19980609 1998-15ORDINANCE NO. 1998- 15
AN ORDINANCE GRANTING A DEED OF
EASEMENT TO STAR ENTERPRISE TO USE A
PORTION OF THE ARLINGTON BOUI,EVARD
AND ROUTE 50 RIGHT-OF-WAY, ON A NON-
EXCLUSIVE BASIS FOR A PERIOD OF FIVE
(5) YEARS, FOR THE CONSTRUCTION,
INSTALLATION, OPERATION, MAINTEN-
ANCE, RELOCATION AND REMOVAL OF
WELLS, PIPELINES AND EQUIPMENT TO
DETERMINE THE EXISTENCE OF AND
EXTRACT LIQUID PHASE PETROLEUM
HYDROCARBONS FROM THE GROUND-
WATER.
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 under the right-of-way of Arlington Boulevard -Route 50 for a
term of five (5) years from the date hereof to construct, install, operate and maintain,
relocate and remove certain wells, pipelines and equipment thereon.
The terms and conditions of the Deed of Easement are as follows:
1. Grant of Rights, Term, Description of Easement Wells, Pipelines
and Equipment. 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,
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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
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 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, Pipelines and
Equipment. 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 Opening 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 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 permits 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. Ail plans
required to be submitted by this paragraph shall be certified by a professional
engineer.
8. Changes in Operation or Maintenance of Wells, Pipelines and
Equipment. 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
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gives the City prompt verbal notice thereof and a subsequent written description of
such changes immediately thereafter.
9. Emergency Response Plan, Emergency Telephone Numbers. At
least fifteen (15) days prior to the beginning of the operation of the Wells,
Pipelines and Equipment, Staff 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, 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
twenty-four (24) hours per day, seven (7) 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. Damage or Injury to Facilities of the City 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 any 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 at~er 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 applicable City ordinances,
policies and requirements.
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1998-15
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, Star shall remove all Wells, Pipelines and Equipment 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 dalm 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 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 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 of
Fairfax, its elected officials, officers, employees, agents, representatives and
volunteers named as additional insureds on such policies. Star shall deliver to the
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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.
16. No Interest in Wells, Pipelines or Equipment. The 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.
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 Rights; 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.
19. No Exclusive Right. Nothing in this Deed of Easement shall be
construed to grant to Star any exclusive right to install Wells, Pipelines and
Equipment 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 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.
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
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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 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 DaMonica Pierson, Field Environmental Specialist, 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 hereaRer 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
applicable 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. 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.
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
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from the City to Star Enterprise containing the terms and conditions contained
herein.
This ordinance shall become effective as provided by law.
INTRODUCED:
PUBLIC HEARING:
ADOPTED:
May 12, 1998
May26,1998
June 9, 1998
DATE
ATTEST:
Councilman Coughlan
Councilman Greenfield
Councilwoman Lyman
Councilman Mershon
Councilman Rasmussen
Councilman Silverthorne
Vote
aye
aye
aye
aye
aye
aye
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