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19930928 1993-37ORDINANCE NO. 1993- 37 AN ORDINANCE GRANTING A DEED OF EASEMENT TO SIPAN, INC. TO USE A PORTION OF THE UNIVERSITY DRIVE RIGHT-OF-WAY, ON A NON-EXCLUSIVE BASIS FOR A PERIOD OF TWO (2) YEARS, FOR THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, 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 Sipan, Inc. a non-exclusive easement within the right-of-way of University Drive for a term of two (2) years from the date hereof to construct, install, operate, maintain, relocate and remove certain wells therein. The terms and conditions of the Deed of Easement are as follows: 1. Grant of Riqhts, Term, Description of Easement and Wells. The City does hereby grant, convey and quitclaim unto Sipan, Inc. ("Sipan") a nonexclusive easement, at the locations and of the dimensions described herein, for a term of two (2) years from the date hereof to construct, install, maintain, repair, inspect, improve, operate and relocate 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 10' Construction and Maintenance Easement Across University Drive" prepared by Paciulli, Simmons & Associates, Ltd., dated August 5, 1993. The Wells shall be used exclusively for the following purposes: to determine the existence of dissolved and liquid phase petroleum hydrocarbons in the ground water. Sipan 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. Sipan 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 approvals are obtained by Sipan from the City. Such installation, construction and maintenance shall be subject to the observation by authorized representatives of the City. Sipan 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 Sipan, its employees, agents or 1993-37 contractors in the construction, installation, operation and maintenance of the Wells. 4. Permission From Others. Sipan shall not begin to install or construct the Wells within the Easement until Sipan has first obtained and submitted to the City written consent from the Virginia Department of Transportation and 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. Sipan shall, 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, Sipan 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, Sipan 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, Sipan 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 revisions. 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, Sipan shall deliver to the City written notice and a description of all proposed changes in the operation, maintenance or use of the Wells. Sipan 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 Sipan, without providing such notice, from making changes on an emergency basis to protect the public health, safety or welfare, provided that Sipan gives the City prompt verbal notice thereof and a 1993-37 subsequent written description of such changes immediately thereafter. 9. City Emergency Access, Emergency Telephona Numbers. At Least fifteen (15) days prior to the beginning of the installation of the Wells, Sipan shall deliver to the City Sipan's emergency response plan relating to the Wells. Sipan 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, Sipan 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 Sipan, 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 Sipan throughout the term of this Deed of Easement. As the list is revised, Sipan shall immediately deliver copies of such revisions to the persons identified in this paragraph. 10. Damaqe or Injury to Facilities of the City and Others. Sipan, 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 and use and enjoyment of the Easement. If the Property, City Facilities, or property (including utility lines) of others are damaged or injured by Sipan, its employees or its agents or contractors, then Sipan shall immediately notify the City Manager, the Director of Public Works and the Fire Marshal. Sipan shall also notify Miss Utility, if required by law. If such damage or injury occurs, Sipan shall promptly remove all hazards and repair such damage or injury at Sipan's cost. Sipan 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. If the City reasonably determines it necessary, the City may require Sipan to relocate any or all of the Wells. Sipan shall use its best efforts to relocate the Wells within ninety (90) days after receipt of notification from the City. Sipan shall bear all expense of such relocation. Sipan shall not be entitled to payment from the City for any portion of the costs which Sipan incurs hereunder. 1993-37 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 Sipan shall be removed from the Property and Easement, at the sole expense of Sipan, within thirty (30) days after expiration or termination. 13. .Indemnification and Hold Harmless. Sipan 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 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 Sipan. 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 claim or proceeding, Sipan shall pay all judgments, damage, loss, liability, costs, expenses and attorney,s fees resulting therefrom. 14. Bond. Prior to installing the Wells, Sipan 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 he 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 Sipan, if the City determines that a higher bond amount is needed to ensure compliance with the terms hereof. 15. Insurance. Sipan 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 Sipan, in lieu of the insurance required of Sipan by this paragraph, 4 1993-37 financial assurances of self insurance acceptable to the City. Sipan 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. Sipan 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 Sipan of its independent notice obligations to the City described in this paragraph. Sipan 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, Sipan 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. Sipan 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. Sipan 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, Sipan 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 Sipan 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. 5 1993-37 18. Im airment of Ri hts. Violation of Deed of Easement. Sipan, for itself, its employees, agents, and contractors, agrees that, in exercising its rights under this Deed of Easement, Sipan, 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. ~o Exclusive Right. Nothing in this Deed of Easement shall be construed to grant to Sipan 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. ~o Riqhts in Property of City Facilities. Nothing contained in this Deed of Easement shall be interpreted to create, in or for the benefit of Sipan 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 Sipan, its employees, agents or contractors, to comply with any of the terms hereof, provided that the City gives Sipan written notice of such non-compliance, and Sipan 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, Sipan 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 the City Manager at City Hall, 10455 Armstrong Street, Fairfax, Virginia 22030, with copies to the City Director of Public Works, the City Attorney, and the City Fire Marshal at City Hall, 10455 Armstrong Street, Fairfax, Virginia 22030. Unless otherwise designated in writing, all notices required or permitted hereunder to be sent to Sipan shall be given in writing to Mr. Stephen Best, P.O. Box 823, 4031 Chain Bridge Road, Fairfax, Virginia 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 6 1993-37 sections, paragraphs, sentences, clauses or phrases of this Deed of Easement. 25. ~ity Ordinances. The rights and privileges granted herein to Sipan 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. gompliance With Laws. At all times during the term of this Deed of Easement, Sipan, 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 Sipan, its employees, agents and contractors from their obligations to comply with such laws. Neither shall any provision herein be construed to release Sipan, its employees, agents and contractors from obtaining all required permits regarding the Wells. 27. ~araqraph 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. ~ntire Deed of Easement. The City and Sipan 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 from the City to Sipan, Inc. including the terms and conditions contained herein. This ordinance shall become effective as provided by law. INTRODUCED : PUBLIC HEARING : September 14, 1993 September 28, 1993 ADOPTED : September 28, 1993 ATTEST: