ORDINANCE NO. BL2013-343

An ordinance authorizing Omni Nashville, LLC for the hotel project to install, construct and maintain underground and aerial encroachments in the right of way of 4th Avenue South, Korean Veterans Boulevard and 5th Avenue South (Proposal No. 2012M-021EN-001).

WHEREAS, Omni Nashville, LLC for the hotel Project, plans to install, construct and maintain underground and aerial encroachments in the right-of-way of 4th Avenue South, Korean Veterans Boulevard, and 5th Avenue South, under proposal No. 2012M-021EN-001; and,

WHEREAS, Omni Nashville, LLC for the hotel Project, plans to install, construct, and maintain underground encroachments which include a gas meter and bollards, (see Exhibit 02, no. 3) and Greenscreen attached to precast wall (see Exhibit 02, no. 4) in 4th Avenue South and a Monument Sign, (see Exhibit 02, no. 7) in Korean Veterans Boulevard, under proposal No. 2012M-021EN-001; and,

WHEREAS, Omni Nashville, LLC for the hotel Project, plans to install, construct, and maintain aerial encroachments which include a parking garage entry sign (see Exhibit 02, no. 1), four (4) metal accent fins (See Exhibit 02, no. 2), a metal canopy (see Exhibit 02, no. 5) over 4th Avenue South, two (2) metal entry canopies (See Exhibit 02, no. 6) over Korean Veterans Boulevard and five (5) light fixtures (see Exhibit 02, no. 8) and nine (9) metal trellises, (see Exhibit 02, no. 9) above 5th Avenue South as shown on Exhibit 2 under proposal No. 2012M-021EN-001 (see Exhibit L1.011); and,

WHEREAS, Omni Nashville, LLC has agreed to indemnify and hold harmless The Metropolitan Government of Nashville and Davidson County of any and all claims for damages of every nature and kind resulting from or arising out of the installation of said encroachments, under proposal No. 2012M-021EN-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, the Omni Nashville, LLC is hereby granted the privilege to construct and maintain said encroachments under proposal No. 2012M-021EN-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 encroachments, under proposal No. 2012M-021EN-001, shall not be construed as a surrender by the Metropolitan Government of any 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 encroachments under proposal No. 2012M-021EN-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. Installation of the same must be approved by the Director, upon completion.

Section 4. That construction and maintenance of said Omni Nashville, LLC under proposal No. 2012M-021EN-001 shall be under the direction and supervision and control of the Director of Public Works.

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. In the event of such repeal by the Metropolitan Government, Omni Nashville, LLC, its successors, or assigns, shall remove said encroachment at their sole expense.

Section 6. Omni Nashville, LLC, its successors, or assigns shall pay all cost incident to the construction, installation, operation, and maintenance of encroachments under proposal No. 2012M-021EN-001 and shall save and hold harmless the Metropolitan Government of Nashville and Davidson County from any and all suits, costs, claims, damages or judgments in any way connected with the construction, installation, operation and maintenance of said encroachments, 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 it was in prior to the installation of said encroachments, and for any related 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 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.
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Section 8. That said construction shall be carefully guarded and protected, and shall be completed promptly according to a scheduled deadline approved by the Director of Public Works, so as to cause the least inconvenience to the public.

Section 9. 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. The acceptance by Omni Nashville, LLC of all provisions of this Ordinance shall be determined by the beginning of work.

Section 10. This Ordinance shall take effect from and after its adoption, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Erica Gilmore, Jason Potts

Attachment(s) on file in the Metropolitan Clerk's Office

Amendment No. 1
To
Ordinance No. BL2013-343

Madam President:
I move to amend Ordinance, BL2013-343 as follows:

1. By renumbering existing Section 10 as Section 11, renumbering the existing Section 9 as Section 10, and adding the following new Section 9:

Section 9. 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 insured party, of 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.

2. By deleting the phrase “as required in Section 8”, wherein it appears in the newly-renumbered Section 10, and substituting with the phrase “as required in Section 9”.

Sponsored by: Jason Potts

LEGISLATIVE HISTORY
Introduced:	January 8, 2013
Passed First Reading:	January 8, 2013
Referred to:	Planning Commission - Approved Public Works Committee Planning & Zoning Committee
Amended:	January 15, 2013
Passed Second Reading:	January 15, 2013
Passed Third Reading:	February 5, 2013
Approved:	February 12, 2013
By: