RESOLUTION NO. RS2011-1814

A resolution authorizing Kentucky Data Link, d/b/a Nashville Data Link, Inc., to construct, install and maintain an aerial encroachment along Brick Church Pike and Trinity Lane (Proposal No. 2011M-011EN-001).

WHEREAS, Kentucky Data Link, d/b/a Nashville Data Link, Inc., plans to construct, install and maintain an aerial encroachment starting at the intersection of Brick Church Pike and Trinity Lane, and runs along Trinity Lane until its intersection with Pittway Drive under Proposal No. 2011M-011EN-001; and

WHEREAS, Kentucky Data Link, d/b/a Nashville Data Link, Inc., has represented to The Metropolitan Government of Nashville and Davidson County that it will not be offering local telecommunications service as a public utility; and

WHEREAS, Kentucky Data Link, d/b/a Nashville Data Link, 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 along Brick Church Pike and Trinity Lane under Proposal No. 2011M-01EN-001; and

WHEREAS, Metropolitan Code of Laws 13.16.030(A) 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 contained herein and in the attached License Agreement, Kentucky Data Link, d/b/a Nashville Data Link, Inc., is hereby granted the privilege to construct and maintain said aerial encroachment along Brick Church Pike and Trinity Lane under Proposal No. 2011M-011EN-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 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 for Nashville Data Link under proposal No. 2011M-011EN-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 Nashville Data Link.

SECTION 3. That plans and specifications for said aerial encroachment for Nashville Data Link under Proposal No. 2011M-011EN-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 Nashville Data Link.

SECTION 4. That construction and maintenance of an aerial encroachment for Nashville Data Link under Proposal No. 2011M-011EN-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 Nashville Data Link, 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, Nashville Data Link, its successors and assigns, shall remove said aerial encroachment under Proposal No 2011-011EN-001 at their own expense.

SECTION 6. Nashville Data Link, Inc., its successors and assigns, shall pay all costs incidental to the construction, installation, operation and maintenance of an aerial encroachment under Proposal No. 2011M-011EN-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 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. Nashville Data Link, Inc., 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 aerial encroachment, and for any street closure.

SECTION 7. That the authority granted to Nashville Data Link, 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. Nashville Data Link, Inc., shall be and it is hereby required to furnish The Metropolitan Government of Nashville and Davidson County a certificate of public liability, naming The Metropolitan Government as an insured party of at least one million ($1,000,000) dollars per occurrence 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 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.

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 Kentucky Data Link, d/b/a Nashville Data Link, 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 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: Frank Harrison, Karen Bennett

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LEGISLATIVE HISTORY
Referred to:	Planning Commission - Approved Public Works Committee Planning & Zoning Committee
Introduced:	August 16, 2011
Adopted:	August 16, 2011
Approved:	August 19, 2011
By: