[Adopted 8-5-2013 by Ord. No. 13-07-01]
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:
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On this ______ day of ______________, 2013, Chesapeake Utilities
Corporation hereby accepts the terms of this ordinance passed on the
______ day of _____________, 2013 entitled:
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"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."
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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.
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.