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19931109 1993-43ORDINANCE NO. 1993- 43 AN ORDINANCE GRANTING A DEED OF EASEMENT AND WELL AGREEMENT TO THE NORTHERN VIRGINIA REGIONAL PARK AUTHORITY TO USE A PORTION OF CITY OWNED REAL PROPERTY IN LOUDOUN COUNTY, VIRGINIA FOR A PERIOD OF FIVE (5) YEARS, FOR THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, RELOCATION AND REMOVAL OF CERTAIN WELLS, PUMPS, AND RELATED FACILITIES TO SERVE AS A SUPPLEMENTAL SOURCE OF IRRIGATION WATER AND ADJACENT PROPERTY OWNED BY THE AUTHORITY. BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that the City of Fairfax hereby grants and conveys to the Northern Virginia Regional Park Authority a Deed of Easement and Well Agreement to use a portion of City-owned property in Loudoun County, Virginia for a period of five (5) years, for the construction, installation, operation, maintenance, relocation and removal of certain wells, pumps, and related facilities to serve as a supplemental source of irrigation water for adjacent property owned by the authority. The terms and conditions of the Deed of Easement and Well Agreement are as follows: 1. Grant of Rights, Term, Description of Easement and Equipment. The City does hereby grant and convey unto the Authority a nonexclusive easement at the location and of the dimensions described herein for a term of five (5) years from the date hereof to construct, install, operate, use, maintain, repair, inspect, improve, and relocate within such easement, two nonpotable water irrigation wells, pumps, water discharge lines, electric power lines an access drive, conduits, casings, systems, and related equipment (jointly hereinafter referred to as the "Facilities") upon and under a portion of the City Property, as shown on the attached Exhibits 1 and 2 (the "Easement"), consisting of two plats each entitled "NVRPA Golf Course at Brambleton" prepared by Gordon Associates, Leesburg, Virginia, dated September 14, 1992 and September 16, 1992, respectively. The Facilities shall be used exclusively to serve as a supplemental source for irrigation water needed by the Authority for turf maintenance at the golf course on the Authority Property. 2. Facilities Are Authority Property. The Facilities installed within the Easement shall be and remain the property of the Authority. 3. Conditions and Restrictions. The Authority covenants and agrees that its exercise and enjoyment of the Easement shall be subject to all of the conditions and restrictions provided herein. 4. Full Use of the Easement. The Authority and its agents shall have full and free use of the Easement for the purposes stated herein, and shall have all rights and privileges reasonably necessary to exercise such rights and privileges, including the right of access to and from the Easement and the privilege, upon prior written consent of the City, to use, where necessary, adjoining City-owned land more fully described on Exhibits 1 and 2; provided, however, that this privilege to use adjoining land shall be exercised only during periods of actual construction, maintenance or relocation, and further provided that such right shall not be construed to allow the Authority to erect any building or structure on such adjoining land without the prior written consent of the City. 1993-43 5. Maintenance of Easement and Authority Facilities. The Authority shall at all times during the term of this Deed of Easement maintain the Easement and Facilities in a condition satisfactory to the City. 6. Permission From Others; Permits. The Authority shall not ibegin to install the Facilities within the Easement until the Authority has first obtained and submitted to the city written consent from the owners of all utilities, equipment, facilities, and easements lying within the Easement, which utilities, equipment, facilities or easements will be crossed or affected by the installation of the Facilities, if any. The Authority shall secure and maintain in full force and effect, and faithfully comply with the requirements of, all permits necessary to remove water from the ground for all necessary purposes and to construct, install, operate, and maintain the two irrigation wells for the intended purpose. 7. Maintenance, Operation and Use of Facilities. The Authority shall at all times, maintain, operate and use the Facilities in good, safe order and condition in strict compliance with all federal, state and local statutes, laws, ordinances, regulations and administrative orders. 8. Location of the Facilities. The Facilities shall be constructed, located, used and maintained so as to not interfere with the use of the City property by the City and others and not interfere with the safety of persons travelling on or over the City Property and other adjacent City property. 9. Removal of Trees and Other Items; Restoration. With prior written approval of the City, the Authority shall have the right to trim, cut, and remove trees, shrubbery, fences, structures, or other obstructions or facilities in the Easement deemed by the Authority to interfere with the proper and efficient construction, operation, and maintenance of the Facilities; provided, however, that the Authority, at its own expense, shall restore, as nearly as possible, the City Property to its original condition. Such restoration shall include the backfilling of trenches, the replacement of fences and shrubbery, the reseeding or resodding of lawns or pasture areas, and the replacement of structures and other facilities located outside the Easement. 10. Rights of city. The City reserves all rights to the City Property which are not specifically granted hereunder, including all rights to use the City Property in which the Easement is located consistent with the terms hereof. 11. Use of City Property As Reservoir. Notwithstanding any provision herein to the contrary, it is recognized and understood by the Authority that the paramount use of the City Property, and other adjacent City-owned parcels, is as a reservoir for the provision of a safe water supply system for the City, its residents, and the public at large (the "Reservoir"). It is an express condition of this grant that at no time shall the use of the Easement or any Facility located therein adversely affect the use of the Reservoir or the use of the City Property by the City or others, or create, allow to exist or result in any unsafe, unsanitary, or illegal conditions affecting the Reservoir. 12. Expansion or Modification of Reservoir, Use of City Property for Any Other Public Purpose. The City may terminate this Deed of Easement, without liability, if the City decides to expand 2 1993-43 or modify the Reservoir or use the City Property for any other public purpose and the City determines that the continued use of the Easement would adversely affect such expansion or modification, the related City facilities, or the use of the City Property for any other public purpose. In such event, the City shall provide six (6) months prior written notice to the Authority of the City's intention to terminate this Deed of Easement. The Authority agrees, upon receipt of such notice, to execute an instrument releasing all or the applicable portion of the Easement as determined by the City affecting the proposed expansion, the related City facilities or the use of the City Property for any other public purpose. If the Authority determines that it can relocate the Facilities within the boundaries of the Easement so that the Facilities will not, following such expansion or modification or use of the City Property for any other public purpose, adversely affect the expanded and/or modified Reservoir or use of the City Property for any other public purpose, then the Authority may, within the six (6) month notice period described above, notify the City in writing of the Authority's desire to relocate the Facilities. Thereafter, upon prior written consent of the City, the Authority shall, at its own expense, promptly and diligently relocate the Facilities, which relocation shall be completed within a reasonable time period determined by the City. If the City does not give the Authority any prior written consent to relocate the Facilities, then this Deed of Easement shall terminate at the end of such six (6) month period. The City's approval of such relocation shall not be unreasonably withheld and shall be given if such relocation of the Facilities will not adversely affect the expanded and/or modified Reservoir or the use of the City Property for any other public purpose. 13. Compensation. As part of the consideration of the grant of the Easement and in order to defray the annual costs of the City to monitor the Authority's compliance herewith, the Authority agrees to pay the City an annual fee of One Thousand Dollars ($1,000.00), with the first such fee payable upon the execution of this Deed of Easement, and thereafter on each yearly anniversary. 14. Damage or Injury to Facilities of the City and Others. The Authority, its employees, agents and contractors, shall exercise utmost care to protect the City Property, and facilities of the City and others, including all utility lines, from damage or injury arising out of the installation, use, operation, maintenance and relocation of the Facilities, and the use and enjoyment of the Easement. If the City Property, City facilities, or property or facility of others are damaged or injured by the Authority, its employees, agents or contractors, then the Authority shall immediately notify the City thereof. The Authority shall be responsible for promptly repairing or replacing, at its own expense, the facilities and property of the City and others to their condition prior to such damage or injury. The Authority shall reimburse the City and 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 and others to repair or replace the facilities and property. 15. Relocation of Facilities. If, for any reason, the City reasonably determines it to be necessary, the City may require the Authority to relocate any or all of the Facilities. The Authority shall use its best efforts to relocate the Facilities within ninety 3 1993-43 (90) days after receipt of written notification from the City. In any event, the Facilities shall be relocated within one hundred eighty days (180) after receipt of written notice from the City or this Deed of Easement shall automatically and immediately terminate without any further acts by either party. The Authority shall bear all expenses of such relocation. The Authority shall not be entitled to payment from the City for any portion of the costs which the Authority incurs for the relocation. The Authority shall comply with all laws, City ordinances, policies and requirements regarding the relocation. 16. Removal of Facilities. Upon the expiration of the term of this Deed of Easement or upon earlier termination or revocation, all Facilities of the Authority shall be removed from the City Property and Easement, at the sole expense of the Authority, within thirty (30) days after expiration, termination or revocation. The City may, in its sole discretion, permit the Authority, in lieu of such removal, to allow the Facilities to remain on the City Property, or to seal off, cap and fill the wells in strict accordance with all applicable laws and regulations. The Authority shall be liable and shall promptly pay for all damages to the City Property, City Facilities or facilities of others resulting from such removal of the Facilities, sealing, capping or filling of the wells. 17. Indemnification. Disclaimer of Agency. To the extent allowed by the laws of the Commonwealth of Virginia, the Authority assumes full responsibility for injuries to or death of any person, for damages to its property, property of the City, and the property of third parties, and for expenses arising out of the Authority's operations upon and use of the City Property. To the extent allowed by Virginia law, the Authority agrees to indemnify and hold harmless the City, its elected officials, officers, employees and/or agents, and contractors harmless from all claims, losses, expenses, or suits for such injuries, death, or damages, including, but not limited to, reasonable attorney's fees. In exercising its rights pursuant to this Deed of Easement, the Authority, its employees, agents and contractors, is acting on its own behalf and not as an agent of the City. No agency relationship is intended to be created as a result of this Deed of Easement. 18. Bond. Prior to commencing installation of the Facilities, the Authority shall submit to the City a cash bond in the amount of One Thousand Dollars ($1,000.00) to ensure faithful compliance with the terms of this Deed of Easement. Such bond shall be in a form acceptable to the City and shall meet the requirements of Section 2-48 et seq. of the City Code. Such bond shall be delivered to the City Manager and shall be maintained throughout the term of this Deed of Easement. Such bond shall be refunded to the Authority by the City within ninety (90) days of: (a) the restoration of the City Property by the Authority following termination, revocation, or expiration of this Deed of Easement; (b) the sealing and filling of the casings; or (c) the delivery of the Facilities to the City by the Authority, as provided in Paragraphs 16 and 25 herein. 19. Insurance. The Authority 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 an amount of $3,000,000.00 with the City of Fairfax, its elected officials, officers, employees, agents, representatives and volunteers named as additional insureds. The 1993-43 Authority 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 aggregate amounts of at least $2,000,000.00, with the City of Fairfax, its elected officials, officers, employees, agents, representatives and volunteers named as additional insureds on such policies. The Authority shall deliver to the City, for review and approval before any work is begun on the City 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 the Authority of its independent notice obligations to the City described in this paragraph. The Authority 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, the Authority 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. The Authority 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. The Authority shall immediately notify the City of any expirations, renewals, cancellations or changes in such insurance coverage. The Authority shall pay all deductibles and amounts not covered by insurance. 20. Use of Property Subordinate. It is expressly understood and agreed that the use by the Authority of the City Property and Easement shall be at all times subordinate to the City's use thereof for any public purpose. 21. Impairment of Riqhts; Violation of Deed of Easement. The Authority, for itself, its employees, agents, and contractors, agrees that, in exercising its rights under this Deed of Easement, the Authority, 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 City Property or City Facilities nor violate the terms of this Deed of Easement. 22. No Exclusive Riqht. Nothing in this Deed of Easement shall be construed to grant to the Authority any exclusive right to install Facilities within the Easement or to prevent a grant by the City of similar rights or privileges, not inconsistent herewith, to other persons or entities. 23. No Riqhts in Property or City Facilities. Nothing contained in this Deed of Easement shall be interpreted to create, in or for the benefit of the Authority or others, any right, title or interest in the City Property (other than the Easement rights granted herein) or City Facilities. 5 1993-43 24. Terminatio___Rn. A. This Deed of Easement shall automatically terminate five (5) years from the date hereof unless relinquished or revoked prior to such time, as herein set forth. B. This Deed of Easement may be terminated by the City, without prior written notice and without liability, if the City is ordered for any reason, by any court or regulatory agency to cease or discontinue the use of the City Property as a Reservoir or to cease or discontinue the use of the Easement for the purposes granted. C. The City may, in its sole discretion, terminate this Deed of Easement if the Authority Property is not used for a regional golf course park by the Authority or if the Authority sells or leases the Authority Property. D. The Park Authority may terminate this Deed of Easement at any time hereafter upon sixty (60) days written notice. 25. Revocation. The City may, without liability, unilaterally revoke this Deed of Easement for the failure of the Authority, its employees, agents or contractors, to comply with any of the terms hereof, provided that the City gives the Authority written notice of such non-compliance, and the Authority does not diligently act to correct such non-compliance to the reasonable satisfaction of the City within thirty (30) days after receipt of notice of non-compliance. Upon revocation, the Authority shall immediately cease to operate the Facilities 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 City. 26. 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 a copy thereof to the City Director of Transit and Utilities at the same address. Unless otherwise designated in writing, all notices required or permitted hereunder to be sent to the Authority shall be given in writing to the Executive Director, Northern Virginia Regional Park Authority, 5400 Ox Road, Fairfax, Virginia 22039. 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. 27. 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 hereof. 28. Local Ordinances. The rights and privileges granted herein to the Authority are expressly subject to the conditions, limitations and provisions contained in the Codes of the City of Fairfax and Loudoun County, Virginia, now in force or that may be hereafter enacted by the governing bodies thereof. 6 1993-43 29. Compliance With Laws. At all times during the term of this Deed of Easement, the Authority, its employees, agents and contractors, shall comply with all federal, state and local, statutes, laws, ordinances, regulations and administrative orders regarding the use of the Easement and the construction, installation, maintenance, relocation and removal of the Facilities. Nothing herein shall be construed to relieve the Authority, its employees, agents and contractors from their obligations to comply with such laws. Neither shall any provision herein be construed to release the Authority, its employees, agents and contractors from obtaining all required permits regarding the Facilities. 30. Entire Deed of Easement and Aqreement. The City and the Authority 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. 31. Applicable Law. This Deed of Easement shall be construed accordance with the laws of the Commonwealth of Virginia. 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 and Well Agreement from the City to the Northern Virginia Regional Park Authority including the terms and conditions contained herein. PUBLIC HEARING: ADOPTED: This ordinance shall become effective as provided by law. INTRODUCED: October 26, 1993 November 9, 1993 November 9, 1993 MAYOR DATE ATTEST: U C~ty Clerk 7