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HomeMy WebLinkAboutResolution - 022775E - Contract-Clark Equipment Co.-Earthmoving_Machiery Testing, Canyon Lakes Project - 02_27_1975II JWF/ RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the MAYOR of the CITY OF LUBBOCK BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract relative to earthmoving and/or earthmoving machinery testing relative to the Canyon Lakes Project (and other areas as agreed) to be entered into by and between said City and Clark Equipment Company, a Delaware Corporation, attached herewith which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 27th day of February , 1975. ROY BA S, MAYOR ATTEST: TREVA=PIIILLIPS, TY SECRETARY -TREASURER APPROVED AS TO FORM: AGREEMENT THE STATE OF`TEXAS X X COUNTY OF LUBBOCK X WHEREAS, the CITY OF LUBBOCK, a Texas Home Rule Municipal Corporation, located in Lubbock County, Texas, hereinafter called "CITY" and CLARK EQUIPMENT COMPANY, a Delaware Corporation with a place of business at Lubbock, Texas, hereinafter called "CLARK" have been engaged in various activities mutually advantageous to both parties as regards to which activities the said parties wish to formalize their contractural responsibilities in writing with respect thereto; NOW THEREFORE: KNOW ALL MEN BY THESE PRESENTS: CITY and CLARK acting by and through their respective under- signed officers hereunto duly authorized do hereby contract and agree as of the 27 day of February . 1975, as follows, to -wit: I. CITY desires to accomplish some earthmoving and other activites in Yellowhouse Canyon in what is sometimes known as the Canyon Lakes Project, and other sites and/or locations which shall be agreed to - in writing signed by CLARK'S Local Lubbock, Texas, Manager of Opera- tions, and the City Manager of the City of Lubbock, and such activitio will be beneficial to the recreation, health and general welfare of the Citizens of Lubbock and visitors in said City and its environs and CLARK is a manufacturer of heavy machinery and/or earthmoving machinery who needs a place and/or means of testing and evaluating its machinery and/or machinery purchased from CLARK by CITY -- which makes it to the mutual advantage and benefit to CLARK and the CITY to formalize a written agreement setting forth the understanding of said parties with reference to this beneficial working arrange- ment heretofore conducted and to be hereafter conducted. II. CLARK proposed to lend and does lend earthmoving machinery to CITY for the purpose of conducting earthmoving operations in Yellowhouse Canyon and other sites and/or locations as agreed to in writing pursuant to Section I hereof, in the City of Lubbock, Tex- as and/or its environs to further the Canyon Lakes Project, and activities at other sites and/or locations as aforesaid, said machinery may be operated by employees of CLARK or may be operated by employees of the City of Lubbock. Sometimes CITY equipment will be used, and may be operated by employees of CLARK or employees of the CITY. For purposes of this agreement and/or working arrangement, employees of CLARK or the CITY will (as between CLARK and the CITY) be considered employees of the employer upon whose payroll the name of each such employee appears. III. The CITY and CLARK shall each be responsible for damage repair and/or maintenance of each piece of machinery owned and furnished by it (respectively) for the carrying -out of these operations, whether such machinery is operated,by a CLARK employee or a CITY employee. OVO It is -agreed and understood that the CITY is as regards workmen's compensation for its employees insured by a private insurance company authorized to do business in Texas, and that CLARK insures its employees as regards workmen's com- pensation insurance with a private insurance company authorized to do business in Texas. V. CITY and CLARK agree to keep and maintain what each deems adequate public liability insurance as regards per- sonal injury or death claims which arise out of the activities conducted hereunder. CLARK and the CITY agree that as be- tween the two of them, each shall respectively not be liable for the negligence of the employees of the other, and that if any liability under a master -servant relationship exists it will only be for.the respective employees of each (that is CLARK or CITY). VI. The consideration for this agreement is the mutual benefits realized by CLARK and the CITY derived herefrom as described in Section I hereof, and -the mutual agreements and covenants made by the parties hereto to be kept and performed. VII. -CLARK and the CITY agree each to furnish such machinery and/or equipment and/or employees for earthmoving and equip- ment and machinery proving and testing as shall be mutually agreeable to each party hereto. VIII. CLARK or the CITY shall not be obligated to obtain public liability insurance covering property damage on activities conducted hereunder. IX. This contract shall be for a term of five (5) years from date hereof unless sooner terminated or cancelled as hereinafter provided. *F This contract may be cancelled and/or terminated by either CLARK or the CITY upon thirty (30) days written notice to such effect to the other party by certified or registered U. S. Mail addressed to CLARK at Clark Equipment Company, P. O. Box 1859, Lubbock, Texas, 79408 or to the CITY at City of Lubbock, P. O. Box 2000, Lubbock, Texas, 79457. XI. It is hereby agreed and stipulated that the parties hereto do not intend to form, and have not formed, a joint venture, general partnership, or a limited partnership. All property of whatsoever kind or nature furnished by CLARK or CITY to further the ends of this working arrangement shall remain. -,.the respective separate property of -the party furnishing -suck. -property, and in no wise -shall any of such property be considered the joint property of CLARK and CITY. No business profits (as such) are expected hereunder arising out of the activities heretofore or to be hereafter engaged in by CLARK and CITY, and each party (CLARK or CITY) is to absorb its own losse's as•regards loss or damages to its re- spectively owned machinery and/or machinery and tort liability .(if any)'for the negligence of its own respective employees. Mutual advantages and benefits received by; CLARK and/or CITY are not to be construed as an agreement to share profits and/or losses hereunder, and CLARK and CITY each retains supervision and control of its own respectively owned property and/or employees. This contract is performable in the City of Lubbock, Lubbock County, Texas, and Texas Law shall apply to the interpretation and/or construction of the terms of the contract and any court or administrative law proceedings wherein any of its provisions or activities thereunder come into question. IN WITNESS WHEREOF, the undersigned parties hereto have .set their respective hands and seals as of the date first above written. CLARK EQUIPMENT COMPANY BY: Its President ATTEST: Secretary I (SEAL) CITY OF LUBBOCK .. &S , BY: ROY BASS, MAYOR , ATTEST: ILI Treva Phillips, Xity Secretary -Treasurer (SEAL) APPROVED AS TO FORM: Fred O. Senter., Jr., ty Attorney THE STATE OF TEXAS X X COUNTY OF X BEFORE ME, the undersigned authority, a Notary Public in and for County, Texas, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same as the act and deed of CLARK EQUIPMENT COMPANY and as its President, for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF 1975. (SEAL) Notary Public, County, Texas THE STATE OF TEXAS X X COUNTY OF LUBBOCK X BEFORE ME, the undersigned authority, a Notary Public in and for Lubbock county, Texas, on this day personally appeared ROY BASS, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he exe- cuted the same as the act and deed of the CITY OF LUBBOCK and as its MAYOR for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , 1975. (SEAL) Notary Public, Lubbock County, Texas