HomeMy WebLinkAboutContract 29051 CITY SECRETARy��cj
CONTRACT NO. o I
09-05-03 P03 : 18 IN
CITY OF FORT WORTH. TEXAS
to
BANK ONE. NATIONAL ASSOCIATION
as Trustee
TRUST AGREEMENT
Dated Febrary 28, 2003
Relating to Southeast Landfill
Closure and Post-Closure Care Reserve Costs
OFFIC-111A,I NICON
CITY �EC--I.Wlily
FT. i�vm, Tig.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section1.1. Definitions................................................................................................................3
Section1.2. Interpretation............................................................................................................4
ARTICLE II
CUSTODY AND INVESTMENT OF FUNDS
Section 2.1. Creation of Funds and Accounts..............................................................................6
Section 2.2. Closure and Post-Closure Fund ...............................................................................6
Section 2.3. Closure Reserve Amounts........................................................................................6
Section 2.4. Delivery of Monthly Statements..............................................................................7
Section 2.5. Investment of Closure and Post-Closure Fund ........................................................7
Section 2.6. Overpayments of Additional Rent...........................................................................8
Section 2.7. Termination and Default..........................................................................................8
ARTICLE III
PARTICULAR COVENANTS
Section 3.1. No Pecuniary Liability on City or Officers..............................................................9
ARTICLE IV
CONCERNING THE TRUSTEE
Section 4.1. Appointment and Acceptance of Duties ................................................................10
Section4.2. Indemnity...............................................................................................................10
Section 4.3. Responsibilities of Trustee.....................................................................................10
Section 4.4. Compensation; Indemnification.............................................................................1 1
Section 4.5. Evidence on Which Trustee May Act....................................................................1 l
Section 4.6. Resignation or Removal of Trustee .......................................................................I 1
Section 4.7. Successor Trustee...................................................................................................I 1
ARTICLE V
AMENDMENTS OF TRUST AGREEMENT
Section 5.1. Amendments of Trust Agreement..........................................................................14
Section 5.2. Rights of Allied......................................................................................................14
(i)
TABLE OF CONTENTS (continued)
Page
ARTICLE VI
GENERAL PROVISIONS
Section6.1. Notices ...................................................................................................................15
Section 6.2. Effective Date; Counterparts..................................................................................15
Section 6.3. Date for Identification Purposes Only ...................................................................15
Section 6.4. Governing Law ......................................................................................................16
APPENDICES
APPENDIX A Form of Requisition - Section 2.2(C) ........................................................... A-1
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TRUST AGREEMENT, made and dated February 28, 2003 by and between the
City of Fort Worth, Texas, a home rule city in Tarrant. Denton and Wise Counties, Texas (the
"City"), and Bank One, National Association, a national banking association organized, existing
and authorized to accept and execute trusts of the character herein set out under and by virtue of
the laws of the United States with an office located in, Fort Worth, Texas as trustee (the
-Trustee"),
WHEREAS, the City has entered into an Agreement to Lease and Operate
Southeast Landfill, dated as of February 28, 2003 (the "Southeast Landfill Lease"). between the
Citv. as lessor. and Allied Waste Systems. Inc. d/b/a Trinity Waste Services ("Allied"), as lessee.
relating to the City's Southeast Landfill more fully described therein (the "Southeast Landfill"),
rind
WHEREAS, pursuant to Section 9.1 of the Southeast Landfill Lease, Allied
undertakes to perform certain obligations relating to closure and post-closure of the Southeast
Landfill as more fully described in the Southeast Landfill Lease, and
WHEREAS, pursuant to Section 4.6(A) of the Southeast Landfill Lease, Allied
undertakes to make certain payments of Additional Rent to the City for the purpose of paying
Closure and post-closure costs of the Southeast Landfill; and
WHEREAS, pursuant to Section 9.4 (B) of the Southeast Landfill Lease the City
aorees to establish a Closure Trust with a commercial bank or trust company to act as trustee,
into which the City will deposit the Additional Rent paid by Allied pursuant to Section 4.6(A) of
the Southeast Landfill Lease; and
WHEREAS, the trust created by this Trust Agreement constitutes the Closure
Trust referred to above, and this Trust Agreement has been approved by Allied;
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
GRANTING CLAUSES
That the City in consideration of the premises and the acceptance by the Trustee
of the trusts hereby created, and of the sum of One Dollar, lawful money of the United States of
America, to it duly paid by the Trustee at or before the execution and delivery of these presents,
and for other good and valuable consideration, the receipt of which is hereby acknowledged, and
in order to secure the payment of the Southeast Landfill Closure Costs, does hereby establish a
trust designated the "Southeast Landfill Closure Trust" and does grant, bargain, sell, convey,
pledge and assign unto, and grant a security interest in and to the Trustee, and unto its respective
successors in trust, and to their respective assigns, forever, for the securing of the performance of
the obligations of the City hereinafter set forth, the following:
1.
All amounts paid to the City by Allied as Additional Rent pursuant to
Section 4.6(A) of the Southeast Landfill Agreement (and as such Section may be amended or
moved) with respect to closure costs of the Southeast Landfill, subject to the conditions herein
and therein set forth;
II.
All moneys and securities, including investment earnings thereon, from time to
time held by the Trustee under the terms of this Trust Agreement;
TO HAVE AND TO HOLD all and singular the trust estate, whether now owned
or hereafter acquired. unto the Trustee and its respective successors and assigns in trust forever
to its and their own proper use but:
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the
purpose of paying Southeast Landfill Closure Costs;
PROVIDED, HOWEVER, that if the City, its successors or assigns, shall pay, or
cause to be paid, all Southeast Landfill Closure Costs, or shall provide, as permitted hereby, for
the payment thereof by depositing with the Trustee the entire amount due or to become due
thereon. and shall keep, perform and observe all the covenants and conditions pursuant to the
terms of this Trust Aoreement to be kept. performed and observed by it. and shall pay or cause to
be paid to the Trustee all sums of money due or to become due to it in accordance with the terms
and provisions of this Trust Agreement, then upon the final payment thereof this Trust
Agreement and the rights hereby granted shall cease, terminate and be void; otherwise this Trust
Agreement shall be and remain in full force and effect.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. As used in this Indenture:
"Allied"' means Allied Waste Systems, Inc. d/b/a Trinity Waste Services, and its
permitted successors and assigns.
"Applicable Laws" shall have the meanin�(I set forth in the Southeast Landfill
Lease.
"Business Day" means any day on which banks located in each of the cities in
which the principal corporate trust office of the Trustee and the City are located are not required
or authorized to remain closed and on which the New York Stock Exchange is not closed.
"Commission" means the Texas Natural Resource Conservation Commission
("TNRCC"') and/or its successor agency, the Texas Commission on Environmental Quality
("TCEQ" ), as the context may require.
"Cost Substantiation" means, with respect to any cost, a certificate signed by an
authorized representative of Allied setting forth the amount of such cost, stating that such cost or
an obligation to pay such cost was incurred by Allied for Southeast Landfill Closure Costs, and
stating that such cost is a competitive price for the service or material supplied. The certificate
shall include invoices and other pertinent documentation.
"Permit" means Permit No. MSW 218-A issued by the Commission relating to
the operation and closure of the Southeast Landfill, as the same may be amended or
supplemented or substituted with other permits, from time to time.
"Permitted Investments" shall have the meaning as set forth in Section 2.5 herein.
"Southeast Landfill" means the landfill owned by the City and known as the
Southeast Landfill that is the property described in the Southeast Landfill Lease.
"Southeast Landfill Closure Costs" means all costs reasonable or necessary of
performing the Southeast Landfill Closure Obligations, subject to Cost Substantiation.
"Southeast Landfill Closure Obligations" means the obligations of Allied under
Section 9.1 of the Southeast Landfill Lease Agreement, including all requirements under
Applicable Laws relating to closure of the Southeast Landfill or any portion thereof and post-
closure monitoring and maintenance services relating thereto_ whether during the term of" the
Southeast Landfill Lease or thereafter.
"Southeast Landfill Lease" means that Agreement to Lease and Operate Southeast
Landfill, dated February 28, 2003, between the City, as lessor, and Allied, as lessee.
"State" means the State of Texas.
"Trust Agreement" means this Trust Agreement, dated as of February 28, 2003,
between the City and the Trustee, as the same may be amended from time to time.
"Trustee" means Bank One, National Association and its successors and assigns.
Section 1.2. Interpretation. (A) In this "Trust Agreement":
( I ) The terms "hereby' "hereof'. -hereto". ..herein". "hereunder'. and any
similar terms_ as used in this Trust Agreement. refer to this I-List Agreement. and the
term "hereafter" means after, and the term "heretofore" means before, the date of
execution of this Trust Agreement.
(2) Words of the masculine gender mean and include correlative words of the
feminine and neuter genders and words importing the singular number mean and include
the plural number and vice versa.
(3) Words importing persons include firms, associations, partnerships
(including limited partnerships), trusts, corporations and other legal entities, including
public bodies. as well as natural persons.
(4) Any headings preceding the texts of the several Articles and Sections of
this Trust Agreement, and any table of contents appended to copies hereof, shall be solely
for convenience of reference and shall not constitute a part of this Trust Agreement, nor
shall they affect its meaning, construction or effect.
(5) All approvals, consents and acceptances required to be given or made by
any person or party hereunder shall be at the sole discretion of the party whose approval.
consent or acceptance is required.
(6) All references to times not otherwise statino Fort Worth, 'Texas time. shall
be deemed to refer to Fort Worth, Texas time.
(7) This Trust Agreement shall be governed by and construed in accordance
with the applicable laws of the State.
(B) Whenever the City is named or referred to, it shall be deemed to include
its successors and assigns whether so expressed or not. All of the covenants, stipulations,
obligations, and agreements by or on behalf of, and other provisions for the benefit of, the City
contained in this Trust Agreement shall bind and inure to the benefit of such successors and
assigns and shall bind and inure to the benefit of any officer, board. commission, authority,
a-encv of InstrUnlenLallty to whom of to which there Shall be transferred by or In accordance
\\ILh la\\ any right, power or dLIty of the City, or of Its Successors of assigns, the possession of
which is necessary or appropriate in order to comply with any such covenants, Stipulations.
obligations, agreements or other provisions hereof.
(C) Nothing in this Trust Agreement expressed or implied is intended or shall
be construed to confer upon, or to give to, any person, other than the City, the Trustee, or Allied
any right, remedy or claim under or by reason of this Trust Agreement or any covenant.
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condition or stipulation thereof. All the covenants, stipulations, promises and agreements herein
contained by and on behalf of the City shall be for the sole and exclusive benefit of the City, the
Trustee, and Allied.
(D) If any one or more of the covenants or agreements provided herein on the
hart of the City or the Trustee to be performed should be contrary to law, then such covenant or
covenants or agreement or agreements, shall be deemed separable from the remaining covenants
and a(,reements hereof, and shall in no way affect the validit} of the other provisions of' this
Crust Agreement. If the invalidity of such covenant or agreement materially alters the terms of
this Trust Agreement, the parties agree to make any amendments reasonably necessary to effect
the intended meaning of this Trust Agreement.
ARTICLE 11
CUSTODY AND INVESTMENT OF FUNDS
Section 2.1. Creation of Funds and Accounts. (A) The City hereby establishes
and creates the Closure and Post-Closure Fund.
(B) The Fund created hereunder shall be held by the Trustee, including one or
more depositories in trust for the Trustee. All moneys and investments deposited with the
Trustee shall be held in trust and applied only in accordance with this Trust Agreement and shall
be trust funds for the purposes of this Trust Agreement.
Section 2.2. Closure and Post-Closure Fund. (A) Within seven Business Days
following receipt thereof from Allied, the City shall deposit in the Closure and Post-Closure
Fund any and all amounts paid to the City as Additional Rent under Section 4.6(A) of the
Southeast Landfill Lease. The City hereby authorizes Allied to make such payments directly to
the I rUstee, and receipt of such payments by the Trustee Shall Satisfy the obligation of Allied to
pay Such amounts to the City.
(B) Amounts in the Closure and Post-Closure Fund shall be available to pay
Allied for Southeast Landfill Closure Costs or, if the City asSLllnes Southeast Landfill Closure
Obligations, to pay the City for such costs. The Trustee shall, upon requisition submitted in
accordance with subsection 2.2(C) hereof, apply amounts in the Closure and Post-Closure Fund
to pay Southeast Landfill Closure Costs.
(C) The Trustee is hereby authorized and directed to issue its checks promptly,
but in no event greater than three (3) business days, for each disbursement from the Closure and
Post-CIOSUre Fund (excepting any fees payable to the Trustee) upon a requisition in the form
attached hereto as Appendix A Submitted to the Trustee and signed by an Authorized
Representative of Allied and approved in writing by the City (Such approval to be given
promptly). Such requisition shall state with respect to each payment to be made: (1) the
requisition number, (2) the name and address of the person, firm or corporation to whom
payment is due, or to whom a reimbursable advance, if any, has been made, (3) the amount to be
paid, (4) that each obligation mentioned therein has been properly incurred within the provisions
of the Agreement, is a proper charge against the Closure and Post-Closure Fund, is unpaid or
unreimbursed, and has not been the basis of any previous withdrawal, and (5) that the requisition
and the use of proceeds set forth therein are consistent in all material respects with the Landfill
Permit.
