Del. Admin. Code tit. 7, 1000, 1300, 1301, app B to Section 4.1.11
PERFORMANCE BOND
Date bond executed:___________________________
Effective date: ________________________________
Principal: [Legal name and business address of owner or operator]
Type of organization: [insert "individual," "joint venture," "partnership", or "corporation"]
State of incorporation:___________________________
Surety(ies): [name(s) and business address(es)]
Name, address, and closure and/or post closure amount(s) for each facility guaranteed by this bond (indicate closure and post-closure amounts separately);_________________
Total penal sum of bond: $___________________
Surety's bond number: ______________________
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the Department of Natural Resources and Environmental Control, an agency of the State of Delaware, (hereinafter called DNREC), in the above penal sum 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 corporation acting as co-sureties, we the Sureties, bind ourselves in such sum "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 sum 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 sum.
Whereas said Principal is required, under the State Statute, to have a [insert "permit in order to own or operate each solid waste management facility identified above" or "Beneficial Use Determination, hereinafter called BUD in order to own or operate each recycling facility identified above"], and
Whereas said Principal is required to provide financial assurance for closure, or closure and post-closure care as a condition of the [insert "permit" or "BUD"], and
Whereas said Principal shall establish a standby trust as is required when a surety bond is used to provide such financial assurance;
Now, therefore, the conditions of this obligation are such that if the Principal shall faithfully perform closure, whenever required to do so, of each facility for which this bond guarantees closure, in accordance with the closure plan and other requirements of the [insert "permit" or "BUD"] as such plan and [insert "permit" or "BUD"] may be amended, pursuant to all applicable laws, statutes, rules, and regulations as such laws, statutes, rules, and regulations may be amended.
And, if the Principal shall faithfully perform post-closure care of each facility for which this bond guarantees post-closure care, in accordance with the post-closure plan and other requirements of the [insert "permit" or "BUD"] as such plan and [insert "permit" or "BUD"] may be amended, pursuant to all applicable laws, statutes, rules and regulations as such laws, statutes, rules, and regulations may be amended.
Or, if the Principal shall provide alternate financial assurance as specified in Section 4.1.11 of the State of Delaware Regulations Governing Solid Waste, and obtain the DNREC Secretary's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the DNREC Secretary from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.
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 DNREC Secretary that the Principal has been found in violation of the closure requirements, for a facility for which this bond guarantees performance of closure, the Surety(ies) shall either perform closure in accordance with the closure plan and other [insert "permit" or "BUD"] requirements or place the closure amount guaranteed for the facility into the standby trust fund as directed by the DNREC Secretary.
Upon notification by the DNREC Secretary that the Principal has been found in violation of the post-closure requirements for a facility for which this bond guarantees performance of post-closure care, the Surety(ies) shall either perform post-closure care in accordance with the post-closure plan and other [insert "permit" or "BUD"] requirements or place in post-closure amount guaranteed for the facility into the standby trust fund as directed by the DNREC Secretary.
Upon notification by the DNREC Secretary that the Principal has failed to provide alternate financial assurance as specified in Section 4.1.11 of the State of Delaware Regulations Governing Solid Waste, and obtain written approval of such assurance from the DNREC Secretary during the 90 days following receipt by both the Principal and the DNREC Secretary of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into the standby trust fund as directed by the DNREC secretary.
The surety(ies) hereby waive(s) notification of amendments to closure plans, permits, approvals, 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 aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the DNREC Secretary, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the Principal and the DNREC Secretary as evidenced by the return receipts.
The principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the DNREC Secretary.
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post closure amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the DNREC Secretary.
In Witness Whereof, The Principal and Surety(ies) have executed this Performance Bond and have affixed their seals, if applicable, on the date set forth above.
Principal
[Signature(s)]
[Name(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: $____________________
Del. Admin. Code tit. 7, 1000, 1300, 1301, app B to Section 4.1.11
19 DE Reg. 418 (11/1/2015) (Final)