 NYCR 613-8.7(a) to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified above.
I hereby certify that the wording of this guarantee is identical to the wording specified in 6 NYCRR 613-8.4(d)(2)(iii) 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:
Name: [name of each covered location]
Address: [address of each covered location]
Policy Number:
Period of Coverage: [current policy period]
Address of [Insurer or Risk Retention Group]:
Name of Insured:
Address of Insured:
Endorsement:
[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 subdivision 1.9(c) of this Part and the name and address of the facility.] 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"; in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the underground storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the "each Occurrence" and "annual aggregate" limits of the Insurer's or Group's liability; if the amount of coverage is different for different types of coverage or for different underground storage tanks or locations, indicate the amount of coverage for each type of coverage and/ or for each underground storage tank or location], exclusive of legal defense costs, which are subject to a separate limit under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].
[Insert for claims-made policies]:
I hereby certify that the wording of this instrument is identical to the wording in 6 NYCRR 613-8.4(d)(3)(ii)(a) and that the ["Insurer" or "Group"] is ["licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in one or more states"].
[Signature of authorized representative of Insurer or Risk Retention Group]
[Name of person signing]
[Title of person signing], Authorized Representative of [name of Insurer or Risk Retention Group]
[Address of Representative]
Name: [name of each covered location]
Address: [address of each covered location]
Policy Number:
Endorsement (if applicable):
Period of Coverage: [current policy period]
Name of [Insurer or Risk Retention Group]:
Address of [Insurer or Risk Retention Group]:
Name of Insured:
Address of Insured:
Certification:
[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 subdivision 1.9(c) of this Part and the name and address of the facility.] 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"; in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; if coverage is different for different tanks or locations, indicate the type of coverage applicable to each tank or location] arising from operating the underground storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's or Group's liability; if the amount of coverage is different for different types of coverage or for different underground storage tanks or locations, indicate the amount of coverage for each type of coverage and/or for each underground storage tank or location], exclusive of legal defense costs, which are subject to a separate limit under the policy. This coverage is provided under [policy number]. The effective date of said policy is [date].
[Insert for claims-made policies:
I hereby certify that the wording of this instrument is identical to the wording in 6 NYCRR 613-8.4(d)(3)(ii)(b) and that the ["Insurer" or "Group"] is ["licensed to transact the business of
insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states"].
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer or Risk Retention Group]
[Address of Representative]
Performance Bond
Date bond executed:
Period of coverage:
Principal: [legal name and business address of tank system owner or operator]
Type of organization: [insert "individual," "joint venture," "partnership," or "corporation"]
State of incorporation (if applicable):
Surety(ies): [name(s) and business address(es)]
Scope of Coverage: [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 subdivision 1.9(c) of this Subpart and the name and address of the facility. List the coverage guaranteed by the bond: "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" "arising from operating the underground storage Tank"].
Penal sums of bond:
Per occurrence $
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 implementing agency], 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 6 NYCRR 613-1.16 to provide financial assurance 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 underground storage tanks identified above, and
Whereas said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;
Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully ["take corrective action, in accordance with 6 NYCRR 613-7 and the Commissioner of the state implementing agency's instructions for," and/or "compensate injured third parties for bodily injury and property damage caused by" either "sudden accidental releases" or "non-sudden accidental releases" or "accidental releases"] arising from operating the tank(s) identified above, or if the Principal shall provide alternate financial assurance, as specified in 6 NYCRR 613-8, 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:
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 Commissioner of the Department] that the Principal has failed to ["take corrective action, in accordance with 6 NYCRR 613-7 and the Commissioner's instructions," and/or "compensate injured third parties"] as guaranteed by this bond, the Surety(ies) shall either perform ["corrective action in accordance with 6 NYCRR 613 and the Commissioner's instructions," and/or "third-party liability compensation"] or place funds in an amount up to the annual aggregate penal sum into the standby trust fund as directed by [the Regional Administrator or the Commissioner] under 6 NYCRR 613-8.7(a).
Upon notification by [the Commissioner] 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 Commissioner] has determined or suspects that a release has occurred, the Surety(ies) shall place funds in an amount not exceeding the annual aggregate penal sum into the standby trust fund as directed by [the Commissioner] under 6 NYCRR 613-8.7(a).
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 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 to the Principal, 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, 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 6 NYCRR 613-8.4(d)(4)(ii) as such regulations were constituted on the date this bond was executed.
Principal
[Signature(s)]
[Names(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
[State of Incorporation: ]
[Liability limit: $ ]
[Signature(s)]
[Names(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: $
Commissioner under subdivision 8.7(a) of this Subpart. This standby trust fund must meet the requirements specified in paragraph (7) of this subdivision.
Irrevocable Standby Letter of Credit
[Name and address of issuing institution]
[Name and address of Commissioner(s) of state implementing agency(ies)]
Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No.
[ _____ ] in your favor, at the request and for the account of [tank system owner or operator
name] of [address] up to the aggregate amount of [in words] U.S. dollars ($[insert dollar amount]), available upon presentation [insert, if more than one Commissioner of a state implementing agency is a beneficiary, "by any one of you"] of (1) your sight draft, bearing
reference to this letter of credit, No. [ _____ ] and (2) your signed statement reading as follows: "I
certify that the amount of the draft is payable pursuant to regulations issued under authority of 6 NYCRR 613-1.16."
This letter of credit may be drawn on to cover [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"] arising from operating the underground storage tank(s) identified below in the amount of [in words] $[insert dollar amount] per occurrence and [in words] $[insert dollar amount] annual aggregate:
[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 subdivision 1.9(c) of this Part, and the name and address of the facility.]
The letter of credit may not be drawn on to cover any of the following:
This letter of credit is effective as of [date] and shall expire on [date], but such expiration date shall be automatically extended for a period of [at least the length of the original term] on [expiration date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify [tank system owner or operator] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event that [tank system owner or operator] is so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by [tank system owner or operator], as shown on the signed return receipt.
Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into the standby trust fund of [tank system owner or operator] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the wording specified in 6 NYCRR-8.4(d)(5)(ii) as such regulations were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution]
[Date]
This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published and copyrighted by the International Chamber of Commerce," or "the Uniform Commercial Code"].
Trust Agreement
Trust agreement, the "Agreement," entered into as of [date] by and between [name of the tank system owner or operator], a [name of state] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert "Incorporated in the state of ____" or "a national bank"], the "Trustee." Whereas, the United States Environmental Protection Agency, "EPA," an agency of the United States Government, has established certain regulations applicable to the Grantor, requiring that the owner or operator of an underground storage tank shall provide assurance that funds will be available when needed for corrective action and third-party compensation for bodily injury and property damage caused by sudden and non-sudden accidental releases arising from the operation of the underground storage tank. The attached Schedule A lists the number of tanks at each facility and the name(s) and address(es) of the facility(ies) where the tanks are located that are covered by the [insert "standby" where trust agreement is standby trust agreement] trust agreement.
[Whereas, the Grantor has elected to establish [insert either "a guarantee," "surety bond," or "letter of credit"] to provide all or part of such financial assurance for the underground storage tanks identified herein and is required to establish a standby trust fund able to accept payments from the instrument (This paragraph is only applicable to the standby trust agreement.)];
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as follows:
As used in this Agreement:
This Agreement pertains to the [identify the financial assurance mechanism, either a guarantee, surety bond, or letter of credit, from which the standby trust fund is established to receive payments (This paragraph is only applicable to the standby trust agreement.)].
The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of [implementing agency]. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. [The Fund is established initially as a standby to receive payments and shall not consist of any property.] Payments made by the provider of financial assurance pursuant to [the Commissioner of the Department"s] instruction are transferred to the Trustee and are referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor as provider of financial assurance, any payments necessary to discharge any liability of the Grantor established by [the state implementing agency]
The Trustee shall make payments from the Fund as [the Commissioner of the Department] shall direct, in writing, to provide for the payment of the costs of [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"] arising from operating the tanks covered by the financial assurance mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the following:
The Trustee shall reimburse the Grantor, or other persons as specified by [the Commissioner], from the Fund for corrective action expenditures and/or third-party liability claims in such amounts as [the Commissioner] shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as [the Commissioner] specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Payments made to the Trustee for the Fund shall consist of cash and securities acceptable to the Trustee.
The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:
The Trustee is expressly authorized in its discretion:
Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any questions arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in writing sent to the Grantor and the present Trustee by certified mail ten days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this Section shall be paid as provided in Section 9.
All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Schedule B or such other designees as the Grantor may designate by amendment to Schedule B. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests, and instructions by [the Commissioner of the Department] to the Trustee shall be in writing, signed by [the Commissioner], and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or [the Commissioner] hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or [the Commissioner], except as provided for herein.
This Agreement may be amended by an instrument in writing executed by the Grantor and the Trustee, or by the Trustee and [the Commissioner of the Department] if the Grantor ceases to exist.
Subject to the right of the parties to amend this Agreement as provided in Section 14, this Trust shall be irrevocable and shall continue until terminated at the written direction of the Grantor and the Trustee, or by the Trustee and [the Commissioner of the Department], if the
Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.
The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or [the Commissioner of the Department] issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
This Agreement shall be administered, construed, and enforced according to the laws of the state of [insert name of state], or the Comptroller of the Currency in the case of National Association banks.
As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
In Witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals (if applicable) to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is identical to the wording specified in 6 NYCRR 613-8.4(d)(7)(ii)(a) as such regulations were constituted on the date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness] [Name of the Witness] [Title] [Seal]
State of New York
County of [New York county]
On this [date], before me personally came [tank system owner or operator] to me known, who, being by me duly sworn, did depose and say that she/he resides at [address], that she/he is [title] of [corporation], the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Commissioners of said corporation; and that she/he signed her/ his name thereto by like order.
[Signature of Notary Public]
[Name of Notary Public]
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of local government tank system owner or operator, or guarantor]. This letter is in support of the use of the bond rating test to demonstrate financial responsibility for [insert: "taking corrective action" and/ or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" or "non-sudden accidental releases" or "accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this bond rating test: [List for each facility: the name and address of the facility where tanks are assured by the bond rating test].
The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding bond issues that are being used by [name of local government tank system owner or operator, or guarantor] to demonstrate financial responsibility are as follows:
Issue date | Maturity date | Outstanding amount | Bond rating | Rating agency |
[Moody's or Standard & Poor"s] | ||||
The total outstanding obligation of [insert amount], excluding refunded bond issues, exceeds the minimum amount of $1 million. All outstanding general obligation bonds issued by
this government that have been rated by Moody's or Standard & Poor's are rated as at least investment grade (Moody's Baa or Standard & Poor's BBB) based on the most recent ratings published within the last 12 months. Neither rating service has provided notification within the last 12 months of downgrading of bond ratings below investment grade or of withdrawal of bond rating other than for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording specified in 6 NYCRR 613-8.4(d)(8)(iv) as such regulations were constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of local government tank system owner or operator, or guarantor]. This letter is in support of the use of the bond rating test to demonstrate financial responsibility for [insert: "taking corrective action" and/ or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" or "non-sudden accidental releases" or "accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) underground storage tank(s). This local government is not organized to provide general governmental services and does not have the legal authority under state law or constitutional provisions to issue general obligation debt.
Underground storage tanks at the following facilities are assured by this bond rating test: [List for each facility: the name and address of the facility where tanks are assured by the bond rating test].
The details of the issue date, maturity, outstanding amount, bond rating, and bond rating agency of all outstanding revenue bond issues that are being used by [name of local government tank system owner or operator, or guarantor] to demonstrate financial responsibility are as follows:
Issue date | Maturity date | Outstanding amount | Bond rating | Rating agency |
[Moody's or Standard & Poor"s] | ||||
The total outstanding obligation of [insert amount], excluding refunded bond issues, exceeds the minimum amount of $1 million. All outstanding revenue bonds issued by this government that have been rated by Moody's or Standard & Poor's are rated as at least investment grade (Moody's Baa or Standard & Poor's BBB) based on the most recent ratings published within the last 12 months. The revenue bonds listed are not backed by third-party credit enhancement or insured by a municipal bond insurance company. Neither rating service has provided notification within the last 12 months of downgrading of bond ratings below investment grade or of withdrawal of bond rating other than for repayment of outstanding bond issues.
I hereby certify that the wording of this letter is identical to the wording specified in 6 NYCRR 613-8.4(d)(8)(v) as such regulations were constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
To be eligible to use the financial test, the local government tank system owner or operator must have the ability and authority to assess and levy taxes or to freely establish fees and charges. To pass the local government financial test, the tank system owner or operator must meet the criteria of clauses (ii)(b) and (c) of this paragraph based on year-end financial statements for the latest completed fiscal year.
Letter From Chief Financial Officer
I am the chief financial officer of [insert: name and address of the tank system owner or operator]. This letter is in support of the use of the local government financial test to demonstrate financial responsibility for [insert: "taking corrective action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" or "non-sudden accidental releases" or "accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating [an] underground storage tank[s].
Underground storage tanks at the following facilities are assured by this financial test [List for each facility: the name and address of the facility where tanks assured by this financial test are located. If separate mechanisms or combinations of mechanisms are being used to assure any of the tanks at this facility, list each tank assured by this financial test by the tank identification number provided in the notification submitted pursuant to subdivision 1.9(c) of this Part.]
This owner or operator has not received an adverse opinion, or a disclaimer of opinion from an independent auditor on its financial statements for the latest completed fiscal year. Any outstanding issues of general obligation or revenue bonds, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating of AAA, AA, A, or BBB; if rated by both firms, the bonds have a Moody's rating of Aaa, Aa, A, or Baa and a Standard and Poor's rating of AAA, AA, A, or BBB.
Worksheet for Municipal Financial Test Part I: Basic Information
I hereby certify that the financial index shown on line 16 of the worksheet is greater than zero and that the wording of this letter is identical to the wording specified in 6 NYCRR 613-8.4(d)(9)(iii) as such regulations were constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
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 obliges, on behalf of [local government tank system owner or operator].
Recitals
In the event that the [Commissioner] determines that [local government tank system 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 6 NYCRR 613-7, the guarantor upon written instructions from the [Commissioner] shall fund a standby trust fund in accordance with the provisions of 6 NYCRR 613-8.7(a), in an amount not to exceed the coverage limits specified above.
If [tank system 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 [Commissioner], shall fund a standby trust in accordance with the provisions of 6 NYCRR 613-8.7(a) to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified above.
I hereby certify that the wording of this guarantee is identical to the wording specified in 6 NYCRR 613-8.4(d)(10)(iv) 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:
If the guarantor is a local government, the local government guarantee with standby trust must be worded exactly as follows, except that the instructions in brackets must be replaced with 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 obliges, on behalf of [local government tank system owner or operator].
Recitals
In the event that [local government tank system owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the [Commissioner of 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 [Commissioner] shall fund a standby trust fund in accordance with the provisions of 6 NYCRR 613-8.7(a), in an amount not to exceed the coverage limits specified above.
In the event that the [Commissioner] determines that [local government tank system 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 6 NYCRR 613-7, the guarantor upon written instructions from the [Commissioner] shall fund a standby trust fund in accordance with the provisions of 6 NYCRR 613-8.7(a), in an amount not to exceed the coverage limits specified above.
If [tank system 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
[Commissioner], shall fund a standby trust in accordance with the provisions of 6 NYCRR 613-8.7(a) to satisfy such judgment(s), award(s), or settlement agreement(s) up to the limits of coverage specified above.
I hereby certify that the wording of this guarantee is identical to the wording specified in 6 NYCRR 613-8.4(d)(10)(iv) 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:
Local Government Guarantee Without 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 obliges, on behalf of [local government tank system owner or operator].
Recitals
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.
In the event that [local government tank system owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the [Commissioner of 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 [Commissioner] 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 [Commissioner] determines that [local government tank system 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 6 NYCRR 613-7, the guarantor upon written instructions from the [Commissioner] shall make funds available to pay for corrective actions in an amount not to exceed the coverage limits specified above.
If [tank system 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 [Commissioner], 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.
I hereby certify that the wording of this guarantee is identical to the wording specified in 6 NYCRR 613-8.4(d)(10)(v) 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:
If the guarantor is a local government, the local government guarantee without standby trust must be worded exactly as follows, except that the instructions in brackets must be replaced with the 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 [name of state], herein referred to as guarantor, to [the state implementing agency] and to any and all third parties, and obliges, on behalf of [local government tank system owner or operator].
Recitals
In the event that [local government tank system owner or operator] fails to provide alternative coverage within 60 days after receipt of a notice of cancellation of this guarantee and the [Commissioner of 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 [Commissioner] 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 [Commissioner] determines that [local government tank system 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 6 NYCRR 613-7, the guarantor upon written instructions from the [Commissioner] shall make funds available to pay for corrective actions in an amount not to exceed the coverage limits specified above.
If [tank system 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 [Commissioner], 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.
I hereby certify that the wording of this guarantee is identical to the wording specified in 6 NYCRR 613-8.4(d)(10)(v) 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:
(TF - CF) / Y
where TF is the total required financial assurance for the tank system owner or operator, CF is the current amount in the fund, and Y is the number of years remaining in the pay-in-period.
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of local government tank system owner or operator, or guarantor]. This letter is in support of the use of the local government fund mechanism to demonstrate financial responsibility for [insert: "taking corrective
action" and/or "compensating third parties for bodily injury and property damage"] caused by [insert: "sudden accidental releases" or "non-sudden accidental releases" or "accidental releases"] in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate arising from operating (an) underground storage tank(s).
Underground storage tanks at the following facilities are assured by this local government fund mechanism: [List for each facility: The name and address of the facility where tanks are assured by the local government fund].
[Insert: "The local government fund is funded for the full amount of coverage required under 6 NYCRR 613-8.3, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage." or "The local government fund is funded for five times the full amount of coverage required under 6 NYCRR 613-8.3, or funded for part of the required amount of coverage and used in combination with other mechanisms(s) that provide the remaining coverage," or "A payment is made to the fund once every year for seven years until the fund is fully-funded and [name of local government tank system owner or operator] has available bonding authority, approved through voter referendum, of an amount equal to the difference between the required amount of coverage and the amount held in the dedicated fund" or "A payment is made to the fund once every year for seven years until the fund is fully-funded and I have attached a letter signed by the State Attorney General stating that (1) the use of the bonding authority will not increase the local government's debt beyond the legal debt ceilings established by the relevant state laws and (2) that prior voter approval is not necessary before use of the bonding authority"].
The details of the local government fund are as follows:
Amount in Fund (market value of fund at close of last fiscal year):
[If fund balance is incrementally funded as specified in 6 NYCRR 613-8.4(d)(11)(i)(c), insert:
Amount added to fund in the most recently completed fiscal year:
Number of years remaining in the pay-in-period:]
A copy of the state constitutional provision, or local government statute, charter, ordinance or order dedicating the fund is attached.
I hereby certify that the wording of this letter is identical to the wording specified in 6 NYCRR 613-8.4(d)(11)(i)(b) as such regulations were constituted on the date shown immediately below.
[Date]
[Signature]
[Name]
[Title]
N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 613-8.4