Common use of Access to Financial Assurance Clause in Contracts

Access to Financial Assurance. a. If upon expiration of the 30-day notice period specified in Paragraph 90, Purchaser has not remedied to EPA’s satisfaction the circumstances giving rise to EPA’s issuance of the relevant Work Takeover Notice, then, in accordance with any applicable financial assurance mechanism, EPA may at any time thereafter present the Notice and direct the financial assurance provider to immediately: (i) deposit any funds assured pursuant to this Section into the standby trust fund; or (ii) arrange for performance of the Work in accordance with this Settlement. b. If EPA is notified by the provider of a financial assurance mechanism that it intends to cancel the mechanism, and the affected Purchaser fails to provide an alternative financial assurance mechanism in accordance with this Section at least 30 days prior to the cancellation date, EPA may, prior to cancellation, direct the financial assurance provider to deposit any funds guaranteed under such mechanism into the standby trust fund for use consistent with this Section. 115. Modification of Amount, Form, or Terms of Financial Assurance. Purchaser may submit, on each six-month anniversary of the Effective Date or following Purchaser’s request for, and EPA’s approval of, another date, a request to reduce the amount, or change the form or terms, of the financial assurance mechanism. Any such request must be submitted to the EPA individual(s) referenced in Paragraph 132, and must include an estimate of the cost of the remaining Work, an explanation of the bases for the cost calculation, a description of the proposed changes, if any, to the form or terms of the financial assurance, and any newly proposed financial assurance documentation in accordance with the requirements of Paragraphs 113 and 109 (Standby Trust). EPA will notify Purchaser of its decision to approve or disapprove a requested reduction or change. Purchaser may reduce the amount or change the form or terms of the financial assurance mechanism only in accordance with EPA’s approval. Within 30 days after receipt of EPA’s approval of the requested modifications pursuant to this Paragraph, Purchaser shall submit to the EPA individual(s) referenced in Paragraph 132 all executed and/or otherwise finalized documentation relating to the amended, reduced, or alternative financial assurance mechanism. Upon EPA’s approval, the Required FA shall be deemed to be the estimate of the cost of the remaining Work in the approved proposal. 116. Release, Cancellation, or Discontinuation of Financial Assurance. Purchaser may release, cancel, or discontinue any financial assurance provided under this Section only: (a) after receipt of documentation issued by EPA certifying completion of the Work; or (b) in accordance with EPA’s written approval of such release, cancellation, or discontinuation.

Access to Financial Assurance. a. If upon expiration EPA issues a notice of the 30-day notice period specified in Paragraph 90, Purchaser has not remedied to EPA’s satisfaction the circumstances giving rise to EPA’s issuance implementation of the relevant a Work Takeover Noticeunder Paragraph 69.b, then, in accordance with any applicable financial assurance mechanism, EPA may at any time thereafter present the Notice and direct the financial assurance provider to immediatelyis entitled to: (i1) deposit any funds assured pursuant to this Section into the standby trust fund; or (ii) arrange for performance of the Work Work; an^or (2) require that any ftmds guaranteed be paid in accordance with this SettlementParagraph 91 .c. b. If EPA is notified by the provider issuer of a financial assurance mechanism that it intends to cancel the mechanism, and the affected Purchaser Respondent fails to provide an alternative financial assurance mechanism in accordance with this Section at least 30 days prior to the cancellation date, EPA may, prior to cancellation, direct the financial assurance provider to deposit any funds guaranteed under such mechanism into must be paid prior to cancellation in accordance with Paragraph 91 .c. c. If, upon issuance of a notice of implementation of a Work Takeover imder Paragraph 69.b, either: (1) EPA is imable for any reason to promptly secure the resources guaranteed under any applicable financial assurance mechanism [and/or related standby trust fund for use consistent with this Section. 115. Modification of Amountfimding commitment], Formwhether in cash or in kind, to continue and complete the Work; or Terms of Financial Assurance. Purchaser may submit, on each six-month anniversary of the Effective Date or following Purchaser’s request for, and EPA’s approval of, another date, a request to reduce the amount, or change the form or terms, of (2) the financial assurance mechanism. Any such request must be submitted is a demonstration or guarantee under Paragraph 87.e or 87.f, then EPA is entitled to the EPA individual(s) referenced in Paragraph 132demand an amount, and must include an estimate of the cost of the remaining Workas determined by EPA, an explanation of the bases for the cost calculation, a description of the proposed changes, if any, sufficient to the form or terms of the financial assurance, and any newly proposed financial assurance documentation in accordance with the requirements of Paragraphs 113 and 109 (Standby Trust). EPA will notify Purchaser of its decision to approve or disapprove a requested reduction or change. Purchaser may reduce the amount or change the form or terms of the financial assurance mechanism only in accordance with EPA’s approval. Within 30 days after receipt of EPA’s approval of the requested modifications pursuant to this Paragraph, Purchaser shall submit to the EPA individual(s) referenced in Paragraph 132 all executed and/or otherwise finalized documentation relating to the amended, reduced, or alternative financial assurance mechanism. Upon EPA’s approval, the Required FA shall be deemed to be the estimate of cover the cost of the remaining Work in to be performed. Respondent shall, \vithin 30 days of such demand, pay the approved proposal. 116. Release, Cancellation, or Discontinuation of Financial Assurance. Purchaser may release, cancel, or discontinue any financial assurance provided amount demanded as directed by EPA. d. Any amounts required to be paid under this Section onlyParagraph 91 shall be, as directed by EPA: (ai) after receipt of documentation issued by paid to EPA certifying in order to facilitate the completion of the WorkWork by EPA or by another person; or (bii) deposited into an interest-bearing account, established at a duly chartered bank or trust company that is insured by the FDIC, in accordance order to facilitate the completion of the Work by another person. If payment is made to EPA, EPA may deposit the payment into the EPA Hazardous Substance Superfimd or into DAFCO Tote Site Special Account within the EPA Hazardous Substance Superfimd to be retained and used to conduct or finance response actions at or in connection with EPA’s written approval of such release, cancellationthe Site, or discontinuationto be transferred by EPA to the EPA Hazardous Substance Superfimd. e. Finance response actions at or in connection with the Site, or to be transferred by EPA to the EPA Hazardous Substance Superfimd. f. All EPA Work Takeover costs not paid under this Paragraph 91 must be reimbursed as Future Response Costs under Section XIV (Payments for Response Costs).

Access to Financial Assurance. a. If the Agencies determine that Purchaser (1) has ceased implementation of any portion of the Activities in the Statement of Work, (2) are seriously or repeatedly deficient or late in their performance of the Activities in the Statement of Work, or (3) are implementing the Activities in the Statement of Work in a manner that may cause an endangerment to human health or the environment, the Agencies may issue a written notice (“Performance Failure Notice”) to both Purchaser and the financial assurance provider regarding Purchaser’s failure to perform. Any Performance Failure Notice issued by the Agencies will specify the grounds upon which such notice was issued and will provide Purchaser a period of 10 days within which to remedy the circumstances giving rise to the Agencies’ issuance of such notice. If, after expiration of the 3010-day notice period specified in Paragraph 90this Paragraph, Purchaser has not remedied to EPA’s the Agencies’ satisfaction the circumstances giving rise to EPA’s the Agencies’ issuance of the relevant Work Takeover Performance Failure Notice, then, in accordance with any applicable financial assurance mechanism, EPA the Agencies may at any time thereafter present the Notice and direct the financial assurance provider to immediately: (i) deposit any funds assured pursuant to this Section into the standby trust fund; or (ii) arrange for performance of the Activities in the Statement of Work in accordance with this Settlement. b. . If EPA is notified by the provider of a financial assurance mechanism that it intends to cancel the mechanism, and the affected Purchaser fails to provide an alternative financial assurance mechanism in accordance with this Section at least 30 days prior to the cancellation date, EPA may, prior to cancellation, direct the financial assurance provider to deposit any funds guaranteed under such mechanism into the standby trust fund for use consistent with this Section. 115. Modification of Amount, Form, or Terms of Financial Assurance. Purchaser may submit, on each six-month any anniversary of the Effective Date or following Purchaser’s request for, and EPA’s approval of, another dateat any other time agreed to by the Parties, a request to reduce the amount, or change the form or terms, of the financial assurance mechanism. Any such request must be submitted to the EPA Agencies’ individual(s) referenced in Paragraph 13236, and must include an estimate of the cost of the remaining Activities in the Statement of Work, an explanation of the bases for the cost calculation, a description of the proposed changes, if any, to the form or terms of the financial assurance, and any newly proposed financial assurance documentation in accordance with the requirements of Paragraphs 113 95 and 109 (Standby Trust)96. EPA The Agencies will notify Purchaser of its decision to approve or disapprove a requested reduction or change. Purchaser may reduce the amount or change the form or terms of the financial assurance mechanism only in accordance with EPA’s the Agencies’ approval. Within 30 days after receipt of EPA’s the Agencies’ approval of the requested modifications pursuant to this Paragraph, Purchaser shall submit to the EPA Agencies individual(s) referenced in Paragraph 132 36 all executed and/or otherwise finalized documentation relating to the amended, reduced, or alternative financial assurance mechanism. Upon EPA’s the Agencies’ approval, the Required FA Estimated Cost of the Work shall be deemed to be the estimate of the cost of the remaining Activities in the Statement of Work in the approved proposal. 116. Release, Cancellation, or Discontinuation of Financial Assurance. Purchaser may release, cancel, or discontinue any financial assurance provided under this Section only: only (a) after receipt of documentation issued by EPA the Agencies certifying completion of the Activities in Statement of Work; or (b) in accordance with EPA’s the Agencies’ written approval of such release, cancellationcancellation or discontinuation. The commencement of any Work Takeover pursuant to Paragraph 78 of this Settlement (Work Takeover) shall trigger EPA’s and TCEQ’s right to access the financial assurance mechanism(s) provided pursuant to Paragraphs 95.a., 95.b., or discontinuation95.c., and at such time EPA and the TCEQ shall have immediate access to resources guaranteed under any such Financial Assurance mechanism(s) as needed to complete the Activities in the Statement of Work.