ORDINANCE NO. BL2012-209

An ordinance authorizing MuniNet Fiber Agency to construct, install, and maintain fiber optic cable within Davidson County, Tennessee, all of which is more particularly described herein (Proposal No. 2012M-011EN-001).

WHEREAS: MuniNet Fiber Agency plans to construct, install and maintain approximately 4,237 feet of telecommunications cable within the borders of Davidson County; and

WHEREAS: MuniNet Fiber Agency 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: MuniNet Fiber Agency 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 construction, installation, operation and maintenance 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, MuniNet Fiber Agency is hereby granted the privilege to construct and maintain telecommunications cable along the following route:

MuniNet Fiber Agency wishes to install 4025 feet of fiber optic cable on poles owned by Nashville Electric Service from 2990 Sidco Drive to the intersection of Sam Wallace Road and Powell Avenue. The aerial fiber optic cable will be installed with a minimum of 18 feet of clearance above the public right-of-way. MuniNet Fiber Agency also wishes to install 212 feet of fiber optic cable installed in a 2” conduit buried at a depth of 4 feet in the ground from the TVA tower located at Powell Avenue to the Nashville Electric Service pole located 212 feet away at the entrance to Powell Avenue. The 212 feet of 2” conduit will be installed using a directional boring machine. Therefore, ground disturbance will be at a minimum.

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 MuniNet Fiber Agency.

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 MuniNet Fiber Agency 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, MuniNet Fiber Agency, its successor and assigns, shall remove said cable at their own expense.

SECTION 6. MuniNet Fiber Agency shall pay all costs 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, MuniNet Fiber Agency 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 MuniNet Fiber Agency, as herein described, shall not in any way interfere with the right 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. MuniNet Fiber Agency shall be and 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 injured party, of at least (5) Five Million ($5,000,000) 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 (5) Five Million ($5,000,000) 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 cancelled 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 MuniNet Fiber Agency 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 MuniNet Fiber Agency does not offer local telecommunications service to retail customers located in Davidson County; in the event that MuniNet Fiber Agency commences to offer local exchange services as defined in Section 6.26.020 of the Metropolitan Code of Laws, MuniNet Fiber Agency 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: Tony Tenpenny

LEGISLATIVE HISTORY
Introduced:	July 17, 2012
Passed First Reading:	July 17, 2012
Referred to:	Planning Commission - Approved Public Works Committee Planning & Zoning Committee
Deferred:	August 7, 2012
Passed Second Reading:	August 21, 2012
Passed Third Reading:	September 4, 2012
Approved:	September 7, 2012
By: