An ordinance authorizing Nashville Data Link, Inc., to construct, install, and maintain fiber optic cable within Davidson County, Tennessee, all of which is more particularly described herein (Proposal No. 2004M-032U-11).

WHEREAS, Nashville Data Link, Inc., plans to construct, install and maintain approximately 9.2 miles of telecommunications cable within the borders of Davidson County; and

WHEREAS, Nashville Data Link, Inc., has represented to the Metropolitan Government of Nashville and Davidson County that it will not be using this cable to offer local exchange telecommunications service to retail customers located in Davidson County; and

WHEREAS, Nashville Data Link, Inc., has agreed to indemnify and hold The Metropolitan Government of Nashville and Davidson County harmless of any and all claims for damages of every nature and kind resulting from or growing out of the installation of said cable.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. That subject to the requirements, limitations and conditions, Nashville Data Link, Inc., is hereby granted the privilege to construct and maintain telecommunications cable, along the following routes:

Segment 1. From a point 100 feet north of the intersection of Lebanon Pike and McGavock Pike, proceeding south on McGavock Pike to Lebanon Pike, thence east on Lebanon Pike to the Wilson County Line. This segment is approximately 7.01 miles and is aerial;

Segment 2. From a point 300 feet east of the Arlington Avenue and Elm Hill Pike intersection, proceeding aerially west along Elm Hill Pike to Arlington Avenue, then proceeding south on Arlington Avenue approximately 0.3 miles. At this point the segment proceeds underground and continues south along Arlington Avenue, crossing Murfreesboro Road (Highway 41). The segment resumes aerially south of Murfreesboro Road (Highway 41) along Arlington Avenue to Hill Avenue, thence east on Hill Avenue, continuing aerially to a building entrance on the south side of 320 Hill Avenue. The aerial portion of this segment is approximately 0.7 miles and the underground portion is approximately 0.1 miles;

Segment 3. From an existing splice enclosure at the intersection of Fesslers Lane and Murfreesboro Road (Highway 41), proceeding aerially east to the intersection of Murfreesboro Road (Highway 41) and Crutchfield Avenue, thence continuing south along Crutchfield Avenue to Hill Avenue. At this point the segment turns east and proceeds underground to the building entrance on the north side of 320 Hill Avenue. The aerial portion of this Segment is approximately 1 mile and the underground portion is approximately 0.2 miles; and

Segment 4. From a point 900 feet north of Lakemont Drive on Franklin Pike (Highway 31) proceeding north on the west side of Franklin Pike (Highway 31). This segment is approximately 0.19 miles and is underground.

Section 2. That the authority granted hereby for the construction, installation, operation, and maintenance of the cable shall not be construed as a surrender by the Metropolitan Government of its rights or power to pass resolutions or ordinances regulating the use of its streets, or the right of the Metropolitan Government through its legislative body, in the interest of public necessity and convenience to order the relocation of said facilities at the expense of Nashville Data Link, Inc.

Section 3. That plans and specifications for said cable shall be submitted to the Director of Public Works of The Metropolitan Government of Nashville and Davidson County for approval before any work is begun; and all work, material, and other details of said installation shall be approved by the Director of Public Works prior to any use thereof.

Section 4. That construction and maintenance of said cable shall be under the direction and supervision and control of the Director of Public Works and the Nashville Electric Service, and its installation, when completed, must be approved by said Director.

Section 5. That this Ordinance confers upon Nashville Data Link, Inc., a privilege and not a franchise, and the Mayor and the Metropolitan Council herein expressly reserve the right to repeal this Ordinance, whenever, in their judgment, a repeal may be demanded by public welfare, and such repeal shall confer no liability on The Metropolitan Government of Nashville and Davidson County, its successors and assigns, by reason of said repeal. In the event of such repeal by said Metropolitan Government, Nashville Data Link, Inc., its successors and assigns, shall remove said cable at their own expense.

Section 6. Nashville Data Link, Inc., shall pay all cost incident to the construction, installation, operation and maintenance of said cable and shall save and hold The Metropolitan Government of Nashville and Davidson County harmless from all suits, costs, claims, damages or judgments in any way connected with said construction, installation, operation and maintenance of said cable and shall not claim, set up or plead, as a defense, in the event of joint liability, with or without suit, that it and the Metropolitan Government were joint wrongdoers. Nashville Data Link, Inc., shall be responsible for the expense, if any, of repairing and returning the cable route to the condition which it was in prior to the installation of said cable and for any street closure.

Section 7. That the authority granted to Nashville Data Link, Inc., as herein described, shall not in any way interfere with the rights of the Metropolitan Government, its agents, servants, and/or contractors and utility companies, operating under franchise from the Metropolitan Government to enter, construct, operate, maintain, repair, rebuild, enlarge, and patrol its now existing or future utilities, including drainage facilities, together with their appurtenances, and to do any and all things necessary and incidental thereto.

Section 8. Nashville Data Link, Inc. shall be and it is hereby required to furnish The Metropolitan Government of Nashville and Davidson County a certificate of public liability insurance, naming the Metropolitan Government as an insured party, of at least (i) One Million ($1,000,000) dollars aggregate, for the payment of any judgment had on any claim, of whatever nature, made for actions or causes of action arising out of, or connected with, the construction of installation of said cable as long as said cable is installed upon existing poles, or (ii) Ten Million ($10,000,000) dollars aggregate, for the payment of any judgment had on any claim, of whatever nature, made for actions or causes of action arising out of, or connected with, the construction of installation of said cable if the installation of said cable requires any excavation in the right of way of the Metropolitan Government. Said certificate of insurance shall be filed with the Metropolitan Clerk prior to the granting of a permit, and the insurance required herein shall not be canceled without the insurance company or companies first giving thirty (30) days written notice to The Metropolitan Government of Nashville and Davidson County.

Section 9. That said construction shall be carefully guarded and protected and shall be completed promptly, so as to cause the least inconvenience to the public. The acceptance of Nashville Data Link, Inc., of all provisions of this Ordinance shall be determined by the beginning of work.

Section 10. The provisions of this Ordinance shall only be effective for so long as Nashville Data Link, Inc., does not offer local telecommunications service to retail customers located in Davidson County; in the event that Nashville Data Link, Inc., commences to offer local exchange services as defined in Section 6.26.020 of the Metropolitan Code of Laws Nashville Data Link, Inc., shall request a franchise pursuant to Section 6.26.030 et seq. of the Metropolitan Code of Laws.

Section 11. That this Ordinance shall take effect immediately after its adoption, and after the posting of the insurance required in Section 8, with the Metropolitan Clerk, the public welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: David Briley

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LEGISLATIVE HISTORY
Introduced:	April 6, 2004
Passed First Reading:	April 6, 2004
Referred to:	Planning Commission – Approved 8-0 (May 27, 2004) Public Works Committee Planning & Zoning Committee
Deferred to May 18, 2004:	April 20, 2004
Passed Second Reading:	May 18, 2004
Passed Third Reading:	June 1, 2004
Approved:	June 2, 2004
By: