19930427 1993-20ORDINANCE NO. 1993- 20
AN ORDINANCE GRANTING A DEED OF EASEMENT
TO STAR ENTERPRISE TO USE A PORTION OF
THE ARLINGTON BOULEVARD AND ROUTE 50
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
WELLS, PIPELINES AND EQUIPMENT TO
DETERMINE THE EXISTENCE OF AND EXTRACT
LIQUID PHASE PETROLEUM HYDROCARBONS FROM
THE GROUNDWATER.
BE IT ORDAINED, by the City Council of the City of
Fairfax, Virginia, that the City of Fairfax hereby grants,
conveys, and quitclaims to Star Enterprise a non-exclusive
easement within the right-of-way of Arlington Boulevard -
Route 50 for a term of five (5) years from the date hereof
to construct, install, operate, maintain, relocate and
remove certain wells, pipelines and equipment therein.
The terms and conditions of the Deed of Easement are as
follows:
1. Grant of Ri hts Term Descri tion of Easement
Wel s Pi elines and E i ment. The City does hereby grant,
convey and quitclaim unto Star a non-exclusive easement, at
the locations and of the dimensions described herein, for a
term of five (5) years from the date hereof to construct,
install, lay, maintain, repair, inspect, improve, operate
and relocate within the Easement, only such
monitoring/recovery wells (the "Wells"), pipelines (the
"Pipelines,,), 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 Various Easements for Monitoring Wells In City of
Fairfax Right-of-Way Arlington Boulevard and Route 50."
prepared by J. Monaco and Associates, P.C., dated March,
1993. The Wells, Pipelines and Equipment shall be used
exclusively for the following purposes: to determine the
existence of, and extract from the groundwater, liquid phase
petroleum hydrocarbons. Star is permitted to install within
the Easement only such Wells, Pipelines and Equipment as
shown on plans for the Wells, 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 any law, ordinance, regulation or
policy of the City, or of any state or federal agency.
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 Wells, Pipelines and Equipment;
.Plan Approvals Before Commencement; Replacement of City
Facilities. The installation, construction and maintenance
of Wells, Pipelines and Equipment pursuant to this Deed of
Easement shall not commence upon or within the Property or
Easement until all required approvals are obtained by Star
from the City. Such installation, construction and
maintenance shall be subject to the observation by
authorized representatives of the City. Star shall promptly
replace and properly repair, at its own cost, all sidewalks,
street pavement, and other City real estate and personal
1993-20
property ("City Facilities,,) which are displaced or damaged
by Star, its employees, agents or contractors in the
construction, installation, operation and maintenance of the
Wells, Pipelines and Equipment.
4. Permission From Others. Star shall not begin to
install or construct the Wells, Pipelines or Equipment
within the Easement until Star has first obtained and
submitted to the City written consent from the Virginia
Department of Transportation and the owners of all
utilities, equipment, facilities and easements lying within
the Easement, and within fifty (50) feet of the Easement.
Each consent shall indicate, if applicable, that such owners
have reviewed the plans for the proposed installation,
construction, or relocation of the Wells, Pipelines and
Equipment, that such work will be permitted, and that such
plans conform to the required design criteria.
5. Maintenance, Operation and Use of Wells, Pipeline:'~
Dnd E~uipment. Star shall, at all times, maintain, operate
and use the Wells, 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; Street Openin9
.Permits. All Wells, Pipelines and Equipment shall be
installed, operated, located and maintained so as to not
interfere with the safety or convenience of persons
travelling on or over the Property and other adjacent City
property. During all installation, maintenance, operation
and relocation of the Wells, Pipelines and Equipment, Star
shall not excavate upon any portion of the Property without
having first obtained from the City, and kept in full force
and effect, an approved street opening permit or permits.
7. Plans. Prior to beginning construction, Star
shall deliver to the Director of Public Works five (5) sets
of construction plans for the Wells, Pipelines and
Equipment. Within thirty (30) days after completion of the
installation of the Wells, Pipelines and Equipment, Star
shall deliver to the City five (5) sets of accurate as-built
plans of the Wells, Pipelines and Equipment. If the Wells,
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 any City department. All plans
required to be submitted by this paragraph shall be
certified by a professional engineer.
8. Chanqes in Operation or Maintenance of Wellst
Pipelines and E~uipment. Throughout the term of the
Easement and thirty (30) days prior to such changes, Star
shall deliver to the City written notice and a description
of all proposed changes in the operation, maintenance or use
of the Wells, 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 description of such changes immediately thereafter.
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1993-20
9. Emer enc Res onse Plan Emer enc Tele hone
Numbers. At least fifteen (15) days prior to the beginning
of the operation of the Wells, Pipelines and Equipment, Star
shall deliver to the City a copy of Star's emergency
response plan relating to the Wells, Pipelines and
Equipment. Star shall, at all times, allow City emergency
and inspection personnel to have access to the Wells,
Pipelines and Equipment on and adjacent to the Property and
Easement. At least fifteen (15) days prior to the beginning
of the operation of the Wells, Pipelines and Equipment, Star
shall deliver to the City a written description of the
emergency response training of all personnel who will
provide such response in the event of an emergency related
to removal of the petroleum hydrocarbons from the Wells.
Such training shall be acceptable to the City prior to Star
beginning operation of the Wells, Pipelines and Equipment.
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.
10. ama e or In'ur to Facilities of the Cit and
Others. 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,
base materials, curbs, gutters, sidewalks, landscaping, and
traffic signal cables, City utility lines ("City
Facilities,,), and the property of others, including all
utility lines, from damage or injury arising ~out of the
installation, use, operation, maintenance and relocation of
the Wells, Pipelines and Equipment, and use and enjoyment of
the Easement. If the Property, City Facilities, or property
(including utility lines) of others are damaged or injured
by Star, its employees or its agents or contractors, then
Star shall immediately notify the City Manager, the Director
of Public Works and the Fire Marshal. Star shall also
notify Miss Utility, if required by law. If such damage or
injury occurs, Star shall promptly remove all hazards and
repair such damage or injury at Star's cost. Star shall be
responsible for promptly repairing or replacing, at its own
expense, the Property and City Facilities and property of
others to their condition prior to such damage or injury and
shall reimburse the City or 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 costs and expenses incurred by the
City to repair or replace the City Facilities.
11. Relocation of Wells, Pipelines and Equipment. If
the City reasonably determines it to be necessary, the City
may require Star to relocate any or all of the Wells,
Pipelines and Equipment. Star shall use its best efforts to
relocate the Wells, 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.
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12. Removal of Wells, Pipelines and Equipment. Upon
the expiration of the term of this Deed of Easement or upon
earlier termination or revocation thereof, all Wells,
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.
13. 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 Wells,
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 or
incur any cost or expense as a result of any such claim or
proceeding, Star shall pay all judgments, damage, loss,
liability, costs, expenses and attorney fees resulting
therefrom.
14. Bond. Prior to installing the Wells, Pipelines or
Equipment, Star shall submit to the City a bond in the
amount of Five Thousand Dollars ($5,000.00) to ensure
faithful compliance with the terms of this Deed of Easement.
Such bond shall be in a form acceptable to the City, and
meeting the requirements of Section 2-48 9t ~eq. of the City
Code. Such bond shall be delivered to the City Manager
prior to the commencement of any installation or
construction within the Easement and shall be maintained
throughout the term of the Easement. The amount of said
bond shall be subject to reasonable increase by the City
upon thirty (30) days prior written notice to Star, if the
City determines that a higher bond amount is needed to
ensure compliance with the terms hereof.
15. Insurance. Star shall, at all times during the
term of this Deed of Easement, maintain general liability
insurance, including bodily injury, personal injury and
property damage coverage, in the amount of two million
dollars ($2,000,000) with the City of Fairfax, its elected
officials, officers, employees, agents, representatives and
volunteers named as additional insureds. The City may, in
its sole discretion, elect to accept from Star, in lieu of
the insurance required of Star by this paragraph, financial
assurances of self insurance acceptable to the City. Star
shall require, at all times, that all contractors performing
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
1993-20
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 g~neral 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.
16. No Interest in Wells, Pipelines or Equipment.
City covenants and agrees that it shall have no right,
title, interest, estate or claim whatsoever in or to the
~Wells, Pipelines or the Equipment installed within the
Easement.
The
17. 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 and the use of the Property by the general
public.
18. Impairment of Riqhts; Violation of Deed of
~asement. 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.
19. No Exclusive Riqht. Nothing in this Deed of
Easement shall be construed to grant to Star any exclusive
right to install the Wells, Pipelines or Equipment within
the Property or to prevent a grant by the City of similar
rights or privileges to other persons or entities.
20. 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 in City Facilities.
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1993-20
21. Termination. This Deed of Easement shall
terminate at the expiration of the term hereof unless
relinquished or revoked prior to such time.
22. 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 Wells, Pipelines and Equipment and remove the
same in accordance with the terms of this Deed of Easement.
23. 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, the City
Attorney, and the City Fire Marshal at City Hall, 10455
Armstrong Street, 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
Thomas E. Zeitz, 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.
24. 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.
25. 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, regarding the use of
the streets, alleys and public places, so far as such
conditions, limitations and provisions may be applicable to
the rights and privileges herein granted.
26. 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 Wells Pipelines and
Equipment. '
27. Paraqraph 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.
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1003-20
28. 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 including the terms and conditions contained
herein.
law. This ordinance shall become effective as provided by
INTRODUCED : April 13. 1995
PUBLIC HEARING :... April 27~ 1993
ADOPTED : April 27, 1993
DATE
ATTEST:
Ci~ Clerk
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