(D) In making any SUch payinent from the Closure and POSt-CIOSUre Fund the
I rUStee may rely on Such requisitions and proof delivered to it and the Trustee shall be relieved
of all liability with respect to making such payments in accordance with the foregoing.
Section 2.3. Closure Reserve Amounts. Section 9.3 of the Southeast Landfill
Lease requires Allied or an engineering firm designated by Allied and approved by the City to
estimate in each year the Closure and post-Closure care costs at the Southeast Landfill and
calculate the per ton amount that must be set aside and reserved for such Closure and post-
6
Closure care (the "Closure Reserve Amount"). Such amount will be a per ton fee based on the
projected tons of'solid waste to be accepted at the Southeast Landfill during the applicable year.
I'lle City will notify the Trustee Of Such Closure Reserve Amount within seven Business Days
IOIIOMM-) apprOVal OI SLICIl a1110L111t by the City (or alternative resolut1011 Of SLICIl arnOLInt pursuant
to Section 9.3 ol'the Southeast Landfill Lease Agreement).
Section 2.4. Delivery of Monthly Statements. Section 9.4 of the Southeast
Landfill Lease requires Allied to deliver monthly reports and invoices to the City relating to
waste that has been delivered to the Southeast Landfill. The Trustee shall provide to Allied and
the City a nlonthtly statement , setting forth: i) amounts withdrawn and deposited in the Closure
and Post -Closure Fund; ii) the balance of the Closure and Post-Closure Fund as of the date for
which report is prepared and ill) a brief description of investments in the Closure and Post-
Closure Fund. Although the City and Allied each recognizes that it may obtain a broker
Confirmation Or written statement containing comparable information at no additional cost, the
City and Allied hereby agree that confirmations of Permitted Investments (defined in Section 2.5
below) are not required to be issued by the Trustee for each month in which a monthly statement
is rendered. No statement need be rendered for the Closure and Post-Closure Fund if no activity
Occurred for such month.
Section 2.5. Investment of Closure and Post-Closure Fund. (A) Amounts in the
Closure and Post-Closure Fund held hereunder shall be invested in such investments as the City
is permitted to invest its funds under Applicable Law (the "Permitted Investments"), provided,
hO\�Cver, that amounts invested shall mature at such times as are reasonably required to permit
the Cite to have funds available in the Closure and Post-Closure Fund to pay Southeast Landfill
Closure Costs. Investments authorized Lender this Section shall be made by the "Trustee at the
written request of an Authorized Representative of the City. The income or interest earned and
gains realized in excess of losses suffered by the Closure and Post-Closure Fund held hereunder
shall be credited to the Closure and Post-Closure Fund.
(B) The parties recognize and agree that the Trustee will not provide supervision,
recommendations or advice relating to either the investment of moneys held in the Closure and
Post-CIOsure Fund or the purchase, sale, retention or other disposition of any Permitted
Investment. In the event that the Trustee does not receive written directions to invest funds held
in the Closure and POSt-CIOSLIer Fund, the Trustee sllall Invest such Bunds 111 The One Group U.S.
I rcaSLlry Money Market Fund Class I Or a Successor Or similar fund.
(C) The Trustee is hereby authorized t0 execute purchases and Sales Of Permitted
Investments through the facilities of its own trading or capital markets operations or those of any
affiliated entity.
(D) The City and Allied acknowledge and agree that the delivery of the property in
the Trustee is subject to the sale and final settlement of Permitted Investments. Proceeds of a
sale of Permitted Investments will be delivered on the business day on which the appropriate
instructions are delivered to the Trustee if received prior to the deadline for same day sale Of'
7
such Permitted Investments. If Such instructions are received after the applicable deadline.
proceeds will be delivered on the next Succeeding business day.
Section 2.6. Overpayments of Additional Rent. If Closure Reserve A111OU11tS
are revised in accordance with the Southeast Landfill Lease Such that the City notifies the
Trustee that Allied has made an overpayment of Additional Rent to the City under Section
4.6(A) of the Southeast Landfill Lease, upon the direction of the City, the Trustee shall promptly
release such amount from the trusts created by this Trust Agreement and pay such amount to
Allied on behalf of the City, it being understood that such funds are owed by the City to Allied as
a refund of overpaid Additional Rent.
Section 2.7. Termination and Default. If the Cite has notified the Trustee that
Allied is in default Of its obligations under Section 9.1 of the Southeast Landfill Lease Or that the
City has exercised its right to assume all future Closure and pOSt-CIOSUre obligations pursuant to
Section 9.1 Of the Southeast Landfill Lease, the funds in the Closure and POSt-CIOSUre Fund may
be applied at the direction of the City to Southeast Landfill Closure Costs atter reserves are Set
aside for post-Closure costs and thereafter for any purpose. Additionally, if the City and Allied
mutually certify to the Trustee that amounts in the Closure and Post-Closure Fund exceed
amounts that will be required for Southeast Landfill Closure Costs, the City and Allied may
jointly direct the Trustee as to the application Of Such excess.
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ARTICLE III
PARTICULAR COVENANTS
Section 3.1. No Pecuniary Liability on City or Officers, (A) No provision,
covenant or agreement contained in this Trust Agreement, or any obligations herein imposed
upon the City, or the breach thereof, shall constitute or give rise to a charge upon its general
credit, or impose upon the City a pecuniary liability except as set forth herein. In making the
agreements, provisions and covenants set forth in this Trust Agreement, the City has not
obligated itself except with respect to the amounts deposited in the Closure and Post-Closure
Fund and all earnings thereon.
(B) All covenants. stipulations. promises, agreements and obligations of the
City contained hercin shall be deemed to be covenants. stipulations, promises, agreements and
obligations of the City and not of any member, officer, agent or employee thereof in his
individual capacity. No recourse shall be had for the payment of the Southeast Landfill Closure
Costs, for the performance of any obligation hereunder, or for any claim based thereon or
hereunder against any such member, officer, agent or employee. No such member, officer, agent,
employee or natural person is or shall become personally liable for any such payment,
performance or other claim, and in no event shall any monetary or deficiency judgment be
sought or secured against any such member, officer, agent, employee or other natural person.
9
ARTICLE IV
CONCERNING THE TRUSTEE
Section 4.1. Appointment and Acceptance of Duties. Bank One, National
Association is hereby appointed as Trustee. The Trustee shall signify its acceptance of the duties
and obligations of the Trustee by executing this Trust Agreement.
Section 4.2. Indenlnitv. The Trustee shall be under no obligation to institute
anv suit. or to take any remedial proceeding under this 'frust Agreement, or to enter anv
appearance in or in any way defend any suit in Which it may be made defendant, or to take any
steps in the execution of the trusts hereby created or in the enforcement of any rights and powers
hereunder, until It shall be indemnified as provided In Section 4.4 against any and all reasonable
costs and expenses, outlays, and counsel fees and other disbursements, and against all liability
not due to its willful misconduct, negligence or bad faith. The Trustee's right to indemnification
as set forth in this Section 4.2 and Section 4.4 shall survive the resignation or removal of the
Trustee, the termination of this Trust Agreement and the satisfaction and discharge of the Trust.
Section 4.3. Responsibilities of Trustee. (A) The Trustee shall have no
responsibility in respect of the validity or sufficiency of this Trust Agreement or the due
CxCCLltloll hereof by the City. The recitals. statements and representations contained herein shall
be taken and construed as made by and on the part of the City and not by the Trustee, and It does
not assume ani' responslbill ty for the correctness of the same.
(B) The Trustee shall not be liable or responsible because of the failure of the
City or Allied to perform any act required of either of them under the Southeast Landfill Lease
Agreement or under this Trust Agreement or because of the loss of any moneys arising through
the insolvency or the act or default or omission of any depositary other than itself in which such
moneys shall have been deposited. The Trustee shall not be responsible for the application of any
of the proceeds in the Closure and Post-Closure Fund or for the adequacy of the amounts
deposited therein for the Intended purposes or for any other moneys deposited with It and paid
Out, Invested, wlthdraNvll or transferred In accordance herewith or for any loss resulting from ally
SLICII investment. The Trustee shall not be liable in connection with the performance of Its duties
hereunder except for Its own willful misconduct. negligence or bad faith. The immunities and
exemptions from liability of the Trustee shall extend to its directors, officers, employees and
agents.
(C) The Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Trust Agreement. No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that: (i) this subsection shall
not be construed to limit the effect of the first sentence of this paragraph, and (ii) the
Trustee is not liable for any error of judgment made in good faith by a responsible
of titer. unless proven that the Trustee was negligent in ascertaining the pertinent facts.
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Section 4.4. Compensation; Indemnification. (A) The Trustee shall be entitled
to receive and collect from Allied, as provided in the Southeast Landfill Lease Agreement,
payment for reasonable fees for services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred by the Trustee in connection
therewith as set forth in Schedule A attached herto. Absent payment from Allied, the Trustee
shall be entitled to receive and collect for the foregoing from amounts in the Closure and Post-
Closure Fund, but such payment shall not extinguish the liability of Allied to reimburse the City
or the Trustee, as the case may be, for such amounts. The Trustee's right to reasonable
compensation for its services and indemnification for Its costs and expenses, including
reasonable attorneys' lees, shall survive the resignation Or removal Of the Trustee, the termination
Ol thlS 1 rUSt A-reement and the satisfaction and discharge of the Trust.
Section 4.5. Evidence on Which "trustee May Act. (A) In case at any time it
shall be necessary or desirable for the Trustee to make any investigation concerning any fact
preparatory to taking or not taking any action, or doing or not doing anything, as such Trustee, it
may rely upon any certificate required or permitted to be filed with it under the provisions
hereof, and any such certificate shall be evidence of such fact or protect it in any action that it
may or may not take, or in respect of anything it may or may not do, in good faith, by reason of
the supposed existence of such fact.
(13) The Trustee shall be protected and shall incur no liability in acting or
proceeding, or in not acting or not proceeding, in �(Tood faith, reasonably and in accordance with
the terms of this Trust Agreement, upon any resolution, order, notice, request, consent. waiver,
certificate, statement, affidavit, requisition, bond or other paper or document which it shall in
good faith reasonably believe to be genuine and to have been adopted or signed by the proper
board or person, or to have been prepared and furnished pursuant to any of the provisions of the
Southeast Landfill Lease Agreement or this Trust Agreement, or upon the written opinion of any
attorney (who may be an attorney for the City), engineer, appraiser, or accountant believed by
the Trustee to be qualified in relation to the subject matter.
Section 4.6. Resignation or Removal of Trustee. (A) The Trustee may resign
and thereby become discharged fi-om the trusts created under this Trust Agreement by notice in
writing to be given to the City and Allied, postage prepaid. not less than thirty (30) days before
such resignation is to take effect. but such resignation (i) shall not tale effect until a successor
Trustee has been appointed and (ii) shall take effect immediately upon the appointment of a
successor Trustee, pursuant to Section 4.7 hereof, if such successor Trustee shall be appointed
before the time specified by such notice and shall accept such trust.
(13) The Trustee may be removed at any time by the City, provided that no
such removal shall take effect prior to the appointment of a successor Trustee.
Section 4.7. Successor Trustee. (A) If at any time the Trustee shall resign, or
shall be removed, be dissolved or otherwise become incapable of acting or shall be adjudged a
bankrupt or insolvent, or if a receiver, liquidator or conservator thereof, or of its property, shall
be appointed, or if any public officer shall take charge or control of the "trustee or of its property
or affairs, the position of Trustee shall thereupon become vacant. If the position of Trustee shall
11
become vacant for any of the foregoing reasons or for any other reason, the City shall appoint a
successor Trustee to till such vacancy.
(B) Any Trustee appointed under this Section shall be a national banking
association or a bank or trust company duly organized under the laws of the State or under the
laws of any state of the United States authorized to exercise corporate trust powers. At the time
of its appointment, any Successor Trustee shall have a capital stock and Surplus aggregating not
less than S50.000,000.
(C) Every Successor Trustee Shall execute, acknowledge and deliver to its
predecessor, and also to the City, an instrument in writing accepting Such appointment, and
thereupon such successor Trustee, without any further act, deed, or conveyance, shall become
fully vested with all moneys, estates, properties, rights, immunities, powers and trusts, and
subject to all the duties and obligations of its predecessor, with like effect as if originally named
as such Trustee, but such predecessor shall, nevertheless, on the written request of its successor
or of the City, and upon payment of the compensation, expenses, charges and other
disbursements of such predecessor which are due and payable pursuant to Section 4.4 hereof,
exccutc and deliver an instrument transferring to Such successor Trustee all the estate, properties,
ri,11htS, immunities, powers and trusts of' such predecessor. Every predecessor Trustee shall also
deliver all property and moneys held by it under the Trust Agreement to its successor. Should
any instrument in writing from the City be required by any Successor Trustee for more fully and
certainly vesting in such Trustee, the estate, properties, rights, immunities, powers and trusts
vested or intended to be vested in the predecessor Trustee any such instrument in writing shall,
on request, be executed, acknowledged and delivered by the City.
(D) Any company into which the Trustee may be merged or converted or with
which it may be consolidated or any company resulting from any merger, conversion or
consolidation to which it shall be a party or any company to which the Trustee may sell or
transfer all Or Substantially all of its corporate trust business, provided Such company shall be a
national bankin(, association or a bank Or trust COmpany duly Organized under the laws Of any
State Of the United States, and Shall be authorized by law to perform all the duties imposed upon
it by the Indenture, Shall be the Successor to SUCK 1 rUstee without the execution Or film(, Of any
paper Or the performance Of any further act.
Any Trustee which becomes incapable of acting as Trustee shall pay over, assign
and deliver to its successor any moneys, funds or investments held by it and shall render an
accounting to the City.
Section 4.7 Ministerial Duties/Damages. The Trustee shall have only those duties as
arc specifically provided herein, which shall be dceined purely ministerial in nature, and shall
under nO circumstance be deemed a fiduciary for any of the parties to this Trust Agreement. The
Trustee shall neither be responsible for. nor chargeable with. knowledge of the terms and
conditions of any other agreement, instrument or document between the other parties hereto, in
connection herewith, including without limitation the Southeast Landfill Lease. This Trust
Agreement sets forth all matters pertinent to the Trust contemplated hereunder, and no additional
obligations of the Trustee shall be inferred from the terms of this Trust Agreement or any other
agreement. IN NO EVENT SHALL THE TRUSTEE BE LIABLE, DIRECTLY OR
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INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES ARISING OUT OF THE
SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT
FROM THE TRUSTEE'S FAILURE TO ACT IN ACCORDANCE WITH THE STANDARDS
SET FORTH IN THIS TRUST AGREEMENT, OR (ii) SPECIAL OR CONSEQUENTIAL
DAMAGES, EVEN IF THE TRUSTEE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
Section 4.8 Attorneys, Agents, Custodians and Nominees. The Trustee shall have the
rlght, but not the obligation, to Consult With Counsel of Cho1Ce and Shall not be liable for action
taken or Omitted to be taken by Trustee either In accordance With the advice Of Such Counsel or In
accordance With any opinion Of Counsel to the City addressed and delivered to the Trustee. The
Trustee shall have the right to perform any of its duties hereunder through agents, attorneys,
custodians or nominees.
Section 4.9 Attachment of Fund; Compliance with Legal Orders. In the event that any
trust property shall be attached, garnished or levied upon by any court order, or the delivery
thereof shall be stayed or enjoined by an order of a court, or any order,judgment or decree shall
be made or entered by any court order affecting the property deposited under this Trust
Agreement; the Trustee is hereby expressly authorized, in its sole discretion, to obey and comply
with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its
own choosing is binding upon it, whether with or without jurisdiction, and in the event that the
"Trustee obeys or complies with any Such writ, order or decree it shall not be liable to any of the
parties hereto or to any other person, firm or corporation, by reason of such compliance
notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set
aside or vacated.
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ARTICLE V
AMENDMENTS OF TRUST AGREEMENT
Section 5.1. Amendments of Trust A,reement. The Trust Agreement may be
amended at any time by the City and Trustee by written amendment or supplement, subject to the
limitations set forth in the following section.
Section 5.2. Rizllts of Allied. Until such time as the City assumes
responsibility for and waives the Lessee's Southeast Landfill Closure Obligations pursuant to the
Southeast Landfill Lease, the City shall not amend this Trust Agreement without the prior
written consent of Allied, provided that Allied agrees that such consent shall not be unreasonably
withheld if the proposed amendment does not adversely affect any right, power or authority of
Allied.
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ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Notices. Any notice, request, demand, communication or other
paper shall be in Nriting and shall be sufficiently given and shall be deemed given when
delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, or
sent by facsimile transmission with written confirmation of receipt (which written confirmation
may be a machine printed confirmation page confirming a completed facsimile transmission of
written notice), or sent by nationally recognized overnight courier, addressed as follows:
if to the City, at:
Office of the City Manger
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Fax: (817) 871-6134
if to the Trustee, at:
Bank One, National Association
Global Corporate Trust Services
420 Throckmorton Street, 3"' Floor
Mail Code TX1-1306
Fort Worth, TX 76102
Fax 817%884-460
A copy of all notices hereunder shall be delivered to Allied at:
c/o District Manager
Trinity Waste Services
6200 Elliott Reeder Road
Fort Worth, Texas 76117
Fax: (480) 627-2728
Any Notice Party may designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 6.2. Effective Date, Counterparts. This Trust Agreement shall become
effective on delivery. It may be simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
Section 6.3. Date for Identification Purposes Only. The date of this Trust
Agreement shall be for identification purposes only and shall not be construed to imply that this
15
Trust Agreement was executed on any date other than the date appearing on the signature page
hereto.
Section 6.4. Governinp, Law. The laws of the State of Texas shall govern the
validity or enforceability and the interpretation or construction of all provisions of this Trust
Agreement and all issues hereunder.
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IN WITNESS WHEREOF, the City of Fort Worth, has caused these presents to
be signed in its name and behalf by an Authorized Representative, and to evidence its acceptance
o(' the trusts hereby created Bank One. National Association. has caused these presents to be
si-ned by its duly authorized officer.
CITY OF FORT WORTH, TEXAS BANK ONE, NATIONAL ASSOCIATION, as
Gary Jackson Trustee
City Manager
By: Bv:
City Mai ager 14 Name: Marl: A. Dural
Title: Vice President
APPROVED FOR FORM AND Approved by:
LEGALITY:
ALLIED WASTE SYSTEMS, INC.,
David Yett d/b/a TRINITY WASTE SERVICES
City Attorney `jam
B jr Bv: 1/
Name: JP{�r0 �_ �NIa `e
Title: (���¢Q �yl�trta e—
ATTEST:
Gloria Pe son
City Se ary
By:
d6mtract AuAuthoi i z at ion
ROD
WORYN, 0.
17
APPENDIX A
Form of Requisition - Section 2.2(C)
Pursuant to Section 2.2(C) of the Trust Agreement, dated as of January , 2003 (the
"Trust Agreement"), between the City of Fort Worth, Texas (the "City") and Bank One, National
Association (the "Trustee"), and a related Agreement to Lease and Operate Southeast Landfill,
dated as of January_, 2003 (the "Southeast Landfill Lease"). between the City, as lessor" and
Allied Waste Systems, Inc. d/b/a Trinity Waste Services, as lessee (the "Lessee") the
undersioned Lessee hereby requests an amount equal to the amount stated in Paragraph 3 to be
\yithdrmvn fi-om the Closure and Post-Closure Fund established under the Trust Agreement for
purposes permitted by Section thereof. The undersigned hereby certifies that:
1. The number of this requisition is
2. All capitalized terms used herein without other definition shall have the meanings
specified in the Southeast Landfill Lease or the Trust Agreement, as applicable.
3. (A) The amount hereby requested is $ which is due to the
following persons in the following amounts for expenditures incurred in connection with the
Project:
Person Amount Item
(A) Payment is due in the total amount of$ for amounts paid by the
Lessee in connection with the Project:
Amount Item
The costs set forth above have been approved by the City. A copy of such approval is
attached to this Requisition.
4. The amounts specified in Paragraph 3 are based upon obligations properly
incurred pursuant to the provisions of Section 9.3 of the Southeast Landfill Lease, have not been
the basis of any previous Requisition" and do not exceed the actual amount of the costs or
expenses of Allied.
5. There is no material default by Allied within the meaning of Section 14.2(C) of
the Southeast landfill Lease.
6. There has not been filed with nor served upon nor received by Allied any written
notice of' any lien, right to lien or attachment upon, or claims affecting the right to receive
payment of, any of the amounts payable under this request to any of the Persons named herein,
or if any notice of such lien, attachment or claim has been received, such lien, attachment or
claim has been released or discharged or will be released or discharged upon payment of the
amount requested in Paragraph 3.
7. There is not pending against Allied a petition in bankruptcy, whether or not
voluntary, an assignment for the benefit oi'creditors or similar event.
8. The Southeast Landfill Closure Obligations are being completed in accordance
with the Applicable Law.
9. The amounts requested hereunder are for charges which have been properly
incurred in accordance with the Southeast Landfill Lease Agreement, are proper charges against
the City payable from the Closure and Post-Closure Fund, are unpaid or unreimbursed and have
not been the basis for any previous withdrawal.
10. 1 am an Authorized Representative of Allied Waste Systems, Inc., d/b/a/ Trinity
Waste Services, under the Southeast Landfill Lease.
ALLIED WASTE SYSTEMS, INC,
d/b/a TRINITY WASTE SERVICES
By:
Name:
Title:
Approved by the City of Fort Worth, Texas
CITY OF FORT WORTH, TEXAS
By:
Name:
Title: