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20020723 2002-16ORDINANCE NO. 2002 - 16 AN ORDINANCE GRANTING A DEED OF EASEMENT TO MOTIVA ENTERPRISES, L.L.C. 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 GROUND WATER CONTAINNING PETROLEUM AND HYDROCARBON PRODUCTS AND REMEDIATED GROUND WATER. BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that the City of Fairfax hereby grants and conveys to Motiva Enterprises, L.L.C. 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, 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 Equipment. The City does hereby grant and convey unto Motiva 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. Motiva 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. Motiva 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 or Modification of Pipelines and Equipment; Plan Approvals Before Commencement; Replacement of City Facilities. The installation, construction, modification 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 authorized representatives of the City. Motiva shall promptly replace and properly repair, at its own cost, all sidewalks, street pavement, and other City Facilities which are displaced or damaged by Motiva, its employees, agents or contractors in the construction and maintenance of the Pipelines and Equipment, to their condition prior to such installation, construction and maintenance, normal wear and tear excluded. 4. Permission From Others. Motiva shall not begin to install the Pipelines or Equipment within the Easement until Motiva 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 Equipment. Motiva shall, at all times, maintain, operate and use the Pipelines and Equipment in good, safe order and condition in strict compliance with all applicable federal, state and local statutes, laws, ordinances, regulations and administrative orders. 6. Excavation and Maintenance. All 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, Motiva shall not excavate upon any portion of the Property. During any maintenance, operation or relocation of the Pipelines and Equipment, Motiva shall not, without prior written consent of the City, excavate any portion of the Property or other adjacent City property. Nothing in this paragraph shall prohibit Motiva., without providing such notice, from making changes on an emergency basis to protect the public health, safety or welfare, provided that Motiva gives the City prompt verbal notice hereof and a subsequent written description of such changes immediately thereafter. 7. Plans. Prior to construction, Motiva 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, Motiva 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. Modifications to Pipelines and Equipment/Changes in Operation or Maintenance of Pipelines and Equipment. Throughout the term of the Easement, and thirty (30) days prior to such changes, Motiva shall provide the City with written notice and a description of all proposed modifications and changes in the operation, maintenance or use of the Pipelines and Equipment. Motiva 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 Motiva, without providing such notice, from making changes on an emergency basis to protect the public health, safety, or welfare, provided that Motiva gives the City prompt verbal notice thereof and a subsequent written description of such changes immediately thereafter. 9. Shut off of Pipelines and Equipment. Motiva 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. The City understands and agrees that prior to shutting off or draining the Pipelines and Equipment, Motiva is required, pursuant to Administrative Order Docket III-93-003-CW, R, to first notify and obtain approval from the U.S. Environmental Protection Agency. Prior to operation of the Pipelines and Equipment, and at reasonable time intervals thereafter as determined by the City, Motiva , 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 Motiva shall promptly discontinue use of the Pipelines and Equipment until such mechanisms are repaired to the satisfaction of the City. 10. Emergency Response Plan, Emergency Telephone Numbers. Motiva 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. Motiva 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, Motiva 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 Motiva, 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 Motiva throughout the term of this Deed of Easement. As the list is revised, Motiva shall promptly deliver copies of such revisions to the persons identified in this paragraph. 11. Damage or Injury to Facilities of the City and Others. Motiva, 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 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 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 Motiva., its employees or its agents or contractors, then Motiva shall immediately notify the City Manager, the Director of Public Works, the Fire Marshal and Miss Utility. In such event, Motiva shall promptly remove any hazards and repair such damage or injury at Motiva's cost. Motiva 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, normal wear and tear excluded. Such reimbursement shall include all reasonable costs and expenses incurred by the City to repair or replace the City Facilities. 12. Relocation of Pipelines and Equipment. If the City reasonably determines it to be necessary, in the interest of the public health, safety or welfare, or for compliance with the City Comprehensive Plan, the City may require Motiva to relocate any or all of the Pipelines and Equipment, subject to the pre-approval of the U.S. Environmental Protection Agency. Motiva shall use its best efforts to relocate the Pipelines and Equipment within ninety (90) days after receipt of notification of approval from the U.S. Environmental Protection Age.ncy. Motiva shall bear all expense of such relocation. Motiva shall not be entitled to payment from the City for any portion of the costs which Motiva incurs hereunder. Such relocation shall comply with all applicable Federal, State and local laws and 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, Motiva shall remove all Pipelines and Equipment from the Property and Easement, at the sole expense of Motiva, within sixty (60) days after expiration or termination. The City may, in its sole discretion, permit Motiva, in lieu of such removal, to seal off and fill in the casings. Motiva 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, normal wear and tear excluded. 14. Indemnification and Hold Harmless. Motiva 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 reasonable 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 Motiva. If the City or other persons indemnified hereunder are found to be liable, Motiva shall pay all judgments, damage, loss, liability, costs, expenses and attorney fees resulting therefrom. 15. Bond. Prior to installing the Pipelines and Equipment, Motiva 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. Such bond shall be in a form acceptable to the City, and meeting the requirements of Section 2-296 et seq of the City Code. Such bond shall be delivered to the City Manager prior to the commencement of any 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 Motiva, if the City determines that a higher bond amount is needed to ensure compliance with the terms hereof. 16. Insurance. Motiva 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 Motiva, in lieu of the insurance required of Motiva by this paragraph, financial assurances of self insurance acceptable to the City. Motiva 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. Motiva 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 Motiva of its independent notice obligations to the City described in this paragraph. Motiva 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, or as soon as is practically possible, the expiration, cancellation or renewal of any such insurance policy, Motiva 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. Motiva 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. Motiva 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, Motiva 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 Motiva of the Property and Easement shall be at all times subordinate to the City's use thereof, subject to the terms and conditions of this Easement. 19. Impairment of Rights, Violation of Deed of Easement Motiva , for itself, its employees, agents, and contractors, agrees that, in exercising its rights under this Deed of Easement, Motiva, 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 Motiva 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. 21. 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 Motiva or others, any right, title or interest in the Property (other than the Easement fights 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 in accordance with Section 23 of this Easement. 23. Revocation. The City may, without liability, unilaterally revoke this Deed of Easement for the failure of Motiva, its employees, agents or contractors, to comply with any of the terms hereof, provided that the City gives Motiva written notice of such non-compliance, and Motiva does not correct such non-compliance to the satisfaction of the City within seven (7) working days after receipt of notice of non-compliance. Upon revocation, Motiva shall immediately request the approval of the U.S. Environmental Protection Agency, 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 U.S. Environmental Protection Agency and 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 Motiva shall be given in writing to D.J. Weimer, Environmental Engineer, Motiva Enterprises LLC, 3800 Pickett Road, Fairfax, Virginia 22031 with copies to General Counsel, Motiva Enterprises LLC, 1100 Louisiana, Houston, Texas 77002. All notices shall be deemed properly served if hand-delivered, sent by reputable overnight courier 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 Motiva 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 Motiva. 27. Compliance With Laws. At all times during the term of this Deed of Easement, Motiva, 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 Motiva , its employees, agents and contractors from their obligations to comply with such laws. Neither shall any provision herein be construed to release Motiva, its employees, agents and contractors from obtaining all required permits regarding the Pipelines and Equipment. 28. Paragraph Headings. The headings of 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 Motiva 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 which either modify, add to or change this Deed of Easement. BE IT FURTHER ORDAINED by the City Council of the City of Fairfax, Virginia that the City Manager is authorized and directed to execute a Deed of Easement from the City to Motiva Enterprises, L.L.C. containing the terms and conditions contained herein. This ordinance shall become effective as provided by law. INTRODUCED: PUBLIC HEARING: ADOPTED: July 9, 2002 July 23, 2002 July 23, 2002 ATTEST: The motion to adopt the ordinance was recorded as follows: Councilwoman Cross Councilman Greenfield Councilwoman Lyon Councilman Rasmussen Councilman Silverthorne Councilwoman Winter Vote Aye Absent Aye Absent Aye Aye