[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, 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.
The municipal consent granted herein is expressly conditioned upon the following:
The written acceptance of Elizabethtown of the terms and conditions of this municipal consent ordinance within 30 days of its final adoption.
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.
Elizabethtown shall satisfy all statutory requirements of N.J.S.A. 48:13-1 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
Elizabethtown shall carry workmen's compensation insurance with statutory limits.
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.
Elizabethtown shall furnish to the Township of Kingwood a certified copy or certificate of insurance of each of the policies as set forth herein.
Term. The limited municipal consent granted to Elizabethtown herein is for a period of 10 years from the effective date of this ordinance.
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.
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.
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.
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.
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.