HomeMy Public PortalAbout2014_04_08_R037 Authorizing a License Agreement between GEP NVRPA and TOL The Town of
Leesburg,
1� 1�1 • PRESENTED April 8,2014
RESOLUTION NO. 2014-037 ADOPTED April 8,2014
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG, GREEN
ENERGY PARTNERS AND THE NORTHERN VIRGINIA REGIONAL
PARK AUTHORITY TO ALLOW THE RECLAIMED WATER LINE
TO CROSS THE W&OD TRAIL
WHEREAS,Green Energy Partners("GEP")is in the process of acquiring land rights
necessary to construct a reclaimed water line to serve the GEP clean energy power plant also
known as the"purple line" ; and
WHEREAS,once constructed by GEP,the purple line will be owned, operated and
maintained by the Town of Leesburg; and
WHEREAS,a portion of the purple line route crosses the W&OD Trail which is owned
and operated by the Northern Virginia Regional Park Authority("NVRPA"); and
WHEREAS, a License Agreement is necessary to allow construction,operation and
maintenance of the purple line within NVRPA owned property; and
WHEREAS, the Town Attorney has negotiated a License Agreement with NVRPA to
allow GEP and the Town to install and operate the purple line; and
WHEREAS,the term of the License Agreement will run for ninety(90)years; and
WHEREAS,the NVRPA Board of Directors and the principals of GEP have approved the
License Agreement and all fees will be borne by GEP; and
WHEREAS,the terms contained in the License Agreement are reasonable and equitable
and will benefit the Town and the citizens of Leesburg.
C
-2-
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
(se AGREEMENT BETWEEN THE TOWN OF LEESBURG, GREEN
ENERGY PARTNERS AND THE NORTHERN VIRGINIA REGIONAL
PARK AUTHORITY TO ALLOW THE RECLAIMED WATER LINE
TO CROSS THE W&OD TRAIL
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia that the
Town Manager is authorized to execute the License Agreement with the Northern Virginia
Regional Park Authority and GEP for the reclaimed water line.
PASSED this 8th day of April, 2014.
s en C. mstattd,Mayor
Town of Leesburg
ATTEST.
•
Clerk of Cowie
P:\Resolutions\2014\0408 License Agreement between NVRPA-TOL-GEP.doc
th,
LICENSE AGREEMENT
NHS LICENSE AGREEMENT ("Agreement"), made this 17"1 day of
I71grtcH ,2014,by and between the NORTHERN VIRGINIA REGIONAL
PARK AUTHORITY, a body corporate and politic (the "Authority"), the TOWN OF
LEESBURG (the "Licensee"), and GREEN ENERGY PARTNERS/STONEWALL LLC
("GEP").
WHEREAS,the Authority owns certain real property(the"Property"),c nasisting of a
trail extending from Arlington County to Purc llville, Virginia, on which the Authority
operates and maintains a Park,including related facilities,for the public's use and enjoyme t,
also known as the W&OD Railroad Regional Park;and
WHEREAS,Licensee and GEP desire to construct and maintain certain Fealties and
Improvements on a portion of the Authority's Property(the"Licensed Premises");and
WHEREAS,Licensee and GEP acknowledge that the paramount use of the Property
is for the public's use and enjoyment and that the construction and operation of Licensee's
and GEP's Facilities and Improvements on the Property must not adversely affect the
Property's paramount use for park purposes;and
WHEREAS,the Authority is willing to license to Licensee and GEP use of portions
of the Property on the terms and conditions set forth herein.
NOW THEREFORE,the Authority,Licensee,and GEP in consideration of pa yme nts
hereinafter stipulated and the mutual covenants hereinafter contained, hereby agree as
follows:
1. Qifigfiom
As used in this Agreement:
"Licensed Premises" means that portion of the Property as shown on the plans
prepared by Gordon titled"NVRPA Application,Green Energy Partners Water Reuse Line,
Loudoum County, Virginia", Sheet 1 of 1, dated January 2, 2014, hereby incorporated as
Exhibit A,on which Licensee is authorized,pursuant to this Agreement,to construct,install,
operate, and maintain certain Facilities and Improvements specified herein and GEP is
authorized pursuant to this Agreement to construct and install said facilities on behalf of
Licensee.
"Park"means that portion of the W&OD Railroad Regional Park Property on which
the Authority maintains and operates recreational facilities and related improvements,
whether existing as of the date of this Agreement or established thereafter,for the public's
use and enjoyment.
"Property"means that property owned by the Authority,extending from Arlington
County to Purcellville, Virginia, on which the Authority operates and maintains a public
park,including trails and related facilities for the public's use and enjoyment,a portion of
which is shown on Exhibit A hereto.
"Trail"means that portion of the Property as shown on Exhibit A hereto,which the
Authority maintains and operates as a trail or path,both paved and unpaved,for the public's
use and enjoyment, including barricades, bridges, signs, benches, fountains, and related
improvements.
