20040427 2004-4ORDINANCE NO. 2004-
AN ORDINANCE GRANTING A DEED OF EASEMENT TO
RAJ K. KAPOOR TO USE A PORTION OF THE OLD LEE
HIGHWAY RIGHT-OF-WAY, ON A NONEXCLUSlVE
BASIS, FOR A PERIOD OF FIVE (5) YEARS, FOR THE
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 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 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 maintain, repair, inspect, improve, operate, relocate, and remove
within the easement, such monitoring wells (the '~Vells") 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 acknowledges that it has installed 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.
Any maintenance, repair or relocation of the Wells pursuant to this Deed
of Easement shall not commence upon or within the Property or Easement
until all required approvals are obtained by Grantee from the City. Such
maintenance, repair or relocation 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 operation, repair, relocation and maintenance of the Wells.
4. Permission From Others.
Grantee shall not begin to repair or relocate 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 repair 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; Right-of-Way Permits.
The Wells shall be 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 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 right-of-way permit or permits.
7. Plans.
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.
9. City Emergency Access, Emergency Telephone Numbers.
At least fifteen (15) days prior to the beginning of any repair or relocation
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 any
construction activities 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 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, 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.
Upon execution of the Deed of Easement, 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 Article VI, Sections 2-296 through 2-301 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. 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 full force and effect during the period when repair, 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
4
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.
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 ARR, Inc., t/a Circle Shell
9605 Lee Highway
Fairfax, VA 22030
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 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.
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 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:
PUBLIC HEARING:
ADOPTED:
April 13, 2004
April 27, 2004
April 27,
MAYOR
DATE
ATTEST:
City Clerk
Vote:
Councilwoman Cross Aye
Councilman Greenfield Absent
Councilwoman Lyon Aye
Councilman Rasmussen Aye
Councilman Silverthorne Aye
Councilwoman Winter Aye