The Mayor and Council of the Borough of the Frenchtown hereby grant to Pivotal Utility Holdings, Inc., doing business as Elizabethtown Gas, a corporation of the State of New Jersey (hereinafter "Elizabethtown") with principal offices located at 520 Green Lane, Union, New Jersey 07083, its successors and assigns, an exclusive consent, right and privilege for the use, without impairment of, or obstruction to the public use, of the public roads, streets, avenues, and ways, of the Borough 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, along, in, or under the following described service area: all the public roads, streets, avenues, alleys, parks, parkways, highways, or other public places within the Borough as they now exist or may be hereinafter be laid out by the municipal authorities of the Borough or dedicated to the Borough.
The municipal consent granted herein is expressly conditioned upon the following:
a. 
The written acceptance of Elizabethtown of the terms and conditions of this chapter within 30 days of its final adoption.
b. 
The New Jersey Board of Public Utilities (hereinafter "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. 
Elizabethtown shall satisfy all statutory requirements 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 N.J.B.P.U. as well as the ordinance of the Borough.
d. 
Elizabethtown shall construct and continuously maintain and operate their 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 and including all streets, roads, and public rights-of-way within the Borough wherein its lines are located.
e. 
The construction, operation and maintenance of the gas distribution system within the rights-of-way of the Borough shall in no way place any obligation, financial or otherwise, or any liability of any kind, upon the Borough and no obligation is to attach for the construction, operation and maintenance of the said gas distribution system to the Borough.
f. 
Any and all regulating pits and venting structures or like facilities shall not be located within the public rights-of-way comprising the service area.
g. 
The provision of safe and reliable service to residents and businesses located in the Borough as required by law, rule and Elizabethtown's tariff.
a. 
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 the 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 N.J.B.P.U., the Hunterdon County Road Department, or any other regulatory agency, and all applicable municipal 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. Elizabethtown will comply with the specifications for restoration required by the Borough.
b. 
Relocation. If at any time during the period of this municipal consent the Borough 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. 
Restoration. In the event that Elizabethtown shall refuse or neglect, after 10 days' notice in writing by the representative of the Borough, that is, the Borough Clerk or Borough Engineer, to restore any disturbed area at its cost and expense, and in compliance with all applicable municipal ordinances in effect at the time, to its pre-existing or better condition, any street, road, pavement, driveway or other reserves after having made an opening or excavation, the necessary work to accomplish such restoration may be done by the Borough, and thereafter Elizabethtown shall be liable for the actual and necessary costs thereof, and shall immediately pay such costs to the Borough upon receiving notice thereof.
d. 
Preconditions to undertaking construction. Elizabethtown shall give to the Borough, through its duly designated representative, written notice of its intention to open or excavate any street or other public place in accordance with the Borough 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 Borough of any emergency opening or excavation that Elizabethtown shall undertake.
a. 
Indemnification. Elizabethtown, its successors and assigns, by the acceptance of the grants, rights and privileges conferred by this chapter, shall at all times and does hereby and will indemnify and hold harmless the Borough and all of its subsidiary agencies, officials and employees for 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, and 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. 
Performance bond. Prior to the commencement or any construction or installation under this municipal consent, Elizabethtown shall execute and deliver to the Clerk of the Borough and subject to prior review and approval by the Borough Attorney a bond in the amount of $80,000 guaranteeing the faithful performance of all of its obligations and undertakings under this chapter, which bond shall be enlarged or renewed from time to time as the Committee may require.
c. 
Liability insurance. Elizabethtown agrees to maintain and keep in full force and effect, at its sole expense, and at all times during the terms and duration of this municipal consent, sufficient liability insurance naming the Borough as an additional insured party, and insuring and indemnifying the Borough against any loss by any such claim, suite, judgment, execution or as follows:
1. 
Elizabethtown shall carry workman's compensation insurance with statutory limits.
2. 
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. 
Elizabethtown shall furnish to the Borough a certified copy or certificate of insurance of each of the policies as set forth herein.
a. 
Term. The limited municipal consent granted to Elizabethtown herein is for a period of 10 years from the effective date of this chapter.
b. 
Public hearing. Immediately prior to the ten-year expiration of this consent, the Borough shall conduct public hearings regarding the performance of Elizabethtown with the terms of this municipal consent. The public hearing shall be duly advertised as required by the laws of New Jersey for passage of an ordinance and shall provide any opportunity for all interested persons to participate. Notice and advertising shall be at the expense of Elizabethtown.
c. 
Extension. Upon the conclusion of the public hearings as set forth herein, the Borough shall consider such extension and such additional conditions as the record of the public hearings may warrant.
d. 
Transferability.
1. 
Except as provided in Subsection d2 below, the right of Elizabethtown to transfer or assign any and all of its rights and obligations under this municipal consent ordinance shall only be permitted upon Elizabethtown providing to the Borough 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 Borough. Except as provided in Subsection d2 below, no transfer or assignment shall be made without the prior written consent of the Borough, which consent shall not be unreasonably withheld. Any notice or request for assignment must contain the written acknowledgement of the proposed assignee to be bound by all 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 Borough Mayor and Council.
2. 
The Borough hereby consents to the transfer and assignment of Elizabethtown's right and obligations under this Municipal Consent Ordinance to ETG Acquisition Corp. This consent to transfer and assignment to ETG Acquisition Corp. will only be effective upon: i) completion of the acquisition of substantially all of Elizabethtown's assets by ETG Acquisition Corp.; ii) approval of said acquisition by the NJBPU; and iii) the Borough's receipt of the acknowledgment and agreement by ETG Acquisition Corp. to be bound by and honor all terms and conditions of this chapter, including compliance with the performance bond replacement and liability insurance requirements contained in this chapter. If that acquisition by ETG Acquisition Corp. does not occur, this consent shall not be deemed to give consent to Elizabethtown's transfer or assignment of any of its rights and obligations under this Municipal Consent Ordinance to any other entity.
e. 
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 N.J.B.P.U. or other regulatory agency, when such proceedings may affect the commitments, this limited 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 Borough.
If the provision of any article, section, subsection, paragraph, subdivision or clause of this chapter shall be judged invalid by any court of competent jurisdiction, such order or judgment shall not effect or invalidate this remainder of any such article, section, subsection, paragraph or clause, and, to this end, the provisions of this chapter 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 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.