ORDINANCE NO. BL2012-163

ORDINANCE NO. BL2012-163

An ordinance authorizing the Metropolitan Department of Law to compromise and settle its claims against XO Communications Services, LLC for unpaid right-of-way franchise fees; and authorizing the establishment of a franchise arrangement with XO; and further authorizing a two-year extension to Contract No. 16186 for the provision of dark fiber by XO to the Metropolitan Government.

WHEREAS, Metro brought a lawsuit against XO’s predecessor, XO Tennessee, Inc., captioned Metropolitan Government v. XO Tennessee, Inc., which is currently pending in Davidson County Chancery Court as case No. 02-679-IV (“the Lawsuit”); and,

WHEREAS, the Lawsuit relates to disputes between Metro and XO concerning the telecommunications franchise issued by Metro to XO’s predecessor in interest, U.S. Signal of Nashville, L.P., by Ordinance No. 094-1183 on or about October 18, 1994, and subsequently assigned to XO and consists of a “Telecommunications Franchise Contract by and between the Metropolitan Government of Nashville and Davidson County and US Signal of Nashville, L.P.” incorporating Substitute Ordinance No. 094-1103, including Amendment 1 thereto, as codified at Metropolitan Code 06.26.010 et seq., (the “Franchise”); and,

WHEREAS, the Franchise expired on its own terms on October 18, 2009; and,

WHEREAS, in the Lawsuit, Metro brought claims seeking to enforce certain terms of the Franchise or otherwise to collect compensation from XO for use of the public rights-of-way, and XO has brought counterclaims and/or defenses asserting, among other things, that the monetary and in-kind compensation provisions of the Franchise are unenforceable and that XO is entitled to compensation, or an offset, to whatever compensation it may be lawfully obligated to pay to Metro, based on Metro’s use of fiber optic cable and associated equipment installed by XO or its predecessors; and,

WHEREAS, Metro and XO wish to resolve the Lawsuit (including all claims, counterclaims and defenses raised) by signing the attached Settlement Agreement (Exhibit A) which includes certain payment terms for funds to be paid by XO to Metro and which also includes the establishment of a franchise arrangement with XO going forward; and,

WHEREAS, the Settlement Agreement also includes credits given by XO to Metro to be applied to the current dark fiber contract (Contract No. 16186) whereby XO provides dark fiber for Metro’s use, and also includes the attached two-year extension to Contract No. 16186, so that Metro can make full use of these credits (Exhibit B);

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

Section 1. The Metropolitan Department of Law is authorized to compromise and settle Metro’s claims against XO Communications Services, LLC for unpaid right-of-way franchise fees pursuant to the terms and conditions as contained in the attached Settlement Agreement (Exhibit A). The Settlement Agreement is hereby approved and authority is hereby given for the full execution thereof.

Section 2. The franchise arrangement with XO, going forward, as described in the Settlement Agreement (Exhibit A), is hereby established.

Section 3. The two-year extension to the dark fiber Contract No. 16186 (Exhibit B) is also hereby approved and authority is hereby given for the full execution thereof.

Section 4. Be it further enacted, that this ordinance shall take effect immediately after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

LEGISLATIVE HISTORY
Introduced:	June 5, 2012
Passed First Reading:	June 5, 2012
Referred to:	Budget & Finance Committee
Passed Second Reading:	June 12, 2012
Passed Third Reading:	June 19, 2012
Approved:	June 20, 2012
By: