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7.3. SR 04/20/2009REQUEST FOR ACTION To Item Number Ci Council 7 , 3 , Agenda Section Meeting Date Prepared by Administration A ri120, 2009 Ter Maurer, Public Works Director Item Description Reviewed by Equipment Shared Use Agreement Between the City of Elk Lori ohnson, Ci Administrator River and Sherburne County Reviewed by Action Requested The City Council is requested to approve the attached Equipment Shared Use Agreement between the City of Elk River and Sherburne County. Background/Discussion This is the culmination of the discussions between the two Public Works departments regarding the opportunities to share equipment across agency lines, in an effort to make both departments operate most cost effectively. This agreement was modeled after a similar agreement provided by the League of Minnesota Cities. It has been reviewed by City Attorney Peter Beck, the League of Minnesota Cities and the city's insurance agent. Financial Impact There should be no financial impact by the signing of this agreement. Long term, the financial impact may provide a cost efficiency to the Public Works Department, if equipment can be shared with Sherburne County, rather than leasing, renting or purchasing directly. Attachments ° Equipment Shared Use Agreement Action Motion by Second by Vote FOIIOW Up S:\PUBLIC WORKS\Streets Dieision\04 20 09 cc memo equip share.doc EQUIPMENT SHARED USE AGREEMENT THIS AGREEMENT is made this day of April, 2009, by and between the City of Elk River, a Minnesota municipal corporation (the "City") and Sherburne County, Minnesota (the "County") (collectively referred to as the Parties"). "Lending Party" refers to the equipment owner and "Borrowing Party" refers to the party using the equipment. WHEREAS, the Parties believe it is in the best interest of the tax paying public that they share equipment; and WHEREAS, the Parties own and maintain the Equipment identified in Exhibit A ("Equipment") that may benefit both Parties in their operations; and WHEREAS, the Parties are interested in sharing the use of Equipment; and WHEREAS, it is in the best interest of the Parties to approve this Agreement. NOW, THEREFORE, in consideration of the promises contained herein, the Parties hereby agree to the following: SECTION I. TERMS OF AGREEMENT 1. Each Party agrees to loan its Equipment, as identified on Exhibit A, to the other party upon request of that party. 2. The Parties will retain ownership and properly maintain the Equipment they own. 3. Priority for the use of Equipment will be given to the party that owns it, and that party may decline to loan any piece of equipment if it determines that it needs to use the Equipment. 4. The Parties agree to use each other's Equipment in the proper manner. The Parties agree to return Equipment in good and operating condition. The Borrowing Party has the responsibility to cease operation of Equipment immediately if the Equipment does not function properly and shall immediately inform the Lending Party of the situation. 5. No fee shall be paid by the Parties for the use of each other's Equipment. Any Equipment using fuel or other fluids must be returned with the same level of fuel or other fluids that the Equipment had when loaned to the Borrowing Party. 6. If the Equipment is used for a single day, the Equipment will be returned to the Lending Party by the end of the same workday. If the Equipment is used on consecutive days, it does not have to be returned until the use has ended, unless the Lending Party requests that the Equipment be returned at a prior time for its own use. If the Equipment is kept overnight, the Borrowing Party will store the Equipment in a secure manner in its own building. 7. If the Lending Party needs the Equipment for an emergency situation, the Equipment must be returned immediately to the Lending Party. 8. The Parties shall provide training to each other on the safe operation of the Equipment prior to its use. Only staff trained to operate the borrowed Equipment shall operate it. 9. The Borrowing Party shall be responsible for transporting the Equipment to and from the work site unless other arrangements are made. SECTION II. INSURANCE AND LIABILITY 1. Insurance. Each party shall maintain property and liability coverage on the Equipment with its respective provider at statutory limits. 2. Workers' Compensation. Each party shall be responsible for injuries or death of its own personnel while using the Equipment. Each party will maintain workers' compensation insurance or self-insurance coverage, covering its own personnel while they are using any Equipment pursuant to this Agreement. Each party waives the right to sue the other party for any workers' compensation benefits paid to its own employee or their dependents, even if the injuries were caused wholly or partially by the negligence of the other party or its officers, employees, volunteers or agents. 3. Dama eg to Equipment. Each Party shall maintain its own Equipment and be responsible for normal wear and tear to its own Equipment, including normal wear and tear to Equipment incurred while the Equipment is on loan to the other Party. Damage to Equipment beyond normal wear and tear, including damage from misuse, accident, vandalism or otherwise, shall be the responsibility of the Borrowing Party if the damage is incurred while the Equipment is being used by or in the possession of the Borrowing Party. The Lending Party may require the Borrowing Party to have such damage beyond normal wear and tear repaired, or may have the Equipment repaired itself. If the Lending Party has such damage repaired, the Borrowing Party shall reimburse the Lending Party for the Lending Party's out of pocket cost to have the Equipment repaired. 4. Liability. The Borrowing Party agrees to defend and indemnify the Lending Party against any claims brought or actions filed against the Lending Party or any officer, employee, or volunteer of the Lending Party for injury to, death of, or damage to the property of any third person or persons, arising from the performance and sharing of Equipment pursuant to this Agreement. Under no circumstances, however, shall a party be required to pay on behalf of itself and the other party, any amounts in excess of the limits on liability established in Minnesota Statutes, Chapter 466, applicable to any one party. 2 The intent of this subdivision is to impose on each Borrowing Party a limited duty to defend and indemnify a Lending Party for claims arising within the Borrowing Party's jurisdiction subject to the limits of liability under Minnesota Statutes, Chapter 466. The purpose of creating this duty to defend and indemnify is to simplify the defense of claims by eliminating conflicts among defendants, and to permit liability claims against multiple defendants from a single occurrence to be defended by a single attorney. SECTION III. TERMINATION OF AGREEMENT. This Agreement may be terminated by either party by giving seven (7) days written notice to the other party. SECTION IV. GENERAL PROVISIONS 1. Entire Agreement. This Agreement supersedes any prior or contemporaneous representations or agreements, whether written or oral, between the Parties and contains the entire agreement. 2. Amendments. Any modification or amendment to this Agreement shall require a written agreement signed by both Parties. 3. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota. 4. Captions. Captions or headings contained in this Agreement are included for convenience only and form no part of the agreement between the Parties. 5. Waivers. The waiver by either party of any breach or failure to comply with any provision of this Agreement by the other party shall not be construed as, or constitute a continuing waiver of such provision or a waiver of any other breach of or failure to comply with any other provision of this Agreement. 6. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, all of which shall constitute but one and the same instrument. 7. Savings Clause. If any court finds any portion of this Agreement to be contrary to law or invalid, the remainder of the Agreement will remain in full force and effect. IN WITNESS WHEREOF, the Parties, by action of their respective governing bodies, caused this Agreement to be approved. SHERBURNE COUNTY, MINNESOTA BY: AND: Its Chairperson Its Public Works Director CITY OF ELK RIVER, MINNESOTA BY: Its Mayor AND: Its City Clerk 4 EXHIBIT A City of Elk River's Eauipment Sherburne County's Eauipment Jet/Vac Truck Tandem Snow Plow Road Grader Front End Loader Skid Steer Crack Seal Melter Bucket Truck Front End Loader Mini Excavator Shoulder Paving Form Sign Making Equipment Road Grader Maintenance Equipment Lending and Borrowing Form The purpose of this form is to provide written documentation and identification of the equipment being lent and borrowed between the City of Elk River and Sherburne County. The participants' signatures below indicate that the written information provided herein is agreed upon. 1. EQUIPMENT DESCRIPTION Date and time equipment borrowed: Description of equipment borrowed: Date and time equipment returned: Description of the location and how the equipment will be used by the borrower: General description of equipment condition when borrowed: General description of equipment condition when returned: Fuel amount when equipment is issued to borrower: Fuel amount when equipment is returned to lender: RESPONSIBILITIES A. BORROWER The Borrower is responsible for examining the maintenance equipment prior to receiving it from and returning it to Lender. B. LENDER Lender is responsible for examining the maintenance equipment prior to issuing to and receiving it from Borrower. C. SIGNATURES To be completed at the time equipment is both issued and returned. SIGNATURE LENDER ISSUING EQUIPMENT Title: Date: SIGNATURE LENDER RECEIVING EQUIPMENT SIGNATURE BORROWER RECEIVING EQUIPMENT Title: Date: SIGNATURE BORROWER RETURNING EQUIPMENT Title: Date: Title: Date: