Code of Maine Rules › 06 - DEPARTMENT OF ENVIRONMENTAL PROTECTION › 096 - DEPARTMENT OF ENVIRONMENTAL PROTECTION - GENERAL › Chapter 400 - GENERAL PROVISIONS › Appendix 096-400-B - WORDING FOR TRUST FUND AGREEMENTS TRUST AGREEMENT

Current through 2024-29, July 17, 2024
Trust Agreement, the "Agreement," entered into as of [date]
				  by and between [name of 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 Maine Department of Environmental Protection,
				  "DEP", an agency of the State of Maine, has established certain regulations
				  applicable to the Grantor, requiring that an owner or operator of a solid waste
				  disposal facility shall provide assurance that funds will be available when
				  needed for corrective action or closure and/or post-closure 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
				  the Agreement:
A. The term "Grantor" means the owner or the operator who
				  enters into the 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 and Cost Estimates. This Agreement pertains to the facilities and
				  cost estimates identified on attached Schedule A [on Schedule A, for each
				  facility list the DEP solid waste disposal facility license number, name,
				  address, and the current corrective action or closure and post-closure cost
				  estimates, or portions thereof, for which financial assurance is provided for
				  by this Agreement].
Section
				  3.
Establishment of Fund. The
				  Grantor and the Trustee hereby establish a trust fund, the "Fund", for the
				  benefit of DEP. 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 DEP.
Section
				  4.
Payment for Closure and
				  Post-Closure Care. The Trustee shall make payments from the Fund as the DEP
				  Commissioner shall, in his sole discretion, direct in writing, to provide for
				  the payment of the costs of corrective action or closure and/or post-closure
				  care of the facilities covered by this Agreement or for other costs determined
				  by the Commissioner to be payable from the proceeds of the Fund. Without
				  limitation of the foregoing, the Trustee shall reimburse the Grantor or other
				  persons as specified by the DEP Commissioner from the Fund for corrective
				  action or closure and post-closure expenditures in such amounts as the DEP
				  Commissioner shall direct in writing. In addition, the Trustee shall refund to
				  the Grantor such amounts as the DEP Commissioner shall direct 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. In addition to or in lieu of payments of
				  money or securities provided to the Trustee by the Grantor hereunder, Grantor
				  may provide, subject to the agreement of the Department, one or more
				  irrevocable letters of credit issued by a qualified financial institution in
				  accordance with the terms hereof. The Trustee shall hold, renew and administer
				  the letter(s) of credit and any replacement(s) thereof in accordance with
				  section 19.
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
				  consistent with its fiduciary duty subject, however, to the provisions of this
				  section. In investing, reinvesting, exchanging, selling, and managing the Fund,
				  the Trustee shall discharge his duties with respect to the 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 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 participate, subject to all of the
				  provisions hereof, 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 discretion conferred upon the
				  Trustee by the other provisions of this Agreement or by law, subject to the
				  other provisions hereof, 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 saving 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 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 Department 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.
Section
				  11.
Advice of Counsel. The
				  Trustee may from time to time consult with counsel, with respect to any
				  question arising as to the construction of this Agreement or any action to be
				  taken hereunder.
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 and as paid directly by 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, with the Department's
				  approval, has appointed a qualified 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 DEP
				  Commissioner, 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 by the Grantor.
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 provided that they comply
				  with the terms hereof. All orders, requests, and instructions by the DEP
				  Commissioner to the Trustee shall be in writing, signed by the DEP Commissioner
				  or his/her 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 DEP 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 DEP, except as provided for herein.
Section 15.
Notice of Nonpayment. The Trustee
				  shall notify the Grantor and the DEP Commissioner or Commissioner's designee,
				  by certified mail within 10 days following the expiration of the 30-day period
				  after the anniversary of the establishment of the Trust of the amount of any
				  payment received from the Grantor, or 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 DEP Commissioner, or by the Trustee and the DEP
				  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 and by State law, this Trust shall be irrevocable and shall continue
				  until terminated at the written agreement of the Grantor, the Trustee, and the
				  DEP Commissioner, or by the Trustee and the DEP Commissioner 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 or
				  the DEP if directed by the Commissioner.
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 DEP Commissioner issued in
				  accordance with this Agreement. The Trustee shall be indemnified and saved
				  harmless by the Grantor 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.
Letters of Credit. If the Grantor
				  and Department agree, one or more letters of credit may be deposited by the
				  Grantor as part of the Trust Fund hereunder. The issuer of the letter(s) of
				  credit, and of any replacement thereof, together with the form of the
				  letter(s), shall meet such credit-worthiness and other requirements as the
				  Department shall direct. If at any time the issuer of the letter fails to meet
				  these requirements or otherwise upon call by the Department, the Trustee shall
				  immediately notify the Grantor, liquidate the letter(s) and deposit the
				  proceeds into the Trust Fund. In the event that any letter of credit held by
				  the Trustee hereunder is about to expire, the Trustee shall immediately
				  liquidate the letter, prior to its expiration, and deposit the proceeds into
				  the Trust Fund.
Section 20.
Choice of Law. This Agreement shall
				  be administered, construed, and enforced according to the laws of the State of
				  Maine.
Section 21.
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:
[Signature of Grantor]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
State of Maine
County of ________________
On this [date]. before me personally came [ owner or
				  operator ] to me known, who, being by me duly sworn, did depose and say that
				  she/he resides at [address], that she/he knows the seal affixed to such
				  instrument is such corporate seal; that it was so affixed by order of the Board
				  of Directors of said corporation, and that she/he signed her/his name thereto
				  by like order.
_____________[Signature of Notary
				  public]_____________