(A) The company is hereby granted a nonexclusive right to construct, operate and maintain a gas utilities system within the town for the production, transmission, distribution and sale for gas to consumers and users within the town and to the town and any and all agencies and departments thereof.
(B) (1) To the extent that the town may legally do so, the company is hereby granted the right, authority and privilege, after written notice delivered to the town, to construct and install, operate, maintain, lay or relay, renew, replace and repair, (except no advance notice shall be required for emergency repairs) gas pipes, mains, pipelines, conduits, regulators, connections and services thereto hereinafter "facilities"), in, through, across, along and under streets, avenues, roads, public alleys, lanes, and such other town properties and facilities as may be approved by the Town Manager (hereinafter "public properties") in the town for the production, pumping, handling, transmission, distribution and sale of gas for any and all purposes, subject to the terms and conditions hereinafter set forth in this chapter. Such activities shall be conducted so as to minimize to the greatest extent practicable (within reasonable economic costs) inconvenience to the public, and damage to the area disturbed. All work shall be done with full consideration of the facilities and rights of others. All company activities shall be accomplished in accordance with the rules, regulations and standards of the North Carolina Utilities Commission and shall be subject to the provisions of the Kill Devil Hills Town Code. Company agrees to abide by all present and future laws, regulations and ordinances regulating utility cuts in public properties, but town shall not adopt any ordinance, rule or regulation which shall have the effect of modifying, amending, altering, or voiding all or any part of this franchise.
(2) Whenever the company shall cause any opening, excavation or alteration to be made in any public properties within the town in the construction, operation or maintenance of any of its facilities owned or used by it, the company shall repair and restore expeditiously such portions of such public properties to the same condition in which it found them as nearly as practicable. Additionally, if the company shall fail following completion of repairs to restore the area to its approximate former condition within a reasonable time, and a written notice is provided by the town to the company, the town may proceed after five calendar days notice by mail or personally delivered to company to restore such public properties as nearly as practicable to their original condition, and the town shall submit a statement of the costs for this restoration to the company. The company agrees to pay the town for these costs within 30 days. Interest at 9% per annum shall accrue on these costs beginning on the 31st day following the date that the town mails notice of such costs or the date that the town hand delivers such notice to company. Conflicts in elevations of company piping with town or other utilities that require adjustment of town or other utilities shall be at company's expense, and any damage to all such utilities while company is readjusting company facilities shall be the responsibility of company.
(3) In the case of temporary repairs, any opening, excavation or alteration in any public properties shall be backfilled immediately after the temporary repairs are finished, and the excavated area shall be kept in a safe condition by the company until the permanent repair is made. The permanent repair shall be made as expeditiously as possible.
(4) Except in emergency situations, the company shall not excavate in any public properties of the town until it shall obtain written approval from the town, which shall state in particular the location of proposed excavation and the approximate time to be required to complete the work at the excavated area. The town will act upon such requests within a reasonable time and shall not be unreasonable in refusing to grant approval of a company request. In no event though shall the town fail to cooperate with the company to reach agreement as to a commercially feasible method for the company to comply with its legal obligations in the provision of natural gas service. All excavations, back-filling and paving shall be subject to inspection by the town and shall be done according to the standard practice of the town in the installment of its water and sewer installations.
(5) In all cases where any public properties shall be excavated, disturbed or altered by the company, it shall take all precautions necessary or proper for the protection of the public and shall maintain adequate warning signs, barricades, signals and other devices necessary or proper to give adequate notice or warning to the public of the existence of all actual conditions and hazards present. Company shall undertake every reasonable option available to prevent creating a hardship to adjoining properties, including, without limitation, businesses and residences. Company agrees to abide by all present and future laws, regulations and ordinances regulating utility cuts in public properties, but town shall not adopt any ordinance, rule or regulation which shall have the effect of modifying, amending, altering, or voiding all or any part of this franchise.
(6) Whenever the town shall grade or re-grade any public properties in, along, under or across which the company shall have installed any of its facilities, and such grading or re-grading necessitates removal or relocation of such facilities for company to remain in compliance with federal or state law or regulation applicable to such facilities, it shall be the duty of the company, at the request of the town, at its own cost and expense, to promptly change said facilities so as to conform to the new grade which is then being or has been established.
(C) If the town decides to pave or repave a public property, it shall give 60 days prior notice to the company of the intention to pave or repave such street. When such notice is given, the company shall perform such work as the company deems necessary for the extension of new facilities or the repair or relocation of existing facilities within public property prior to the time the town begins paving or repaving of the public property. With prior written approval by the town, the company may perform such work as the company deems necessary for the extension of new facilities or the relocation of existing facilities within public property after one year from the date that specific portion of the public property has been paved or repaved or if required to serve a customer that requests natural gas service and the company can economically provide such service.
(D) This franchise is granted for a term of 30 years beginning May 25, 2005 and ending at midnight May 25, 2036. This franchise supersedes any and all former rights or franchises of the company to operate a gas utilities system in the town with respect to all acts and things done or admitted to be done, on or after May 25, 2006.
(E) The company agrees to pay an annual franchise tax equal to the amount set by the General Statutes of North Carolina and which sum shall be payable in accordance with such statutes. The grant of this franchise shall not cause the company to be liable for any other taxes, licenses or fees that it would not otherwise be chargeable with under state law.
(F) The company is hereby granted the right during the existence of this franchise to mortgage or hypothecate this franchise, together with all rights and privileges thereunder and any right or interest therein, as security for indebtedness, subject to acceptance by any legal successor in interest of the obligations, duties, liabilities, limitations and prohibitions set out herein and subject to the approval by the North Carolina Utilities Commission or other governmental agency the approval of which is required by law. The company shall not assign or transfer its rights under this agreement, provided, however, that this provision shall not prohibit the company from assigning its rights hereunder to the surviving corporation in any corporate reorganization in which the company is a party.
(Ord. 05-07, passed 5-25-05)