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HomeMy WebLinkAboutDERR-2024-006540Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 1 To be recorded with County Recorder – Utah Code Ann § 57-25-108 When Recorded Return To: Damian Foti, Technical Expert EHS Senior Manager General Electric Company 1 River Road, Building 5-7W Schenectady, NY 12345 With Copy To: Doug Hansen, Director Utah Division of Waste Management and Radiation Control P.O. Box 144880 Salt Lake City, UT 84114-4880 ENVIRONMENTAL COVENANT 1. This Environmental Covenant is made pursuant to the Utah Uniform Environmental Covenants Act, Utah Code Ann. Section 57-25-101, et seq. (the Act). General Electric Company, as Owner and Grantor, makes and imposes this Environmental Covenant upon the Property more particularly described in Exhibit A attached hereto (the Property). 2. Notice. Notice is hereby given that the Property is or may be contaminated with hazardous waste, hazardous constituents, or solid waste, and therefore this Environmental Covenant is imposed to mitigate the risk to human health, safety and the environment. 3. Property. This Environmental Covenant concerns an approximately 14.95-acre tract of real property, tax parcel numbered 060940076 owned by General Electric Company, located at 130 East 1100 North, North Salt Lake in Davis County, Utah, and more particularly described in Exhibit A attached hereto and hereby incorporated by reference herein (Property). 4. Environmental Response Project. The environmental response project is referred to as the Former General Electric Facility located at 130 East 1100 North Salt Lake, Davis County, Utah. Investigations conducted to delineate the extent of soil and groundwater contamination at the site have determined various constituents above screening criteria, including arsenic, polychlorinated biphenyls (PCB), and total petroleum hydrocarbons (TPH) in soil, and arsenic and volatile organic compounds (VOCs) in groundwater. The project objective is to establish engineering and administrative control measures for managing soil containing residual COCs. In addition, site groundwater will be prohibited for future use as a potable water source. Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 2 5. Administrative Record. The project administrative records are maintained and managed by the Utah Department of Environmental Quality, Division of Waste Management and Radiation Control. 6. Grantor. General Electric Company is the Grantor of this Environmental Covenant. The Grantor of this Environmental Covenant is also an Owner as defined in Paragraph 7. 7. Owner. An Owner is any person who holds any interest in the Property, including, without limitation, the owner of the fee simple estate, any assign, successor in interest, mortgagee, lender, easement holder, lessee, and any other person or entity who acquires any interest whatsoever in the Property, or any portion thereof, whether or not any reference to this Environmental Covenant or its provisions are contained in the deed or other conveyance instrument, or other agreements by which such person or entity acquires its interest in the Property or any portion thereof. A person who is a Holder under this Environmental Covenant but who holds no other interest in the Property is not an Owner. 8. Except as provided in this Environmental Covenant, when the Owner of the fee simple estate transfers that estate to a Transferee, the Owner’s obligations under this Environmental Covenant transfer to the Transferee, who then becomes an Owner. When the Owner of the fee simple estate transfers a lesser interest, or when an Owner who holds a lesser interest transfers that lesser interest or any portion thereof, the Owner’s obligations under this Environmental Covenant continue, and the Transferee acquires the same obligations to the extent of the interest it acquires. Notwithstanding the foregoing, nothing herein shall relieve an Owner of an interest in the Property of its responsibilities to comply with the terms hereof and all other provisions of applicable law or of responsibility for its failure to comply during the time it held an interest in the Property. 9. Transferee. The Transferee is a person to whom an Owner transfers the Owner’s obligations under this Environmental Covenant. A Transferee is any assign, successor in interest, including without limitation a future owner of an interest in fee simple, mortgagee, lender, easement holder, lessee, and any other person or entity who acquires any interest whatsoever in the Property, or any portion thereof, whether or not any reference to this Environmental Covenant or its provisions are contained in the deed or other conveyance instrument, or other agreements by which such person or entity acquires its interest in the Property or any portion thereof. W hen a transfer occurs, the Transferee becomes an Owner. 10. Holder. General Electric Company is the Holder of this Environmental Covenant. 11. Rights and Obligations of Holder. The Holder may enforce this Environmental Covenant. The Holder’s obligations hereunder are limited to the specific provisions and the limited purposes described in this Environmental Covenant. Subject to the Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 3 provisions hereof, the Holder’s rights and obligations survive the transfer of the Property. 12. Agency. The Utah Department of Environmental Quality (UDEQ) is the Agency (as defined in the Act) under this Environmental Covenant. The UDEQ may enforce this Environmental Covenant. The UDEQ assumes no affirmative duties through the execution of this Environmental Covenant. The Director of the Division of Waste Management and Radiation Control is the UDEQ representative for this Environmental Covenant. 13. Activity and Use Limitations. As part of the environmental response project described above, Grantor hereby imposes the following activity and use limitations: A. Land Use Limitations The property will be restricted to industrial/commercial use only. Prior to any part of the property being used for single- family or multi-family residence, daycare, school, recreational field of any type, or church, the Grantor, or its successors and/or assigns, must notify UDEQ and must demonstrate to the satisfaction of UDEQ that any such proposed use will not pose a danger to public health, safety, or the environment. Any approval granted by UDEQ for the restricted uses shall be in writing, must contain a reference to this instrument, and shall be filed with the Davis County Recorder. B. Ground Water Limitations Except for wells installed for groundwater assessment or environmental monitoring, the Grantor, or its successors and/or assigns, must notify UDEQ prior to installation of groundwater wells or any use of groundwater at the property and must demonstrate to the satisfaction of UDEQ, through sampling and analysis approved by UDEQ, that any invasive activity (i.e., activity that disturbs the ground surface) will not pose a danger to public health, safety, or the environment. This Environmental Covenant prohibits, without limitation, the installation of a groundwater well intended for use as a potable water source. Any approval granted by UDEQ for the restricted uses shall be in writing, must contain a reference to this instrument, and shall be filed with the Davis County Recorder. C. Disturbance Limitations All impacted soils at the property shall be handled only in accordance with the requirements of this Notice and the Site Management Plan (“SMP”), which is part of the Administrative Record, unless other procedures have been approved by UDEQ in writing in advance, following the process for disturbances set out below. The soil management restrictions in this section do not apply to shallow/minor maintenance activities e.g., fence posts, signposts, lawn maintenance or landscaping activities. An environmental professional must be present onsite during all handling activities for impacted soils regardless of volume or quantity of impacted soil that is subject to the work. Impacted soils that remain in place but are exposed at the site at the completion of any handling activities shall be covered by engineered controls as necessary and appropriate in accordance with the requirements of this Notice and the SMP. Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 4 D. Vapor Intrusion Limitations Prior to constructing any new building(s) on the property, the Grantor, or its successors and/or assigns shall evaluate whether environmental conditions pose a threat of vapor intrusion into the new building(s) and shall share its findings with UDEQ. If warranted based upon the data, any new building(s) shall be equipped with one or more “Vapor Mitigation Systems” (e.g., membrane or other barrier). Or, the Grantor, or its successors and/or assigns may elect to proactively install vapor mitigation measures. More specifically, if at any time in the future a new building is planned for construction near monitoring wells MW -2, MW -3, MW -11, or MW-13, the Grantor, or its successors and/or assigns shall evaluate whether environmental conditions pose a threat of vapor intrusion and, if warranted based upon the data and in consultation with UDEQ, install an appropriate Vapor Mitigation System. 14. Notice of Breach. If any event or action by or on behalf of a person or entity who holds an interest in or holds an encumbrance on the Property constitutes a breach of the activity and use limitations, the Owner shall notify the Director within 30 days of becoming aware of the event or action, and shall remedy the breach of the activity and use limitations within 60 days of becoming aware of the event or action, or such other time frame as may be agreed to by the Owner and Director. 15. Running with the Land. This Environmental Covenant shall be binding upon the Owner[s] and all assigns and successors in interest, including any Transferee, and shall run with the land, pursuant to Utah Code Ann. § 57-25-105, subject to amendment or termination as set forth herein. 16. Compliance Enforcement. Compliance with this Environmental Covenant may be enforced pursuant to Utah Code Ann. § 57-25-111. Failure to timely enforce compliance with this Environmental Covenant or the activity and use limitations contained herein by any party shall not bar subsequent enforcement by such party and shall not be deemed a waiver of the party’s right to take action to enforce correction of any non-compliance. Nothing in this Environmental Covenant shall restrict the Director from exercising any authority under applicable law. Voluntary Cleanup Program: Pursuant to Utah Code Ann. § 19-8-113, if the Property or any portion thereof is put to a use that does not comply with this Environmental Covenant, the Certificate of Completion issued for the Property by the Director under Utah Code Ann. §§ 19-8-111 is void on and after the date of the commencement of the noncomplying use. 17. Rights of Access. Grantor hereby grants to the UDEQ the right of access to the Property for necessary response actions, inspections, and implementation or enforcement of this Environmental Covenant. 18. Compliance Reporting. Upon request from the Director, Owner or any Transferee shall submit to the Director written documentation verifying that the activity and use limitations remain in place and are being complied with. If such limitations do not remain in place, are not being complied with, or both, the Owner or any Transferee shall explain the circumstances. Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 5 19. Notice upon Conveyance. Owner shall notify the Agency and Holder within 20 days after each transfer of ownership of all or any portion of the Property. Owner’s notice to the Agency and Holder shall include the name, address and telephone number of the Transferee, a copy of the deed or other documentation evidencing the conveyance, and an unsurveyed plat that shows the boundaries of the property being transferred. Instruments that convey any interest in the Property (fee, leasehold, easement, encumbrance, etc.) shall include a notification to the person or entity who acquires the interest that the Property is subject to this Environmental Covenant and shall identify the date, entry no., book and page number at which this document is recorded in the records of the Davis County Recorder, in the State of Utah. Failure to provide notification shall have no effect upon the enforceability and duty to comply with this Environmental Covenant. 20. Representations and Warranties. Grantor hereby represents and warrants to the other signatories hereto: A. that the Grantor is the sole owner of the Property; that the Grantor holds fee simple title to the Property which is subject to the interests or encumbrances identified in Exhibit B attached hereto and incorporated by reference herein; B. that the Grantor has the power and authority to enter into this Environmental Covenant, to grant the rights and interests herein provided, and to carry out all obligations hereunder; C. that the Grantor has identified all other persons who own an interest in or hold an encumbrance on the Property and notified such persons of the Owner’s intention to enter into this Environmental Covenant; and D. that this Environmental Covenant will not materially violate or contravene or constitute a material default under any other agreement, document or instrument to with Grantor is a party or by which Grantor may be bound or affected. 21. Amendment or Termination. This Environmental Covenant may be amended or terminated pursuant to the Act. Except as set forth herein, Grantor and Holder waive any and all rights to consent or notice of amendment concerning any parcel of the Property to which Grantor or Holder has no fee simple interest at the time of amendment or termination. Nothing in this Environmental Covenant shall be interpreted to mean that the Director waives the right to consent to or notice of amendment or termination of this Environmental Covenant. 22. Effective Date, Severability, and Governing Law. The effective date of this Environmental Covenant shall be the date upon which the fully executed Environmental Covenant has been recorded as a document of record for the Property with the Davis County Recorder. If any provision of this Environmental Covenant is found to be unenforceable in any respect, the validity, legality, and enforceability of the remaining Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 6 provisions shall not in any way be affected or impaired. This Environmental Covenant shall be governed by and interpreted in accordance with the laws of the State of Utah. 23. Recordation and Distribution of Environmental Covenant. Within 30 days after the date of the final required signature upon this Environmental Covenant, Owner shall file this Environmental Covenant for recording, in the same manner as a deed to the Property, with the Davis County Recorder’s Office. The Owner shall distribute a file-and date-stamped copy of the recorded Environmental Covenant to the Director. 24. Notice. Unless otherwise notified in writing by or on behalf of the current Owner or the Director, any document or communication required by this Environmental Covenant shall be submitted to: Doug Hansen, Director Utah Division of Waste Management and Radiation Control P.O. Box 144880 Salt Lake City, Utah 84114-4880 Damian Foti, Senior Environmental Manager GE Vernova 1 River Road, Building 33, room 207 Schenectady, New York 12345 25. Governmental Immunity. In approving this covenant, the Agency does not waive governmental immunity afforded by law. The Grantor, Owner, and Holder, for themselves and their successors, assigns, and Transferees, hereby fully and irrevocably release and covenant not to sue the State of Utah, its agencies, successors, departments, agents, and employees (State) from any and all claims, damages, or causes of action arising from, or on account of the activities carried out pursuant to this Environmental Covenant except for an action to amend or terminate the Environmental Covenant pursuant to Sections 57-25-109 and 57-25-110 of the Utah Code Ann. or for a claim against the State arising directly or indirectly from or out of actions of employees of the State that would result in (i) liability to the State of Utah under Section 63G-7-301 of the Governmental Immunity Act of Utah, Utah Code Ann. Section 63G-7-101, et seq. or (ii) individual liability for actions not covered by the Governmental Immunity Act as indicated in Sections 63G-7-202 and -902 of the Governmental Immunity Act, as determined in a court of law. 26. Payment of Agency’s Costs. Consistent with the Act and other applicable law, the Owner, if invoiced, shall reimburse the UDEQ for the UDEQ’s costs related to this Environmental Covenant. The invoice may be based on actual costs incurred by Agency or on the fee schedule approved by the legislature or both as applicable. 27. The undersigned representative of Grantor represents and certifies that he is authorized to execute this Environmental Covenant. Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 7 General Electric Company as Grantor, Owner, and Holder _______________________________ [Insert the name of the individual authorized to sign on behalf of the entity and that individual’s title, e.g. Jon Doe, President] _______________ Date State of ___________________ ) ) ss: County of __________________ ) Before me, a notary public, in and for said county and state, personally appeared ___________________________, a duly authorized representative of_____________________, who acknowledged to me that [he/she] did execute the foregoing instrument on behalf of _____________. IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal this______day of__________ 20___. ___________________________________________ Notary Public Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 8 UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY On behalf of the Utah Department of Environmental Quality, the Director approves the foregoing Environmental Covenant pursuant to Utah Code Ann. Sections 57-25-102(2) and 57-25-104(1)(e). __________________________________ Ty L. Howard Director Division of Waste Management and Radiation Control _______________ Date State of Utah ) ) ss: County of Salt Lake ) Before me, a notary public, in and for said county and state, personally appeared Ty L. Howard Director of the Utah Division of Waste Management and Radiation Control, who acknowledged to me that he did execute the foregoing instrument. IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal this_____day of_____________, 20 . ___________________________________________ Notary Public [NAME OF HOLDER] __________________________________ Signature of Holder Printed Name and Title _______________ Date State of ____________________ ) ) ss: County of___________________ ) Before me, a notary public, in and for said county and state, personally appeared __________, a duly authorized representative of_________________, who Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 9 acknowledged to me that [he/she] did execute the foregoing instrument on behalf of _____________. IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal this_______day of__________________, 20___. ____________________________________________ Notary Public This instrument prepared by: [name, address] Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 10 EXHIBIT B Interests and Encumbrances Ordinance No. 2013-19 Adopting the Orbit Economic Development Project Area Plan as an Official Economic Development Project Area Plan, recorded October 2, 2013 as Entry No. 2769759 in Book 5865 at Page 508. The rights and interest of an Artesian Well as disclosed by that certain Warranty Deed recorded May 3, 1952 as Entry No. 123151 in Book 37 at Page 382. Assignment in favor of the Town of North Salt Lake, a Municipal Corporation, recorded May 3, 1956 as Entry No. 156522 in Book 105 at Page 204. The rights and interest of an Artesian Well as disclosed by that certain Warranty Deed recorded May 22, 1952 as Entry No. 123510 in Book 38 at Page 225. Assignment in favor of the Town of North Salt Lake, a Municipal Corporation, recorded May 3, 1956 as Entry No. 156521 in Book 105 at Page 203. Indenture by and between General Motors Corporation, a Delaware corporation duly authorized to do business in the State of Utah and Pioneer Pipe Line Company, a Delaware corporation for an easement for the purpose of constructing, maintaining, operating, owning, repairing, replacing and removing three pipe lines, drips, gates, tie-overs and all appurtenances convenient to the transportation of oil, gas, petroleum products, or any other liquids, gases, or substances which can be transported through a pipe line and incidental purposes, by instrument dated August 15, 1952 and recorded August 30, 1952, as Entry No. 125249, in Book 41, at Page 536. License Agreement by and between General Motors Corporation, a Delaware corporation, duly authorized to do business in the State of Utah and Utah Power and Light Company, a Maine corporation, duly authorized to do business in the State of Utah for permission to install a wood pole line for the purpose of constructing an electrical transmission line for the transmission of electric current and incidental purposes, by instrument dated April 11, 1955 and recorded May 23, 1955 as Entry No. 146403 in Book 84 at Page 542. Reservations as set forth in that certain Warranty Deed recorded August 24, 1962 as Entry No. 240278 in Book 248 at Page 568. Amendment to Agreement, Grant of Access to DEQ, and Covenants Not to Sue Utah Transit Authority, recorded October 3, 2005 as Entry No. 2110746 in Book 3883 at Page 775. Environmental Covenant Former General Electric Facility, 130 East 1100 North, North Salt Lake Property Page 11 Second Amendment to Agreement, Grant of Access to DEQ, and Covenants Not to Sue Utah Transit Authority, recorded August 27, 2007 as Entry No. 2301006 in Book 4354 at Page 1043. Restrictive Covenants contained in that certain Quitclaim Deed recorded January 11, 2007 as Entry No. 2235181 in Book 4197 at Page 1052. Notice of an Agreement and Covenant Not to Sue Between and Among the United States on Behalf of the Environmental Protection Agency and the Utah Transit Authority, recorded November 18, 2008 as Entry No. 2405404 in Book 4659 at Page 157. Easement Deed by Court Order in Settlement of Landowner Action, recorded October 28, 2013 as Entry No. 2774056 in Book 5883 at Page 926. Right of Way Easement in favor of PacifiCorp, an Oregon Corporation, d/b/a Rocky Mountain Power its successors and assigns to construct, reconstruct, operate, maintain and repair electric transmission and other equipment and incidental purposes, over, under and across a portion of the subject Land. Said Easement recorded October 30, 2014, as Entry No. 2831414, in Book 6135, at Page 768.