DEP Form 62-673.900(4)(A) "Phosphogypsum Stack System Trust Fund Agreement to Demonstrate Closure, Water Management and/or Long-Term Care Financial Assurance" - Florida

What Is DEP Form 62-673.900(4)(A)?

This is a legal form that was released by the Florida Department of Environmental Protection - a government authority operating within Florida. As of today, no separate filing guidelines for the form are provided by the issuing department.

Form Details:

  • Released on July 2, 2005;
  • The latest edition provided by the Florida Department of Environmental Protection;
  • Easy to use and ready to print;
  • Quick to customize;
  • Compatible with most PDF-viewing applications;
  • Fill out the form in our online filing application.

Download a fillable version of DEP Form 62-673.900(4)(A) by clicking the link below or browse more documents and templates provided by the Florida Department of Environmental Protection.

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Download DEP Form 62-673.900(4)(A) "Phosphogypsum Stack System Trust Fund Agreement to Demonstrate Closure, Water Management and/or Long-Term Care Financial Assurance" - Florida

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PHOSPHOGYPSUM STACK SYSTEM
TRUST FUND AGREEMENT
TO DEMONSTRATE
CLOSURE, WATER MANAGEMENT AND/OR LONG-TERM CARE
FINANCIAL ASSURANCE
TRUST AGREEMENT, the “Agreement,” entered into as of _____________ by and between
Date
______________________________________________________________________________________
Name of the Owner or Operator
a
(the Grantor),
_________________________________ ________________________________________________________
Name of State
Insert “corporation, partnership, association, or proprietorship”
and __________________________________________________________________________________,
Name and Address of Corporate Trustee
_________________________________________________________________________ (the Trustee).
Insert “Incorporated in the State of ____________” or “a national bank.”
WHEREAS, the Florida Department Environmental Protection (FDEP), an agency of the
State of Florida, has established certain regulations applicable to the Grantor, requiring that an
owner or operator of a phosphogypsum stack system shall provide assurance that funds will be
available when needed for closure, water management and/or long-term care of the facility,
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.
(c) The term “FDEP” means the Florida Department of Environmental Protection, an
Agency of the State of Florida or any successor thereof.
1
DEP Form 62-673.900(4)(a)
Effective July 2, 2005
PHOSPHOGYPSUM STACK SYSTEM
TRUST FUND AGREEMENT
TO DEMONSTRATE
CLOSURE, WATER MANAGEMENT AND/OR LONG-TERM CARE
FINANCIAL ASSURANCE
TRUST AGREEMENT, the “Agreement,” entered into as of _____________ by and between
Date
______________________________________________________________________________________
Name of the Owner or Operator
a
(the Grantor),
_________________________________ ________________________________________________________
Name of State
Insert “corporation, partnership, association, or proprietorship”
and __________________________________________________________________________________,
Name and Address of Corporate Trustee
_________________________________________________________________________ (the Trustee).
Insert “Incorporated in the State of ____________” or “a national bank.”
WHEREAS, the Florida Department Environmental Protection (FDEP), an agency of the
State of Florida, has established certain regulations applicable to the Grantor, requiring that an
owner or operator of a phosphogypsum stack system shall provide assurance that funds will be
available when needed for closure, water management and/or long-term care of the facility,
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.
(c) The term “FDEP” means the Florida Department of Environmental Protection, an
Agency of the State of Florida or any successor thereof.
1
DEP Form 62-673.900(4)(a)
Effective July 2, 2005
Section 2. Identification of Facilities and Cost Estimates. This Agreement pertains to the
1
facilities and cost estimates identified on attached Schedule A
.
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund
(the Fund) for the benefit of the FDEP. The Grantor and the Trustee intend that no third party
have access to the Fund except as herein provided. 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 shall be held by the Trustee, IN
TRUST, as hereinafter provided. The Trustee shall not 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 the FDEP.
Section 4. Payment for Closure, Water Management and/or Long-Term Care. The Trustee
shall make payments from the Fund as the FDEP Secretary shall direct, in writing, to provide for
the payment of the costs of closure, water management and/or long-term care of the facilities
covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as
specified by the FDEP Secretary from the Fund for closure, water management and long-term
care expenditures in such amounts as the FDEP Secretary shall direct in writing. In addition, the
Trustee shall refund to the Grantor such amounts as the FDEP Secretary specifies in writing.
Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund
shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and
income of the Fund and keep the Fund invested as a single fund, without distinction between
principal and income, in accordance with general investment policies and guidelines which the
Grantor may communicate in writing to the Trustee from time to time, subject, however, to the
provision of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund,
the Trustee shall discharge his duties 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 which 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), shall not be acquired or held, unless they are securities or
other obligations of the Federal or a 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 a 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 thereon.
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
1
On Schedule A, for each facility list the FDEP Identification Number, name, address, and the current closure, water
management and/or long-term care cost estimates, or portion thereof, for which financial assurance is demonstrated by
this Agreement.
2
DEP Form 62-673.900(4)(a)
Effective July 2, 2005
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 which 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 other
fiduciary capacities, 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 shall 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 a
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 shall 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 shall be paid from the Fund.
Section 10. Annual Valuation. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to the Secretary of the
FDEP a statement confirming the value of the Trust. Any securities in the Fund shall be valued at
market value as of no more than 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 90 days after the
statement has been furnished to the Grantor and the FDEP Secretary 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.
3
DEP Form 62-673.900(4)(a)
Effective July 2, 2005
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 shall 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 a writing sent to the Grantor, the FDEP Secretary, and the present
Trustee by certified mail 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 shall be paid as
provided in Section 9.
Section 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor
to the Trustee shall 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 FDEP Secretary to the
Trustee shall be in writing, signed by the FDEP Secretary, or the designee, 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 FDEP hereunder has occurred. The Trustee shall have no duty to
act in the absence of such orders, requests, and instructions from the Grantor and/or the FDEP,
except as provided herein.
Section 15. Notice of Nonpayment. The Trustee shall notify the Grantor and the FDEP
Secretary, by certified mail within 10 days following the expiration of the 30-day period after the
anniversary of the establishment of the Trust, if no payment is received from the Grantor during
that period. After the pay-in period is completed, the Trustee shall not be required to send a
notice of nonpayment.
Section 16. Amendment of Agreement. This Agreement may be amended by an instrument
in writing executed by the Grantor, the Trustee, and the FDEP Secretary, or by the Trustee and
the FDEP Secretary, 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 shall be irrevocable and shall continue until
terminated at the written agreement of the Grantor, the Trustee, and the FDEP Secretary, or by
the Trustee and the FDEP Secretary, if the Grantor ceases to exist. Upon termination of the
Trust, all remaining trust property, less final trust administration expenses, shall be delivered to
the Grantor.
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 FDEP Secretary issued in
accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the
4
DEP Form 62-673.900(4)(a)
Effective July 2, 2005
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 shall be administered, construed, and enforced
according to the laws of the State of Florida.
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 shall not affect the interpretation of 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 persons whose signatures appear below hereby certify that the wording of this
Agreement is identical to the wording as adopted and incorporated by reference in Rule 62-
673.900, F.A.C.
_____________________________________ _________________________________________
Signature of Grantor
Signature of Trustee
_____________________________________ _________________________________________
Title
Title
Attest:
_____________________________________ _________________________________________
Title
Title
Seal
Seal
5
DEP Form 62-673.900(4)(a)
Effective July 2, 2005
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