6 Colo. Code Regs. § 1007-2-A
WORDING OF THE INSTRUMENTS
I. (A) Trust Agreement
A trust agreement for a trust fund, in this section, must be worded as follows, except that instruction 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 ofsfafeHinsert "corporation", "partnership", "association", or "proprietorship"], the "Grantor", and [name of corporate trustee], [insert "incorporated in the State of Colorado" or "a national bank"], the "Trustee."
Whereas, the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division ("the department"), a regulatory agency of the State of Colorado, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a solid waste disposal site and facility shall provide assurance that funds will be available when needed for closure post closure and corrective action care of the facility,
Whereas, the Grantor has elected to establish a trust fund to provide all or a 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 assignors 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 name, address, and the current closure and/or post closure cost estimates, and/or corrective action, or portions thereof, for which financial assurance is 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 the department. 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 department.
Section 4. Payment for closure, post-closure and corrective action care
The Trustee shall make payments from the Fund as the department shall direct, in writing, to provide for the payment of the costs of closure, and/or corrective action, and/or post closure care of the facilities covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the department from the Fund for closure, post closure and corrective action expenditures in such amount as the department shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the department specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payment 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 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. 80A2.(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.
(D) The investment objectives of the Trust are primarily preservation of capital and access to liquidity, and secondarily investment return on capital investment. Investments in the Trust may include fixed income mutual funds with average durations of less than five years; United States Treasury bills, notes and bonds with maturities less than ten years; United State agency bonds; money market mutual funds invested solely in United States Treasury or Agency bonds; pre-refunded municipal bonds backed by United State Treasuries or Agencies; bank certificates of deposit and money market accounts up to Federal Deposit Insurance Corporation (FDIC) insurance limits; commercial paper bonds rated "A2P2" or better, corporate bonds rated "AA" or better by Standard and Poor's Financial Services, or any combination of these investments. If individual bonds are used, a minimum of 10 bonds shall be used with roughly equal spacing of maturities and with the intent to hold such bonds to maturity.
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.
Section 8. Express powers of Trustee Without in any way limiting the powers and discretions conferred upon the Trustee by the other provision 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 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 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. 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 department 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 Trusteee 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 the administration of the Trust in a writing sent to the Grantor, the department, and the present Trustee by certified mail, or other trackable delivery service, 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 13 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 department to the Trustee shall be in writing, signed by the director or his designees, 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 department 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 department, except as provided for herein.
Section 15. Notice of nonpayment The Trustee shall notify the Grantor and the department, by certified mail, or other trackable delivery service, within 10 days following the expiration of the 30 days 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 department, or by the Trustee and the department 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 department, or by the Trustee and the department, 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 department issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust, 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 Colorado.
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 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 these regulations were constituted on the date first above written.
The following is an example of the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in these regulations.
State of_________________________________ [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 is [title] of [corporation], the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that 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]
Exhibit A
The following have been designated to give instruction to the Trustee:
[Name and title of designated person] _________________________________
[Signature] _________________________________
[Name and title of designated person] _________________________________
[Signature] _________________________________
Schedule A
Facility name: __________________________________________________
Facility address: __________________________________________________
__________________________________________________
Facility phone number: ________________________________________________
Facility email address: ________________________________________________
Current closure cost estimate: __________________________________
Current post-closure cost estimate: __________________________________
Current corrective action cost estimate (if applicable): ____________________
Schedule B
Financial Institution Information
Name and address of financial institution where Trust is located:
Name: ________________________________________
Address: ________________________________________
__________________________________________________
Contact/Representative name: _______________________________________
Contact phone number:______________________________________________
Contact email: _____________________________________________________
Account Information
Trust account number: _________________________________
Initial funding amount: _________________________________
II. Irrevocable Standby Letter of Credit.
A letter of credit, specified in these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Irrevocable Standby Letter of Credit
Director
Colorado Department of Public Health and Environment
Hazardous Materials and Waste Management Division
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Dear Sir or Madam:
We hereby establish our irrevocable standby letter of credit no._____in your favor, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [in words] U.S. Dollars $_______, available upon presentation of:
(1) Your sight draft bearing reference to this letter of credit no._____, and
(2) Your signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to regulations issued under authority of the Colorado Solid Wastes Disposal Sites and Facilities Act as amended."
This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail, or other trackable delivery service, that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft, for 120 days after the date of receipt by both you and [owner's or operator's name], as shown on the signed return receipts.
Whenever this letter of credit is drawn on under and in compliance with the terms of this letter of credit, we shall duly honor such draft upon presentation to us, and we shall deposit the specified amount of the draft directly into the mechanism established by the State of Colorado to directly receive monies.
We certify that the wording of this letter of credit is identical to the wording specified as such regulations were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution]
Signature:________________________________________
Printed:___________________________________________
Title:_____________________________________________
Date:_____________________________________________
This letter of credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce," or "the Uniform Commercial Code"].
III. Surety Bond
A surety bond guaranteeing payment, as specified in these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Surety Bond
Date bond executed:
__________________________________________________
Effective date:
Principal:[/ega/ 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, corrective action amount(s) for each facility guaranteed by this bond: [Indicate closure and/or post-closure and/or corrective action amount 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 Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (the "department") 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 corporations 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 action 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 Colorado Solid Wastes Disposal Sites and Facilities Act, to have a certificate of designation in order to own or operate each solid waste management 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 certificate of designation, and
Whereas said principal is required to provide financial assurance for any corrective action required at solid waste disposal sites and facilities.
Now, therefore, the conditions of the obligation are such that if the principal shall faithfully, before the beginning of final closure of each facility identified above, provide funding directly to the department in the amount(s) identified above for the facility,
Or, if the principal shall fund in such amount(s) within 15 days after an order to begin closure is issued by the department or a U.S. District court or other court of competent jurisdiction,
Or, if the principal shall provide alternate financial assurance, as specified in these regulations and obtain the department's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the principal and the department 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 department that the principal has failed to perform as guaranteed by this bond, the surety(ies) shall place funds in the amount guaranteed for the facility(ies) as directed by the department.
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 through email to the Financial Assurance Manager and by certified mail, or other trackable delivery service, to the principal and to the department, 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 department, as evidenced by the return receipts.
All notices required under this bond shall be sent to:
Financial Assurance Manager
Colorado Department of Public Health and Environment
Mail Code: DEHS-A2
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Email: cdphe_haz_financialassurance@state.co.us
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 department.
[The following paragraph is an optional rider that may be included but is not required:]
The principal and surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure, post closure and/or corrective action 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 department.
In witness whereof, the principal and surety(ies) have executed this surety bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the principal and surety(ies) and that the wording of this surety bond is identical to the wording specified in the applicable regulations were constituted on the date this bond was executed.
Principal____________________
[Signature(s)]__________________________________________________
[Name(s) and Titles]_____________________________________________
______________________________________________
[Corporate seal]
Corporate Surety(ies)_____________________________________________
[Name and address]_______________________________________________
State of incorporation:_____________________________________________
Liability limit:$______________________________________________
[Signature(s)]______________________________________________
[Name(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: $
IV. Performance Bond
A surety bond guaranteeing performance of closure and/or post closure care, or corrective action as specified, must be worded as follows, except that the instructions in brackets are to be replaced with the relevant information and the brackets deleted.
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 corrective action 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 Colorado Department of Public Health and Environment (the "department"), in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators successors, and assigns jointly and severally; provide that, where the surety(ies) are corporations 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 Colorado Solid Wastes Disposal Sites and Facilities Act as amended, to have a certificate of designation in order to own or operate each solid waste disposal site and 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 certificate of designation; and
Whereas said principal is required to provide financial assurance for any corrective action required at solid waste disposal sites and facilities.
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 certificate of designation as such plan and certificate of designation 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 certificate of designation, as such plan and certificate of designation 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 these regulations, and obtain the department's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the principal and the department 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 department that the principal has been found in violation of the closure requirements of these regulations, for a facility for which this bond guarantees performances of closure, the surety(ies) shall either perform closure in accordance with the closure plan and other certificate of designation requirements or deposit the closure amount guaranteed for the facility as directed by the department.
Upon notification by the department that the principal has failed to provide alternate financial assurance as specified in these regulations, and obtain written approval of such assurance from the department during the 90 days following receipt by both the principal and the department of a notice of cancellation of the bond, the surety(ies) shall deposit funds in the amount guaranteed for the facility(ies) as directed by the department.
The surety(ies) hereby waive(s) notification of amendments to closure plans, permits, 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 through email to the Financial Assurance Manager and by certified mail, or other trackable delivery service, to the owner or operator and to the department 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 department, as evidenced by the return receipts.
All notices required under this bond shall be sent to:
Financial Assurance Manager
Colorado Department of Public Health and Environment
Mail Code: DEHS-A2
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Email: cdphe_haz_financialassurance@state.co.us
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 department.
[The following paragraph is an optional rider that may be included but is not required.]
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 and corrective action 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 department.
In witness whereof, the principal and surety(ies) have executed this performance bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the principal and surety(ies) and that the wording of this surety bond is identical to the wording specified in the applicable regulations.
Principal____________________
[Signature(s)]_______________________________________________
[Name(s) and Title(s)]________________________________________
[Corporate seal]
Corporate Surety(ies)
[Name and address]
State of incorporation:
Liability limit: $
[Signature(s)]
[Name(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: $
V. Insurance
(1) The standard insurance industry certificate of insurance form (ACORD form), as prescribed by the Colorado Insurance Commission, shall be used to evidence closure and/or post closure care and/or corrective action coverage. The following information is to be included in the certificate of insurance:
(A) Name, address, email and telephone number of agency; and the underwriter
(B) Name of facility being covered (if list is too long additional pages may be attached).
(C) Indication of type of coverage (closure, post-closure and/or corrective action).
(D) Amount of coverage (closure, post-closure and/or corrective action).
(E) A statement of certification, in the comment section, worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
"This certificate certifies that the policy to which this certificate applies, provides [insert and/or closure and/or post closure care or corrective action coverage] in connection with the insured's obligation to demonstrate financial responsibility under Section 4.6.5 of the regulations pertaining to Solid Waste Disposal Sites and Facilities 6 CCR 1007-2, as amended.
(F) Authorized company representatives' signature
(2) Cancellation of this policy, whether by the insurer or the insured, will be effective only upon written notice and only after the expiration of sixty (60) days after a written notice of cancellation is received by the department. Notice of cancellation must be sent through email to the Financial Assurance Manager and by certified mail, or other trackable delivery service to the department, as evidenced by the return receipts.
(3) All notices required under this policy shall be sent to:
Financial Assurance Manager
Colorado Department of Public Health and Environment
Mail Code: DEHS- A2
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Email: cdphe_haz_financialassurance@state.co.us
VI. Certificate of Deposit
COLLATERAL ASSIGNMENT OF CERTIFICATE OF DEPOSIT
Instructions: The Colorado Department of Public Health and Environment requires an original signed copy with Italic text replaced.
Bank and Assignor may also require original signed copies.
(Note: No individual certificate of deposit orthe total of all deposits of the assignor at any individual savings institution should exceed $250,000 orthe maximum insurable amount by F.D.I.C).
PARTI
(To: be completed by Assignor)
The undersigned assignor (the "Assignor"), as responsible operator or owner for (Name and Address of Facility) ("the Facility"), does hereby assign, transfer to, and pledge to the Director of the Hazardous Materials and Waste Management Division of the Colorado Department of Public Health and Environment ("the department"), right, title, and interest in and to the Certificate of Deposit issued by or carried with______________________, and its successors or assigns, with an office located at (Address and Telephone Number of Bank or Savings Institution) and identified as Certificate of Deposit #_______________("CD") including its principal amount and any interest that will accrue or already has accrued on the CD ("Assignment"). This Assignment is binding on Assignor, its/his/her/their heirs, devises, personal representatives, successors, and assigns.
PURPOSE
This Assignment is made as, and shall constitute, collateral security for closure, post-closure, and corrective action costs associated with the Facility in accordance with section 30-20-104.5, C.R.S. and 6 CCR 1007-2, § 4.0. Pursuant to 6 CCR 1007-2, § 4.5, the aforesaid costs shall be updated every five (5) years, adjusted annually to account for inflation or deflation by using the implicit price deflator for the gross domestic product or its successor as published by the U.S. Department of Commerce ("Cost Estimate"), or as requirements change at the Facility.
The principal amount of the CD shall be equal orgreaterto the current Cost Estimate. If the Cost Estimate increases to an amount greater than the principal amount of the CD, the owner or operator, during the seven (7) day grace period after the maturity date of the CD ("Grace Period'), shall contribute additional funding to the CD so that the principal amount of the CD is at least equal to the Cost Estimate. In the alternative, the Facility may implement another financial assurance mechanism as set forth in 6 CCR 1007-2, § 4.6.1(D) to satisfy the disparity between the principal amount of the CD and the Cost Estimate. The owner and operator shall provide confirmation that the principal amount of the CD orthe alternative financial mechanism covers the Cost Estimate to the department within ten (10) days of the aforesaid contribution or establishment of other financial assurance mechanism.
During every Grace Period, the owner or operator of the Facility shall increase the principal amount of the CD to account for the inflationary adjustment as determined pursuant to 6 CCR 1007-2, § 4.5 and shall provide written notice of such increase to the department within ten (10) days thereafter.
If the Cost Estimate decreases during the operating life of the Facility or during post-closure, the principal amount of the CD may be reduced to the amount of the Cost Estimate following the department's consultation with the local governing authority and written approval by the department.
Upon request by the department, the Assignor shall provide within ten (10) days to the department a complete copy of the most recent account statement of the CD, which, at a minimum, shows its principal amount and accrued interest. The Assignor also irrevocably consents and authorizes ______________________________to release any information regarding the CD and a recent account statement to the department if the department should contact this bank directly.
DURATION OF ASSIGNMENT
This Assignment shall be for a period from the date hereof until the department declares this Assignment to be terminated by written notice to_____________________________and Assignor. Consequently, the CD shall be automatically renewed for successive new terms identical to the CD's original term unless and until______________________________receives written notice of termination of the Assignment. Assignor hereby agrees to not cancel or otherwise act on the CD without the department's written approval and that Assignor is liable for any fees or penalties associated with any payment of the CD to the department.
CDPHE'S RIGHT TO DRAW UPON CERTIFICATE OF DEPOSIT
Following a determination by the department that the owner or operator has failed to perform final closure or post-closure or corrective action in accordance with the closure or post-closure or corrective action plan and other certificate of designation requirements, if applicable, the department may draw on the CD without further notice to or the consent of Assignor.
The undersigned hereby constitutes and appoints the department as Power of Attorney of the undersigned to demand, collect, and receive all amounts that may become due under the terms of this Assignment, and to endorse the CD for payment or negotiation and to endorse any commercial paper given in payment of the CD.
PRESENTATION OF CERTIFICATE OF DEPOSIT
The undersigned represents and warrants that a receipt for the CD is contemporaneously being delivered to the department with the execution of this Assignment; that the CD is to remain assigned to the department until authorized for release pursuant to 6 CCR 1007-2, § 4.4.6.13; that the CD is genuine and is in all respects what it purports to be; that the undersigned is the owner thereof free and clear of all liens and encumbrances of any nature whatsoever; and that the undersigned has full power, right, and authority to execute and deliver this Assignment.
NOTICES
All notices required under this Assignment shall be sent to:
Financial Assurance Manager
Colorado Department of Public Health and Environment
Mail Code: DEHS- A2
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Email: cdphe_haz_financialassurance@state.co.us
The undersigned further represents and warrants that any assignments of this CD made while the CD is pledged to the department shall be subordinate to this Assignment.
ASSIGNOR:(Name of the Owner or Operator of the Facility)
_____________________ _______________________
Name (Print) Title
_____________________ _______________________
Signature Date
PART II
(To be completed by bank or savings institution)
SIGNATURE GUARANTEE AND UNDERTAKING BY THE FINANCIAL INSTITUTION
The signature of the Assignor appearing on PART I of this document was made in the presence of the undersigned officer of______________________________and such signature is herewith guaranteed by______________________________.
This institution is an association/bank doing business in this state whose accounts are insured by the Federal Deposit Insurance Corporation. The above Assignment carries with it the right in and to the insurance of this account provided by the Federal Deposit Insurance Corporation.
______________________________hereby certifies that the CD identified on page one (1) has a principal amount of $____________; that the signature of the Assignor above is comparable to signatures on file with______________________________; and that______________________________has no knowledge of any other lien, encumbrance, right, hold, claim to, or obligation on the assigned CD.
The CD is issued for a period of____year(s), beginning on_____________,_____and shall be automatically renewable for a like term and at Bank's standard interest rate in effect as of the applicable renewal date for a CD of such term and principal amount, with interest automatically rolling into the principal on each maturity date. In accordance with 6 CCR 1007-2, § 4.6.10(H),
______________________________shall provide a thirty (30) day written notice of maturity of the CD to the Assignor and will make a good faith effort to provide same notice to the department.
______________________________may elect at any time not to renew the CD as of a particular maturity date, subject to the requirement that, at least sixty (60) days before the applicable maturity date,
______________________________shall notify the Assignor and the department by certified mail or other trackable delivery service, of such decision. Such notice shall be effective upon receipt. Upon maturity of the CD following______________________________'s notice of non-renewal, ______________________________shall disburse all funds as directed by the department.
______________________________understands and agrees that the procedures governing the forfeiture of this CD are specified in 6 CCR 1007-2, § 4.6.10(J), and that, upon
______________________________'s receipt of written notice from the department that the Facility has not complied with its requisite final closure or post-closure or corrective action plan,
______________________________will forward to the department within ten (10) days the principal amount of the CD plus any accrued interest, less any early withdrawal penalty, without further notice to the Assignor.
On this date, the maximum penalty for early withdrawal of this Certificate of Deposit is:
$_________________________________. Any penalty shall be deducted from interest accrued, and if to the extent that such amount is insufficient, shall be deducted from the principal of the CD.
______________________________herein states that so long as this agreement remains in effect, it has no other interests in this CD other than its sole responsibility to act as the agent for the purpose of holding the CD for the department's exclusive use until otherwise approved by the department in writing, and agrees not to act on the CD except as otherwise provided in this agreement or pursuant to written approval by the department._____________________________agrees that any claim or lien, which may result from this Assignment, or which it may acquire in the future against the Assignor, will be subordinate and junior to the department's interest in the CD.
______________________________agrees that except as otherwise provided in this agreement, no modification will be made to the terms and conditions of the CD which would affect the interest of the department under this assignment, without first notifying and obtaining written approval from the department. Written notice of any proposed modification or change in the terms or conditions of this CD shall be provided to the Financial Assurance Manager at the address listed in PART I above.
______________________________understands that this Certificate of Deposit is being pledged to the department by the Assignor as financial assurance under 6 CCR 1007-2, § 4.0.
______________________________has retained a copy of this Assignment and has properly documented this Assignment in the appropriate records of this institution.
_________________________________________________________________
Name of Financial Institution
____________________ _____________________
Name (Print) Title
____________________ _____________________
Signature Date
Accepted By:
Colorado Department of Public Health and Environment
____________________ _____________________
Signature Date
Division Director
Hazardous Materials and Waste Management Division
VII. Cash Deposit Holding Account
Cash Deposit Holding Account
A Cash Deposit Holding Account, as specified in these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Cash Deposit Agreement
Date executed:______________________________
Principal: [legal name and business address of owner or operator]
Type of organization: [insert "individual", "joint venture", "partnership", or "corporation"]
Name, address, and closure and/or post-closure and/or corrective action amount(s) for each facility guaranteed by this bond: [Indicate facility location and closure and/or post-closure and/or corrective action amount separately]
Whereas, the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division ("the department"), a regulatory agency of the State of Colorado, has established certain regulations requiring that an owner or operator ("principal") of a solid waste disposal site and facility shall provide assurance that funds will be available when needed,
Whereas said principal is required, under the Colorado Solid Wastes Disposal Sites and Facilities Act and the Colorado Solid Waste Regulations (6 CCR 1007-2, Part 1) § 4.1.2 to establish financial assurance in order to own or operate each solid waste management facility or corrective action site identified above, and
Now, therefore, the principal shall provide funding directly to the department in the amount(s) identified above for the facility, in the amount of $_______________________.
The Principal may only request the release of funds held in the cash deposit account after an alternate mechanism is approved in writing by the department, if the facility is released by the department in writing from the financial assurance requirement, or if the Principal submits documentation that a lessor or greater amount of financial assurance will be required at the facility and the department agrees to the changed amount in writing.
All requirements of Section 4 of the Solid Waste Regulations, 6 CCR 1007-2, Part 1, apply to the funds held in this Cash Deposit Holding Account.
All notices under this agreement shall be sent to:
Financial Assurance Manager
Colorado Department of Public Health and Environment
Mail Code: HMWMD-DEHS- A2
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Email: cdphe_haz_financialassurance@state.co.us
The persons whose signatures appear below hereby certify that they are authorized to execute this agreement on behalf of the principal.
Principal_________________________________________
[Signature(s)]_____________________________________
[Name(s) and Title(s)]_______________________________
6 CCR 1007-2-A