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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 COVENANTS
2

THIS DECLARATION OF COVENANTS, dated as of February 2, 1996, 

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

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 December 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 Wildlife 

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 and 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 and 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 Agreement 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 overall 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 assigns 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 upper 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 governed 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 Avenue 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 

UFS 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, wells 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 those covenants that remains uncured after 30 day's prior 

written notice of the violation to Shell (or other owner of the 
4

Land or portion thereof whose action constitutes the violation), 

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 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. Shell 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 License; 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 herein 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, Attachment 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 for 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 instrument 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 

and 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 constitute 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 Assignment. 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 the 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.

_____________________________________

Notary 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 ("Shell"), 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 hereto 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 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, 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 requires 

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 Reception 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 

paragraph 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 Army 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 satisfy 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 screened 

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 any 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 only 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 groundwater 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 

standards 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 and 2 of the Declaration are granted for 

the benefit of the United States and the State to protect, preserve 
3

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, through 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 violation), 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 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.

6. Release. When the conditions to allow 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 Covenants 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 writing, 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 the 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, Colorado 80022-1748
4

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 Environment

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. Integration. This Agreement and the Declaration 

constitute the entire understanding among the parties with respect 
5

to the subject matter hereof, superseding all negotiations, prior 

discussions, and prior agreements or understandings with respect 

to the subject 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 person 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. Terrell

 Deputy Regional Director, Mountain-Prairie Region

 U.S. Fish and Wildlife Service
C-1

EXHIBIT C

 RELEASE OF RESTRICTIVE COVENANTS

By paragraph 1 of Declaration of Restrictive Covenants dated 

as of February 2, 1996 (the "Declaration"), 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 covenant 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 screened 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 specified 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 receipt 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 Public
C-2

My commission expires:

STATE 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, on 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

CPMSO2 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

Tetrachloroethylene 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