ORDINANCE NO. BL2011-943

ORDINANCE NO. BL2011-943

An ordinance authorizing Omni Nashville, LLC to install, construct and maintain an underground encroachment in the rights of way of 4th Avenue South and 5th Avenue South (Proposal No. 2011M-001EN-001).

WHEREAS, Omni Nashville, LLC plans to install, construct and maintain an underground encroachment within the public the rights-of-way of 4th Avenue South and 5th Avenue South between Franklin Street (future Korean Veterans Boulevard) and Demonbreun Street, under proposal No. 2011M-001EN-001; and,

WHEREAS, Omni Nashville, LLC’s plans for said encroachment includes the installation of foundation walls as well as some miscellaneous landscaping and irrigation lines within the public the rights-of-way of 4th Avenue South and 5th Avenue South between Franklin Street (future Korean Veterans Blvd.) and Demonbreun Street; and,

WHEREAS, Omni Nashville, LLC 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 or arising from the installation of said encroachment under proposal No. 2011M-001EN-001.

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 contained herein and in the attached License Agreement, Omni Nashville, LLC is hereby granted the privilege to construct and maintain said encroachment under proposal No. 2011M-001EN-001, in accordance with the plans which are on file in the office of the Director of Public Works, and which are more particularly described by lines, words and figures on the attached sketches which are attached to and made a part of this Ordinance.

SECTION 2. That the authority granted hereby for the construction, installation, operation, and maintenance of said encroachment under proposal No. 2011M-001EN-001 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 Omni Nashville, LLC.

SECTION 3. That plans and specifications for said encroachment under proposal No. 2011M-001EN-001 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 its use by Omni Nashville, LLC.

SECTION 4. That construction and maintenance of said Omni Nashville, LLC under proposal No. 2011M-001EN-001 shall be under the direction and supervision and control of the Director of Public Works, and its installation, when completed, must be approved by said Director.

SECTION 5. That this Ordinance confers upon Omni Nashville, LLC 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 Metropolitan Government, Omni Nashville, LLC, its successors and assigns, shall remove said encroachment at their own expense.

SECTION 6. Omni Nashville, LLC, its successors and assigns, shall pay all cost incident to the construction, installation, operation and maintenance of said encroachment under proposal No. 2011M-001EN-001 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 the construction, installation, operation and maintenance of said encroachment 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. Omni Nashville, LLC, its successors and assigns, shall be responsible for the expense, if any, of repairing and returning right-of-way to the condition, which it was in prior to the installation of, said encroachment, and for any street closure.

SECTION 7. That the authority granted to Omni Nashville, LLC 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. Omni Nashville, LLC shall be and it is hereby required to furnish The Metropolitan Government of Nashville and Davidson County a certificate of commercial general liability insurance, naming The Metropolitan Government as an additional insured party, of not less than one million ($1,000,000) dollars per occurrence and at least two million ($2,000,000) 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, installation, operation and maintenance of said encroachment. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to Metro. 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 by Omni Nashville, LLC of all provisions of this Ordinance shall be determined by the beginning of work.

SECTION 10. The authority granted pursuant to this Ordinance shall not become effective until the certificate of insurance, as required in Section 8, has been posted with the Department of Public Works.

SECTION 11. This Ordinance shall take effect from and after its adoption, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

LEGISLATIVE HISTORY
Introduced:	June 7, 2011
Passed First Reading:	June 7, 2011
Referred to:	Planning Commission Public Works Committee Planning & Zoning Committee
Passed Second Reading:	June 14, 2011
Passed Third Reading:	June 21, 2011
Approved:	June 22, 2011
By: