Agreement, the "Agreement," entered into as of [Date] by
and between [Facility Owner or Operator Name], herein referred to as
"Grantor," and [Name of Trustee], [Insert "incorporated
in the State of "
or "a national bank"], hereby referred to as "Trustee."
the Iowa Department of Natural Resources, herein referred to as
“IDNR”, has established certain regulations applicable to the
Grantor, requiring that an owner and/or operator of a sanitary
landfill shall provide assurance that funds will be available when
needed for closure and/or postclosure care of the facility;
the Grantor has elected to establish a trust to provide all or part
of such financial assurance for the facility(ies) identified herein;
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;
the Trustee is an entity which has authority to act as a trustee, and
whose trust operations are regulated and examined by a Federal or
therefore, the Grantor and the Trustee agree as follows:
1. Definitions. As
use in this Agreement:
term “Grantor” means the owner or operator who enters into this
Agreement and any successors or assigns of the Grantor.
term “Trustee” means the Trustee who enters into this Agreement
and any successor Trustee.
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 permit number, name, address, and the current closure and/or
postclosure care cost estimate, or portions thereof, for which
financial assurance is demonstrated by this Agreement].
3. Establishment of Fund. The
Grantor and the Trustee hereby establish a trust fund, the "Fund,"
for the benefit of the State of Iowa in accordance with the
provisions of IAC 567 Chapter 113.14(6)“a”. The Grantor and the
Trustee intend that no third party have access to the Fund, except as
herein provided. 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.
4. Payment for Closure Care. The
Trustee shall make payments from the Fund as IDNR shall direct, in
writing, to provide for the payment of the costs of closure and/or
postclosure care of the facility(ies) covered by this Agreement. The
Trustee shall reimburse the Grantor or other persons from the Fund
for closure and/or postclosure care expenditures in such amounts as
IDNR shall direct in writing. In addition, the Trustee shall refund
to the Grantor such amounts as IDNR specifies in writing, as
exceeding the current cost estimate for closure and/or postclosure
care. Upon reimbursement or refund, such funds shall no longer
constitute part of the Fund as defined herein. Furthermore, the Fund
shall not be assigned for the benefit of creditors with the exception
of the State of Iowa, and shall not be used to pay any final judgment
against the Grantor arising out of the ownership or operation of the
site during the active life or after closure.
5. 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. The successor trustee shall
specify the date on which it assumes administration of the trust in
writing sent to the Grantor, IDNR, and the present Trustee by
certified mail 30 days before such change becomes effective.
6. 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 persons 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 IDNR to the Trustee shall be in writing, signed by the Director,
or his 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 IDNR 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 IDNR except as provided for
7. Amendment of Agreement. This
Agreement may be amended by an instrument in writing executed by the
Grantor, the Trustee, and IDNR or by the Trustee and IDNR if the
Grantor ceases to exist.
8. Irrevocability and Termination. Subject
to the right of the parties to amend this Agreement as provided in
Section 7, this Trust shall be irrevocable and shall continue until
terminated at the written agreement of the Grantor, the Trustee, and
IDNR, or by the Trustee and IDNR, 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. Pursuant to IAC 567 Chapter 113.14(6)“a”, said Agreement
may be terminated by the Grantor only if the Grantor substitutes
alternative financial assurance or if the Grantor is no longer
required to demonstrate financial responsibility.
9. 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 IDNR issued in accordance with this Agreement. The
Trustee shall be indemnified and saved harmless by the Grantor or
from the 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.
10. Choice of Law. This
Agreement shall be administered, construed, and enforced according to
the laws of the State of Iowa.
the Grantor and Trustee have executed this Agreement under their
respective hands and seals, this
day of ,
persons whose signatures appear below hereby certify that they are
authorized to execute this Agreement on behalf of the Grantor and