2015-04-16 Enviromental Covenant Black Hills 1061 GrantIN
Black Hills Corporation
1102 East I' Street
Papillion, NE 68136
O: 402.221.2537
C: 402.917.8557
April 23, 2015
Rod Storm, City Administrator
City of Blair
218 South 16th Street
Blair, NE 68008
Dear Mr. Storm:
Enclosed is the executed environmental covenant as required by the removal action for the Black
Hills Energy property located at 1061 Grant Street in Washington County, Blair, Nebraska.
If you have any questions, feel free to contact me at (402) 221-2537.
Sincerely,
Allyson Little
Environmental Professional
Black Hills Corporation
CC: Tom Buell, NDEQ (e-mail)
Mark Seaman, ERM (e-mail)
Chris Anderson, BHE (e-mail)
Sarah Sullivan, Stinson (e-mail)
Pat Joyce, BHE (e-mail)
Michael Pogany, BHE (e-mail)
Tim Proksel, BHE (e-mail)
Kevin Jarosz, BHE (e-mail)
Improwh,-hfe with energy
www.blackhillscorp.com
WASHINGTON COUNTY, STATE OF NEBRASKA
INSTRUMENT NO. 2015 — 0 119 6
REGISTER OF DEEDS
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Recorded
General _----.---
Numerical
Photostat
Proofed Proofed
Scanned
Mike Pogany
Black Hills/Nebraska Gas Utility Company, LLC
P.Q. Box 1400, Rapid City, SD 57709-1400
FILED
2015 APR 16 AH 11: 38
KAREN A, SAADSEN
WASHINGTON COUNTY
REGISTER OF DEEDS
Rl..Alt), NF
Space Above for Kecorci's use unq
ENVIRONMENTAL COVENANT
This Environmental Covenant is executed this 27 day of MA^,04 2015, by
and between Black Hills/Nebraska Gas Utility Company, LLC, a Delaware limited
liability company as "Grantor" and "Holder/Grantee",'pursuant to the Nebraska Uniform
Environmental Covenants Act, Neb. Rev. Stat. §§76-2601 to 76-2613.
RECITALS:
A. Grantor is the owner of real property located at 1061 Grant Street, Blair,
Nebraska, Washington County, Nebraska, legally described as follows:
Lots Five (5) and Six (6) in Block Eighty-two (82), in the Third Addition
to the city of Blair, except Railroad -Right -of -Way, Washington County,
Nebraska.
B. Holder/Grantee is Black Hills/ Nebraska Gas Utility Company, LLC, a Delaware
limited liability company, owner of the Property.
C. The Property was previously owned and operated by the Centel Corporation
("Centel") a Delaware corporation.
D. The Property was at times used for the production of manufactured gas from 1909
to 1932. As a result of historic operations, there are hazardous substances located
on the Property.
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E. The Property is the subject of an environmental response project pursuant to the
Nebraska voluntary cleanup program authorized by the Remedial Action Plan
Monitoring Act to address groundwater and soil contamination for: Benzene
(C6H6), Benzo(a)anthracene (CIgH12), Benzo(a)pyrene (C20H12),
Dibenz(a,h)anthracene (C22H14), lndeno(1,2,3-cd) Pyrene (C22H12), Antimony,
Arsenic (As), Selenium (Se), Benzene, Ethylbenzene (C8HI0), Styrene (CH2),
Toluene (CH3), Polycyclic Aromatic Hydrocarbons (PAHs).
F. The Agency, as defined in Neb. Rev. Stat. §76-2602, who approved the Remedial
Action Plan is NDEQ.
G. The selected environmental response project or action is documented in a
Remedial Action Plan which was approved on May 21 2012. The administrative
record for this project or action is available to the public and located at the
Nebraska Department of Environmental Quality, 1200 N St., Suite 400, Lincoln,
NE.
NOW, THEREFORE,
Grantor hereby declares that the Property will hereinafter be bound by, held, sold
and conveyed subject to the following terms, conditions, obligations, and restrictions set
forth herein, which will run with the land, in perpetuity, unless amended or terminated
pursuant to Paragraph 11 below.
1. Representations and Warranties. The Grantor warrants to the other signatories to this
Covenant that:
a. The Grantor is the sole fee title owner of the Property;
b. The Grantor holds sufficient fee title to the Property to grant the rights and
interests described in this Environmental Covenant free of any conflicting legal
and equitable claims; and
c. The Grantor has identified all other persons holding legal or equitable interests,
including but not limited to contract buyers, mortgage holders, other consensual
lien holders, and lessees and secured their consent.
2. Purpose. The purpose of this Environmental Covenant is to ensure protection of
human health and the environment by minimizing the potential for exposure to
contamination that remains on the Property and to ensure that the Property is not
developed, used, or operated in a manner incompatible with the approved remediation.
3. Running with the Land. The Environmental Covenant is perpetual and conveys to the
Holder/Grantee real property rights that will run with the land, and gives to the Agency
the right to enforce the activity and use limitations described in Paragraph 4. The terms,
conditions, obligations, and limitations in this Environmental Covenant are binding on
the Grantor, its successors, heirs, executors, assigns and transferees, and all persons,
corporations or other entities obtaining or succeeding to any right, title or interest in the
Property after the effective date of this Environmental Covenant. All real estate, lots, or
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parcels located within the Property are subject to the terms, conditions, obligations and
limitations in this Environmental Covenant. Acceptance of any conveyance, transfer,
lease or sublease of the Property, or part thereof, will bind each transferee, its heirs,
executors, successors, transferees and assigns to the terms, conditions, obligations, and
limitations during their respective period of ownership or occupancy, as applicable.
Notice of any transfer of any interest in the Property must be promptly provided to the
Agency by the transferor. The Grantor is bound by the terms, conditions, obligations and
limitations in this Environmental Covenant only during its period of ownership or
occupancy after the effective date. This Environmental Covenant in no way amends,
modifies, limits or releases the Grantor, from its duties and obligations under the
approved environmental response project.
4. Activity and Use Limitations. The Property is subject to the following activity and
use limitations:
a. The Property shall not be used for residential purposes, including child care
facilities.
b. Extraction and use of the ground water underlying the Property, except for
investigation or remediation approved by NDEQ, is prohibited.
c. Except where excavation is necessary to prevent or address a previously unknown
threat to human health or the environment, including without limitation a natural
gas pipeline leak, excavation activities on the Property that affect impacted
groundwater are prohibited unless an Occupational Health and Safety
Administration -compliant health and safety plan is developed and implemented.
5. Reserved Rights of Grantor. The Grantor hereby reserves unto itself and its
successors all rights and privileges in and to the use of the Property which are not
incompatible with the limitations granted herein.
6. Compliance Reporting. One year from the effective date of this Environmental
Covenant, and on an annual basis thereafter until such time as this Environmental
Covenant is terminated, the then -current fee simple owner of the Property shall submit to
the Agency written documentation verifying that the activity and use limitations remain
in place and are being complied with. Any signatory to this Environmental Covenant
shall notify the Agency as soon as possible of conditions that would constitute a breach
of the activity and use limitations.
7. Enforcement. The terms of this Environmental Covenant may be enforced in a civil
action for injunctive or other equitable relief by the signatories in accordance with Neb.
Rev. Stat. §76-2611. Failure to exercise such rights of enforcement will in no event bar
subsequent enforcement by any signatory and shall not be deemed a waiver of the
signatory's right to take action to enforce any non-compliance. Nothing in this
Environmental Covenant shall restrict or limit the Agency from exercising any authority
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under applicable law. The prevailing party in any action to enforce any provision of this
Environmental Covenant is entitled to recover all costs of such action, including
reasonable attorney fees. Both the Holder/Grantee and the Agency shall be entitled to
recover damages for violations of this Environmental Covenant or for any injury to the
remedial action required by the Agency, to the public or to the environment protected by
this Environmental Covenant.
8. Rights of Access. The Grantor and any then -current owner hereby grants to the
Agency, its agents, contractors, and employees, the right of access to the Property to
monitor compliance with the terms, conditions, obligations, and limitations of this
Environmental Covenant. Nothing in this Environmental Covenant shall limit or
otherwise affect the Agency's right of entry and access or the Agency's authority to take
response actions under applicable law.
9. Notice Upon Conveyance. Each instrument hereafter conveying any interest in the
Property or any portion of the Property, including but not limited to, deeds, leases and
mortgages, shall contain a notice of the activity and use limitations set forth in this
Environmental Covenant, and provide the recorded location of this Environmental
Covenant. The notice shall be in substantially the form set forth below. Within thirty
(30) days of the date any such instrument of conveyance is executed, the Grantor or then -
owner must provide the Agency with a certified copy of said instrument and its recording
reference in the Washington County Register of Deeds.
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL COVENANT DATED , RECORDED IN THE
OFFICE OF* THE REGISTER OF DEEDS OF COUNTY, NEBRASKA ON
'IN [DOCUMENT BOOK PAGE _1. THE
ENVIRONMENTAL COVENANT CONTAINS THE FOLLOWING ACTIVITY
AND USE LIMITATIONS:
a. The Property shall not be used for residential purposes, including child care
facilities.
b. Extraction and use of the ground water underlying the Property, except for
investigation or remediation approved by NDEQ, is prohibited.
c. Except where excavation is necessary to prevent or address a previously unknown
threat to human health or the environment, including without limitation a natural
gas pipeline leak, excavation activities on the Property that affect impacted
groundwater are prohibited unless an Occupational Health and Safety
Administration -compliant health and safety plan is developed and implemented.
10. Waiver of Certain Defenses. The persons and entities bound by this Environmental
Covenant hereby waive any defense to the enforcement of this Environmental Covenant
based on laches, estoppel, statute of limitations, or prescription.
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11. Amendment and Termination. Amendment or termination of this Environmental
Covenant shall comply with Neb. Rev. Stat. §76-2610. The terms of this Environmental
Covenant may be modified or terminated by written consent of the Director of the
Agency, the then current fee simple title owner, and all original signatories unless
exempted by Neb. Rev. Stat. §76-2610. The amendment or termination is not effective
until the document evidencing consent of all necessary persons is properly recorded. If
not by consent, any amendment or termination of this Environmental covenant shall be as
provided by Neb. Rev. Stat. §76-2609 and such additional terms as specified in this
Environmental Covenant. As provided in Neb. Rev. Stat. §76-2610(c), except for an
assignment undertaken pursuant to a governmental reorganization, assignment of an
environmental covenant to a new holder is an amendment.
12. Severability. 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.
13. Captions. The captions in this Environmental Covenant are for convenience and
reference only and are not a part of this instrument and shall have no effect upon
construction or interpretation.
14. Governing Law. This Environmental Covenant shall be governed by and interpreted
in accordance with the laws of the State of Nebraska.
15. Recordation. Within thirty (30) days after the date of the Agency's approval of this
Environmental Covenant, the Grantor shall record the Environmental Covenant, in the
same manner as a deed to the Property, with the Washington County Register of Deeds.
16. Effective Date. The effective date of this Environmental Covenant is the date upon
which the fully executed Environmental Covenant has been recorded as a deed record for
the Property with the Washington County Register of Deeds.
17. Distribution of Environmental Covenant. Within 60 days of the effective date, the
Grantor shall distribute a file- and date-stamped copy of the recorded Environmental
Covenant to each person identified in Neb. Rev. Stat. §76-2607(a) and §76-2608(c).
18. Notice. Unless otherwise notified in writing by the Agency, any document or
communication required by this Environmental Covenant shall be submitted to:
If to the Agency;
Remediation Section
Waste Management Division
Nebraska Department of Environmental Quality
P.O. Box 98922
Lincoln, NE 68509-8922
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If to the Grantor and holder/Grantee:
Black Hills/Nebraska Gas Utility Company, LLC.
P.O. Box 1400
Rapid City, South Dakota 57709-1400
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES FOLLOW]
STer h,TE OF NEBRA"") WASMGTON C0UNTy.S,r,:
ereby
office certify this is a true copy of the record on file in
-'K Day Year s
B gisterofDeeds
^1)L!y
• SON co
6
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ACKNOWLEDGEMENTS
GRANTOR:
IN WITNESS WHEREOF, Grantor, as the owner of the Property [and the Holder]
of this Environmental Covenant, has caused this Environmental Covenant to be
executed on this 2-7 day of /k T A a!¢ , 20157'
By: q , I
[Nam of Grantor] P SY L-Vt- S
V t e- /Vk e-5IV e.),-7—
[Title]
.),-T[Title]
STATE OF NEBRASKA )
) ss.
COUNTY OF LAA l( Aslet z. )
The foregoing instrument was acknowledged before me this -'7 of MA'12C 1+ ,
201 by jC-TV 51�U� iOR- who acknowledged said Environmental Covenant on
behalf of Grantor.
196C � S vl� Tilkt W 1< 6,{
Notary Public
General Notary - State of Nebraska
BECKY S. WHITEHEAD
(SEAL) My Comm, Exp. Dec. 2, 2017.
HOLDER/GRANTEE: [If different from the Grantor]
IN WITNESS WHEREOF, Holder/Grantee of this Environmental Covenant, has
caused this Environmental Covenant to be executed on this 21 day of
,kk'acIt ,206.
STATE OF NEBRASIU, WASHINGTON COUNTY -SUM
Ii hereby certify this is a true copy of the record on We in
office 5
Mo, Day Year f
Refter of Deeds
Demty
[Name of Holder/Grantee]
[Title]
caaa
7
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AGENCY:
IN WITNESS WHEREOF, NDEQ, as an Agency defined in Neb. Rev. Stat. § 76-
2602(2), is not a party to this Environmental Covenant and does not acquire or
assume any liability, obligation, or responsibility under state or federal law by virtue
of signing this Environmental Covenant, nor is NDEQ a Holder under Neb. Rev. Stat.
§§ 76-2602(6) and 76-2603(a).
NEBRASKA DEPARTMENT OF
ENVIRQNMENTAL QUALITY
By:��—��'Y.�
Director
STATE OF NEBRASKA )
)SS.
COUNTY OF. )
The foregoing instrument was acknowledged before me this -�)\ of
20_NS by TAa LSA who acknowledged said Environmental Covenant on
behalf of the Agency.
Notary Public
(SEAL)
r GENERAL NOTARY -State of Nebraska
KERRIE CARPENTER
W Comm. Exp. Feb.1t1, 20te
Y hvreb yec this Is a rueF NEBRASKA, s op�y of the recorGTON d on 8je inoffl
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Xd4ALDay—L—year2c
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