3 TRUST AGREEMENT
6 This Trust Agreement, dated as of__ 1998, by and between the
7 SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public corporation, (the
8 "District") acting for itself and on behalf of the ALAFIA RIVER BASIN BOARD, the
9 COASTAL RIVERS BASIN BOARD, the HILLSBOROUGH RIVER BASIN BOARD, the
10 NORTHWEST HILLSBOROUGH BASIN BOARD, the PINELLAS-ANCLOTE BASIN
11 BOARD and the WITHLACOOCHEE RIVER BASIN BOARD (collectively, the "Basin
12 Boards"), and a banking association
13 organized under the laws of as Trustee (the "Trustee");
17 WHEREAS, the District, for itself and on behalf of the Basin Boards, the WEST COAST
18 REGIONAL WATER SUPPLY AUTHORITY, an interlocal governmental agency, (the
19 "Authority") and the member governments of the Authority have entered into the Northern Tampa
20 Bay Agreement (the "NTB Agreement") dated 1998 and relating
21 to the District's funding of Authority Projects (as therein defined);
23 WHEREAS, pursuant to the NTB Agreement the District has agreed to establish the trust
24 fund herein provided and make contributions thereto in order to facilitate the District's
25 contribution to the funding of Projects in accordance with the NTB Agreement and the Funding
26 Agreements contemplated thereby;
28 WHEREAS, the District has agreed to make contributions through fiscal year 2007,
29 subject to annual appropriation by its Governing Board, and to provide a credit facility to insure
30 the payment of such future contributions;
32 NOW THEREFORE, in consideration of the mutual covenants and agreements herein
33 contained, the District and the Trustee agree as follows:
35 Section 1. Definitions. As used herein, the following terms mean:
37 (a) "Agreement" means this Trust Agreement
39 (b) "Authorized Investments" means investments in which the District is authorized
40 by law to invest, as determined by the District and conclusively evidenced by the District's
41 written direction to the Trustee. [Add default investment]
43 (c) "Authorized Signatory" means the respective Executive Director of the District
44 and the General Manager of the Authority unless another authorized signatory and representative
45 is designated to the Trustee from time to time in a written designation executed by the respective
46 Chairman and Secretary of the District and the Authority and delivered to the Trustee.
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1 (d) "Credit Facility" means [describe the specific letter of credit, insurance, etc.}.
3 (e) "Draw Request" means a request for a disbursement from the Trust Account as
4 provided in Section 5 of this Agreement, the execution and delivery of which shall evidence the
5 determination by the District and the Authority that such request is in accordance with the
6 applicable Funding Agreement (as defined in the NTB Agreement).
8 (f) "Payment Schedule" means the schedule of payments to be made on April 1 of
9 each year through 2007 by the District set forth in Exhibit A hereto.
11 (g) "Trust Account" means the trust account established pursuant to Section 2 of this
14 Section 2. Trust Account. There is hereby created a special trust fund called the "Trust
15 Account", and which shall be applied for the purposes hereinafter specified. The Trustee shall
16 hold the Authorized Investments and funds in the Trust Account at all times as a special, separate
17 and trust fund for the benefit of the Authority, wholly segregated from other funds and securities
18 on deposit with it, shall never commingle such securities and funds with other funds or securities
19 owned or held by it, and shall never at any time use, loan or borrow the same in any way other
20 than as provided in this Agreement Nothing herein contained shall be construed as requiring the
21 Trustee to keep the identical money, or any part thereof, in the Trust Account, if it is impractical,
22 but an equal amount, except to the extent represented by the Authorized Investments, must always
23 be maintained on deposit in the Trust Account as trust funds held by the Trustee for the benefit
24 of the Authority; and a special account for the Trust Account evidencing such facts shall at all
25 times be maintained on the books of the Trustee.
27 Section 3. Deposit of Funds and Credit Facility.
29 (a) The District hereby deposits $ with the Trustee to be
30 applied, together with all funds subsequently deposited by the District or drawn under the Credit
31 Facility, solely as provided in this Agreement.
33 (b) The District hereby agrees to deposit with the Trustee in each year the amounts
34 set in the Payment Schedule, less all earnings and income of the Trust Account. The deposits
35 for fiscal year 2000 and thereafter are subject to the annual appropriation by the Governing Board
36 of the District and the amounts indicated as being derived from the Basin Boards are subject to
37 the annual budgeting of such amounts by the respective Basin Boards. Such deposits may be
38 made by transferring securities or other investments with a market value equal to the required
39 amount as of the date of transfer.
41 (c) The District hereby deposits the Credit Facility with the Trustee in order to insure
42 the payment of future contributions by the District in accordance with the Payment Schedule.
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1 Section 4. Use and Investment of Fund. The Trustee acknowledges receipt of the sum
2 described in Section 3(a) and the Credit Facility and agrees:
4 (a) to hold the funds in trust during the term of this Agreement separate and apart
5 from all other funds of the District, the Authority and the Trustee;
7 (b) to immediately invest $ in
10 (c) to collect the investment income and reinvest such income in Authorized
11 Investments as directed by the District in writing;
13 (d) to invest all funds only in Authorized Investments as directed by the District in
17 (e) to draw on the Credit Facility in accordance with its terms, but only to the extent
18 there has been a failure by the District to make deposit set forth in the Payment Schedule
19 amounts on deposit in the Trust Account are not sufficient to pay a duly executed Draw Request
20 delivered to the Trustee; and
22 (f) to make payments to the Authority as herein provided.
24 Section 5. Payments from Trust Account. The Trustee shall pay to the Authority
25 amounts specified in each Draw Request received by it as soon as practicable after such receipt,
26 but only if such Draw Request is in the form attached hereto as Exhibit B and executed by an
27 Authorized Signatory of the Authority and the District. The funds in the Trust Account shall be
28 used only for the purposes of making contributions to the costs of the Authority's water supply
29 and Projects in accordance with the NTB Agreement and for no other purposes; provided that the
30 Trustee shall pay over all remaining funds and return the Credit Facility to the District upon
31 receipt of a Notice of Termination from the District in the form attached hereto as Exhibit C.
33 The Trustee shall upon request permit the District to examine or audit all records and
34 documents related to this Trust Agreement during and following termination of this Agreement.
35 The Trustee shall maintain other records and documents for a least three years following
36 tenrination of this Agreement. The records and documents generated or received by either party
37 in relation to this Agreement are subject to the Public Records Act in Chapter 119 Fla. Stat.
39 Section 6. Reports. On or before the 15th day of each month, commencing on
40 15, 1998 and so long as the Trust Account is maintained under this Agreement, the
41 Trustee shall forward to the District, to the attention of of the District and
42 of the Authority, its standard written statement setting forth the Authorized
43 Investments and the income and maturities thereof, and withdrawals of money from the Trust
44 Account for the immediately preceding month period (or, in the case of the first statement, the
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1 period beginning with the date of this Agreement) and for the period beginning with October 1
2 of each year. The Trustee shall cooperate with audits by all applicable agencies, including
3 supplying information as requested by all auditors and keeping records in an appropriate form.
5 Section 7. Indemnity. To the extent allowed by law, the District hereby assumes
6 liability for, and hereby agrees (whether or not any of the transactions contemplated hereby are
7 consummated) to indemnify, protect, save and keep harmless the Trustee and its respective
8 successors, assigns, agents and servants, from and against any and all liabilities, obligations,
9 losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including
10 legal fees and disbursements) of whatsoever kind and nature which may be imposed on, incurred
11 by, or asserted against at any time, the Trustee (whether or not also indemnified against the same
12 by the District or any other person under any other agreement or instrument) and in any way
13 relating to or arising out of the execution and delivery of this Agreement, the establishment of
14 the Trust Account established hereunder, the acceptance of the funds and securities deposited
15 therein, the purchase of Authorized Investments or the proceeds thereof and any payment, transfer
16 or other application of funds or securities by the Trustee in accordance with the provisions of this
17 Agreement; provided, however, that the District shall not be required to indemnify the Trustee
18 against its own negligence or willful misconduct; and provided, further that such indemnification
19 shall be payable only from the Trust Account. In no event shall the District or Trustee be liable
20 to any person by reason of the transactions contemplated hereby other than to each other as set
21 forth in this Section. The indemnities contained in this section shall survive the termination of
22 this Agreement
24 Section 8. Responsibilities of Trustee. The Trustee and its respective successors,
25 assigns, agents and servants shall not be held to any personal liability whatsoever, in tort,
26 contract, or otherwise, in connection with the execution and delivery of this Agreement, the
27 establishment of the Trust Account, the acceptance of the funds deposited therein, the purchase
28 of the Authorized Investments, the retention of the Authorized Investments or the proceeds
29 thereof or any payment, transfer or other application of money or securities by the Trustee or in
30 connection with any non-negligent act, non-negligent omission or non-negligent error of the
31 Trustee made in good faith in the conduct of its duties. The Trustee shall, however, be liable to
32 the District and the Authority for its negligent or willful acts, omissions or errors which violate
33 or fail to comply with the terms of this Agreement The Trustee may consult with counsel to the
34 District, and in reliance upon the opinion of such counsel shall have full and complete
35 authorization and protection in respect of any action taken, suffered or omitted by it in good faith
36 in accordance therewith. Whenever the Trustee shall deem it necessary or desirable that a matter
37 be proved or established prior to taking, suffering or omitting any action under this Agreement,
38 such matter may be deemed to be conclusively established by a certificate signed by an
39 Authorized Signatory of the District.
41 The Trustee shall be protected in acting upon any written notice, request, waiver, consent,
42 certificate, receipt, authorization, power of attorney or other paper or document which Trustee
43 in good faith believes to be genuine and what it purports to be.
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1 Section 9. Resignation of Trustee. The Trustee may resign and thereby become
2 discharged from the duties and obligations hereby created, by notice in writing given to the
3 District and the Authority not less than sixty (60) days before such resignation shall take effect
4 Such resignation shall not take effect, however, until the appointment of a new Trustee.
6 Section 10. Removal of Trustee. The Trustee may be removed at any time by an
7 instrument or concurrent instruments in writing, executed by the District not less than thirty (30)
8 days before such removal is to take effect as stated in such instrument or instruments.
10 Section 11. Successor Trustee.
12 (a) If at any time hereafter the Trustee shall resign, be removed, be dissolved or
13 otherwise become incapable of acting, or shall be taken over by any governmental official,
14 agency, department or board, the position of Trustee shall thereupon become vacant. If the
15 position of Trustee shall become vacant for any of the foregoing reasons or for any other reason,
16 the District shall appoint an Trustee to fill such vacancy. The District shall provide written notice
17 of any such appointment to the Authority.
19 (b) If no appointment of a successor Trustee shall be made pursuant to the foregoing
20 provisions of this section any resigning Trustee may apply to any court of competent jurisdiction
21 to appoint a successor Trustee. Such court may thereupon, after such notice, if any, as such court
22 may deem proper, prescribe and appoint a successor Trustee.
24 (c) In the event of any merger or consolidation of the Trustee with or into any other
25 corporation or in the event of the sale of all or substantially all of Trustee's corporate trust
26 business, the corporation resulting from such merger or consolidation, or the transferee in the case
27 of any such sale, shall be and become the successor Trustee.
29 Section 12. Term. This Agreement shall commence upon its execution and delivery and
30 shall terminate when all funds in the Trust Account have been paid and discharged in accordance
31 with this Agreement and all amounts held by the Trustee hereunder have been applied in
32 accordance herewith.
34 Section 13. Amendment This Agreement is made for the benefit of the District and
35 the Authority and it shall not be repealed, revoked, altered or amended without the written
36 consent of the District, the Authority and the Trustee.
38 Section 14. Notices. Any notice, authorization, request, or demand required or permitted
39 to be given hereunder shall be in writing and shall be deemed to have been duly given when
40 mailed by registered or certified mail, or by recognized expedited delivery service, postage or
41 other charges prepaid and addressed as follows:
43 To the District
44 if addressed: Southwest Florida Water Management District
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1 2379 Broad Street
2 Brooksville, Florida 34609-6899
4 Attention: Executive Director
6 To the Trustee
7 if addressed to:
12 The United States Post Office registered or certified mail or other receipt showing delivery of
13 the aforesaid shall be conclusive evidence of the date and fact of delivery. Each party hereto
14 may change the address to which notices are to be delivered by giving to the other party not
15 less than ten (10) days prior written notice thereof.
17 Section 15. Business Days. Whenever under the terms of this Agreement the
18 performance date of any act to be done hereunder shall fall on a day upon which the Trustee
19 is not open for the receipt of deposits, the performance thereof on the next succeeding
20 business day of the Trustee shall be deemed to be in full compliance with this Agreement.
21 Whenever time is referred to in this Agreement it shall be the time recognized by the Trustee
22 in the ordinary conduct of its normal business transactions.
24 Section 16. Time of the Essence. Time shall be of the essence in the performance of
25 obligations imposed upon the Trustee by this Agreement
27 Section 17. Severability. If any one or more of the covenants or agreements
28 provided in this Agreement on the part of the District or the Trustee to be performed should
29 be determined by a court of competent jurisdiction to be contrary to law, such covenant or
30 agreements herein contained shall be null and void and shall be severed from the remaining
31 covenants and agreements and shall in no way affect the validity of the remaining provisions
32 of this Agreement
34 Section 18. Fees of Trustee. For its services, the Trustee will charge the
35 compensation described in Exhibit D, which compensation will constitute full payment for its
36 services. Trustee shall be reimbursed by the District for reasonable out-of-pocket expenses
37 consistent with Florida reimbursement requirements and limitations in addition to the
38 foregoing compensation. All such amounts shall be payable solely from the Trust Account.
40 Section 19. Security of or Accounts and Funds. All accounts and funds maintained
41 or held pursuant to this Agreement shall be continuously secured in the same manner as other
42 deposits of municipal funds are required to be secured by the laws of the State of Florida.
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1 Section 20. Counterparts. This Agreement may be executed in several counterparts,
2 all or any of which shall be regarded for all purposes as duplicate originals and shall
3 constitute and be but one and the same instrument
5 Section 21. Governing Law. This Agreement shall be construed under the laws of
6 the State of Florida.
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IN WITNESS WHEREOF, the SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT, acting for itself and the Basin Boards, has caused this Trust Agreement to be
executed by its Chairman, and its seal to be impressed and attested by its Secretary and
Shas caused this Trust Agreement to be
executed on its behalf, as Trustee, all as of the day and year first above written.
SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT, acting for itself
and on behalf of the ALAFIA RIVER BASIN
BOARD, the COASTAL RIVERS BASIN
BOARD, the HILLSBOROUGH RIVER BASIN
BOARD, the NORTHWEST HILLSBOROUGH
BASIN BOARD, the PINELLAS-ANCLOTE
BASIN BOARD and the WITHLACOOCHEE
RIVER BASIN BOARD
Approved as to form:
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