Section 329 IAC 3.1-14-34 - Wording of instrument; guarantee for liability coverageAuthority: IC 13-14-8; IC 13-22-2; IC 13-22-8-1; IC 13-22-9-7
Affected: IC 13-22; IC 13-11-2-71
Sec. 34.
(a) The guarantee, as specified in section 24(g) of this rule or 329 IAC 3.1-15-8(f) (see 329 IAC 3.1-15-10(h)), must be worded as follows except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Guarantee for Liability Coverage Guarantee made this [date] by [name of guaranteeing entity], a business corporation organized under the laws of [if incorporated within the United States, insert, "the State of____________" and insert the name of the state, or, if incorporated outside the United States, insert the name of the country in which incorporated, the principal place of business within the United States, and the name and address of the registered agent in the state of the principal place of business], herein referred to as guarantor. This guarantee is made on behalf of [owner or operator] of [business address], which is [one (1) of the following: "our subsidiary", or "a subsidiary of [name and address of common parent corporation], of which guarantor is a subsidiary"], to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee.
Recitals
1. Guarantor meets or exceeds the financial test criteria and agrees to comply with the reporting requirements for guarantors as specified in 329 IAC 3.1-15-8(f) and 329 IAC 3.1-14-24(g).2. [Owner or operator] owns or operates the following hazardous waste management facility(ies) covered by this guarantee: [List for each facility: U.S EPA identification number, name, and address, and if guarantor is incorporated outside the United States, list the name and address of the guarantor's registered agent in each state.] This guarantee satisfies third party liability requirements for hazardous waste under IC 13-11-2-71 for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences in above-named owner or operator facilities for coverage in the amount [insert dollar amount] for each occurrence and [insert dollar amount] annual aggregate.3. For value received from [owner or operator], guarantor guarantees to any and all third parties who have sustained or may sustain bodily injury or property damage caused by [sudden and/or nonsudden] accidental occurrences arising from operations of the facility(ies) covered by this guarantee that in the event that [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 occurrences, arising from the operation of the above-named facilities, 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 will satisfy such judgment(s), award(s), or settlement agreement(s), up to the limits of coverage identified above.4. Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within ninety (90) days, by certified mail, notice to the commissioner and to [owner or operator] that the guarantor intends to provide alternate liability coverage as specified in 329 IAC 3.1-15-8 and 329 IAC 3.1-14-24, as applicable, in the name of [owner or operator]. Within one hundred twenty (120) days after the end of such fiscal year, the guarantor shall establish such liability coverage unless [owner or operator] has done so.5. The guarantor agrees to notify the commissioner by certified mail of a voluntary or involuntary bankruptcy proceeding under 11 U.S.C. 101 et seq., October 1, 1979, naming guarantor as debtor, within ten (10) days after commencement of the proceeding.6. Guarantor agrees that within thirty (30) days after being notified by the commissioner of a determination that guarantor no longer meets the financial test criteria or that the guarantor is disallowed from continuing as a guarantor, the guarantor shall establish alternate liability coverage as specified in 329 IAC 3.1-15-8 or 329 IAC 3.1-14-24, in the name of [owner or operator], unless [owner or operator] has done so.7. Guarantor reserves the right to modify this agreement to take into account amendment or modification of the liability requirements set by 329 IAC 3.1-15-8 and 329 IAC 3.1-14-24, provided that such modification shall become effective only if the commissioner does not disapprove the modification within thirty (30) days of receipt of notification of the modification.8. Guarantor agrees to remain bound under this guarantee for so long as [owner or operator] must comply with the applicable requirements of 329 IAC 3.1-15-8 and 329 IAC 3.1-14-24 for the above-listed facility(ies), except as provided in paragraph 9 of this agreement.9. Guarantor may terminate this guarantee by sending notice by certified mail to the commissioner and to [owner or operator], provided that this guarantee may not be terminated unless and until [owner or operator] obtains, and the commissioner approves alternate liability coverage complying with 329 IAC 3.1-15-8 and/or 329 IAC 3.1-14-24.10. Guarantor hereby expressly waives notice of acceptance of this guarantee by any party.11. Guarantor agrees that this guarantee is in addition to and does not affect any other responsibility or liability of the guarantor with respect to the covered facilities.12. Guarantor shall satisfy a third party liability claim only on receipt of one (1) of the following documents, either (a) or (b): (a) Certification from the principal and the third party claimant or claimants that the liability claim must 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 principal] and [insert name and address of third party claimant or claimants], hereby certify that the claim of bodily injury, property damage, or bodily injury and property damage caused by a [sudden or nonsudden] accidental occurrence arising from operating [principal's hazardous waste treatment, storage, or disposal facility] must be paid in the amount of $__________.
[Signature]
Principal
(Notary) Date
[Signature or signatures]
Claimant or claimants
(Notary) Date
(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.13. In the event of the combination of this guarantee with another mechanism to meet liability requirements, this guarantee will be considered [insert "primary" or "excess"] coverage.(b) Such obligation does not apply to any of the following:(1) 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. This exclusion does not apply to liability for damages that [insert owner or operator] would be obligated to pay in the absence of the contract or agreement.(2) Any obligation of [insert owner or operator] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.(3) Bodily injury to: (A) an employee of [insert owner or operator] arising from, and in the course of, employment by [insert owner or operator]; or(B) 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 owner or operator].(4) Subdivision (3) applies: (A) whether [insert owner or operator] 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 must pay damages because of the injury to persons identified in subdivision (3).(5) Bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft.(6) Property damage to any of the following: (A) Any property owned, rented, or occupied by [insert owner or operator].(B) Premises that are sold, given away, or abandoned by [insert owner or operator] if the property damage arises out of any part of those premises.(C) Property loaned to [insert owner or operator].(D) Personal property in the care, custody, or control of [insert owner or operator].(E) That particular part of real property on which [insert owner or operator] or any contractors or subcontractors working directly or indirectly on behalf of [insert owner or operator] are performing operations, if the property damage arises out of these operations. I hereby certify that the wording of this guarantee is identical to the wording specified in 329 IAC 3.1-14-34 as such rule was constituted on the 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:
Solid Waste Management Board; 329 IAC 3.1-14-34; filed Jan 24, 1992, 2:00 p.m.: 15 IR 978; filed Apr 1, 1996, 11:00 a.m.: 19 IR 2003; errata filed Jan 10, 2000, 3:01 p.m.: 23 IR 1109; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535Errata filed 5/13/2021, 3:03 p.m.: 20210609-IR-329210194ACA