19940927 1994-20ORDINANCE NO. 1994- 20
AN ORDINANCE GRANTING A DEED OF EASEMENT TO
EXXON COMPANY U.S.A. TO USE A PORTION OF THE
LEE HIGHWAY AND CHAIN BRIDGE ROAD
RIGHTS-OF-WAY, ON A NON-EXCLUSIVE BASIS FOR A
PERIOD OF TWO (2) YEARS, FOR THE
CONSTRUCTION, INSTALLATION, OPERATION,
MAINTENANCE, RELOCATION AND REMOVAL OF WELLS
TO DETERMINE THE EXISTENCE OF DISSOLVED AND
LIQUID PHASE PETROLEUM HYDROCARBONS IN 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 Exxon Company
U.S.A., a non-exclusive easement within the
rights-of-way of Lee Highway and Chain Bridge Road for
a term of two (2) years from the date hereof to
construct, install, operate, maintain, relocate and
remove certain wells therein.
The terms and conditions of the Deed of Easement
are as follows:
1. Grant of Riqhts, Term, Description of
Easement and Wells. The City does hereby grant, convey
and quitclaim unto Exxon Company U.S.A. ("Exxon") a
nonexclusive easement, at the locations and of the
dimensions described herein, for a term of two (2)
years from the date hereof to construct, install,
maintain, repair, inspect, improve, operate and
relocate within the Easement, only such monitoring
wells (the "Wells") under a portion of the Property, as
shown on the attached Exhibit A (the ,,Easement"),
consisting of a plat entitled "Plat Showing Monitoring
Well Easements Lee Highway Route #29/50 and Chain
Bridge Road Route #123 city of Fairfax, Virginia,"
prepared by Christopher Consultants Ltd., dated July
22, 1994. The Wells shall be used exclusively for the
following purposes: to determine the existence of
dissolved and liquid phase petroleum hydrocarbons in
the ground water. Exxon is permitted to install within
the Easement only such Wells as shown on plans for the
Wells 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. Exxon 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; Plan Approvals Before
Commencement; Replacement of City Facilities. The
installation, construction and maintenance of Wells
pursuant to this Deed of Easement shall not commence
upon or within the Property or Easement until all
required approvals are obtained by Exxon from the City.
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1994-20
Such installation, construction and maintenance shall
be subject to the observation by authorized
representatives of the City. Exxon shall promptly
replace and properly repair, at its own cost, all
sidewalks, street pavement, and other City real estate
and personal property ("City Facilities") which are
displaced or damaged by Exxon, its employees, agents or
contractors in the construction, installation,
operation and maintenance of the Wells.
4. Permission From Others. Exxon shall not
begin to install or construct the Wells within the
Easement until Exxon 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, that such work will be permitted, and that
such plans conform to the required design criteria.
5. Maintenance, Operation and Use of Wells.
Exxon shall, all times, maintain, operate and use the
Wells 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 Openinq
Permits. All Wells 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, Exxon 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,
Exxon shall deliver to the Director of Public Works
five (5) sets of construction plans for the Wells.
Within thirty (30) days after completion of the
installation of the Wells, Exxon shall deliver to the
City five (5) sets of accurate as-built plans of the
Wells. If the Wells 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 registered land
surveyor or professional engineer.
8. Changes in Operation or Maintenance of Wells.
Throughout the term of the Easement and thirty (30)
days prior to such changes, Exxon shall deliver to the
City written notice and a description of all proposed
changes in the operation, maintenance or use of the
Wells. Exxon shall provide the City with copies of all
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filings with state and federal agencies that are
related to such changes. Nothing in this paragraph
shall prohibit Exxon, without providing such notice,
from making changes on an emergency basis to protect
the public health, safety or welfare, provided that
Exxon gives the City prompt verbal notice thereof and a
subsequent written description of such changes
immediately thereafter.
9. City Emergency Access, Emergency Telephone
Numbers. At Least fifteen (15) days prior to the
beginning of the installation of the Wells, Exxon shall
deliver to the City Exxon's emergency response plan
relating to the Wells. Exxon shall, at all times, allow
city emergency and inspection personnel to have access
to the Wells on and adjacent to the Property and
Easement.
Prior to beginning construction within the
Easement, Exxon 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 Exxon, 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. This list shall be kept current and accurate by
Exxon throughout the term of this Deed of Easement. As
the list is revised, Exxon shall immediately deliver
copies of such revisions to the persons identified in
this paragraph.
10. Damage or Injury to Facilities of the City
and Others. Exxon, 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 and
use and enjoyment of the Easement. If the Property,
City Facilities, or property (including utility lines)
of others are damaged or injured by Exxon, its
employees or its agents or contractors, then Exxon
shall immediately notify the city Manager, the Director
of Public Works and the Fire Marshal. Exxon shall also
notify Miss Utility, if required by law. If such
damage or injury occurs, Exxon shall promptly remove
all hazards and repair such damage or injury at Exxon's
cost. Exxon 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.
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1994-20
11. Relocation of Wells. If the City reasonably
determines it necessary, the City may require Exxon to
relocate any or all of the Wells. Exxon shall use its
best efforts to relocate the Wells within ninety (90)
days after receipt of notification from the City.
Exxon shall bear all expense of such relocation. Exxon
shall not be entitled to payment from the City for any
portion of the costs which Exxon incurs hereunder.
Such relocation shall comply with all City ordinances,
policies and requirements.
12. Removal of Wells. Upon the expiration of the
term of this Deed of Easement or upon earlier
termination or revocation thereof, all Wells of Exxon
shall be removed from the Property and Easement, at the
sole expense of Exxon, within thirty (30) days after
expiration or termination.
13. Indemnification and Hold Harmless. Exxon 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 negligent construction, installation,
operation, use, maintenance, or relocation of the Wells
entry upon the Easement, exercise of the rights granted
by this Deed of Easement, and all such injuries and
damages 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 Exxon. If the
City or other persons indemnified hereunder are found
to be liable or incur any cost or expense as a result
of Exxon's, its employees', its agents' or its
contractors' negligent performance of any of the
activities authorized under this access agreement,
Exxon shall pay all judgments, damage, loss, liability,
cost and expense resulting therefrom.
14. Bond. Prior to installing the Wells, Exxon
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 he in a form acceptable to the City,
and meeting the requirements of Section 2-48 et seq. 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 Exxon, if the City determines
that a higher bond amount is needed to ensure
compliance with the terms hereof.
1994-20
15. Insurance. Exxon 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 Exxon, in lieu of the
insurance required of Exxon by this paragraph,
financial assurances of self insurance acceptable to
the City. Exxon 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 of Fairfax, its elected
Officials, officers, employees, agents, representatives
and volunteers named as additional insureds on such
policies. Exxon 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 Exxon of
its independent notice obligations to the City
described in this paragraph. Exxon 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, Exxon 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. Exxon 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.
Exxon 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,
Exxon agrees to pay all such claims, including all
deductibles.
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1994-20
16. No Interest in Wells. The City covenants and
agrees that it shall have no right, title, interest,
estate or claim whatsoever in or to the Wells installed
within the Easement.
17. ~se of Property Subordinate. It is expressly
understood and agreed that the use by Exxon 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. ~mpairment of Rights; Violation of Deed of
~asement. Exxon, for itself, its employees, agents,
and contractors, agrees that, in exercising its rights
under this Deed of Easement, Exxon, 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 Exxon any
exclusive right to install the Wells within the
Property or to prevent a grant by the City of similar
rights or privileges to other persons or entities.
20. No Rights in Property of City Facilities.
Nothing contained in this Deed of Easement shall be
interpreted to create, in or for the benefit of Exxon
or others, any right, title or interest in the Property
(other than the Easement rights granted herein) or in
City Facilities.
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 Exxon, its employees, agents or contractors,
to comply with any of the terms hereof, provided that
the City gives Exxon written notice of such
non-compliance, and Exxon does not correct such
non-compliance to the satisfaction of the City within
fourteen (14) days after receipt of notice of non-
compliance. Upon revocation, Exxon shall immediately
cease to operate the Wells 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 Exxon shall be given in writing to
Environmental Engineer, Exxon Company U.S.A., 7501
Boulderview Drive, Suite 200, Room 235, Richmond,
Virginia 23225-9998. All notices shall be deemed
properly served if hand-delivered or sent by United
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1994-20
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 Exxon 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, Exxon, 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 Exxon, its
employees, agents and contractors from their
obligations to comply with such laws. Neither shall
any provision herein be construed to release Exxon, its
employees, agents and contractors from obtaining all
required permits regarding the Wells.
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.
28. Entire Deed of Easement. The City and Exxon
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
Exxon Company U.S.A., including the terms and
conditions contained herein.
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1994-20
This ordinance shall become effective as provided
by law.
INTRODUCED :
PUBLIC HEARING :
ADOPTED :
September 13, 1994
September 27, 1994
September 27. 1994
ATTEST:
~-~ ~erk
1994-20 I'
I" ~ ~ ~
t'l~rS.O~LN'~ christopher consultants ltd.
MO.VITOR1,YG WELL EASEMENTS
LEE ttlGtt~'AY ROUTE =29/50.4.~:D CttAI.¥ BRIDGE ROAD ROFTE
, " (?03) 27~-6820
CITY OF FAIRFAX, VIRGINIA
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