HomeMy WebLinkAbout35242 / 89-507 February 16, 1989 k 507 RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE LOAN AND INDEMNIFICATION AGREEMENT
WITH MERCURY MARINE DIVISION
INITIATED BY: FIRE DEPARTMENT
BE I7 RESOLVED by the Common Counci] of the City of Oshkosh that
the attached Loan and Indemnification Agreement between the Oshkosh Fire
Department and Mercury Marine Division of Brunswick Corporation with
regard to use of a 15 horsepower Mercury outboard motor is hereby approved
and the proper City officials are hereby authorized and directed to enter
into same.
SOBMITTED BY
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'� Res. #507
LOAN AND INDEMNIFICATION AGREEMENT
WHEREAS, the City of Oshkosh Fire Department has
established or wishes to establish the capability of
performing resc�es of persons in distress in water; and
WHEREAS, City of Oshkosh Fire Department has available
to it an inflatable-type craft which is to be powered by an
outboard motor but currently does not have in its possession
an outboard motor to power that craft; and
WHEREAS, the Mercury Marine Division of Brunswick
Cor.poration is willing to make available to the City of
Oshkosh Fire .Department a 15 horsepower Mercury outboard
motor for use as aforesaid;
NOW, THEREFORE, it is agreed by and between the Mercury .
Marine Division of Brunswick Corporation and City of Oshkosh
that:
1. Mercury Marine will make available to the City of
Oshkosh Fire Department a 15 horsepower Mercury
outboard motor as a loaned piece of property, which
motor will remain titled to the Mercury Marine
Division of Brunswick Corporation.
2 . The City of oshkosh agrees to be responsible for
the upkeep and maintenance of that motor in all
� respects and will maintain it in the same condition
as when received, ordinary wear and tear excepted.
3 . It is understood that this motor is loaned only,
and will remain the property of Brunswick
� Corporation as aforesaid. The term of this loan
arrangement will remain open, but the City of
Oshkosh Fire Department will return the motor in
question to Mercury Marine at Mercury Marine's
request upon not less than thirty (30) days notice.
4 . The City of Oshkosh Fire Department recognizes and
agrees that this property is delivered as is and no
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� ' Res. #507
guarantees, warranties or representations written
or oral have been made by Brunswick with regard to
that motor. The City of Oshkosh Fire Department has
examined the motor in question and accepted it in
the condition in which it was delivered.
5. In consideration of the use of the motor the City
of Oshkosh agrees and covenants that it will
indemnify and hold Brunswick � Corporation, its
Mercury Marine Division, and their employees,
servants, officers and agents harmless from any
liability for injury or damage to person or
property of any kind or nature whatever, including
but not limited to any liability which allegedly
arises out of: making that motor available for use
by the City of Oshkosh; acts or omissions which may
occur during the operation or use of that motor by
the City of Oshkosh; the training or knowledge of
the operators or users of that motor; any alleged
defects or deficiencies in the motor. This
indemnity agreement shall be construed in the
broadest possible context such that the City of
Oshkosh will be insulating the Brunswick
Corporation, its Mercury Matine Division, and their
agents, servants, officers and employees from any
liability whatever alleged to have arisen out of
making that motor available to the City of oshkosh
Fire Department.
This agreement shall apply to the claims, demands,
complaints or causes of action asserted by any
person or entity, specifically including but not
limited to the employees, agents, officers or
servants of the City of Oshkosh. The City of
Oshkosh specifically agrees to indemnify and hold
the Brunswick Corporation, its Mercury Marine
Division, their officers, agents, servants and
employees harmless from any assertion of liability
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. Res. #507 � �
alleged to arise out of any acts or omissions of
the Mercury Marine Division of Brunswick
Corporation, its agents, servants, officers or
employees; as well as liability that may arise out.
of the acts or omissions of the City of Oshkosh and
its agents, servants, officers and employees.
6. The City of Oshkosh also agrees to be responsible
for and pay for any damages to the motor in
question of whatsoever kind or nature, regardless
of negligence or fault on the part of the City of
Oshkosh, its agents, servants, officers or
employees, which arises during possession or use of
the motor by the City of oshkosh, its agents,
servants, officers or employees. In the event the
motor is damaged during such use beyond the point
where it can be usefully and economically repaired,
the City of Oshkosh agrees to reimburse Mercury
Marine for the reasonable replacement value of that
motor based on the then existing retail purchase
price of as nearly identical a motor as can be
identified by Mercury Marine and the City of
Oshkosh.
7 . In the event that the Brunswick Corporation
receives any demand, claim, or complaint, or is
made a party to any lawsuit or other proceeding as
a result of making the motor available to the City
of Oshkosh, pursuant to the paragraph numbered 5.
hereof the City of Oshkosh agrees that the defense
or handling of such matter may be immediately
tendered to the City of Oshkosh and the City of
Oshkosh will assume the defense of and hold Mercury
Marine harmless from any court costs, attorneys
fees, expert witness expenses or damages awarded
pursuant to this agreement; and Brunswick
Corporation can immediately interpose this
agreement and enforce its terms so as to be
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, . . Res. #507
insulated from any proceedings or costs incurred
during the defense of such.
The undersigned represents that he is an officer or
employee o£ the City of Oshkosh with the appropriate
authorization to execute this agreement on . behalf of
the City of Oshkosh and the City of Oshkosh Fire Department.
Siqned and sealed this day of , �
1989.
CITY OF OSHKOSH
Signature
Typed William D. Frueh
Title City Manager
Signature: -
Donna C. erwas
City Clerk
Approved as to Form:
Warren P. Kraft, Asst. City Atty.
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