# .C

0

GALE A. NORTON 

### STATE OF COLORADO STATE SERVICES BUILDING

Attorney General 1525 Sherman Street

- 5th Floor

DEPARTMENT OF LAW Denver, Colorado 80203

STEPimN K. ERKENBRACK Phone (303) 866-4500

Chief Deputy Attorney General OMCE OF THE ATTORNEY GENERAL FAX (303) 866-5691

TimOTHY M. TymKovicH

Solicitor General

May 28, 1996

CPT. Tom Cook

Attn DAJA-ELL

Building ill.

Rocky Mountain Arsenal

Commerce City, Colorado 80022-1748

RE: Disk containing Deed Restrictions on the Shell property

north of the Rocky Mountain Arsenal.

Dear Tom:

Pursuant to our telephone conversation this morningi enclosed is a diskette with the final agreed upon deed restrictions. The diskette contains three different documents, the

Covenant (listed as Declarat.), the Exhibits to the Covenant

(listed as Declexh.) and the Agreement that will be-part of the

Offpost ROD (listed as Agmt.). I think that you may only need

the Agreement, but I am sending you all three just in case. Tom

Cope is planning on filing the covenant next week after the RAB

meeting. He should then provide you with a signed, recorded copy

to attach to the ROD.

Please call me with any questions or comments.

Sincerely,

`ýýe T. Feldman

Assistant Attorney General

Natural Resources Section

CC: Tom Cope (w/o enclosure)

Lorraine Ross (w/o enclosure)

pAhw\hwfbIdjt\r=kook.dU

00040407 14-423-1#123320v.5 DECLARATION OF COVENANTS2 THIS DECLARATION OF COVENANTS, dated as of February 2, 1996,

is made by SHELL OIL COMPANY, a Delaware corporation ("She ll"),

for the benefit of the UNITED STATES OF AMERICA (the "United States")

and the STATE OF COLORADO (the "State").

**Recitals**

A. Shell owns the land in Adams County, Colorado described

in Exhibit A attached hereto and forming a part hereof (the "Land" ).

B. A portion of the Land is subject to Revised License dated

effective Dec ember 3, 1991 (the "License"), from Shell to the United

States Department of the Army (the "Army"), notice of which was

given by Memorandum of License dated effective as of December 3,

1991, between Shell and the Army, filed for recording June 25, 1992

at 8 a.m., and recorded under Reception No. 1074181 in Book 3920

at page 351 of the real property records of Adams County, Colorado.

C. The Army, Shell, the State, the United States Environmental

Protection Agency ("EPA"), and the United States Fish and Wi ldlife

Service ("USFWS") entered into Agreement for a Conceptual Remedy

for the Cleanup of the Rocky Mountain Arsenal dated June 13, 1995

(the "Conceptual Remedy Agreement").

D. Paragraph 23 of the Conceptual Remedy Agreement requires

Shell to execute a nd record covenants to preclude use of groundwater

underlying the Land until certain conditions are satisfied.

E. The Land is included within the Offpost Operable Unit (the

"Offpost OU") of Rocky Mountain Arsenal, a National Priorities List

site under the Comprehensive Environmental Response, Compensation,

and Liability Act.

F. A Record of Decision for the Offpost OU (the "Offpost ROD")

was signed on December 19, 1995.

G. Page A1

- 1 of Appendix B to the Offpost ROD also requires

Shell to execute an d record covenants to preclude use of groundwater

underlying the Land until certain conditions are satisfied.

H. Shell desires to grant the covenants set forth below in

full satisfaction of its obligations under paragraph 23 of the

Conceptual Remedy Agr eement and under page A1

- 1 of Appendix B to

the Offpost ROD. These covenants will protect, preserve and enhance

the value of the adjacent land owned by the United States and known

as Rocky Mountain Arsenal (the "Onpost OU"), as well as contribute

to the o verall remedy for Rocky Mountain Arsenal.3 **Declaration**

In consideration of the foregoing and other good and valuable

consideration, the receipt and sufficiency of which Shell

acknowledges, Shell hereby covenants for itself and its successors

and assig ns as follows:

1. Use of Alluvial Groundwater Underlying the Land . No

groundwater well for future use may be constructed on the Land if

it is screened in the unconfined flow system ("UFS"), which is defined

as the alluvial aquifer and the weathered upp er portion of the Denver

Formation, without the express written consent of the State and

the United States for such period as this covenant remains in effect.

Review and approval of any request for the construction of any

such groundwater well shall be go verned by the provisions of Appendix

B, Attachment 3 of the Offpost ROD.

Copies of the Offpost ROD are available at the following locations:

Joint Administrative Record Document Facility

("JARDF")

Rocky Mountain Arsenal

Building 135

72nd A venue and Quebec Street

Commerce City, Colorado 80022

- 1748

EPA Region VIII Superfund Records Center

999 18th Street

Denver, Colorado 80202

- 2466

Records Center

Hazardous Materials & Waste Management Division

Colorado Department of Public

Health and Environment

4300 Cherry Creek Drive South

Denver, Colorado 80222

- 1530

2. Use of Deeper Groundwater . No groundwater may be used from

any well on the Land that is screened in any aquifer beneath the

UF S except as set forth in paragraph 4 of Appendix B, Attachment

3 of the Offpost ROD.

3. Exceptions. Notwithstanding the foregoing, no such

approval shall be required for wells for groundwater sampling,

wells for groundwater level measurements, well s for extraction for

treatment of contaminated groundwater, and wells for reinjection

of treated groundwater.

4. Covenants Run With Land; Enforcement. The covenants in

paragraphs 1 and 2 touch and concern, run with, and burden the Land,

and benefit the Onpost OU. They are granted for the benefit of

the United States and the State to preserve the property values

of the Onpost OU, and are enforceable by the United States, through

the Army and EPA, and by the State. If there is a violation of

either of t hose covenants that remains uncured after 30 day's prior

written notice of the violation to Shell (or other owner of the4 Land or portion thereof whose action constitutes the violation),

the United States and the State, or either of them, may institute

a su it against the person violating the covenants to enjoin the

violation by temporary or permanent injunction; provided, however,

that for an irreparable ongoing or imminent violation the 30

- day

notice is not required. No failure by the United States or the

State to institute such a suit shall be deemed to be a waiver or

a forfeiture of the right to enforce any covenant in this instrument.

**5. Notice.** In every instrument conveying any interest in any

portion of the Land, including without limitation deeds, leases,

and mortgages, Shell shall include a notice in substantially the

following form:

NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO

DECLARATION OF COVENANTS DATED AS OF

FEBRUARY 2, 1996, RECORDED UNDER RECEPTION

NO. _____ IN BOOK _____ AT PAGE _ ____ OF THE

REAL PROPERTY RECORDS OF ADAMS COUNTY,

COLORADO, IN FAVOR OF AND ENFORCEABLE BY THE

UNITED STATES OF AMERICA AND THE STATE OF

COLORADO.

6. Title. Shel l represents to the United States and the State

that Shell's title to the Land is free and clear of all liens,

encumbrances, and burdens arising by, through, or under Shell, but

not otherwise, except for the lien for taxes not yet due and except

for the Li cense; and Shell will forever warrant and defend title

to the Land against all persons claiming an interest therein by,

through, or under Shell, but not otherwise, except for the interest

created by the License.

7. Release. The covenants contained her ein shall be

released in accordance with the procedures outlined in paragraph

6 of Appendix B, Attachment 3 of the Offpost ROD.

8. Miscellaneous.

(a) No Admission of Liability. The execution and

delivery of this instrument and Appendix B, Attachmen t 3 of the

Offpost ROD by Shell shall not be construed as an admission of any

liability on its part. Neither this instrument nor Appendix B,

Attachment 3 of the Offpost ROD may be offered in evidence in any

administrative or judicial proceeding, except fo r a proceeding to

enforce its provisions.

(b) No Warranty. Except as specifically set forth in

paragraph 6, this instrument is executed without any representation

or warranty, express or implied.

(c) Headings. The headings in this instru ment are for

guidance and convenience of reference only and do not limit or

otherwise affect the meanings of any of its provisions.5 **(d) Further Assurances.** Shell, EPA, the State, the

Army, and USFWS shall execute and deliver or cause to be executed

a nd delivered such other instruments, and take such other actions,

as may be reasonably necessary or advisable to carry out the purposes

of this instrument.

(e) Entire Agreement. This instrument and Appendix B,

Attachment 3 of the Offpost ROD constitut e the entire understanding

among Shell, EPA, the State, the Army, and USFWS with respect to

the subject matter hereof, superseding all negotiations, prior

discussions, and prior agreements or understandings with respect

to the subject matter.

(g) No As signment. Neither the United States nor the

State may assign any of their respective rights under this instrument

without the prior written consent of Shell.

(h) Parties in Interest. This instrument shall be

binding upon and inure to the benefit of t he parties hereto and

their respective successors and assigns. Nothing in this

instrument, express or implied, is intended to confer upon any other

person or entity any benefit, right, or remedy.6 EXECUTED as of the date first above written.

SHELL OIL COMPANY

By___________________________________

Vice President HS&E

Shell Chemical Company

STATE OF ______________ )

) ss.

COUNTY OF ____________ )

The foregoing instrument was acknowledged before me this ___

day of June, 1996, by R.N Shulman, as Vice President HS&E, Shell

Chemical Company, a subsidiary of Shell Oil Company, a Delaware

corporation, on behalf of the corporation.

Witness my hand and official seal.

_____________________________________

Nota ry Public

My commission expires:APPENDIX B ATTACHMENT 3

THE AGREEMENT CONTAINED WITHIN THIS ATTACHMENT, dated as of

February 2, 1996, is among the UNITED STATES DEPARTMENT OF THE ARMY

(the "Army"), SHELL OIL COMPANY ("Shel l"), the STATE OF COLORADO

(the "State"), the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

("EPA"), and the UNITED STATES FISH AND WILDLIFE SERVICE ("USFWS").

**Recitals**

A. Shell owns the land in Adams County, Colorado described

in Exhibit A attached h ereto and forming a part hereof (the "Land").

B. A portion of the Land is subject to Revised License dated

effective December 3, 1991 (the "License"), from Shell to the Army,

notice of which was given by Memorandum of License dated effective

as of Decem ber 3, 1991, between Shell and the Army, filed for

recording June 25, 1992 at 8 a.m., and recorded under Reception

No. 1074181 in Book 3920 at page 351 of the real property records

of Adams County, Colorado.

C. The Army, Shell, the State, EPA, and USFWS entered into

Agreement for a Conceptual Remedy for the Cleanup of the Rocky

Mountain Arsenal dated June 13, 1995 (the "Conceptual Remedy

Agreement").

D. Paragraph 23 of the Conceptual Remedy Agreement requi res Shell to execute and record covenants to eliminate potential exposure

to contaminated groundwater underlying the Land.

E. The Land is included within the Offpost Operable Unit (the

"Offpost OU") of Rocky Mountain Arsenal, a National Priorities List

site under the Comprehensive Environmental Response, Compensation,

and Liability Act.

F. A Record of Decision for the Offpost OU (the "Offpost ROD")

was signed on December 19, 1995.

G. Page A1

- 1 of Appendix B to the Offpost ROD also requires

Shell to execute and record covenants to eliminate potential exposure

to contaminated groundwater underlying the Land.

H. By Declaration of Covenants dated as of February 2, 1996

(the "Declaration"), filed for recording June 11, 1996, and recorded

under Recepti on No. CO183385 in Book No. 4769 at Page No. 297

- 308

of the real property records of Adams County, Colorado, Shell

declared covenants for the benefit of the United States of America

(the "United States") and the State to satisfy its obligations under

para graph 23 of the Conceptual Remedy Agreement and under page A1

- 1

of Appendix B to the Offpost ROD. A copy of the Declaration is

attached hereto as Exhibit B.2 I. The restrictive covenants set forth in the Declaration are

enforceable by the United States, through the Army and EPA, and

by the State.

**Agreement**

In consideration of the foregoing and other good and valuable

consideration, the receipt and sufficiency of which all the parties

acknowledge, they hereby agree as follows:

1. Consent. The Ar my consents to the restrictive covenants

set forth in the Declaration and this Agreement.

2. Satisfaction of Obligations. The Army, the State, EPA,

and USFWS acknowledge that recordation of the Declaration and the

signing of this Agreement fully satis fy Shell's obligations under

paragraph 23 of the Conceptual Remedy Agreement and under page A1

- 1

of Appendix B to the Offpost ROD.

3. Prohibition Against Alluvial Wells. No groundwater well

for future use may be constructed on the Land if it is screene d

in the unconfined flow system (the "UFS"), which is defined as the

alluvial aquifer and the weathered upper portion of the Denver

Formation, until no analyte listed in Schedule 1 is present in excess

of the appropriate standard listed in Schedule 1 in an y well listed

in Schedule 2 attached hereto (or replacements for those wells)

during a 5

- year period that includes the following sampling events:

5 consecutive annual samples analyzed for all analytes listed in

Schedule 1; 3 quarterly samples analyzed onl y for DIMP and dieldrin

between the third and fourth annual samples; and 3 quarterly samples

analyzed only for DIMP and dieldrin between the fourth and fifth

annual samples. This prohibition does not apply to wells for

groundwater sampling, wells for grou ndwater level measurements,

wells for extraction for treatment of contaminated groundwater,

and wells for reinjection of treated groundwater.

4. Prohibition Against Use of Deeper Groundwater. No

groundwater may be used from any well on the Land that is screened

in any aquifer beneath the UFS so long as that well contains any

of the analytes listed in Schedule 1 in excess of the appropriate

sta ndards listed in Schedule 1. In addition, any well screened

in any aquifer beneath the UFS may be closed pursuant to the Offpost

ROD if the criteria for well closure set forth in Appendix C to

the Offpost ROD are satisfied.

5. Covenants Run With Land; Enforcement. Paragraphs 3 and

4 above govern the implementation of the covenants in paragraphs

1 and 2, respectively, of the Declaration, which touch and concern,

run with, and burden the Land, and benefit the Onpost OU. The

covenants of paragraphs 1 an d 2 of the Declaration are granted for

the benefit of the United States and the State to protect, preserve3 and enhance the property values of the Onpost OU, as well as

contribute to the overall remedy of RMA, and are enforceable by

the United States, throu gh the Army and EPA, and by the State.

If there is a violation of either of those covenants that remains

uncured after 30 day's prior written notice of the violation to

Shell (or other owner of the Land or portion thereof whose action

constitutes the viol ation), the United States and the State, or

either of them, may institute a suit against the person violating

the covenants to enjoin the violation by temporary or permanent

injunction; provided, however, that for an irreparable ongoing or

imminent violati on the 30

- day notice is not required. No failure

by the United States or the State to institute such a suit shall

be deemed to be a waiver or a forfeiture of the right to enforce

any covenant in this instrument.

6. Release. When the conditions to allo w construction of

groundwater wells for future use on the Land that are screened in

the UFS, as described in paragraph 3 of this Agreement, have been

satisfied, Shell shall so notify the Army, the State, and EPA.

If the Army, the State, and EPA agree, (a) the Army, the State,

and EPA shall acknowledge that the conditions have been satisfied

and (b) the United States, through the Army, and the State, in

consultation with EPA, shall execute, acknowledge, and deliver to

Shell a Release of Restrictive Covenant s in the form of Exhibit

C attached hereto to evidence of record that the covenant in paragraph

1 of the Declaration, as implemented by paragraph 3 above, no longer

burdens the Land.

7. Notices. All notices given under this Agreement shall be

in writin g, shall be given by certified mail, return receipt

requested, overnight courier service, telecopy, or hand delivery,

and, (a) if mailed, shall be deemed received three business days

after mailing with postage prepaid, (b) if delivered by overnight

courier service shall be deemed received one business day after

having been deposited with the courier service, with delivery fees

paid by the sender, and (c) if delivered by facsimile or hand

delivery, shall be deemed received on the day the notice is sent

if th e sender makes reasonable efforts to confirm the receipt

thereof; in each case addressed as follows:

If to the Army:

Program Manager

Office of the Program Manager

Building 111

Rocky Mountain Arsenal

ATTN: AMXRM

- PM

Commerce City, Colo rado 80022

- 17484 If to EPA:

EPA Coordinator for RMA

(8EPR

- F)

U. S. Environmental Protection Agency

Region VIII

999 18th Street, Suite 500

Denver, Colorado 80202

- 2466

If to USFWS:

Regional Director

U.S. Fish and Wildlife Service

Region 6

P.O. Box 25486

Denver, Colorado 80225

If to the State:

Rocky Mountain Arsenal Project Manager

Hazardous Materials & Waste Management Division

Colorado Department of Public

Health and En vironment

4300 Cherry Creek Drive South

Denver, Colorado 80222

- 1530

with a copy to:

Colorado Department of Law

CERCLA Litigation Unit

1525 Sherman Street

Denver, Colorado 80203

If to Shell:

Manager of Denver Site Project

Shell Denver Site Project

c/o Holme Roberts & Owen LLC

1700 Lincoln, Suite 4100

Denver, Colorado 80203

Any party may, by written notice so delivered to the others, change

the address or facsimile number to which delivery shall thereafter

be made

.

8. Further Assurances. The parties shall execute and deliver

or cause to be executed and delivered such other instruments, and

take such other actions, as may be reasonably necessary or advisable

to carry out the purposes of this Agreement.

9. Int egration. This Agreement and the Declaration

constitute the entire understanding among the parties with respect5 to the subject matter hereof, superseding all negotiations, prior

discussions, and prior agreements or understandings with respect

to the subje ct matter.

10. Parties in Interest. This Agreement shall be binding upon

and inure to the benefit of the parties hereto and their respective

successors and assigns. Nothing in this Agreement, express or

implied, is intended to confer upon any other pe rson or entity any

benefit, right, or remedy.

11. Counterpart Execution. This Agreement may be executed

in any number of counterparts, each of which shall be deemed an

original instrument for all purposes.

EXECUTED as of the date first above written.

UNITED STATES DEPARTMENT OF THE ARMY

By____________________________________________

Raymond J. Fatz

Acting Deputy Assistant Secretary of the Army

(Environment, Safety and Occupational Health)

SHELL OIL COMPANY

By____________________________________________

R.N. Shulman

Vice President HS&E

Shell Chemical Company

FOR THE STATE OF COLORADO

By____________________________________________

Tom Looby

Director, Office of Environment

Colorado Department of Public Health and Environment

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

By_____

________________________________________ Jack W. McGraw

Acting Regional Director

Environmental Protection Agency

UNITED STATES FISH AND WILDLIFE SERVICE

By_____________________________________________6 Terry T. T errell

Deputy Regional Director, Mountain

- Prairie Region

U.S. Fish and Wildlife ServiceC

- 1 **EXHIBIT C**

RELEASE OF RESTRICTIVE COVENANTS

By paragraph 1 of Declaration of Restrictive Covenants dated

as of February 2, 1996 (the "Decl aration"), filed for recording

___________, 1996, and recorded under Reception No. _________ in

Book _____ at page _____ of the real property records of Adams County,

Colorado, Shell Oil Company, a Delaware corporation ("Shell"),

granted a restrictive cove nant for the benefit of the United States

of America and the State of Colorado (the "State"), prohibiting

the construction of groundwater wells on the land in Adams County,

Colorado described in Exhibit A attached to the Declaration (the

"Land") and screen ed in the unconfined flow system, all as more

fully described therein.

Neither the United States of America nor the State have assigned

any of their rights under the Declaration.

The Army, the State, and EPA have all acknowledged that the

conditions sp ecified in paragraph 6 of Appendix B, Attachment 3

of the Offpost Record of Decision for release of the covenant in

paragraph 1 of the Declaration have been satisfied.

IN CONSIDERATION of the foregoing and of other good and valuable

consideration, the re ceipt and sufficiency of which the parties

acknowledge, the United States of America, through the United States

Department of the Army, and the State hereby release and quitclaim

to Shell and its successors and assigns all their right, title,

and interest, if any, in and to the Land insofar as they relate

to paragraph 1 of the Declaration.

The covenant granted under paragraph 2 of the Declaration is

in full force and effect and is not affected by this instrument.

EXECUTED this ____ day of _____________ , 20__.

FOR THE UNITED STATES

OF AMERICA

By the Department of the Army

By________________________________

Title:

FOR THE STATE OF COLORADO

By the Colorado Department of Public

Health and Environment

By________________________________

Title:

STATE OF ______________ )

) ss.

COUNTY OF ____________ )

The foregoing instrument was acknowledged before me this ____

day of __________, 20__ , by ___________________, as

_________________ of the United States Department of the Army, on

behalf of the United States of America.

Witness my hand and official seal.

____________________________ Notary PublicC

- 2 My commission expires:

ST ATE OF ______________ )

) ss.

COUNTY OF ____________ )

The foregoing instrument was acknowledged before me this ____

day of ___________, 20__, by ___________________, as

_________________ of the Colorado Department of Public Health and

Environment, o n behalf of the State of Colorado.

Witness my hand and official seal.

____________________________ Notary Public

My commission expires:1

- 1 **SCHEDULE 1**

**____________________________________________________**

CSRG PQL

Analyte (ppb)

(ppb)

______________________________________________________________

Aldrin 0.002 0 .05

Arsenic 2.35

Atrazine 3

Benzene 3

Carbon tetrachloride 0.3 0.99

Chlordane 0.03 0.095

Chloride 250,000

Chlorobenzene 25

Chloroform 6

CPMS 30

CPMSO 36

CPMSO 2 36

DBCP 0.2

DCPD 46

DDE 0.1

DDT 0.1

1,2

- Dichloroethane 0.4 1.0

1,3

- Dichlorobenzene 6.5

Dieldrin 0.002 0.05

DIMP 8

Dithiane 18

Endrin 0.2

Ethylbenzene 200

Fluoride 2,000

Hexachlorocyclopentadiene 0.23

Isodrin 0.06

Malathion 100

NDMA 0.007 0.033

1,4

- Oxathiane 160

Sulfate 540,000

Tetrachloroethyle ne 5

Toluene 1,000

Trichloroethylene 3

Xylenes 1,000

___________________

CSRG

- Containment System Remediation Goals for the Offpost Groundwater

Intercept and Treatment System

PQL

- Practical Quantitation Limit (presented only when the PQL is greater

than the CSRG)

For purposes of the covenants in paragraphs 1 and 2 of the Declaration of Restrictive Covenants, the

appropriate standard for a given analyte is its CSRG or its PQL if the PQL is greater than the CSRG.2

- 1 SCHEDULE 2

WELLS

37062

37065

37071

37076

37081

37083

37085

- Den

37106

37116

37319

37338

37369

37370

37377

37378

37390

- Den

37391

37392