[HISTORY: Adopted by the Mayor and Council of the Town of Middletown as indicated in article histories. Amendments noted where applicable.]
[Adopted 8-5-2013 by Ord. No. 13-07-01[1]]
[1]
Editor's Note: This ordinance also repealed former Ch. A192, Gas Distribution Franchise, adopted 11-4-1991.
The franchise and right be and it is hereby granted to Chesapeake Utilities Corporation, its successors and assigns (hereinafter "Grantee") to construct, operate and/or maintain a gas distribution system and to lay, construct, extend, maintain, renew, replace and/or repair gas pipes and gas mains along, under and/or across the public streets, avenues, roads, alleys, lands, parks, and other public places and ways in the Town of Middletown, in the State of Delaware, and to use and occupy said streets, avenues, roads, alleys, lanes, parks and other public places and/or ways for the purpose of therein laying, constructing, extending, maintaining, renewing, replacing and/or repairing mains and pipes and all appurtenances and appendages thereto used and/or for the transmission, distribution, storage and/or sale of gas within and/or through the present or future corporate limits of the Town of Middletown, and such franchise and right to continue for 15 years from and after the date upon which this ordinance shall become effective.
Said franchise and right is granted subject to the following conditions:
A. 
The Grantee shall be entitled to charge for gas furnished by it such rates as shall be legally fixed and declared to be just and reasonable by the Public Service Commission of the State of Delaware. All rights herein granted and/or authorized shall be subject to and governed only by this ordinance; provided, however, the Town of Middletown expressly reserves unto itself all of its police power to adopt general ordinances necessary to protect the safety and welfare of the general public in relation to the rights hereby granted not inconsistent with the provisions of this ordinance.
B. 
The Grantee, prior to making an opening upon any of the streets, alleys or public ways of the Town of Middletown for the purpose of laying, repairing or maintaining gas mains, shall first notify the Town of Middletown and obtain all required permits from the Town of Middletown. All work shall be in accordance with the Town of Middletown Construction Manual and shall require a preconstruction meeting.
C. 
The Grantee, upon making an opening upon any of the streets, alleys or public ways of the Town of Middletown for the purpose of laying, repairing or maintaining gas mains, shall use due care and caution to prevent injury to persons and shall replace and restore all public ways to their former condition in accordance with any and all required permits, and within a reasonable time, and shall not unnecessarily obstruct or impede traffic upon the streets, avenues and public ways of the Town of Middletown.
D. 
The Grantee, for itself, its successors or assigns, covenants and agrees to indemnify and hold harmless the Town of Middletown, its directors, officers, agents, employees or designees, of and from any and all damage, injury, claim, penalty, judgments, costs, charges, expenses (including reasonable attorney's fees) and/or any other liability of any nature to the extent said claim arises directly or indirectly from the exercise of Grantee's right, privileges and franchise granted herein, including, but not limited to, any liability by reason of the distribution of gas set forth herein, and in connection therewith, the operation or use of the public streets, avenues, roads, alleys, lands, parks, and other public places and ways in the Town of Middletown by Grantee. Notwithstanding the foregoing, Grantee shall not be obligated to indemnify the Town of Middletown, its directors, officers, agents, employees or designees for any claim or liability to the extent said claim arises directly or indirectly out of the negligence of the Town of Middletown, its directors, officers, agents, employees, or designees. It is expressly understood and agreed that Grantee is and shall be deemed to be an independent contractor for the purposes set forth herein and shall therefore be solely responsible to all parties for its respective acts and/or omissions. This indemnification shall survive the termination of this franchise.
E. 
The Town of Middletown reserves the right to require Grantee to post an appropriate bond, as determined by the Town of Middletown, to ensure the satisfactory restoration of the franchise area following the completion of work.
F. 
Whenever the Town of Middletown causes the construction of any public works project within the franchise area, or on public grounds, and such construction necessitates the relocation of Grantee's facilities from their existing location within the franchise area or on such public grounds, such relocation will be at no cost to the Town of Middletown.
G. 
In the event an emergency posing a threat to public safety or welfare requires the relocation of Grantee's facilities within the franchise area, the Town of Middletown shall give the Grantee notice of the emergency as soon as reasonably practicable. Upon receipt of such notice from the Town of Middletown, the Grantee shall endeavor to respond as soon as reasonably practicable to relocate the affected utilities.
H. 
Grantee shall be required to obtain any further rights and privileges from any abutting landowner as necessary.
I. 
Nothing herein contained shall be construed to grant unto Grantee any exclusive right, or to prevent a grant of similar privileges to other companies.
J. 
Nothing herein shall be construed as waiving or relinquishing any right of taxation that the Town of Middletown may have against Grantee or its property.
As used in this ordinance, the following terms shall have meanings indicated:
GAS
Includes manufactured, natural and/or commingled gas.
GRANTEE
Designates and shall be held to mean Chesapeake Utilities Corporation, a body corporate of the State of Delaware, it successors and assigns.
This ordinance shall be in full force and effect from and after its passage and upon its acceptance by the Grantee, such acceptance to be in writing and filed with the Secretary of the Town of Middletown and to be in substantially the following form:
On this ______ day of ______________, 2013, Chesapeake Utilities Corporation hereby accepts the terms of this ordinance passed on the ______ day of _____________, 2013 entitled:
"An ordinance granting to Chesapeake Utilities Corporation, a body corporate of the State of Delaware, its successors and assigns, the right and franchise to use and occupy the streets, avenues, roads, alleys, lanes, parks and other public places and ways of the Town of Middletown, State of Delaware, for constructing, maintaining, renewing, repairing and/or operating a gas distribution system, and other necessary means for transmitting, storing, distributing and/or selling gas within and/or through the Town of Middletown."
The rights and licenses granted under the terms hereof shall be, and hereby are, restricted to the transmitting, distribution, storing and/or selling of gas within the corporate limits of the Town of Middletown, inclusive of any annexation areas granted hereafter.
A. 
Except for any dispute between the Grantee and the Town of Middletown (individually a "Party" and collectively, the "Parties") that is subject to the exclusive jurisdiction of the Delaware Public Service Commission, any dispute between the Parties with respect to this franchise may be submitted to arbitration upon the request of either Party pursuant to the following procedures: Each Party shall within 30 days choose one arbitrator who shall sit on a three-member arbitration panel. The two arbitrators so chosen shall within 20 days select a third arbitrator to chair the arbitration panel. Arbitrators shall be knowledgeable in natural gas utility matters and shall not have any current or past substantial business or financial relationships with any Party to the arbitration. The arbitrators shall provide each of the Parties an opportunity to be heard and the Parties shall provide the arbitrators any requested information within 15 days of the request, and except as otherwise provided herein, the arbitrators shall generally conduct the arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Unless otherwise agreed, the arbitrators shall render a decision within ninety 90 days of appointment and shall notify the Parties in writing of such decision and the reasons therefore. The direct cost of the arbitration panel shall be divided equally between the Parties; all other costs shall be borne by the Party, which incurs them.
B. 
The decision of the arbitrators shall be final and binding upon the Parties, and judgment may be entered in any court having jurisdiction. The decision of the arbitrators may be appealed solely on the grounds that the conduct of the arbitrators, or the decision itself, violated the standards set forth in the Delaware Arbitration Act, or applicable law, including but not limited to, any rule or regulation of the Delaware Public Service Commission. The final decision of the arbitrators must also be filed with the Delaware Public Service Commission, or any other regulatory authority having jurisdiction, if it affects jurisdictional rules or facilities.
Insurance pursuant to this franchise shall be in accordance with the following conditions:
A. 
Subject to the provisions of § A192-7B below, Grantee shall purchase and maintain as appropriate to the work being performed such insurance as will protect Grantee from claims set forth below which may arise out of or result from the Grantee's execution of the work, whether such execution be by the Grantee or by any subcontractor or by any one directly or indirectly employed by them, or by any one for whose acts they are liable:
(1) 
Claims under workman's compensation, disability benefit and other similar benefit acts.
(2) 
Claims for damages because of bodily injury, occupational sickness or disease, or death of its employees.
(3) 
Claims for damages because of bodily injury, sickness or disease, or death of any person other than its employees.
(4) 
Claims for damages insured by usual personal injury liability coverage which are sustained by any person as a result of an offense directly or indirectly related to the employment of such person by the Contractor, or by any other person.
(5) 
Claims for damages because of injury to or destruction of tangible property, including loss of life resulting therefrom.
B. 
Certificates of insurance acceptable to the Town of Middletown shall be filed with the Town of Middletown prior to commencement of any work. If the Grantee has contractually retained a surveyor to perform surveying service in connection with any work performed hereunder through independent subcontractors, then the Grantee shall require the respective subcontractors to provide such professional liability insurance coverage with both the Grantee and the Town of Middletown being named as co-insured third parties on the professional liability insurance coverage of the respective subcontractors.
C. 
Any and all insurance coverage provided under this section of the franchise either the Grantee or any of the subcontractors shall be issued by insurance companies authorized to do business in the State of Delaware.
D. 
The Town of Middletown shall be added as an additional insured under Grantee's general public liability policy providing minimum coverage in the amount of $1,000,000 per occurrence and $2,000,000 in aggregate. Grantee shall, at its sole cost and expense, provide and keep in force a general liability insurance policy protecting and indemnifying Grantee and the Town of Middletown. A copy of a certificate of insurance for the referenced policy shall be provided annually to the Town of Middletown evidencing the validity of said insurance coverage.
E. 
Waiver of subrogation. Grantee and subcontractors, and their respective insurance carriers shall waive their right to subrogation against the Town of Middletown for workmen's compensation related injuries.
If any provision or provisions of this franchise shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Neither the Town of Middletown nor Grantee shall be liable for its failure to perform hereunder due to any occurrence beyond its reasonable control, including acts of God, fires, floods, wars, acts of sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations (whether valid or invalid including, without limitation, permits, delay or inability to obtain permits, priorities, requisitions, moratorium, allocations and price adjustment restrictions), inability to obtain material, power, equipment, transmission or transportation and any other similar or dissimilar occurrence.
This franchise, and the rights and obligations of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Delaware.
Upon the expiration of the aforesaid fifteen-year term, this franchise shall automatically renew from year to year until either party shall give at least six months' written notice of an intention to terminate this franchise, or until the Town of Middletown and Grantee enter into another franchise agreement.