ORDINANCE NO. BL2015-1071

An Ordinance authorizing Fountains of Germantown Holdings, LLC to construct and install structural and aerial encroachments at 1401 and 1403 Third Avenue North, 1408 and 1410 Fourth Avenue North and at 302 Taylor Street (Proposal No. 2015M-002EN-001).

WHEREAS: Fountains of Germantown Holdings, LLC plans to construct, install and maintain structural and aerial encroachments for “Fountains of Germantown,” comprised of: (1) a sky bridge encroaching above Alley No. 201; (2) stoops and upper balconies encroaching under, on, and above Taylor Street; and (3) awning/canopies, upper level balconies, and signage encroaching along Third Avenue North, under Proposal No. 2015M-002EN-001, on properties located at 1401 and 1403 Third Avenue North, 1408 and 1410 Fourth Avenue North, and at 302 Taylor Street; zoned Specific Plan and located within the Phillips-Jackson Street Redevelopment District and the Germantown Historic Preservation District; and

WHEREAS: Fountains of Germantown Holdings, 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 from or growing out of the installation of said structural and aerial encroachment under Proposal No. 2015M-002EN-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, and contained herein and in the attached License Agreement, Fountains of Germantown Holdings, LLC is hereby granted the privilege to construct and maintain said structural and aerial encroachments under Proposal No. 2015M-002EN-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 structural and aerial encroachments under Proposal No. 2015M-002EN-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 Fountains of Germantown Holdings, LLC.

SECTION 3. That plans and specifications for said structural and aerial encroachments under Proposal No. 2015M-002EN-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 Fountains of Germantown Holdings, LLC.

SECTION 4. That construction and maintenance of said encroachments by Fountains of Germantown Holdings, LLC under Proposal No. 2015M-002EN-001 shall be under the direction, 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 Fountains of Germantown Holdings, 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, Fountains of Germantown Holdings, LLC, its successors and assigns, shall remove said encroachments at their own expense.

SECTION 6. Fountains of Germantown Holdings, LLC, its successors and assigns, shall pay all costs incident to the construction, installation, operation and maintenance of structural and aerial encroachments under Proposal No. 2015M-002EN-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 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. Fountains of Germantown Holdings, 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 underground encroachments and for any street closure.

SECTION 7. That the authority granted to Fountains of Germantown Holdings 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. Fountains of Germantown Holdings, LLC shall be and 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 encroachments. 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 Fountains of Germantown Holdings, 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.

Sponsored by: Erica Gilmore

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LEGISLATIVE HISTORY
Introduced:	April 7, 2015
Passed First Reading:	April 7, 2015
Referred to:	Planning Commission - Approved Public Works Committee Planning & Zoning Committee
Passed Second Reading:	April 21, 2015
Passed Third Reading:	May 5, 2015
Approved:	May 6, 2015
By: