Loading...
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