Sec. 39.
(a) A trust
agreement, as required in section 24(j) of this rule or
329 IAC 3.1-15-8(i)
(see
329 IAC
3.1-15-10(m)), must be worded as
follows except that the instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
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 Indiana Department of Environmental Management
(IDEM), an agency of Indiana, has established certain rules applicable to the
Grantor, requiring that an owner or operator of a hazardous waste management
facility or group of facilities shall demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden, nonsudden,
or sudden and nonsudden accidental occurrences arising from operations of the
facility or group of facilities.
Whereas, the Grantor has elected to establish a trust to
provide all or part of such financial assurance 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 U.S EPA identification number, name, and address of the facility or
facilities and the amount of liability coverage, or portions thereof, if more
than one (1) instrument affords combined coverage as demonstrated by this
Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a trust
fund, the "Fund", for the benefit of any and all third parties injured or
damaged by [sudden, nonsudden, or sudden and nonsudden] accidental occurrences
arising from the operation of the facility or facilities covered by this
guarantee in the amounts of ________________ [up to one million dollars
($1,000,000)] per occurrence and ________________ [up to two
million dollars ($2,000,000)] annual aggregate for sudden accidental
occurrences and _______________ [up to three million dollars ($3,000,000)] per
occurrence and _______________[up to six million dollars ($6,000,000)] 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
workers' compensation, disability benefits, unemployment compensation law, or
any similar law.
(c) Bodily injury
to:
(i) an employee of [insert Grantor]
arising from and in the course of employment by [insert Grantor]; or
(ii) 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 Grantor].
This exclusion applies whether [insert Grantor] may be liable
as an employer or in any other capacity and applies to any obligation to share
damages with or repay another person who shall pay damages because of the
injury to persons identified in this paragraph.
(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 any of the following:
(i) Any property owned, rented, or occupied
by [insert Grantor].
(ii) Premises
that are sold, given away, or abandoned by [insert Grantor] if the property
damage arises out of any part of those premises.
(iii) Property loaned to [insert
Grantor].
(iv) Personal property in
the care, custody, or control of [insert Grantor].
(v) That particular part of real property on
which [insert Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations if the
property damage arises out of these operations.
In the event of combination with another mechanism for
liability coverage, the Fund will be considered [insert "primary" or "excess"]
coverage.
The Fund is established initially as consisting of the
property, which is acceptable to the Trustee, described in Schedule B attached
hereto. Such property and any other property subsequently transferred to the
Trustee is referred to as the Fund, together with all earnings and profits
thereon, less any payments or distributions made by the Trustee pursuant to
this Agreement. The Fund must be held by the Trustee, IN TRUST, as hereinafter
provided. The Trustee shall neither be responsible nor shall it undertake any
responsibility for the amount or adequacy of, nor any duty to collect from the
Grantor, any payments necessary to discharge any liabilities of the Grantor
established by IDEM.
Section 4. Payment for Bodily Injury or
Property Damage. The Trustee shall satisfy a third party liability claim by
making payments from the Fund only upon receipt of one (1) of the following
documents, either (a) or (b):
(a)
Certification from the Grantor 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 Grantor] 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
[Grantor's] hazardous waste treatment, storage, or disposal facility must be
paid in the amount of [in words] U.S. dollars $________.
[Signature]
Grantor________________________________________
[Signature or signatures]
Claimant or
claimants________________________________________.
(b) 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.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund must consist of cash or securities
acceptable to the Trustee.
Section
6. Trustee Management. The Trustee shall invest and reinvest the
principal and income in accordance with general investment policies and
guidelines that the Grantor may communicate in writing to the Trustee from time
to time, subject, however, to the provisions of this section. In investing,
reinvesting, exchanging, selling, and managing the Fund, the Trustee shall
discharge the duties of the Trustee with respect to the trust fund solely in
the interest of the beneficiary and with the care, skill, prudence, and
diligence under the circumstances then prevailing that persons of prudence,
acting in a like capacity and familiar with such matters, would use in the
conduct of an enterprise of a like character and with like aims except that:
(a) securities or other obligations of the
Grantor or any other owner or operator of the facilities or any of their
affiliates as defined in the Investment Company Act of 1940, as amended,
15 U.S.C.
80a-2(a), must not be
acquired or held unless they are securities or other obligations of the federal
or state government;
(b) the
Trustee is authorized to invest the Fund in time or demand deposits of the
Trustee, to the extent insured by an agency of the federal or state government;
and
(c) the Trustee is authorized
to hold cash awaiting investment or distribution uninvested for a reasonable
time and without liability for the payment of interest
therein.
Section 7.
Commingling and Investment. The Trustee is expressly authorized in its
discretion:
(a) to transfer, from time to
time, any or all of the assets of the Fund to any common, commingled, or
collective trust fund created by the Trustee in which the Fund is eligible to
participate, subject to all of the provisions thereof, to be commingled with
the assets of other trusts participating therein; and
(b) to purchase shares in any investment
company registered under the Investment Company Act of 1940,
15 U.S.C.
80a-1 et seq., including one that may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section
8. Express Powers of Trustee. Without in any way limiting the
powers and discretions conferred upon the Trustee by the other provisions of
this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) to sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) to make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) to register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in any other
fiduciary capacity, or to deposit or arrange for the deposit of such securities
in a qualified central depository even though, when so deposited, such
securities may be merged and held in bulk in the name of the nominee of such
depository with other securities deposited therein by another person, or to
deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee must at all times show
that all such securities are part of the Fund;
(d) to deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the federal or state government; and
(e) to compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund must be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee must be paid from the
Fund.
Section 10. Annual Valuation.
The Trustee shall annually, at least thirty (30) days prior to the anniversary
date of establishment of the Fund, furnish to the Grantor and to the IDEM
commissioner a statement confirming the value of the trust. Any securities in
the Fund must be valued at market value as of no more than sixty (60) days
prior to the anniversary date of establishment of the Fund. The failure of the
Grantor to object in writing to the Trustee within ninety (90) days after the
statement has been furnished to the Grantor and the IDEM commissioner shall
constitute a conclusively binding assent by the Grantor, barring the Grantor
from asserting any claim or liability against the Trustee with respect to
matters disclosed in the statement.
Section
11. Advice of Counsel. The Trustee may from time to time consult
with counsel, who may be counsel to the Grantor, with respect to any question
arising as to the construction of this Agreement or any action to be taken
hereunder. The Trustee shall be fully protected, to the extent permitted by
law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee
shall be entitled to reasonable compensation for its services as agreed upon in
writing from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee
may resign or the Grantor may replace the Trustee, but such resignation or
replacement must not be effective until the Grantor has appointed a successor
Trustee and this successor accepts the appointment. The successor Trustee shall
have the same powers and duties as those conferred upon the Trustee hereunder.
Upon the successor Trustee's acceptance of the appointment, the Trustee shall
assign, transfer, and pay over to the successor Trustee the funds and
properties then constituting the Fund. If for any reason the Grantor cannot or
does not act in the event of the resignation of the Trustee, the Trustee may
apply to a court of competent jurisdiction for the appointment of a successor
Trustee or for instructions. The successor Trustee shall specify the date on
which it assumes administration of the trust in writing sent to the Grantor,
the IDEM commissioner, and the present Trustee by certified mail ten (10) days
before such change becomes effective. Any expenses incurred by the Trustee as a
result of any of the acts contemplated by this section must be paid as provided
in Section 9.
Section 14.
Instructions to the Trustee. All orders, requests, and instructions by the
Grantor to the Trustee must be in writing, signed by such persons as are
designated in the attached Exhibit A or such other designees as the Grantor may
designate by amendment to Exhibit A. The Trustee shall be fully protected in
acting without inquiry in accordance with the Grantor's orders, requests, and
instructions. All orders, requests, and instructions by the IDEM commissioner
to the Trustee must be in writing, signed by the IDEM commissioner, or designee
of the commissioner, and the Trustee shall act and shall be fully protected in
acting in accordance with such orders, requests, and instructions. The Trustee
shall have the right to assume, in the absence of written notice to the
contrary, that no event constituting a change or a termination of the authority
of any person to act on behalf of the Grantor or the IDEM hereunder has
occurred. The Trustee shall have no duty to act in the absence of such orders,
requests, and instructions from the Grantor or IDEM or both except as provided
for herein.
Section 15. Notice of
Nonpayment. If a payment for bodily injury or property damage is made under
Section 4 of this trust, the Trustee shall notify the Grantor of such payment
and the amount or amounts thereof within five (5) working days. The Grantor
shall, on or before the anniversary date of the establishment of the Fund or
within one hundred twenty (120) days of the payout, whichever is sooner, either
make payments to the Trustee in amounts sufficient to cause the trust to return
to its value immediately prior to the payment of claims under Section 4, or
shall provide written proof to the Trustee that other financial assurance for
liability coverage has been obtained equalling the amount necessary to return
the trust to its value prior to the payment of claims. If the Grantor neither
makes payments to the Trustee nor provides the Trustee with such proof, the
Trustee shall, within ten (10) working days after the anniversary date of the
establishment of the Fund, provide a written notice of nonpayment to the
commissioner.
Section 16. Amendment
of Agreement. This Agreement may be amended by an instrument, in writing,
executed by the Grantor, the Trustee, and the IDEM commissioner, or by the
Trustee and the IDEM commissioner if the Grantor ceases to exist.
Section 17. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section 16, this trust must be irrevocable and must continue until terminated
at the written agreement of the Grantor, the Trustee, and the IDEM
commissioner, or by the Trustee and the IDEM commissioner if the Grantor ceases
to exist. Upon termination of the trust, all remaining trust property, less
final trust administration expenses, must be delivered to the Grantor.
The commissioner will agree to termination of the trust when
the owner or operator substitutes alternate financial assurance as specified in
this section.
Section 18.
Immunity and Indemnification. The Trustee shall not incur personal liability of
any nature in connection with any act or omission, made in good faith, in the
administration of this trust, or in carrying out any directions by the Grantor
or the IDEM commissioner issued in accordance with this Agreement. The Trustee
shall be indemnified and saved harmless by the Grantor or from the trust fund,
or both, from and against any personal liability to which the Trustee may be
subjected by reason of any act or conduct in its official capacity, including
all expenses reasonably incurred in its defense in the event the Grantor fails
to provide such defense.
Section
19. Choice of Law. This Agreement must be administered, construed,
and enforced according to the laws of Indiana.
Section 20. Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each section of this
Agreement must not affect the interpretation or the legal efficacy of this
Agreement.
In Witness Whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in 329 IAC 3.1-14-39 as such rule was constituted on the
date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(Note: Corporate seal is not required by Indiana law.)
Before me, the undersigned, a Notary Public in and for said
County and State, personally appeared [owner or operator] to be known by me to
be the person who [(only for corporate party)], as [insert title] of _______,
Inc., the corporation that executed the foregoing instrument, signed the same
and acknowledged to me that he/she did so sign the same [in the name and on
behalf of the said corporation as such officer], and the same is his free act
and deed [and the free corporate act and deed of said corporation, and that
he/she was duly authorized by the Board of Directors of said corporation] and
the statements made in the foregoing instrument are true.
IN WITNESS WHEREOF, I have set my hand and official seal this
_______ day of ______, 199__.
Commission
Expires:________________________________________.