"Facilities and Improvements"means one 24"water reuse line enclosed within a 42"
steel casing.
"Reused Water" means non potable treated wastewater water. Also referred to as
"reclaimed water"or"effluent water"in other documents outside of this Agreement.
2. License Grant
a. Authority hereby grants a nonexclusive license to Licensee, for the
term and upon the conditions, covenants, and agreements hereinafter set forth, to use the
Licensed Premises for the purposes of constructing,installing,operating and maintaining its
Facilities and Improvements for the Facilities and Improvements across the Property
described on Exhibit A and at the location described on Exhibit A,hereby incorporated into
this Agreement by reference. Authority also hereby grants to GEP authorization pursuant to
this Agreement to construct and install said facilities described on Exhibit A on behalfof the
Licensee.
b. It is a specific prerequisite to Licensee's and GEP's use of the
Licensed Premises pursuant to this Agreement that the Property at all times shall be used and
maintained in a safe and reasonable manner satisfactory to the Authority.
c. The rights or privileges herein granted to Licensee and GEP shall be
subject to the rights and or interests held by others in and to the Property as of the date of this
Agreement The Authority makes no representations or warranties, express or implied,
concerning the extent of such outstanding rights held by others and shall have no
responsibility for conflicts with others as a result of this Agreement. The Authority makes no
warranties with respect to the Property but gives Licensee a license to use such rights in the
Property that the Authority has in the Property.
2
.
d. Nothing contained in this Agreement shall be interpreted to create
anything other than a license and this Agreement shall specifically not create any right,title
or interest in the Property,nor shall it create an easement or a leasehold interest.
3. Tri
a. The term of this License shall begin on the date hereof and shall
continue through December 31,2104,at which time this License shall automatically expire
and terminate, unless earlier terminated in accordance with paragraph 3b or c. Upon
completion of construction and installation of Licensee's Facilities and Improvements,and
upon the full satisfaction of the Construction Deposit requirements set forth in paragraph S
below,GEP shall have no further rights or privileges under this License Agreement and shall
be released from further obligations to the Authority hereunder,except with respect to any
then existing or future liability or claim arising out of GEP's operations on the Property or
acts or omissions under this Agreement.
b. Should Licensee abandon or remove its Facilities and Improvements
constructed on the Licensed Premises this License shall terminate forthwith at the election of
the Authority.
c. The Authority may terminate this Agreement for the Licensee's or
GEP's failure to comply with the teens hereof,provided the Authority gives the Licensee and
GEP written notice of the violation and a reasonable time,not to exceed thirty(30)days,to
rectify it to the satisfaction of the Authority.
d. Licensee shall,within three(3)months after the expiration or earlier
termination of this Agreement remove or abandon and fill Licensee's Facilities and
Improvements within the Licensed Premises,Licensee shall assume full responsibility for all
costs and expenses incurred in connection with such removal or abandonment and fill of its
Facilities and Improvements. Licensee shall leave the Property in a clean condition
acceptable to the Authority and plans and specifications for removal or abandonment and fill
shall be approved in writing by the Authority. In the event Licensee does not,within the
required period of time,remove or abandon and fill its Facilities and Improvements,then the
Authority may remove or fill the same at the cost and expense of Licensee,or the Authority
may, at its option, allow said Facilities and Improvements to remain on the Property, in
which event Licensee shall be deemed to have abandoned such Facilities and Improvements
and relinquished to the Authority all right,title and interest thereto and said Facilities and
Improvements shall be and become the property of the Authority.
e. Expiration or earlier Termination of this License shall not relieve or
release Licensee or GEP from any liability or obligation that may have been incurred or
assumed by Licensee or GEP hereunder prior to such expiration or termination.
4. Payments
3
a. GEP has placed on deposit with the Authority a license administration
fee of One Thousand Dollars(S l.000.00). The parties hereto agree that the administration
fee shall be adjusted,whether upward or downward,to reflect the Authority's actual costs in
administering this License. Said adjustments shall be made monthly until the time of final
Construction Deposit return pursuant to paragraph 5 hereof,and any outstanding fees shall be
refunded or billed,as appropriate,to GEP. GEP agrees to pay such bills within thirty(30)
days of receipt of appropriate documentation from the Authority.
b. As further r con nation,GEP shall pay Authority a one-time use fee
of Two Thousand Seven Hundred Dollars(52700).
c. Licensee and GEP agree and covenant to pay all taxes including,but
not limited to,leasehold interest taxes,assessments,use and occupancy taxes,charges for
public utilities, excises and levies, levied on the Licensed Premises that arise out of
Licensee's and GEP's construction, maintenance, or operation of any facilities or
improvements on the Licensed Premises.
5. Construction Dwosit m Letter of Credit
Upon execution of this Agreement, GEP shall place on deposit with the
Authority a cash deposit (the "Construction Deposit") in the amount of Fjvc , nom,
Pam (S5.000). The purpose of said Construction Deposit shall be to provide
reimbursement to the Authority for any and all expenditures including,but not limited to,
attorney's fees, restoration costs and, if applicable, Liquidated Damages, as defined in
Paragraph 9 of Exhibit B attached hereto,necessary to enforce the terms of this Agreement.
The Authority may withdraw and expend such funds from the Construction Deposit as it may
deem necessary to enforce GEP's obligations under this Agreement,and if the funds shall
become exhausted,GEP will immediately replenish the Construction Deposit. The Authority
will hold the Construction Deposit for six months following completion of construction(as
determined by the Authority) of Licensee's Facilities and Improvements on the Licensed
Premises and restoration to the Authority's satisfaction of any of the Property disturbed
during such construction. Upon satisfaction of all requirements under this Section 5,the
Authority will return to GEP the Construction Deposit less any amounts used by the
Authority pursuant hereto of the Property disturbed during such construction.
6. Notices
Any notice pursuant to this Agreement shall be given in writing by (a)
personal delivery,or(b)reputable overnight delivery service with proof of delivery,or(c)
United States Mail,postage prepaid,registered or certified mail,return receipt requested,sent
to the intended addressee at the address set forth below,or to such other address or to the
attention of such other person as the addressee shall have designated by written notice sent in
accordance herewith, and shall be deemed to have been given at the time of personal
4
delivery,the first business day after deposit with an overnight delivery service or as of the
date of first attempted delivery if sent by registered or certified mail. For purposes of this
Section, the term "Business Day" shall mean a day on which commercial banks are not
authorized or required by law to close in the Commonwealth of Virginia. Unless sloped in
accordance with the preceding sentence, the addresser for notices given pursuant nt to this
Agreement shall be as follows:
To AUTHORITY:
Northern Virginia Regional Park Authority
5400 Ox Road
Fairfax Station,Virginia 22039
Attention: Director of Planning and Development
To LICENSEE:
Town of Leesburg
25 W. Market St.
Leesburg,VA 20176
Attention: John C. Wells,Town Manager
To GEP:
Green Energy Partners/Stonewall
4100 Spring Valley Suite 1001
Dallas,TX 75244
Attention: Ross Metersky,Vice President
7. Terms Inooraora end by Refes+e nce
The General Terms and Conditions for License Agreements, Part B, dated
December 2, 2009, is attached hereto as Exhibit B and is hereby incorporated into this
Agreement by reference.
8. Speeded Coditions
Notwithstanding any other provisions of this Agreement to the contrary,the
following special conditions shall apply:
a. It is a specific prerequisite to the Authority's grant of this License that
the Licensee and GEP maintain the continuity,safety,and convenience of public use of the
W&OD Trail through the Licensed Premises at all times during construction.
b. Excavated areas,temporary construction zones,stockpiles,material
storage and staging areas shall be appropriately protected by temporary construction safety
fencing or other suitable barriers in order to confine construction activities to the approved
5
.
work areas,to protect Trail users and other park patrons from construction activities and to
prevent GEP's encroachment onto the surface of the Property.
c. GEP shall provide regular inspection,observation and supervision of
its contractors as needed to maintain control over the contractors and to ensure their full
compliance with all conditions of this License, with the approved construction plans,
schedules and restriction,and with the Park rules.
d. The parties hereto agree that GEP shall construct and install the water
line under and across the Trail by means of a trenchless crossing underneath the Property.
Unless the Authority's prior written approval is obtained,no equipment,tools or material
shall be placed on the Property,nor shall vehicles,equipment and personnel of GEP and its
contractors operate on the Property outside of the construction areas shown on Exhibit A.
e. GEP shall install permanent sleeves beneath the surface of the
Property to contain the pipes, in order to permit their future removal or replacement from
outside the limits of the Property.
£ No manholes,handhold,pedestals,closures or simile-facilities which
require access fiom above the ground surface for normal operation or maintenance,shall be
placed on the Property under this License.
g. GEP shall give full-time supervision to bacll and compaction
operations,where applicable on or adjacent to the Property,to ensure that badcfill ofexcavated
areas is compacted in 6 inch lifts to 95%density.
h. GEP shall provide all contractors on the project with a copy of this
License Agreement and shall ensure that all construction personnel abide by the restrictions of
access and other provisions contained herein.
i. A pre-construction meeting with GEP's contractors and the Authority
shall be held prior to any work on the Property. GEP shall involve the Authority in pro-
on and other information/coordination meetings with governmental agencies,
contractors and utility companies throughout the project.
j. In order to preserve existing vegetation within the Park,it is a specific
prerequisite to the Authority's grant of this License that no excavation shall occur within the
limits of the area labeled"Variable Width Access Easement for Maintenance and Construction"
on Exhibit A.
k. In any discrepancy between the approved construction drawings and this
License Agreennent,the License Agreement prevails with respect to the Authority's Property.
6
1. GEP shall provide erosion and sediment controls,as well as to rnpora<y
drainage facilities necessary to maintain proper storm drainage on the Property. Licensee's
and GEP's activities shall not cause areas on the Property to hold water.
m. Failure of GEP to comply with any provision of paragraphs 8 a.b.d.h,
Hai above shall be deemed to be a violation of this Agreement subjecting GEP to the
Liquidated Damages provided for in Paragraph 9 of Exhibit B and to such other remedies as
may be available to the Authority. In addition,the Authority shall have the right to correct
any conditions that pose a safety hazard to users of the Trail,and the costs of such corrective
actions shall be paid by GEP to the Authority within thirty(30)days of receipt of appropriate
documentation from the Authority.
IN WITNESS WHEREOF,the parties hereto for themselves and their successors and
assigns have executed this License Agreement on the date and year first written above.
LICENSEE:
TOWN OF LEESBURG
By: glik ! . . 11
Name: t . t..LS
Title: ,.
GEP:
GREEN ENERGY PARTNERS/STONEWALL LLC
By: 1' "
Name: /Z-o' /'Je'rp'uxr
Title: 0 ev a r'r /04,,ij c eit.
AUTHORITY:
NORTHERN I' I GIONAL PARK AUTHORITY
By: _ ‘"
Name: Todd .
Title: Director of Planning and Development
7
EXHIBIT"A"
4111111,-........■ "-'"''
1 -
pp*IIIIIIIIINllrr.;A IIP...i . 6,7,mg rii.
-
1111111:11.11111....„ ,....Frirrorotil
R. .404
111,1411111111111 , . 4 r i .-- ... 041,,,:e.i, •
• .
„ . , :. • rr',4A!,...„ 1/111
i - s. ,. - v.....,., .,...A
1:'• . ..
111111111111111Vill!!!!!!!1111111111110
Vl; 4
,7711, , :_o!””=- :;ii-,••:Frill11110111
AIIIIIIIIIIIIIIIIIngiy. 1, 1.
111111111111111111INLIMIIIH1111111111
INIIIIIDNIMIIIII111111111111131111 ; ,,,.. • tart-r," / ,fa Ala
---',..,,-- •
i"77-1fAllt;-- ■ lit!..
I:i ' WI • '
1 I
)
......t., , ------, --,-- , . . ----,---r-, :-Z.:---
- — "---■, .// , --,,,......,--..,
....
— ---zz..■
/ s,.
.!,..,46 ...
NV:: '' . 7/ ' . ,. ,. •
. • '';''''%:,7*'..........7. i i •-.. // . •' c'..-------' .
— ,. I! --z...:•••,..„,„ // . ',./ ' '''N
. — "" -;) ' j' i •
• , /
/// ' s
•4,/ / , / I . ,
. I
// /// • : - 1
/l
4/
/ !.
/ • /4/
I .
,t! 4 i; ,Ii 1 I
Ili' ; :4/ //
/,
., ,-/•
/ . // • _
, N . ,,
1 i/ ' , , . • .
11 RI j:/
li 4, i
yiii 1/ - • I
19 ,
, , //
. 1.-------
‘1
a ge,, 1
•
i
Pi •
•. - -,- - ...0■ , i __ _
....
4 .0
i I —wear"mg.
1 ' # 417;,.,‘ . -..... ,
ie/ . • --- -• - ..--- - - - Iii.
-41, , t,ft. • u — .. .... • -.
4 -- --
f* 1_ // ---. - ■
■ 1 - 1 I- ' '4' '' ' '\\`■•• ‘
1
-„,.. ■-• - - __ ______...........
.....:...-,.---• .
•
// 1Vek* " __,-----------------
cialty, Iti
P —
, ..-------
i Isi
1 -
I iiiii".Agalla I/ ' i I
. • .
I__
IMIONWEIBM
I 1
/ sura IMMO i ,
#'Gordon
'74 . r! : 1 GREEN BERRY PAMPERS
-i. 1, • WATER REIM LIE
), ....'"2....,
.0.
L I
I
14211110111110141017.11.11111N • 11 rm. or emport
•
EXHIBIT B
NORTHERN VIRGINIA REGIONAL PARK AUTHORITY
GENERAL TERMS AND CONDITIONS
FOR
LICENSE AGREEMENTS
December 2,2009
1. Definitions
All capitalized teens in this General Terms and Conditions shall have the same
meaning as set forth in the License Agreement("Agreement").
2. Construction
a. Construction Plans and Specifications
(1) Construction of Licensee's Facilities and Improvements on the
Property shall be restricted to the Licensed Premises and shall be performed strictly in
accordance with plans and specifications approved in writing by the Authority. GEP shall not
deviate from or make changes to the construction plans and specifications approved by the
Authority without the Authority's prior written approval. Only those Facilities and
Improvements reflected on the approved construction plans and specifications shall be
established on the Property. GEP shall strictly adhere to any limitations or restrictions on
construction methods or techniques as set forth in the approved construction plans and
specifications,in the License Agreement,and any Exhibits thereto. After completion of the
initial construction of the Facilities and Improvements on the Property, Licensee and GEP shall
not construct additional Facilities and Improvements on the Property without specific written
approval of the Authority,which written approval, if given,may constitute a separate license or
an amendment to the Agreement.
(2) Licensee and GEP are hereby placed on notice of an existing
agreement between Virginia Electric and Power Company("VEPCO")and the Authority which
provides,in part,that the Authority shall not grant any right to use the Property for certain
purposes without Virginia Power's prior written approval. GEP shall be responsible for
obtaining Virginia Power's approval,and shall not enter or commence any work on the Property
until such written approval is obtained and a copy of said approval is provided to the Authority
by GEP. The license granted by this Agreement shall be contingent until the written approval of
VEPCO is obtained and provided to the Authority.
(3) Failure of GEP to comply with any provision of subparagraphs 2a(1)
or(2)above shall be deemed to be a violation of the Agreement subjecting GEP to the
Liquidated Damages provided for in Paragraph 9 hereof and to such other remedies as may be
available to the Authority.
b. Construction Schedule
(1) GEP shall submit to Authority for approval a proposed construction
schedule,indicating when construction will begin and be completed and construction milestones.
GEP also shall provide Authority a list of the names of all contractors and subcontractors who
will work on the Licensed Premises.
(2) GEP shall perform construction only in accordance with the approved
construction schedule. GEP shall notify Authority immediately of any changes to the approved
schedule. Such changes shall be subject to the prior written approval of the Authority.
(3) GEP shall provide notice to Authority at least two(2)business days
before entering the Property to perform any construction.
(4) Failure of GEP to comply with any provision of subparagraphs 2b(1)
(2)or(3)above shall be deemed to be a violation of this Agreement subjecting the GEP to the
Liquidated Damages provided for in Paragraph 9 hereof and to such other remedies as may be
available to the Authority.
c. catigiggfaggagaiggAslitty. During construction,GEP and its
contractors and subcontractors shall confine all construction activity,including access and
storage,within the applicable areas specified on the approved plans and any exhibits thereto.
Failure of GEP to comply with any provision of this subparagraph shall be deemed to be a
violation of the Agreement subjecting GEP to the Liquidated Damages provided for in Paragraph
9 hereof and to such other remedies as may be available to the Authority.
d. Excavation
(1) Licensee or GEP shall not make or begin any excavation or other
subsurface activity on the Property without first obtaining information concerning the possible
location of any underground facility from each and every public utility,municipal corporation,or
other person having the right to bury underground facilities on the Property.
(2) Licensee or GEP shall not make or begin any excavation or other
subsurface activity on the Property without having all underground facilities located by suitable
markers or other means by the owners of such underground facilities or other qualified or
authorized persons.
(3) Obtaining the information required by subparagraphs(1)and(2)of
this paragraph does not excuse Licensee or GEP from making all excavation or other subsurface
activity in a careful and prudent manner.
(4) In the event of any damage to or dislocation of any underground
2
facility in connection with the excavation or other subsurface activity,Licensee or GEP,as the
case may be,shall immediately notify the owner of such facility and shall immediately cease all
work in the affected area until repairs are complete. Any such incident shall be reported
immediately to the Authority,and no further excavation or subsurface activity shall be done until
permission is granted by the Authority.
(5) All excavation or other subsurface activity made by Licensee or GEP
shall be properly safeguarded for the prevention of accidents. All excavated or tunneled areas
shall be filled in or adequately secured at the and of each work day.
,.
(6) Failure of Licensee or GEP to comply with any provision of
subparagraphs 2d(1),(2),(3),(4)or(S)above shall be deemed to be a violation of the Agreement
subjecting the GEP to the Liquidated Damages provided for in Paragraph 9 hereof and to such
other remedies as may be available to the Authority.
e. Inspection of Construction.
(1) The construction of Licensee's Facilities and Improvements is subject
to the Authority's inspection at all places and all reasonable times to ensure strict compliance
with the terns of the Agreement.
(2) Authority inspections are for the sole benefit of the Authority and do
not constitute or imply acceptance of any work as conforming with the requirements of the
Agreement. The presence or absence of an Authority inspector does not relieve Licensee or GEP
from any contract requirement,nor is the inspector authorized to change any term or requirement
of this Agreement without the written authorization of the Authority's representative.
3. Maintenance and Operation
a. Licensee shall be responsible for maintaining and operating all Facilities
and hnprovements established by it on the Property,and shall perform such maintenance and
operations in a manner and at such frequency as necessary to keep the Property safe and to
protect against damage to the Property and adjoining properties.
b. Prior to commencement of any scheduled maintenance,or of any
operation activity that requires entry onto the Property, Licensee shall submit a proposed main-
tenance or operation plan and schedule to the Authority for approval. The plan and schedule,as
a minimum,shall provide a description of work to be performed,a description of equipment,
vehicles,work techniques and methods to be used in connection with the maintenance or
operation activity,a schedule of when maintenance or operation work will occur with an
estimate as to the length of time required to perform the work,and such other information as the
Authority may need in order to evaluate the proposed maintenance or operation activity.
c. Licensee shall perform maintenance and operation of the Facilities and
Improvements strictly in accordance with plans and schedules that have been approved in writing
by the Authority. Licensee shall not deviate from or make changes to the maintenance or
3
operation plans and schedules approved by the Authority without the Authority's prior written
approval.
d. Licensee shall provide notice to Authority at least forty-eight(48)hours
before entering the Property to maintain or operate Licensee's facilities;except in the case of an
emergency where Licensee cannot provide the required advance notification,Licensee shall
notify Authority as soon as practicable.
e. Licensee shall confine all maintenance and operation activities,including
access and storage,within the applicable areas specified in the approved maintenance and
operation plans.
f. Licensee shall avoid disturbing the Property and any improvements
thereon while maintaining or operating Licensee's Facilities and Improvements. To the extent
any disturbance does occur,Licensee shall restore such disturbed areas in accordance with the
requirements set forth in Paragraph 4.
g. The Authority agrees to consider and,at its discretion,grant appropriate
blanket approvals for scheduled maintenance or operation activities. In such event,Licensee
shall be required only to provide the required advanced notification prior to commencing
scheduled maintenance or operations for which the Authority previously has granted a blanket
approval.
h. In addition to any other condition which the Authority may require in
consideration for approval of any maintenance or operation plan,if any maintenance or operation
activity of Licensee would disturb or disrupt the land or any improvement on the Property,or
would interfere with the Authority's or public's use and enjoyment of the Property,the Authority
may impose upon Licensee reasonable charges and constriction deposits(over and above any
other payments or construction deposits required under the License Agreement)to cover its costs
of reviewing,approving, administering,overseeing and inspecting the maintenance or operation
activity,and to ensure the safety and well being of the public and the proper and timely
restoration of the Property.
4. Restoration
a. Licensee or GEP,as the case may be,shall,as soon as practicable after the
completion of any construction,operation or maintenance activities,restore all areas distutbed
during such activities.These areas shall be restored in kind to a condition substudially the same
as that which existed prior to Licensee's or GEP's performing such activities,and shall be
restored to the satisfaction of the Authority,taking into consideration aesthetics as well as
structural or design integrity.
b. Disturbed areas must be backfilled and compacted consistent with the
original conditions. Where subsoil is tamped,the disturbed area will be filled to a level in kind.
Disturbed areas will be reseeded or sodded in kind. Seeding required for restoration shall be of a
mixture approved by the Authority. Any subsequent settling of disturbed areas will be repaired
4
in kind. Licensee or GEP,as the case may be,shall be responsible for any erosion which may
occur as a result of Licensee's or GEP's use of the Licensed Premises,and Licensee or GEP shall
restore any eroded area until stabilized.
c. In the event any asphalt paths on the Trail are cut or are otherwise
damaged or disturbed,repairs shall be made in accordance with the following minimum
requirements;
(1) pavement shall be saw cut and shall have straight,clean edges;
(2) all debris shall be hauled from the Property;
(3) the disturbed area shall be backfilled with approved material
compacted to ninety-five percent(95%)of theoretical density as determined by standard proctor.
(4) a minimum of six inches(6")of VDOT type 21-A aggregate base
shall be placed and compacted;
(5) base shall be prime coated at the rate of.3 gallons per square yard
with VDOT type MC-70 or RC-250 liquid asphalt;all existing asphalt edges shall be cleaned and
tack coated;
(6) a minimum of two inches(2"),or the depth of the existing asphalt,
whichever is greater,of VDOT type SM-9.5 hot-mix asphalt shall be placed and properly
compacted;
(7) all adjacent stone or turf shoulder shall be baccfilled flush with the
pavement edge and said turf areas seeded in accordance with the requirements in subparagraph
4b above;and
(8) the standard minimum dimensions for patched or replaced asphalt
shall be a square the width of the Trail by an equal length.
d. If the disturbed area is on a part of any path in use by the public,Licensee
or GEP,as the case may be,shall immediately restore the disturbed area with a temporary patch
until the asphalt can be permanently restored in accordance with the requirements of this
paragraph 4. Failure of GEP to comply with any provision of this subparagraph shall be deemed
to be a violation of this License Agreement subjecting GEP to the Liquidated Damages provided
for in paragraph 9 hereof and to such other remedies as may be available to the Authority.
e. The Authority may restore any areas in case of neglect by Licensee or
GEP. Licensee or GEP shall pay the cost of such restoration,including the cost of inspection
and supervision.
5. Approvals
5
•
Whenever the License Agreement requires Licensee or GEP to submit plans,
specifications,schedules or other items to the Authority for approval,the Authority shall review
and approve,disapprove,or take other appropriate action with reasonable promptness after
receipt of the required submittal. The Authority's approval of any submittal shall not be deemed
to be a waiver of any requirement of the Agreement unless such waiver is explicit and in writing
and specifically references the requirement of this Agreement that is being waived.
6. Assaf
Licensee and GEP shall enter and exit the Property during the term of the License
Agreement only at those places and by those means specified on the approved construction plans
and specifications and in the Agreement,including the attached exhibits. Failure of GEP to
comply with any provision of this Paragraph shall be deemed to be a violation of this Agreement
subjecting GEP to the Liquidated Damages provided for in Paragraph 9 hereof and to such other
remedies as may be available to the Authority.
7. General Responsibilties of GEP_and Licensee
a. Compliance with Applicable Laws and Regulations. Licensee and GEP
shall construct,operate,and maintain its Facilities and Improvements in accordance with all
applicable federal,state,and county laws,orders,rules,and regulations existing on the date of
the Agreement or enacted thereafter affecting Licensee's and GEP's use of the Property,and
Licensee and GEP shall assume all costs,expense,and responsibility in connection therewith.
b. Manner of Performance. Licensee and GEP shall construct,operate,and
maintain its Facilities and Improvements in an orderly and workmanlike manner. The safety of
the general public,Licensee's and GEP's employees and all property shall be of paramount
importance whenever or wherever Licensee or GEP operates on the Licensed Premises.
c. Permits. Prior to commencement of any work Licensee or GEP shall
secure and pay for all permits and government fees,licenses,and inspections necessary for the
proper construction,operation,and maintenance of Licensee's Facilities and Improvements.
d. 5. jimaillangsklmeitioxish. Licensee or GEP shall not store
flammable,explosive,or other hazardous materials on the Property,and no materials shall be
piled higher than fifteen(15)feet above ground level.
e. jaisrformg. Licensee's Facilities and Improvements shall be constructed,
operated,and maintained in a safe and proper manner so as not to endanger the general public,
interfere with the public's use and enjoyment of the Park,Trail and Property,or interfere with
any improvements on the Property.
f. t icen_ee's int GEP's Personnel. Except as otherwise specifically
authorized in the Agreement,employees of Licensee and GEP and their agents and contractors
shall comply with all regulations governing the use of the Trail and Property in effect as of the
date of the Agreement or enacted thereafter.
6
g. Vdricles. Licensee and GEP shall operate on the Property only vehicles
and equipment approved by the Authority. No vehicles or other equipment shall be operated on
any trail,whether paved or unpaved,unless prior written approval has been granted by
Authority.
h. Failure of GEP to comply with any provision of subparagraphs 7a,b,c,d,
e,for g above shall be deemed to be a violation of this License Agreement subjecting GEP to the
Liquidated Damages provided for in paragraph 9 hereof and to such other remedies as may be
available to the Authority.
8. Warranty
Licensee and GEP warrant that they have inspected the Property and accept it in
its present"as is"condition. The Authority makes no representation or warranties,express or
implied,concerning the condition of the Property and shall have no responsibility for repairs and
maintenance during the term of the Agreement.
9. Liquidated 2810. s
a. At the sole and absolute discretion of the Authority, if GEP fails to comply
with ANY requirement of paragraphs 2a(1)or(2); 2b(1),(2)or(3);2c; 2d(1),(2),(3),(4)or(5);
4d;b;or 7a,b,c,d,e,f or g hereof,GEP shall,in place of actual damages,pay to the Authority,
as fixed,agreed,and liquidated damages for each day such failure to comply continues,the sum
of Five Hundred Dollars($ 00.0Q)(the"Liquidated Damages"); provided,however,that the
Authority will not assess Liquidated Damages for any violation beyond the control of GEP,its
employees,agents,contractors,invitees or representatives. GEP shall pay any Liquidated
Damages promptly upon receipt from the Authority of a written notice assessing such damages.
b. The assessment of Liquidated Damages pursuant to this Paragraph,(or the
Authority's election not to assess Liquidated Damages),does not restrict the Authority's power
to terminate the Agreement or otherwise enforce its terms.
c. On the third anniversary of the Agreement and every three years thereafter
during the term of the Agreement,the Liquidated Damages shall be increased by five percent
(5%).
10. Agibm:tY's Use of the Prorty
Nothing in the License Agreement shall be construed to prevent the Authority
from repairing,altering,relocating,or constructing existing and additional Trails or other
facilities on the Property. The Authority shall do such work,insofar as practicable,in a manner
not to obstruct,injure,or prevent the free use and operations of Licensee's Facilities and
Improvements. If any property of the Licensee shall interfere with Authority's planned
alterat ion,relocation,or construction, Licensee shall remove such property at such time and in a
manner as shall reasonably be directed by the Authority so that such property shall not interfere
7
with the work of the Authority. Such removal or replacement of Licensee's property shall be at
the expense of Licensee. Authority agrees to cooperate with Licensee and to use its best efforts
to accomplish any alterations,relocations,or construction of the Trail and Property in a manner
least intrusive to the privileges of Licensee under this License Agreement.
11. Aghg y'$and Licensee's Revresen fives
a. The Authority, Licensee,and GEP shall each designate a representative
who shall have the duty to coordinate all aspects of Licensee's and GEP's use of the Licensed
Premises and have the authority to render decisions and bind the parties upon matters which
necessitate input or decisions. Any change of a party's representative shall be made in writing,
and any such change shall not be effective until receipt of the writing by the other party. The
Authority hereby designates its Director of Planning and Development as its representative.
b. The Authority's representative shall,at all times,have access to
Lice rsee's and GEP's construction,operation,and maintenance work whenever and wherever it
is in preparation or progress.
12. Maintenance of Records
Licensee and GEP shall keep accurate maps and records,including the approved
as-built construction plans and specifications,of its Facilities and Improvements located on the
Property and shall make available to the Authority such maps and records when requested.
13. S f t
a. Licensee and GEP shall take adequate precautions(i)to insure the safety
of the general public as well as Licensee's,GEP'S and Authority's employees,(ii)to protect the
Property,and(iii)to assure safe operation of Licensee's Facilities and Improvements including,
but not limited to,marking any temporary changes to the Trail and providing snow fences and
other barricades.
b. Whenever Licensee's or GEP'S Facilities and Improvements or related
construction,operation,or maintenance activities of Licensee or GEP create a serious hazard to
public safety or welfare, Licensee or GEP,as the case may be shall take all reasonable actions to
abate immediately the hazard and shall immediately notify the Authority and any other affected
parties of such incidents. The Authority shall have the right to direct Licensee or GEP to halt
any construction,operation,or maintenance activity for noncompliance with the provisions of
this Agreement or when the Authority believes it to be necessary to protect the public's welfare
or safety.
c. The Authority shall have the right,without notice to Licensee or GEP,to
correct any condition in case of an emergency.
14. Indemnification
8
To the extent allowed by law,and without waiving Licensee's defense of
sovereign immunity,Licensee and GEP assume full responsibility for injuries to or death of any
person,for damages to its property,property of the Authority and the property of third parties,
and for expenses arising out of Licensee's or GEP'S operations on the Property. Licensee and
GEP agree to be responsible,in accordance with applicable law,for the acts and negligence of its
officers,agents and employees which cause injury to persons or damage to property. Notwith-
standing the provisions of this clause, Licensee and GEP shall not be liable for property damage
or personal injuries caused solely by the negligence or willful misconduct of the Authority.
15. No Waiver
Nothing contained in the Agreement shall be deemed to waive the requirements of
the various codes,regulations,resolutions and statutes regarding permits,fees to be paid,or
manner of construction,operation,or maintenance.
16. Assignment
No assignment,conveyance, apportionment,transfer or sublicense by Licensee or
GEP of the Agreement or any rights hereunder as to any other parties(other than to its customers
in the regular course of business) shall be made without the prior written consent of the
Authority,which consent may be given or withheld in the Authority's sole discretion
17. Entire Agt
The Agreement(and any exhibits hereto)embodies the entire agreement between
Authority,Licensee,and GEP. It is not to be modified or terminated except as provided herein
or by any written agreements signed by the authorized representatives of the parties. If any
provision herein is invalid,it shall be considered deleted herefrom and shall not invalidate the
remaining provisions.
18. Attorney's Fees
In the event the Authority retains counsel to enforce its right or protect its
interests pursuant to the Agreement,whether or not any formal action is instituted,GEP shall,in
addition to and not in lieu of Liquidated Damages,be responsible for all such fees and related
costs incurred by the Authority.
9
19. Applicable Law
The parties agree that the laws of the Commonwealth of Virginia will govern the
License Agreement.
LICENSEE:
TOWN OF LEESBURG
By:
Name: r� ., 21w1ijks
Title. r7",,.,,� :r-
GEP:
GREEN ENERGY PARTNERS/STONEWALL LLC
By. /
Name: Levu Ne sxy
Title: Dtvteioem fr r /hir v.gs c'!c
AUTHORITY:
NORTHERN " INIA ' TONAL PARK AUTHORITY
By:
Name: Todd .
Title: Director of Planning and Development
10