2 Colo. Code Regs. § 407-2-A
THIS AGREEMENT is made this 24 day of June, 1988, between the COLORADO MINED LAND RECLAMATION DIVISION (the "Division") of the Department of Natural Resources, State of Colorado, as grantor, and the undersigned members of the COLORADO MINED LAND RECLAMATION BOARD (the "Board") as trustees.
RECITALS
A. By act of Congress, 30 United States Code section 1231, there was created on the books of the Treasury of the United States a trust fund known as the Abandoned Mine Reclamation Fund, to be administered by the United States Secretary of the Interior, which fund consists in large part of reclamation fees imposed upon the production of coal.
B. Use of the Abandoned Mine Reclamation Fund is authorized by 30 United States Code section 1231 for certain purposes therein specified, which include assistance to the states for the establishment of self-sustaining individual state administered programs for the protection of private property against damages caused by land subsidence resulting from underground coal mining.
C. The State of Colorado is eligible to receive a portion of the Abandoned Mine Reclamation Fund upon terms and conditions specified in a certain Memorandum of Understanding to be entered into by the Division and the Secretary of the Interior acting through the Office of Surface Mining Reclamation and Enforcement ("OSMRE").
D. The Division has, pursuant to 30 United States Code section 1231(c)(8) and 30 Code of Federal Regulations Part 887, applied to OSMRE for a grant of a portion of the Abandoned Mine Reclamation Fund for the establishment of a state program.
E. Johnson & Higgins of Colorado, Inc., a Colorado corporation, has, pursuant to a contract with the State of Colorado, agreed to assist the state in the establishment and operation of a Mine Subsidence Protection Program ("the Program"). The Program, when approved by OSMRE and adopted by the Board, will be administered by the Division, with the assistance of a Plan Administrator. Johnson & Higgins of Colorado, Inc. is the initial Plan Administrator.
AGREEMENT
ARTICLE 1. 00 - CORPUS - NAME OF TRUST
1. 01 Initial Corpus. The initial corpus of this trust shall be the funds received from OSMRE as a result of the Division's grant application. The Division hereby conveys to the trustees such grant funds and its right to receive the same. The trust hereby established shall be known as THE COLORADO COAL MINE SUBSIDENCE TRUST FUND.
1. 02 Additions to Corpus. The trustees may, but need not, accept additions to the trust estate from any source, upon such terms and conditions as they determine. If additions from other sources shall be received, the grant funds and the income and disbursement thereof shall nevertheless be separately accounted for at all times.
ARTICLE 2. 00 - INCOME AND PRINCIPAL
2. 01 Eligible Beneficiaries. Only those property owners identified by both the Plan Administrator and the Division to be participants in good standing in the Program shall be eligible to become trust beneficiaries.
2. 02 Benefit Payments. The trustees shall make payments, out of income and principal, to beneficiaries only in accordance with benefit vouchers issued and signed by the Plan Administrator and countersigned by the Director of the Division. A property owner shail be entitled to a benefit under this trust agreement only on the basis of a benefit voucher so issued and countersigned.
2. 03 Reliance Upon Benefit Vouchers. The trustees shall be entitled to rely upon the accuracy and sufficiency of all such benefit vouchers received, and shall have no duty of inquiry as to any underlying fact, entitlement or other representation inherent or explicit in any such benefit voucher.
2. 04 Sufficiency of Trust Fund. This trust agreement has been funded with a federal grant. Benefits can be paid only to the extent of available trust assets. Should trust assets become insufficient to pay all amounts payable in accordance with benefit vouchers so signed, countersigned and delivered to the trustees, the trustees shall, after payment of all administration expenses, apply remaining trust assets pro rata among the beneficiaries for whom, on the date the trustees determine the existence of insufficient funds, benefit vouchers have been so delivered and remain unpaid. This trust shall thereupon terminate. In such event, the trustees, the State of Colorado, the Division, the Mined Land Reclamation Board and all other agencies and officials of the State of Colorado, shall be fully released and discharged of all further responsibility to beneficiaries, program participants, property owners, plan administrators, creditors and the United States of America.
2. 05 "Excess Surplus" Trust Funds. If the trustees determine that all or any part of the trust estate attributable to the Federal grant monies is no longer required to meet the purposes of 30 United States Code section 1231, the trustees shall distribute to the United States government through its designated agent the funds so determined to be surplus.
ARTICLE 3. 00 - TRUST ADMINISTRATIVE AND PROTECTIVE PROVISIONS
3. 01 Parties. In any judicial proceeding affecting this trust, the only necessary parties shall be the Board, the trustees, the Division and the Colorado Attorney General as representative of the beneficiaries.
3. 02 Restricted Transfer-Inalienability. The funds transferred by the Division to the trustees and the income thereon are restricted, and may be distributed and expended only as herein provided and for no other purpose. Accordingly, no part of the trust estate, including income, shall be liable for the general debts or obligations of the Division or the Plan Administrator or the State of Colorado or any agency or subdivision thereof or be subject to attachment, garnishment, legislative appropriation, executive transfer, execution, creditor's bill or other legal or equitable process.
3. 03 Essential Governmental Function. This trust is established with Federal trust funds for the accomplishment of a function that is essential to the governments of the state of Colorado and the United States of America. No part of the net earnings of this trust shall inure or be payable to or for the benefit of any private shareholder or individual other than a beneficiary, except that the trustees shall be authorized and empowered to pay reasonable compensation for services rendered. No part of the activities of this trust shall be the carrying on of propaganda, or otherwise attempting to influence legislation. No part of the activities of this trust shall be the participation in, or intervention (including the publication or distribution of statements) in any political campaign on behalf of (or in opposition to) any candidate for public office. The trustees and the trust shall not engage in any transaction or activity which would cause the trust to lose its tax exempt status under the Internal Revenue Code of the United States, as the same may be in effect from time to time.
3. 04 Discrimination and Affirmative Action. The trustees agree to comply with the letter and spirit of the Colorado Antidiscrimination Act and all other applicable laws and Executive Orders in effect from time to time respecting discrimination and unfair employment practices. Pursuant thereto, the provisions set forth in Schedule A hereto, as the same may be modified from time to time by legislative enactment or Executive Order, shall be included in all contracts entered into by or under the authority of the trustees pursuant to this trust agreement.
3. 05 Meetings. All meetings of the trustees shall be open to the public except as may be provided by law with regard to meetings of public officials of the State of Colorado.
3. 06 Majority Decisions. The decision of a majority of all acting trustees shall control upon any matter arising in the administration of this trust. Any dissenting trustee may be absolved from personal liability by registering such trustee's dissent upon the records of the trust within ten days after receiving notice of the action or proposed action from which such trustee dissents; but such trustee shall thereafter act with the other trustees in any way necessary or appropriate to effectuate the decision of the majority.
3. 07 Exoneration of Persons Dealing With Trustees. No person dealing with the trustees shall be under any obligation to see to the application of any money paid to them or to inquire into the validity, expediency or propriety of any act of the trustees or into any of the provisions of this instrument.
3. 08 Liability of Uncompensated Trustees. Individual trustees who are serving without compensation for their services as such shall be liable only for dishonesty, fraud or willful misconduct, and shall not be liable for loss arising from shrinkage in value of any asset herein authorized to be held or acquired. Every action or omission of theirs shall be presumed a proper exercise of the powers herein given them, in the absence of clear and convincing proof to the contrary. No trustee shall be liable for any act or default of any other trustee, unless a party thereto or unless, being aware of same, he shall fail to report it to the other trustees and to the Division.
3. 09 Non Waiver of Immunity. The provisions of this agreement shall not have the effect of waiving or diminishing in any way the immunity afforded by state law to trustees who are public officials.
ARTICLE 4. 00 - POWERS OF TRUSTEE
4. 01 Grant. In administering this trust agreement, the trustees are empowered to perform every act which they shall deem advisable or desirable in the discharge of their responsibilities hereunder, including the following: to hold, retain, invest and reinvest the trust estate in accordance with Colorado laws governing the investment of state funds; to employ agents, attorneys, consultants and investment advisers and to compensate them; to pay all other reasonable expenses of trust administration, including fees and expenses of the Plan Administrator; to utilize available services of the Colorado State Treasurer for investment assistance if they so desire, and to utilize available services of the Division; to sell, exchange, grant, convey, deliver, assign, transfer, lease, option, mortgage, pledge, abandon, borrow, lend, contract; to hold in nominee form, carry out agreements, establish reserves, and abandon, settle or contest claims.
4. 02 Fiduciaries' Powers Act. The trustees may also exercise all the powers conferred upon them by law, including the Colorado Fiduciaries' Powers Act as amended and in effect from time to time.
4. 03 Delegation of Powers.
(a) Investment funds held by the trustees shall be invested in accordance with the standards for the investment of funds belonging to the state of Colorado. The trustees may at any time and from time to time delegate the responsibility for investment according to such standards to one or more corporate co-trustees, to the Colorado State Treasurer or to one or more qualified investment counselors and advisors, in which case the responsibilities of the trustees making such delegation shall be limited to the exercise of reasonable care in the making of such delegation and in the monitoring of the performance of such investment persons or entities. Any such delegation may be revoked at any time by the trustees. Any such delegation, and the revocation thereof, must be in writing, executed and acknowledged by the trustees and by the party to whom responsibility has been so delegated.
(b) The trustees may at any time and from time to time delegate among themselves the exercise of any powers and responsibilities, discretionary or otherwise, and may revoke any such delegation at will. The delegation of any such power, and also the revocation of any such delegation, shall be evidenced by an instrument in writing executed and acknowledged by the trustees and by the trustee or trustees to whom delegation has been made. So long as any such delegation is in effect, the powers, discretionary or otherwise, hereby granted and so delegated may be exercised and action may be taken by the trustee or trustees to whom delegation has been made with the same force and effect as if the trustees making such delegation had personally joined in the exercise of such power. The trustees making such delegation shall not be liable for any action so taken pursuant to such delegation but shall have responsibility for monitoring the performance of the trustee or trustees to whom such delegation has been made.
ARTICLE 5. 00 - TRUSTEES-REPORTS
5. 01 Trustees-Members of Mined Land Reclamation Board. Until otherwise determined by the
Colorado Mined Land Reclamation Board ("the Board"), those persons who are from time to time members of the Board shall, by virtue of holding such public office, be trustees, and acceptance of appointment to the Board shall, without any other act or deed by the person so appointed, constitute acceptance of trusteeship. Termination of office as a Board member shall effect concurrent termination of trusteeship.
5. 02 Corporate Trustee or Co-Trustee. The trustees may at any time appoint as sole trustee or as co-trustee, with such powers and responsibilities and for such terms as they shall specify, any corporation authorized by the laws of the United States to administer trusts, and may revoke any such appointment at any time. Any such corporation must have at least $100,000,000 of assets (other than the assets of this trust) under trust administration.
5. 03 Trustee Resignation, Removal, Succession. The members of the Board shall have power to appoint the individuals or entities to serve as trustees hereunder and to remove any trustee at any time. Individuals other than members of the Board who are appointed shall be individuals qualified by training, education or experience in the administration of trusts. Corporations appointed shall be corporations authorized under the laws of the United States to administer trusts and which have trust assets under administration (other than the assets of this trust) of at least $100,000,000.
5. 04 Rights of Successors. Successor trustees shall have all the title, rights, powers, privileges and duties conferred or imposed upon the original trustees, without any act of conveyance or transfer. No trustee shall be required to examine the accounts, records and acts of any previous trustee or any allocation of the trust estate or shall be responsible for any act or omission to act on the part of any previous trustee.
5. 05 Compensation. Any corporate trustee acting under this agreement shall be entitled to reasonable compensation commensurate with the services actually performed and to reimbursement for expenses properly incurred. All trustees shall be entitled to reimbursement for reasonable expenses incurred in performance of their duties.
5. 06 Successor Corporate Fiduciary. Any corporate successor to the trust business of any corporate trustee shall be the successor corporate trustee with like powers, duties and obligations.
5. 07 Reports. Periodic reports shall be rendered by the trustees to the Board and to the Office of Surface Mining of the United States Department of the Interior, showing all receipts and disbursements during the period and assets then held in trust, which reports shall be rendered not less frequently than annually. The records of the trustees shall be public records and shall be open to public inspection to the extent provided in Colorado law applicable to the inspection and copying of similar state records.
ARTICLE 6. 00 - AMENDMENT
This agreement may be amended in any respect and at any time by written instrument signed by the grantor and the trustees, but only in furtherance of the purposes of 30 United States Code section 1231(c)(1) as said section may be in effect as amended from time to time.
ARTICLE 7. 00 - REVOCATION/TERMINATION
This trust may be revoked in whole or in part at any time by action of the grantor with the prior approval of the Board. If the trust is wholly revoked or terminated prior to exhaustion of the trust estate, or if the Memorandum of Understanding referred to in Recital C above shall expire, all funds attributable to Federal grant monies remaining after payment of all expenses of trust administration and all Program expenses, including fees of the Plan Administrator, shall, within three months after such revocation, termination or expiration, be returned to the United States government through its designated agent. Any other trust funds not required for the payment of such expenses will be disposed of as determined by the trustees to be consistent with the purposes of this trust agreement.
ARTICLE 8. 00 - RULES OF CONSTRUCTION - APPLICABLE LAW
8. 01 Pronouns, Singular and Plural. Unless the context requires otherwise, words denoting the singular may be construed as denoting the plural, and words of the plural may be construed as denoting the singular, and words of one gender may be construed as denoting such other gender as is appropriate.
8. 02 Applicable Law. The validity of this agreement and all questions of construction and administration of this trust shall be determined under the laws of Colorado.
SCHEDULE A to THE COLORADO COAL MINE SUBSIDENCE TRUST FUND
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical handicap, or age. The contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to the above mentioned characteristics. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; lay- offs or terminations; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth provisions of this non-discrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees places by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical handicap, or age.
(3) The contractor will send to each labor union or representative of workers with which he has collective bargaining agreement or other contract or understanding, notice to be provided by the contracting officer, advising the labor union or workers' representative of the contractor's commitment under the Executive Order, Equal Opportunity and Affirmative Action, dated April 16, 1975, and of the rules, regulations, and relevant Orders of the Governor.
(4) The contractor and labor unions will furnish all information and reports required by Executive Order, Equal Opportunity and Affirmative Action of April 16, 1975, and by the rules, regulations and orders of the Governor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the office of the Governor or his designee for purposes of investigation to ascertain compliance with such rules, regulations and orders.
(5) A labor organization will not exclude any individual otherwise qualified from full membership rights in such labor organization, or expel any such individual from membership in such labor organization or discriminate against any of its members in the full enjoyment of work opportunity, because of race, creed, color, sex, national origin, or ancestry.
(6) A labor organization, or the employees or members thereof will not aid, abet, incite, compel or coerce the doing of any act defined in this contract to be discriminatory or obstruct or prevent any person from complying with the provisions of this contract or any order issued thereunder; or attempt, either directly or indirectly, to commit any act defined in this contract to be discriminatory.
(7) In the event of the contractor's non-compliance with the non-discrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further State contracts in accordance with procedures, authorized in Executive Order, Equal Opportunity and Affirmative Action of April 16, 1975 and the rules, regulations, or orders promulgated in accordance therewith, and such other sanctions as may be imposed and remedies as may be invoked as provided in Executive order, Equal Opportunity and Affirmative Action of April 16, 1975, or by rules, regulations, or orders promulgated in accordance therewith, or as otherwise provided by law.
(8) The contractor will include the provisions of paragraph (1) through (8) in every sub-contract and subcontractor purchase order unless exempted by rules, regulations, or orders issued pursuant to Executive Order, Equal Opportunity and Affirmative Action of April 16, 1975, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontracting or purchase order as the contracting agency may direct, as a means of enforcing such provisions, including sanctions for non-compliance; provided, however, that in- the event the contractor becomes involved in, or is threatened with, litigation with the subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the State of Colorado to enter into such litigation to protect the interest of the State of Colorado.
2 CCR 407-2-A