(4) Personal property in the care, custody or control of [insert principal];
(5) That particular part of real property on which [insert principal] or any contractors or subcontractors working directly or indirectly on behalf of [insert principal] are performing operations, if the property damage arises out of these operations.
[Signatures]_____
Grantor_____
[Signatures]_____
Claimant(s)_____
or (2) a valid final court order establishing a judgment against the Grantor for bodily injury or property damage caused by sudden or nonsudden accidental occurrences arising from the operation of the Grantor’s facility or group of facilities.
This letter of credit is effective as of [date] and shall expire on [date at least one year later], but the expiration date shall be automatically extended for a period of [at least one year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify you, the Wisconsin Department of Natural Resources, and [owner’s or operator’s name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date.
Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor the draft upon presentation to us.
[Insert the following language if a trust fund is not being used: “In the event that this letter of credit is used in combination with another mechanism for liability coverage, this letter of credit shall be considered [insert “primary” or “excess” coverage].”]
We certify that the wording of this letter of credit is identical to the wording specified in s. NR 664.0151 (11) Wis. Adm. Code, as the rules 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”].
NR 664.0151(12)(12) A surety bond, as specified in s. NR 664.0147 (9) or 665.0147 (9), must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Payment Bond
Surety Bond No. [Insert number]
Parties [Insert name and address of owner or operator], Principal, incorporated in [Insert State of incorporation] of [Insert city and State of principal place of business] and [Insert name and address of surety company(ies)], Surety Company(ies), of [Insert surety(ies) place of business].
EPA Identification Number, name and address for each facility guaranteed by this bond: ____
Purpose: This is an agreement between the Surety(ies) and the Principal under which the Surety(ies), its(their) successors and assignees, agree to be responsible for the payment of claims against the Principal for bodily injury and/or property damage to third parties caused by [“sudden” and/or “nonsudden”] accidental occurrences arising from operations of the facility or group of facilities in the sums prescribed herein; subject to the governing provisions and the following conditions.
Governing Provisions:
(1) Rules of the Wisconsin Department of Natural Resources, particularly s. NR [664.0147 or 665.0147], Wis. Adm. Code.
(2) Title 42 of the United States Code, section 6924.
Conditions:
(1) The Principal is subject to the applicable governing provisions that require the Principal to have and maintain liability coverage for bodily injury and property damage to third parties caused by [“sudden” and/or “nonsudden”] accidental occurrences arising from operations of the facility or group of facilities. The obligation does not apply to any of the following:
(a) Bodily injury or property damage for which [insert principal] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert principal] would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert principal] under a workers’ compensation, disability benefits or unemployment compensation law or similar law.
(c) Bodily injury to:
(1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal]. This exclusion applies:
(A) Whether [insert principal] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with or repay another person who shall pay damages because of the injury to persons identified in pars. (c) (1) and (2).
(d) Bodily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented or occupied by [insert principal];
(2) Premises that are sold, given away or abandoned by [insert principal] if the property damage arises out of any part of those premises;
(3) Property loaned to [insert principal];
(4) Personal property in the care, custody or control of [insert principal];
(5) That particular part of real property on which [insert principal] or any contractors or subcontractors working directly or indirectly on behalf of [insert principal] are performing operations, if the property damage arises out of these operations.
(2) This bond assures that the Principal will satisfy valid third party liability claims, as described in condition 1.
(3) If the Principal fails to satisfy a valid third party liability claim, as described above, the Surety(ies) becomes liable on this bond obligation.
(4) The Surety(ies) shall satisfy a third party liability claim only upon the receipt of one of the following documents:
(a) Certification from the Principal and the third party claimant(s) that the liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert name of Principal] and [insert name and address of third party claimant(s)], hereby certify that the claim of bodily injury and/or property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [Principal’s] hazardous waste treatment, storage or disposal facility should be paid in the amount of $[ ].
[Signature]
Principal
[Notary] Date
[Signature(s)]
Claimant(s)
[Notary] Date
or (b) A valid final court order establishing a judgment against the Principal for bodily injury or property damage caused by sudden or nonsudden accidental occurrences arising from the operation of the Principal’s facility or group of facilities.
(5) In the event of combination of this bond with another mechanism for liability coverage, this bond will be considered [insert “primary” or “excess”] coverage.
(6) The liability of the Surety(ies) may not be discharged by any payment or succession of payments hereunder, unless and until the payment or payments shall amount in the aggregate to the penal sum of the bond. In no event shall the obligation of the Surety(ies) hereunder exceed the amount of said annual aggregate penal sum, provided that the Surety(ies) furnish(es) notice to the Department forthwith of all claims filed and payments made by the Surety(ies) under this bond.
(7) The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and the Department, provided, however, that cancellation may not occur during the 120 days beginning on the date of receipt of the notice of cancellation by the Principal and the Department, as evidenced by the return receipt.
(8) The Principal may terminate this bond by sending written notice to the Surety(ies) and to the Department, and if the facilities covered by this bond are in more than one state, each agency regulating hazardous waste or the EPA Regional Administrator if the facility is located in an unauthorized state.
(9) The Surety(ies) hereby waive(s) notification of amendments to applicable laws, statutes, rules and regulations and agree(s) that no amendment shall in any way alleviate its (their) obligation on this bond.
(10) This bond is effective from [insert date] (12:01 a.m., standard time, at the address of the Principal as stated herein) and shall continue in force until terminated as described above.
In Witness Whereof, 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 s. NR 664.0151 (12), Wis. Adm. Code, as the rules 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: $_____
Trust Agreement
Trust Agreement, the “Agreement,” entered into as of [date] by and between [name of the 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 Wisconsin Department of Natural Resources has established certain rules applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility or group of facilities must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental and/or nonsudden accidental occurrences arising from operations of the facility or group of facilities.
Whereas, the Grantor has elected to establish a trust to assure all or part of the financial responsibility for the facilities identified herein.
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:
Section 1. Definitions. As used in this Agreement:
(a) The term “Grantor” means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term “Trustee” means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities. This agreement pertains to the facilities identified on attached schedule A [on schedule A, for each facility list the EPA Identification Number, name and address of the facility(ies) and the amount of liability coverage, or portions thereof, if more than one instrument affords combined coverage as demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, hereinafter the “Fund,” for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of ______ [up to $1 million] per occurrence and ______ [up to $2 million] annual aggregate for sudden accidental occurrences and ______ [up to $3 million] per occurrence and ______ [up to $6 million] annual aggregate for nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
(a) Bodily injury or property damage for which [insert Grantor] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert Grantor] would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under a workers’ compensation, disability benefits, or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert Grantor] arising from, and in the course of, employment by [insert Grantor]; or
