RESOLUTION NO. RS2009-724

RESOLUTION NO. RS2009-724

A resolution authorizing Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, to install, construct, and maintain an aerial encroachment at 321 Broadway for Betty Boots (Proposal No. 2009M-006EN-001).

WHEREAS: Ed Smith, lessee, and Lufay Anderson Sweet, II , owner, plans to install, construct, and maintain an aerial encroachment under Proposal No. 2009M-006EN-001 at 321 Broadway for Betty Boots; and

WHEREAS: Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, 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 O87-1890, 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, Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, is hereby granted the privilege to construct and maintain said 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 sketches 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 said aerial encroachment under Proposal No. 2009M-006EN-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 Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, for said aerial encroachment.

SECTION 3. That plans and specifications for aerial encroachment under Proposal No. 2009M-006EN-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 Ed Smith, lessee, and Lufay Anderson Sweet, II, owner.

SECTION 4. That construction and maintenance of aerial encroachment under Proposal No. 2009M-006EN-001 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 Ed Smith, lessee, and Lufay Anderson Sweet, II, owner a privilege and not a franchise, and the Mayor and the Metropolitan Council herein expressly reserve the right to repeal this Resolution, 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, Ed Smith, lessee, and Lufey Anderson Sweet, II, owner, his successors and assigns, shall remove said aerial encroachment at their own expense.

SECTION 6. Ed Smith, lessee, and Lufay Anderson Sweet, II, owner shall pay all cost incident to the construction, installation, operation and maintenance of aerial encroachment under Proposal No. 2009M-006EN-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 said construction, installation, operation and maintenance of said 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. Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, 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 aerial encroachment, and for any street closure.

SECTION 7. That the authority granted to Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, 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. Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, 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 one million ($1,000,000) 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 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 Ed Smith, lessee, and Lufay Anderson Sweet, II, owner, 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 the 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.

LEGISLATIVE HISTORY
Referred to:	Planning Commission - Approved Public Works Committee Planning & Zoning Committee
Introduced:	April 21, 2009
Adopted:	April 21, 2009
Approved:	April 23, 2009
By: