19990323 1999-7ORDINANCE NO. 1999- 7
AN ORDINANCE VACATING A DEED OF EASEMENT
PREVIOUSLY GRANTED TO RAJ K. KAPOOR ON JULY 14,
1998, AND GRANTING A NEW DEED OF EASEMENT TO RAJ K.
KAPOOR TO USE A PORTION OF THE OLD LEE HIGHWAY
RIGHT-OF-WAY, ON A NONEXCLUSIVE BASIS, FOR A PERIOD
OF FIVE (5) YEARS, FOR THE CONSTRUCTION,
INSTALLATION, MAINTENANCE, REPAIR, INSPECTION,
IMPROVEMENT, OPERATION, 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 vacates a nonexclusive easement within the right-of-way of Old Lee
Highway granted by ordinance no. 1998-26, and recorded in Deed Book 10554 at Page
1579 to Raj K. Kapoor on July 14, 1998, for a term of five (5) years to construct, install,
maintain, repair, inspect, improve, operate, relocate and remove certain wells therein.
BE IT FURTHER ORDAINED, by the City Council of the City of Fairfax, Virginia, that
the City of Fairfax hereby grants, conveys, and quitclaims to Raj K. Kapoor, a
nonexclusive easement within the right-of-way of Old Lee Highway for a term of five (5)
years from the date hereof to construct, install, maintain, repair, inspect, improve,
operate, relocate and remove certain wells therein.
The terms and conditions of the Deed of Easement are as follows:
1. Grant of Rights, Term, Description of Easement and Wells.
The City does hereby grant, convey and quitclaim unto Raj K. Kapoor ("Grantee") a
nonexclusive easement, at the locations and of the dimensions described herein, for a
term of five (5) years from the date hereof to construct, install, maintain, repair, inspect,
improve, operate, relocate and remove 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 Easements For Installation And
Access Of Monitoring Wells In Or Adjacent To Old Lee Highway, City of Fairfax,
Virginia" prepared by Gallifant, Hawes & Jeffers, Ltd., dated August 4, 1997 and revised
on February 3, 1999. The Wells shall be used exclusively for the following purpose: to
determine the existence of dissolved and liquid phase petroleum hydrocarbons in the
ground water. Grantee 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.
Grantee 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
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approvals are obtained by Grantee from the City. Such installation, construction and
maintenance shall be subject to the observation by authorized representatives of the City.
Grantee 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 Grantee, its employees, agents or contractors in the
construction, installation, operation and maintenance of the Wells.
4. Permission From Others.
Grantee shall not begin to install or construct the Wells within the Easement until Grantee
has first obtained and submitted to the City written consent from 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.
Grantee shall, at 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 Opening 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, Grantee 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, Grantee 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, Grantee 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
modification or relocation. 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, Grantee
shall deliver to the City written notice and a description of all proposed changes in the
operation, maintenance or use of the Wells. Grantee 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 Grantee, without providing such notice, from making changes on
an emergency basis to protect the public health, safety or welfare, provided that Grantee
gives the City prompt verbal notice thereof and a subsequent written description of such
changes immediately thereafter.
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9. City Emergency Access, Emergency Telephone Numbers.
At least fifteen (15) days prior to the beginning of the installation of the Wells, Grantee
shall deliver to the City Grantee's emergency response plan relating to the Wells. Grantee
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, Grantee 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 Grantee, 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 Grantee throughout the term of this Deed of Easement. As the
list is revised, Grantee 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.
Grantee, 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 other 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 Grantee, its
employees or its agents or contractors, then Grantee shall immediately notify the City
Manager, the Director of Public Works and the Fire Marshal. Grantee shall also notify
Miss Utility, if required by law. If such damage or injury occurs, Grantee shall promptly
remove all hazards and repair such damage or injury at Grantee's cost. Grantee 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, including, but not limited to, reasonable attorney's fees and costs of
litigation.
11. Relocation of Wells.
If the City reasonably determines it necessary, the City may require Grantee to relocate
any or all of the Wells. Grantee shall use its best efforts to relocate the Wells within
ninety (90) days after receipt of notification from the City. Grantee shall bear all expense
of such relocation. Grantee shall not be entitled to payment from the City for any portion
of the costs which Grantee 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 Grantee shall be removed from the Property and
Easement and the Property shall be restored to its original condition, at the sole expense
of Grantee, within thirty (30) days after expiration or termination.
13. Indemnification and Hold Harmless.
Grantee for itself, its employees, agents and contractors, hereby indemnifies and holds
harmless the City, its elected officials, officers, employees and agents from all demands,
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claims, actions, judgments, damages, losses, liabilities, costs and expenses, (including
attorney's fees and costs of litigation) 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, 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 Grantee. If the City or other persons indemnified
hereunder are found to be liable or incur any cost or expense as a result of Grantee's, its
employees', its agents' or its contractors' performance of any of the activities authorized
under this Deed of Easement, Grantee shall immediately pay all judgments, damage, loss,
liability, cost and expense resulting therefrom.
14. Bond.
Prior to installing the Wells, Grantee shall submit to the City a bond in the amount of
Four Thousand Five Hundred Dollars ($4,500.00) 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 and for three (3) months thereafter, unless the bond is a corporate surety bond.
The amount of said bond shall be subject to reasonable increase by the City upon thirty
(30) days prior written notice to Grantee, if the City determines that a higher bond
amount is needed to ensure compliance with the terms hereof.
15. Insurance.
Grantee 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 Grantee, in
lieu of the insurance required of Grantee by this paragraph, financial assurances of self
insurance acceptable to the City. Grantee 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 two million
dollars ($2,000,000) per occurrence, automobile liability coverage in the amount of two
million dollars ($2,000,000), worker's compensation and employer's liability insurance
coverage in the statutory required amounts, and excess liability insurance coverage in the
amount of two million dollars ($2,000,000) with the City of Fairfax, its elected officials,
officers, employees, agents, representatives and volunteers named as additional insureds
on such policies. Grantee 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 believe Grantee of
its independent notice obligations to the City described in this paragraph. Grantee agrees,
for itself, its employees, agents and contractors, to keep all such insurance coverage in
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full force and effect during the period when installation, maintenance, relocation or
removal work is performed within the Easement. Thirty (30) days prior to the expiration,
cancellation or renewal of any such insurance policy, Grantee 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. Grantee 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. Grantee 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,
Grantee agrees to pay all such claims, including all deductibles.
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. Use of Property Subordinate.
It is expressly understood and agreed that the use by Grantee 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.
Grantee, for itself, its employees, agents, and contractors, agrees that, in exercising its
rights under this Deed of Easement, Grantee, 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 Grantee 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 Grantee 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 Grantee, its employees, agents or contractors, to comply with any of the terms hereof,
provided that the City gives Grantee written notice of such noncompliance, and Grantee
does not correct such noncompliance to the satisfaction of the City within fourteen (14)
days after receipt of notice of noncompliance. Upon revocation, Grantee shall
immediately cease to operate the Wells and remove the same in accordance with the
terms of this Deed of Easement.
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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:
City Manager
City Hall
10455 Armstrong Street
Fairfax, Virginia 22030
with copies to:
City Director of Public Works
City Hall
10455 Armstrong Street
Fairfax, Virginia 22030.
City Fire Marshal
City Hall
10455 Armstrong Street
Fairfax, Virginia 22030.
Unless otherwise designated in writing, all notices required or permitted hereunder to be
sent to Grantee shall be given in writing to:
Raj K. Kapoor
c/o Omega Environmental Services
8433 Backlick Road
Lorton, Virginia 22079
Ail 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 Grantee 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, Grantee, 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
Grantee, its employees, agents and contractors from their obligations to comply with such
laws. Neither shall any provision herein be construed to release Grantee, its employees,
agents and contractors from obtaining all required permits regarding the Wells.
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27. Paragraph Headings.
The headings the paragraphs of this Deed of Easement are for
reference and shall not alter or affect the terms of such paragraphs.
the convenience of
28. ~Entire Deed of Easement.
The City and Grantee agree 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 that 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 Raj
K. Kapoor, including the terms and conditions contained herein.
BE IT FURTHER ORDAINED that future revisions to the specific location of, or
number of, monitoring wells within the easement herein granted may be approved by the
city manager, provided that such monitoring wells are demonstrated to be required by the
Commonwealth of Virginia, and such approval to be are approved as to form by the city
attorney.
This ordinance shall become effective as provided by law.
INTRODUCED: February 23, 1999
PUBLIC HEARING · March 23, 1999
ADOPTED: March 23, 1999
ATTEST:
DATE
Vote:
Councilman Coughlan
Councilman Greenfield
Councilman Lederer
Councilman Petersen
Councilman Rasmussen
Councilman Silverthome
Aye
Aye
Aye
Aye
Absent
Aye