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Home My WebLink AboutDSHW-2025-002109Environmental Covenant Page 1 To be recorded with Weber County Recorder – Utah Code § 57-25-108 When Recorded Return To: David Rawson Recycled Earth LLC 1515 West 3030 South Ogden, Utah 84401 With Copy To: Douglas J. 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 executed by Recycled Earth LLC, as Owner, Grantor, and Holder and the Director of the Utah Division of Waste Management and Radiation Control (“Director”) on behalf of the Utah Department of Environmental Quality (“UDEQ”), pursuant to the Utah Uniform Environmental Covenants Act, Utah Code § 57-25-101 et seq. (the “Act”), for the purpose of subjecting the real property described in Paragraph 3 and Exhibit A attached hereto (the “Property”) to the activity and use limitations set forth herein. This Environmental Covenant shall be perpetual unless amended or terminated in accordance with the Act and Paragraph 21. 2. Notice of Contamination. 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 and the environment. 3. Property. The real property subject to this Environmental Covenant is an approximately 11-acre tract of real property located at 1515 West 3030 South, Ogden, Utah 84401, Parcel No. 155690005, and more particularly described in Exhibit A attached hereto and hereby incorporated by reference herein. Recycled Earth LLC owns the Property. 4. Environmental Response Project. Under the direction of the UDEQ, Division of Waste Management and Radiation Control (“DWMRC”), an environmental response project described in the Site Management Plan dated January 17, 2024, and submitted to the DWMRC (DSHW-2024-004143) was undertaken to address the potential on-site contamination. Several corrective actions, including soil remediation, were completed. Levels of arsenic in on-site groundwater were detected above the Maximum Contaminant Level established by the United States Environmental Protection Agency. Background concentrations of arsenic in groundwater were not established to allow a determination if arsenic in groundwater was naturally occurring or due to past activities at the Property. Environmental Covenant Page 2 5. Administrative Record. The Environmental Response Project administrative records are maintained and managed by UDEQ. 6. Grantor. Recycled Earth LLC 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 or entity that 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 or entity who is a Holder under this Environmental Covenant but who holds no other interest in the Property is not an Owner. 8. Transferee. A Transferee is a person or entity 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. When a transfer occurs, the Transferee becomes an Owner. 9. Transfer of Obligations. 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. 10. Holder. Recycled Earth LLC is the Holder of this Environmental Covenant, as defined by the Act. 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 provisions hereof, the Holder’s rights and obligations survive the transfer of the Property. Environmental Covenant Page 3 12. Agency. Pursuant to Utah Code § 57-25-102, the UDEQ is the Agency 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 is the UDEQ representative for this Environmental Covenant. 13. Activity and Use Limitations. As part of the Environmental Response Project described above, Owner hereby imposes and shall comply with the following activity and use limitations: A. Land Use Limitations. The Property shall be used for commercial or industrial purposes only. Residential uses of the Property are prohibited. B. Groundwater Limitations. Extracting or using groundwater, except for extracting or using groundwater for investigation, remediation, or contaminant mitigation thereof, is prohibited. C. Worker Health and Safety. Owner shall inform workers, including but not limited to those conducting construction, excavation, demolition, or sub-slab or subgrade work on the Property of the risk associated with coming into contact with groundwater at the Property. 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 thirty (30) days of becoming aware of the event or action, and shall remedy the breach of the activity and use limitations within sixty (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 and all assigns and successors in interest, including any Transferee, and shall run with the land, pursuant to Utah Code § 57-25-105, subject to amendment or termination as set forth in the Act and herein. 16. Compliance Enforcement. Compliance with this Environmental Covenant may be enforced pursuant to Utah Code § 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. 17. Rights of Access. Owner hereby grants to the UDEQ; the Director; the Director’s authorized officers, employees, and representatives; Holder; City of Ogden; and Weber- Morgan Health Department the right of access to the Property for necessary response actions, inspections, and implementation or enforcement of this Environmental Covenant. Nothing in this Environmental Covenant shall be interpreted as limiting any Environmental Covenant Page 4 access and inspection authorities of the Director or the Director’s authorized officers, employees, and representatives under applicable law. 18.Compliance Reporting. Upon request from the Director, Owner or any Transferee shall submit to the Director and Weber-Morgan Health Department 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. 19.Notice upon Conveyance. Owner shall notify the Director and Holder within twenty (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 Environmental Covenant is recorded in the records of the Weber 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; B.that the Grantor holds fee simple title to the Property which is subject to the interests or encumbrances identified in Schedule B of the Title Commitment attached hereto as Exhibit B and incorporated by reference herein; C.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; D.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 E.that this Environmental Covenant will not materially violate or contravene or constitute a material default under any other agreement, document, or instrument to which 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 to or notice of amendment or termination concerning any portion of the Property to which Grantor or Holder have no fee simple interest at the Environmental Covenant Page 5 time of amendment or termination of this Environmental Covenant. 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 Weber 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 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 thirty (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 Weber County Recorder. The Owner shall distribute a file-and date-stamped copy of the recorded Environmental Covenant to the Director, City of Ogden, and Weber-Morgan Health Department. 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: If to the Director: Douglas J. Hansen, Director Utah Division of Waste Management and Radiation Control P.O. Box 144880 Salt Lake City, Utah 84114-4880 If to Recycled Earth LLC: Recycled Earth LLC P.O. Box 3241 Ogden, Utah 84409 25. Governmental Immunity. In executing this Environmental Covenant, the Agency does not waive governmental immunity afforded by law. The Owner, Grantor, 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 (collectively, the “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 Utah Code §§ 57-25-109 and -110 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 under Utah Code § 63G-7-301 of the Governmental Immunity Act of Utah, Utah Code § 63G-7-101 et seq. or (ii) individual Environmental Covenant Page 6 liability for actions not covered by the Governmental Immunity Act as indicated in Utah Code §§ 63G-7-202 and -902, 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 the Agency, on the fee schedule approved by the Utah Legislature, or both as applicable. Environmental Covenant Page 7 The undersigned representative of Owner, Grantor, and Holder and the undersigned representative of UDEQ represent and certify that they are authorized to agree to the conditions and obligations contained herein and to execute this Environmental Covenant. IT IS SO AGREED: Recycled Earth LLC, a Utah Limited Liability Company, as Owner, Grantor, and Holder _______________________________ David Rawson, Managing Member Recycled Earth LLC _______________ 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 Page 8 UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY On behalf of the Utah Department of Environmental Quality, the Director of the Division of Waste Management and Radiation Control approves the foregoing Environmental Covenant pursuant to Utah Code §§ 57-25-102(2) and 57-25-104(1)(e). __________________________________ Douglas J. Hansen, 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 Douglas J. Hansen, 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_____________, 2025. ___________________________________________ Notary Public Environmental Covenant Page 9 Exhibit A [Legal Description of the Property] ALL OF LOT 5, MIDLAND INDUSTRIAL SUBDIVISION, OGDEN CITY, WEBER COUNTY, UTAH. Environmental Covenant Page 10 Exhibit B [Title Commitment for the Property]