Common use of Access to Financial Assurance Clause in Contracts

Access to Financial Assurance. a. If the Division issues a notice of implementation of a Work Takeover under Paragraph 141.b, then, in accordance with any applicable financial assurance mechanism, and/or related standby funding commitment, the Division is entitled to: (1) the performance of the Work; and/or (2) require that any funds guaranteed be paid in accordance with Paragraph 164.d. b. If the Division is notified by the issuer of a financial assurance mechanism that it intends to cancel the mechanism, Respondent shall provide an alternative financial assurance mechanism in accordance with this Section within 30 days after the cancellation notification. If Respondent fails to do so and cancellation occurs, the Division shall be immediately entitled to make a demand for payment, and Respondent shall pay such demand, in accordance with Paragraph 164.d. c. If, upon issuance of a notice of implementation of a Work Takeover under Paragraph 141.b, either: (1) the Division is unable for any reason to promptly secure the resources guaranteed under any applicable financial assurance mechanism and/or related standby funding commitment, whether in cash or in kind, to continue and complete the Work; or (2) the financial assurance is a guarantee under Paragraphs 159.e, then the Division is entitled to demand an amount, as determined by the Division, sufficient to cover the cost of the remaining Work to be performed pursuant to the notice. Respondent shall, within 60 days of such demand, pay the amount demanded as directed by the Division. d. Any amounts required to be paid under this Paragraph 164 shall be, as directed by the Division: (i) paid to the Division in order to facilitate the completion of the Work by the Division or by its authorized representative; or (ii) deposited into an interest-bearing account, established at a duly chartered bank or trust company, in order to facilitate the completion of the Work by the Division’s authorized representative. If payment is made to the Division, the Division shall deposit the payment into the Anaconda Copper Mine Special Account to be retained and used by the Division to conduct or finance response actions at or in connection with the Site and not for any other purpose. e. All Division Work Takeover costs not paid under this Paragraph 164 must be reimbursed as Future Response Costs under Section XVII (Payment of Response Costs). 165. Modification of Amount, Form, or Terms of Financial Assurance. Respondent may submit, on any anniversary of the Effective Date or at 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 Division in accordance with Paragraph 159, and must include an estimate of the cost of the remaining Work, an explanation of the bases for the cost calculation, and a description of the proposed changes, if any, to the form or terms of the financial assurance. The Division will notify Respondent of its decision to approve or disapprove a requested reduction or change pursuant to this Paragraph. Respondent may reduce the amount of the financial assurance mechanism only in accordance with: (a) the Division’s approval; or (b) if there is a dispute, the agreement or written decision resolving such dispute under Section XVIII (Dispute Resolution). Respondent may change the form or terms of the financial assurance mechanism only in accordance with the Division’s approval. Any decision made by the Division on a request submitted under this Paragraph to change the form or terms of a financial assurance mechanism shall not be subject to challenge by Respondent pursuant to the dispute resolution provisions of this Settlement or in any other forum. Within 30 days after receipt of the Division’s approval of, or the agreement or decision resolving a dispute relating to, the requested modifications pursuant to this Paragraph, Respondent shall submit to the Division documentation of the reduced, revised, or alternative financial assurance mechanism in accordance with Paragraph 159. 166. Release, Cancellation, or Discontinuation of Financial Assurance. Respondent may release, cancel, or discontinue any financial assurance provided under this Section only: (a) if the Division issues a Certification of Remedial Action Completion under Paragraph 172; (b) in accordance with the Division’s approval of such release, cancellation, or discontinuation; or (c) if there is a dispute regarding the release, cancellation or discontinuance of any financial assurance, in accordance with the agreement or final decision resolving such dispute under Section XVIII (Dispute Resolution).