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19920609 1992-13ORDINANCE NO. 1992- 13 AN ORDINANCE GRANTING A DEED OF EASEMENT TO STAR ENTERPRISE TO USE A PORTION OF THE PICKETT ROAD RIGHT-OF-WAY, ON A NON- EXCLUSIVE BASIS FOR A PERIOD OF FIVE (5) YEARS, FOR THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, RELOCATION AND REMOVAL OF PIPELINES AND EQUIPMENT UNDER PICKETT ROAD TO FACILITATE THE TRANSFER OF UNREMEDIATED GROUNDWATER CONTAINING PETROLEUM AND HYDROCARBON PRODUCTS AND REMEDIATED GROUNDWATER. BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that the City of Fairfax hereby grants and conveys to Star Enterprise a non-exclusive easement under the right-of-way of Pickett Road for a term of five (5) years from the date hereof to construct, install, operate and maintain, relocate and remove certain pipelines and equipment thereon. The terms and conditions of the Deed of Easement are as follows: 1. Grant of Rights, Term, Description of Easement and E~uiDment. The City does hereby grant and convey unto Star a non-exclusive easement of variable width for a term of five (5) years from the date hereof to construct, lay, maintain, repair, inspect, improve, operate and relocate within the Easement, only such unremediated and remediated groundwater fluid lines, water lines, high voltage and low voltage electrical lines, (the "Pipelines"), conduits, casings, systems, and related equipment (the "Equipment") under a portion of the Property, as shown on the attached Exhibit A, (the "Easement") consisting of a plat entitled "Plat Showing 25' Wide Easement Across Pickett Road, Route 237, City of Fairfax, Virginia," prepared by Fairfax Surveys, Inc., dated May 19, 1992, revised May 29, 1992. The Pipelines and Equipment shall be used exclusively for the following purposes: to facilitate the transfer of unremediated groundwater containing petroleum and hydrocarbon products and remediated groundwater. Star is permitted to install within the Easement only such Pipelines and Equipment as shown on plans for the Pipelines and Equipment approved by the Director of Public Works prior to installation. This approval is exclusive of other approvals that may be required by ordinance, regulation or policy by other City departments. 2. Conditions and Restrictions. Star covenants and agrees that its exercise and enjoyment of the Easement shall be subject to all of the conditions and restrictions provided herein. 3. Installation of PiDelines and Equipment; Plan Approvals Before Commencement; Replacement of City Facilities. The installation, construction and maintenance of Pipelines and Equipment pursuant to this Deed of Easement shall not commence upon or within the Property, Easement, Pipelines or Equipment until all required approvals are obtained from the City. Such installation, construction and maintenance shall be subject to the observation by 1992-13 authorized representatives of the City. Star shall promptly replace and properly repair, at its own cost, all sidewalks, street pavement, and other City Facilities which are displaced or damaged by Star, its employees, agents or contractors in the construction and maintenance of the Pipelines and Equipment. 4. Permission From Others. Star shall not begin to install the Pipelines or Equipment within the Easement until Star has first obtained and submitted to the City written consent from the owners of all utilities, equipment, facilities, easements (including, but not limited to a 24" gas main) lying within the Easement, which utilities, equipment, facilities or easements will be crossed by the installation of the Pipelines or Equipment. Such consent shall indicate that such owners have reviewed the plans for the proposed installation, construction, or relocation of the Pipelines and Equipment and that such plans conform to the required design criteria. 5. Maintenance, Operation and Use of pipelines and ~quipment. star shall, at all times, maintain, operate and use the Pipelines and Equipment in good, safe order and condition in strict compliance with all federal, state and local statutes, laws, ordinances, regulations and administrative orders. 6. Excavation and Maintenance. Ail Pipelines and Equipment shall be located so as to not interfere with the safety or convenience of persons travelling on or over the Property and other adjacent City property. During installation of the Pipelines and Equipment, Star shall not excavate upon any portion of the Property. During any maintenance, operation or relocation of the Pipelines and Equipment, Star shall not, without prior written consent of the City, excavate any portion of the Property or other adjacent City property. 7. Plans. Prior to construction, Star shall deliver to the Director of Public Works five (5) sets of construction plans for the Pipelines and Equipment. Within thirty (30) days after completion of the installation of the Pipelines and Equipment, Star shall deliver to the City five (5) sets of accurate as-built plans of the Pipelines and Equipment. If the Pipelines or Equipment are modified or relocated at any time during the term of this Deed of Easement, five (5) sets of accurate revisions to such as-built plans shall be delivered to the City within thirty (30) days after completion of such revisions. The plans required by this paragraph are exclusive of plans that may be required by ordinance, regulation or policy by other City departments. All plans required to be submitted by this paragraph shall be certified by a professional engineer. 8. Changes in Operation or Maintenance of Pipelines Throughout the term of the Easement, and (30) days prior to such changes, Star shall provide Le City with written notice and a description of all proposed changes in the operation, maintenance or use of the Pipelines and Equipment. Star shall provide the City with copies of all filings with State and Federal agencies that are related to such changes. Nothing in this paragraph shall prohibit Star, without providing such notice, from making changes on an emergency basis to protect the public health, safety or welfare, provided that Star gives the City prompt verbal notice thereof and a subsequent written ~escription of such changes immediately thereafter. 1992-13 9. Shut off of Pipelines and Equipment. Star shall, at all times reasonably requested by the City, demonstrate the capability to immediately shut off and, thereafter drain, as quickly as possible, the Pipelines and Equipment. Prior to operation of the Pipelines and Equipment, and at reasonable time intervals thereafter as determined by the City, Star, in the presence of authorized City persons, shall test all shut off mechanisms to demonstrate whether such mechanisms are in a good working order. If such mechanisms are not in good working order as determined by the City, then Star shall promptly discontinue use of the Pipelines and Equipment until such mechanisms are repaired to the satisfaction of the City. 10. Emeraenc¥ Response Plan. ~merqenc¥ TeleDhon~ Numbers. At least thirty (30) days prior to the operation of the Pipelines and Equipment, Star shall provide the City with a copy of Star's emergency response plan relating to the Pipelines and Equipment. Star shall, at all times, allow City emergency and inspection personnel to have access to the Pipelines, Equipment and vaults on and adjacent to the Property and Easement. Star shall also provide annual emergency response training, if requested by the City, to City personnel at no cost to the City. Prior to beginning construction within the Easement, Star shall deliver to the Director of Public Works, City Manager and Fire Marshal, accurate complete lists containing the names, titles and emergency telephone numbers of representatives of Star, and each of its contractors and subcontractors performing work within the Easement, who shall be available to be contacted by the City 24 hours per day, seven days per week. Such list shall be kept current and accurate by Star throughout the term of this Deed of Easement. As the list is revised, Star shall immediately deliver copies of such revisions to the persons identified in this paragraph. 11. Damaqe or Injury to Facilities of the City and .ers. Star, its employees, agents and contractors, shall exercise utmost care to protect the Property, and other facilities, including, but not limited to, the road bed, materials, curbs, gutters, sidewalks, landscaping, and ~ signal cables ("City Facilities") and the property others, including all utility lines, from damage or injury arising out of the installation, use, operation, nce and relocation of the Pipelines and Equipment, use and enjoyment of the Easement. If the Property, Facilities, or property (including utility lines) of are damaged or injured by Star, its employees or its 'ents or contractors, then Star shall immediately notify City Manager, the Director of Public Works, the Fire and Miss Utility. In such event, Star shall y remove any hazards and repair such damage or injury Star's. cost. Star shall be responsible for promptly or replacing, at its own expense, the Property and Facilities and property of others to their condition prior to such damage or injury and shall reimburse the City Dr others, as the case may be, for all City Facilities and property, including utility lines of others, damaged beyond repair. Such reimbursement shall include all reasonable :osts and expenses incurred by the City to repair or replace ~he City Facilities. 12. Relocation of Pipelines and Equipment. If the ~ity reasonably determines it to be necessary, in the interest of the public health, safety or welfare or for :ompliance with the City Comprehensive Plan, the City may require Star to relocate any or all of the Pipelines and :quipment. Star shall use its best efforts to relocate the 1992-13 Pipelines and Equipment within ninety (90) days after receipt of notification from the City. Star shall bear all expense of such relocation. Star shall not be entitled to payment from the City for any portion of the costs which Star incurs hereunder. Such relocation shall comply with all City ordinances, policies and requirements. 13. Removal of Pipelines and Equipment. Upon the expiration of the term of this Deed of Easement or upon earlier termination or revocation thereof, all Pipelines and Equipment of Star shall be removed from the Property and Easement, at the sole expense of Star, within thirty (30) days after expiration or termination. The City may, in its .sole discretion, permit Star, in lieu of such removal, to seal off and fill in the casings. Star shall be liable and shall promptly pay for all damages to the Property, City Facilities or facilities of others resulting from such removal, sealing or filling. 14. Indemnification and Hold Harmless. Star for itself, its employees, agents and contractors, hereby indemnifies and holds harmless the City, its elected officials, officers, employees and agents from all demands, claims, actions, judgments, damages, losses, liabilities, costs and expenses, (including attorney's fees) for personal injury, property damage, or invasion of property, incurred by the City, its elected officials, officers, employees and/or agents arising out of the construction, installation, operation, use, maintenance, or relocation of the Pipelines or Equipment, entry upon the Easement, exercise of the rights granted by this Deed of Easement, and all such injuries and damages proximately arising out of the same to the persons or entities hereby indemnified or to the Property and City Facilities or of third persons or entities. If the persons or entities hereby indemnified suffer any judgments, damage, loss, liability, cost or expense, or if any legal proceedings are instituted (whether frivolous or otherwise) against the City, its elected officials, officers, employees and/or agents, the City shall give written notice thereof to Star. If the City or other persons indemnified hereunder are found to be liable, Star shall pay all judgments, damage, loss, liability, costs, expenses and attorney fees resulting therefrom. 15. BonG. Prior to installing the Pipelines and Equipment, Star shall submit to the City a bond in the amount of Ten Thousand Dollars ($10,000.00) to ensure faithful compliance with the terms of this Deed of Easement. ~uch bond shall be in a form acceptable to the City, and ~eeting the requirements of Section 2-48 et seq. of the City ~ode. Such bond shall be delivered to the City Manager ~rior to the commencement of any construction ~ithin the Easement and shall be maintained throughout the ~erm of the Easement. The amount of said bond shall be ~ubject to reasonable increase by the City upon thirty (30) lays prior written notice to Star, if the City determines ~hat a higher bond amount is needed to ensure compliance ;ith the terms hereof. 16. Insurance. Star shall, at all times during the ~erm of this Deed.of Easement, maintain general.liability insurance, including bodily injury, personal injury and property damage coverage, in the amount of two million ~ollars ($2,000,000) with the City of Fairfax, its elected )fficials, officers, employees, agents, representatives and ;olunteers named as additional insureds. The City may, in [ts sole discretion, elect to accept from Star, in lieu of ~he insurance required of Star by this paragraph, financial ~ssurances of self insurance acceptable to the City. Star ~hall require, at all times, that all contractors performing 4 1992-13 work within the Easement, maintain general liability, automobile liability, excess liability, workers compensation and employer's liability insurance coverage, in the following amounts: general liability insurance coverage in the amount of one million dollars ($1,000,000) per occurrence, automobile liability coverage in the amount of one million dollars ($1,000,000), worker's compensation and employer's liability insurance coverage in the statutory required amounts, and excess liability insurance coverage in the amount of one million dollars ($1,000,000) with the City of Fairfax, its elected officials, officers, employees, agents, representatives and volunteers named as additional insureds on such policies. Star shall deliver to the City, for review and approval before any work is begun on the Property or within the Easement, certificates of insurance, in a form acceptable to the City, demonstrating that the insurance coverage required by this paragraph is in full force and effect. Such certificates shall indicate that the insurance company shall give to the City thirty (30) days prior written notice of expiration, cancellation, renewal or change in coverage. This provision shall not relieve Star of its independent notice obligations to the City described in this paragraph. Star agrees, for itself, its employees, agents and contractors, to keep all such insurance coverage in full force and effect during the period when installation, maintenance or relocation work is performed within the Easement. Thirty (30) days prior to the expiration, cancellation or renewal of any such insurance policy, Star shall provide the City with written evidence, acceptable to the City, that the required insurance coverage is bound, will be continuing during the course of the work, and that the insurance premiums are paid. Star shall have the affirmative obligation, independent of the general contractor, subcontractors and insurance companies, to keep itself and the City informed of all expirations, renewals, cancellations and changes in insurance coverage for insurance required under this paragraph, including the insurance coverage required of the general contractors, contractors and subcontractors. Star shall immediately notify the City of any expirations, renewals, cancellations or changes in such insurance coverage. If the City is required to pay any claim made under the applicable insurance policies, Star agrees to pay all such claims, including all deductibles. 17. No Interest in Pipelines or Equipment. The City covenants and agrees that it shall have no right, title, interest, estate or claim whatsoever in or to the Pipelines or the Equipment installed within the Easement. 18. Use of Property Subordinate. It is expressly understood and agreed that the use by Star of the Property and Easement shall be at all times subordinate to the City's use thereof. 19. Impairment of Riqhts; Violation of Deed of Easement. Star, for itself, its employees, agents, and contractors, agrees that, in exercising its rights under this Deed of Easement, Star, its employees, agents, and contractors shall neither take any action to impair any rights of the City, or any other persons or entities, in the Property or City Facilities nor violate the terms of this Deed of Easement. 20. No Exclusive Right. Nothing in this Deed of Easement shall be construed to grant to Star any exclusive right to install Pipelines and Equipment within the Property or to prevent a grant by the City of similar rights or privileges to other persons or entities. 1992-13 21. No Riqhts in Property or city Facilities. Nothing contained in this Deed of Easement shall be interpreted to create, in or for the benefit of Star or others, any right, title or interest in the Property (other than the Easement rights granted herein) or City Facilities. 22. Termination. This Deed of Easement shall terminate at the expiration of the term hereof unless relinquished or revoked prior to such time. 23. Revocation. The City may, without liability, unilaterally revoke this Deed of Easement for the failure of Star, its employees, agents or contractors, to comply with any of the terms hereof, provided that the City gives Star written notice of such non-compliance, and Star does not correct such non-compliance to the satisfaction of the City within seven (7) days after receipt of notice of non- compliance. Upon revocation, Star shall immediately cease to operate the Pipelines and Equipment and remove the same in accordance with the terms of this Deed of Easement or, in lieu of such removal, seal off and fill in the casings, if permitted by the City. 24. Notices. Unless otherwise designated in writing, all notices required or permitted hereunder to be sent to the City shall be given in writing to the City Manager at City Hall, 10455 Armstrong Street, Fairfax, Virginia 22030, with copies to the City Director of Public Works and City Attorney, at City Hall, 10455 Armstrong Street, Fairfax, Virginia 22030, and to the City Fire Marshal at 3730 Old Lee Highway, Fairfax, Virginia 22030. Unless otherwise designated in writing, all notices required or permitted hereunder to be sent to Star shall be given in writing to W. M. Stanfield, District Operations Manager, Star Enterprise, 3800 Pickett Road, Fairfax, Virginia 22031. All notices shall be deemed properly served if hand-delivered or sent by United States registered or certified mail, return receipt requested. Notices shall be effective upon receipt. 25. Severability. The sections, paragraphs, sentences, clauses and phrases contained in this Deed of Easement are severable. If any section, paragraph, sentence, clause or phrase of this Deed of Easement shall be declared unconstitutional or otherwise invalid by a valid judgment or decree of a court of competent jurisdiction, then such unconstitutionality or invalidity shall not affect any of the remaining sections, paragraphs, sentences, clauses or phrases of this Deed of Easement. 26. City Ordinances. The rights and privileges granted herein to Star are expressly subject to the conditions, limitations and provisions contained in the Code of the City of Fairfax, now in force or that may be hereafter enacted by the City Council, relative to the use of the streets, alleys and public places of the City, so far as they may be applicable to the rights and privileges herein granted, provided that such ordinances that may be passed will not place unreasonable or impractical burdens upon Star. 27. Compliance With Laws. At all times during the term of this Deed of Easement, Star, its employees, agents and contractors, shall comply with all federal, state and local, statutes, laws, ordinances, regulations and administrative orders. Nothing herein shall be construed to relieve Star, its employees, agents and contractors from their obligations to comply with such laws. Neither shall any provision herein be construed to release Star, its employees, agents and contractors from obtaining all required permits regarding the Pipelines and Equipment. 6 1992-13 28. Paragraph Headings. The headings the paragraphs of this Deed of Easement are for the convenience of reference and shall not alter or affect the terms of such paragraphs. 29. Entire Deed of Easement. The City and Star agreed that this Deed of Easement describes the entire agreement and understanding between the parties and that no written or verbal statements or representations have been made which either modify, add to or change this Deed of Easement. BE IT FURTHER ORDAINED by the City Council of the City of Fairfax that the City Manager is authorized and directed to execute a Deed of Easement from the City to Star Enterprise containing the terms and conditions contained herein. This ordinance shall become effective as provided by law. INTRODUCED : Ma.¥ 26:1992 PUBLIC HEARING :. June 9, 1992 ADOPTED : ~une 9, 1992 DATE ATTEST: C~ty ~lerk