A resolution authorizing Access Fiber Group, Inc. to install, construct and maintain fiber optic cable as an aerial encroachment along an existing pole line within Davidson County (Proposal No. 2007M-210).

WHEREAS: Access Fiber Group, Inc. plans to install, construct and maintain approximately 26 miles of telecommunications or fiber optic cable as an aerial encroachment, along an existing pole line within Davidson County under Proposal No. 2007M-210 to serve Bank of New York on 420 Woodfolk Avenue; and

WHEREAS: Access Fiber Group, Inc. has represented to The Metropolitan Government of Nashville and Davidson County of Nashville and Davidson County that it will not be offering local telecommunications service as a public utility; and

WHEREAS: Access Fiber Group, Inc. 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 aerial encroachment; and

WHEREAS: Section One to Ordinance 087-1890, allows the Council of The Metropolitan Government of Nashville and Davidson County to grant encroachments, permits, or privileges to construct, maintain and /or operate aerial cables, canopies, etc., over and /or across sidewalks and public rights-of -way by Resolution adopted by twenty –one (21) affirmative votes;

NOW, THEREFORE, BE IT RESOLVED 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 Access Fiber Group, Inc. is hereby granted the privilege to construct and maintain aerial encroachment, 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 route description and sketch which are attached to and made a part of this Resolution.

SECTION 2. That the authority granted hereby for the construction, installation, operation, and maintenance of aerial encroachment under Proposal No. 2007M-210 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 Access Fiber Group, Inc.

SECTION 3. That plans and specifications for aerial encroachment under Proposal No. 2007M-210 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 Access Fiber Group, Inc.

SECTION 4. That construction and maintenance of aerial encroachment under Proposal No. 2007M-210 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 Resolution confers upon Access Fiber Group, Inc. 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, Access Fiber Group, Inc., its successors and assigns, shall remove aerial encroachment at their own expense.

SECTION 6. Access Fiber Group, Inc. shall pay all cost incident to the construction, installation, operation and maintenance of aerial encroachment under Proposal No. 2007M-210 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 aerial 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. Access Fiber Group, Inc. 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 aerial encroachment, and for any street closure.

SECTION 7. That the authority granted to Access Fiber Group, Inc. 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. Access Fiber Group, Inc. shall be and it 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 insured party, of at least three hundred thousand ($300,000) 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 aerial encroachment. Said certificate of insurance shall be filed with the Metropolitan Clerk and the Department of Public Works 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 same shall be completed promptly, so as to cause the least inconvenience to the public. The acceptance by Access Fiber Group, Inc. of all provisions of this Resolution shall be determined by the beginning of work.

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

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

Sponsored by: Walter Hunt, Emily Evans, Frank Harrison, Pam Murray, Mike Jameson, Karen Bennett, Anna Page, Sandra Moore, Keith Durbin, Erica Gilmore

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Amendment No. 1
To
Resolution No. RS2007-64

Madam President:

I move to amend Resolution No. RS2007-64 as follows:
1. By deleting the provisions of Section 1 in their entirety, and substituting in lieu thereof the following new provisions:

“SECTION 1. That subject to the requirements, limitations and conditions, and contained herein and in the attached License Agreement, Access Fiber Group, Inc. is hereby granted the privilege to construct and maintain an aerial encroachment consisting of telecommunications cable solely to serve the Bank of New York facility located at 420 Woodfolk Avenue, 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 route description and sketch which are attached to and made a part of this Resolution.”

2. By amending Section 8 by deleting the phrase “three hundred thousand ($300,000) dollars” and substituting in lieu thereof the phrase “one million dollars ($1,000,000)”.

3. By renumbering Section 11 as Section 12, and by adding the following new Section 11:

“SECTION 11. The provisions of this Ordinance shall only be effective for so long as Access Fiber Group, Inc., does not offer local telecommunications service to retail customers located in Davidson County or solicit businesses located in Davidson County for the purposes of offering local telecommunications service. In the event that Access Fiber Group, Inc., commences to offer local exchange services as defined in Section 6.26.020 of the Metropolitan Code of Laws, Access Fiber Group, Inc., shall request a franchise pursuant to Section 6.26.030 et seq. of the Metropolitan Code of Laws.”

Sponsored by: Walter Hunt

LEGISLATIVE HISTORY
Referred to:	Planning Commission - Approved Public Works Committee Planning & Zoning Committee
Introduced:	November 20, 2007
Deferred to December 18, 2007:	November 20, 2007
Deferred to January 15, 2008	December 18, 2007
Amended:	January 15, 2008
Adopted:	January 15, 2008
Approved:	January 18, 2008
By: