[HISTORY: Adopted by the Township Committee
of the Township of Kingwood 12-16-1996 by Ord. No. 9-14-96. Amendments noted
where applicable.]
Pursuant to N.J.S.A. 48:3-11, the Township Committee
of Kingwood Township hereby grants to N.U.I. Corporation, doing business
as Elizabethtown Gas Company, a corporation of the State of New Jersey
(hereinafter "Elizabethtown") with principal offices located at One
Elizabethtown Plaza, Union, New Jersey, its successors and assigns,
a nonexclusive consent, right and privilege for the use, without impairment
of or obstruction to the public use, of the roads, streets, avenues
and ways of the Township of Kingwood to construct, lay, maintain and
operate for a period of 10 years the necessary mains, conductors,
pipes and concomitant appurtenances for the purpose of conveying,
storing, supplying and distributing natural and mixed gas for heat,
power, light and other purposes for public and private use and consumption
and along, in or under.
[Amended 7-20-1998 by Ord. No. 9-4-98]
The municipal consent granted to N.U.I. Corporation,
d/b/a Elizabethtown Gas Company shall be limited to the "service area"
which is hereby defined as the area known as the New Jersey State
Highway Route 12 corridor, and more specifically, those portions of
the Township zoned HC, VR-1, VC-2, BP and PO/R (with the exception
of VC-1 in Barbertown) on the Zoning Map adopted as part of the Development
Regulations of the Township of Kingwood,[1] and including the rights-of-way of the Township of Kingwood
located within said area and also specifically Willow Road, and the
area within the Kingwood Township right-of-way extending from the
intersection of Route 12 with and in a southwesterly direction along
Barbertown-Point Breeze Road, approximately 2,000 ± feet to
and including the property of Magnesium Elektron, Inc. (500 Barbertown-Point
Breeze Road). In addition to providing gas service to the commercial
and industrial and business park facilities located in the said service
area, Elizabethtown Gas Company is granted the right to provide service
to any other residential, commercial, industrial or office facilities
within the limited service area, so long as that service is provided
by way of a tap into Elizabethtown's single distribution line and
does not require any extension of said limited distribution line.
The municipal consent granted for the service area is limited, and
Elizabethtown shall not use any of its mains and pipes within the
defined service area for the transmission, transportation or delivery
to any other area or zone or properties, blocks or lots within the
Township of Kingwood except as those specifically enumerated herein.[2]
The municipal consent granted herein is expressly
conditioned upon the following:
A.Â
The written acceptance of Elizabethtown of the terms
and conditions of this municipal consent ordinance within 30 days
of its final adoption.
B.Â
The New Jersey Board of Public Utilities' (N.J.B.P.U.)
approval of the consent herein granted, and the issuance of such other
grants or approvals as determined by the N.J.B.P.U.
C.Â
Elizabethtown shall satisfy all statutory requirements
of N.J.S.A. 48:3-1 et seq. regarding the proper organization and operation
of a public utility engaged in the distribution of natural and mixed
gas and shall remain subject to the jurisdiction of and comply with
all rules and regulations of the United States Department of Transportation,
Office of Pipeline Safety and the New Jersey Board of Public Utilities,
as well as the ordinances of the Township of Kingwood.
D.Â
Elizabethtown shall construct and continuously maintain
and operate the distribution line within the service area in a safe
and efficient manner and maintain such gas distribution lines in a
state of good operation and repair, including all streets, roads and
public rights-of-way within the Township of Kingwood wherein its lines
are located.
E.Â
The granting of limited municipal consent within the
limited service area and the construction, operation and maintenance
of the gas distribution system within the rights-of-way of the Township
shall in no way place any obligation, financial or otherwise, or any
liability of any kind upon the Township of Kingwood, and no obligation
is to attach for the construction, operation and maintenance of said
gas distribution system to the Township.
F.Â
Any and all regulating pits or venting structures
or like facilities shall not be located along the public rights-of-way
comprising the service area.
A.Â
Construction. In each and every case in which road
openings or excavation of any nature are required or made for the
purposes aforesaid, Elizabethtown shall restore all such public and
private lands or facilities to as good a condition as existed at the
commencement of said work or such better condition, at its sole cost
and expense. All such openings and installation and maintenance shall
be undertaken in strict compliance with the standards imposed by the
Board of Public Utilities, any other regulatory agency and all applicable
Township ordinances with such work to be done in a careful, prudent
and workmanlike manner and within such time limitations as shall be
best for the proper safeguard of the public.
B.Â
Relocation. If at any time during the period of this
municipal consent, the Township of Kingwood finds it necessary to
alter or change the grade of any street, road or other public right-of-way
or area, Elizabethtown shall, upon reasonable notice by the municipality,
remove and relocate its distribution line and pipes at the expense
of Elizabethtown.
C.Â
Restoration. In the event that Elizabethtown shall
refuse or neglect, after 10 days' notice in writing by the representative
of the Township, that is, the Township Clerk or Township Engineer,
to restore any disturbed area at its cost and expense and in compliance
with all applicable municipal ordinances in effect at that time to
its pre-existing or better condition any street, road, pavement, driveway
or other surfaces after having made an opening or excavation, the
necessary work to accomplish such restoration may be done by the Township
of Kingwood, and thereafter Elizabethtown shall be liable for the
actual and necessary costs thereof and shall immediately pay such
costs to the Township upon receiving notice thereof.
D.Â
Precondition to undertaking construction. Elizabethtown
shall give to the Township of Kingwood, through its duly designated
representative, written notice of its intention to open or excavate
any street or other public place in accordance with the Township of
Kingwood's ordinance regulating the excavation and opening of streets,
roads and highways, with the exception that such notice requirement
shall be waived in the event of an emergent circumstance such that
such emergency will affect public health or safety. As soon as practically
possible after the occurrence of such emergent circumstance, Elizabethtown
shall give prompt written notice to the Township of any emergency
opening or excavation that Elizabethtown shall undertake.
A.Â
Indemnification. Elizabethtown, its successors and
assigns, by the acceptance of the grants, rights and privileges conferred
by this ordinance, shall at all times and does hereby and will indemnify
and hold harmless the Township of Kingwood and all of its subsidiary
agencies, officials and employees from any and all claims of whatsoever
kind or nature arising from or relating to the construction, installation,
maintenance, laying, repairing, inspecting or altering of mains, conductors,
pipes and appurtenances thereto and any other facilities including,
but not by way of limitation, any damages, penalties, costs, attorney's
fees and charges for personal injury, property damage or otherwise,
based upon Elizabethtown's negligence or the negligence of its agents,
servants, employees or independent contractors.
B.Â
Performance bond. Prior to the commencement of any
construction or installation under this municipal consent, Elizabethtown
shall execute and deliver to the Clerk of the Township, and subject
to prior review and approval by the Township Attorney, a bond in the
amount of $10,000 guaranteeing the faithful performance of all of
its obligations and undertakings under this ordinance, which bond
shall be enlarged or renewed, from time to time as the Kingwood Township
Committee may require.
C.Â
Liability insurance. Elizabethtown agrees to maintain
and keep in full force and effect, at its sole expense and at all
times during the term and duration of this municipal consent, sufficient
liability insurance naming the Township of Kingwood as an additional
insured party and insuring and indemnifying the Township against any
loss by any such claim, suit, judgment, execution or as follows:
(1)Â
Elizabethtown shall carry workmen's compensation insurance
with statutory limits.
(2)Â
Elizabethtown shall at all times maintain a comprehensive
general liability insurance policy with a single limit amount of $1,000,000
covering liability for any death, personal injury, property damage
or other liability arising out of its construction and operation of
the gas distribution systems herein and, in addition, an excess liability
(or "umbrella") policy in the amount of $3,000,000.
(3)Â
Elizabethtown shall furnish to the Township of Kingwood
a certified copy or certificate of insurance of each of the policies
as set forth herein.
A.Â
Term. The limited municipal consent granted to Elizabethtown
herein is for a period of 10 years from the effective date of this
ordinance.[1]
[1]
Editor's Note: Ordinance No. 15-23-2008, adopted
10-7-2008, extended the limited mutual consent granted to Elizabethtown
Gas Company for a period of 10 years from its effective date; Ord.
No. 16-23-2011, adopted 9-1-2011, provided for the extension of the
limited mutual consent for a term of 15 years from the expiration
of the consent granted by Ord. No. 9-14-96.
B.Â
Public hearing. Immediately prior to the ten-year
expiration of consent, the Township of Kingwood shall conduct public
hearings regarding the performance of Elizabethtown with the terms
of this municipal consent. The public hearing shall be duly advertised
and shall provide any opportunity for all interested persons to participate.
C.Â
Extension. Upon the conclusion of the public hearings
as set forth herein, the Township of Kingwood shall consider such
extension and such additional conditions as the record of the public
hearings may warrant.
D.Â
Transferability. The right of Elizabethtown to transfer
or assign any and all of its rights and obligations under this limited
municipal consent ordinance shall only be permitted upon Elizabethtown
providing to the Township 30 days' advance written notice of such
intent to transfer and specifying the name of the assignee and other
pertinent data as may be required by the Township. No transfer or
assignment shall be made without the prior written consent of the
Kingwood Township Committee, which consent shall not be unreasonably
withheld. Any notice or request for assignment must contain the written
acknowledgment of the proposed assignee to be bound by all of the
terms and conditions of this limited municipal consent ordinance and
shall require the posting of a replacement performance bond and satisfaction
of the liability insurance requirements prior to any written consent
to transfer by the Kingwood Township Committee.
E.Â
Notice of proceedings. Elizabethtown shall give the
municipality timely written notice of at least 15 days in advance
of all proceedings initiated by Elizabethtown or the B.P.U. or other
regulatory agency when such proceedings may affect the commitments,
municipal consent or relationship between Elizabethtown and the municipality,
whether or not such notice is required by law. All submissions provided
to such regulatory agency by Elizabethtown shall also be provided
to the Township of Kingwood.
If the provision of any article, section, subsection,
paragraph, subdivision or clause of this ordinance shall be judged
invalid by any court of competent jurisdiction, such order or judgment
shall not affect or invalidate the remainder of any such article,
section, subsection, paragraph or clause and, to this end, the provisions
of this ordinance are hereby declared to be severable.
This municipal consent ordinance shall become
effective upon adoption and publication according to law and only
upon written acceptance of this limited municipal consent by Elizabethtown,
which written consent shall be filed with the Clerk of the municipality
within 30 days of the date after which Elizabethtown receives notice
of the passage of this ordinance.